Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-12 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitation "indexing about the" in line 9. There is insufficient antecedent basis for this limitation in the claim.
The term “generally rectangular shape” in claims 5 and 9 is a relative term which renders the claim indefinite. The term “generally rectangular shape” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The shape of.
Claim 6 recites “wherein at least the mark is formed by a finger”, this is unclear. The scope of “at least” cannot be determined as to whether the phrase modifies the mark, the finger, or the number of such structures. Furthermore, claim 1 recites “a single…mark”, it is unclear whether claim 6 allows additional marks or requires a single mark.
Claim 10 recites the limitation "the diameter" in line 10. There is insufficient antecedent basis for this limitation in the claim.
Claims not specifically addressed are included due to their dependencies.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-2 and 11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Evans (GB 1491054 A).
Regarding claim 1, Evans discloses a tube (figure 1) comprising:
a tube head (item 85, figure 4);
and a flexible sleeve (item 50, figure 1);
the head having a main axis intended to contain a liquid or pasty product (page 1, lines 38-47);
comprising an upper wall (item 98, figure 4) and an annular side wall (item 88, figure 4);
a free lower end edge defining a reference plane (item 115, figure 4);
said head comprising a dispensing orifice (item 95, figure 4);
the lower end edge comprising a single projecting or recessed mark for angular indexing about the axis (item 101, figure 4);
a portion of which is offset axially relative to the plane to enable the angular position of the head to be identified in a unique manner about its axis (page 3, lines 18-36);
the tube wherein a lower end portion of the tube head is inserted within the flexible sleeve such that the mark is concealed within the sleeve (figure 8).
Regarding claim 2, Evans discloses the tube wherein the mark is formed by a notch made in the lower end edge of the annular side wall, a bottom of the notch forming the portion which is offset axially upwards with respect to the reference plane (item 101, figure 4).
Regarding claim 11, Evans discloses the tube according to claim 1, wherein the sleeve is fixed directly to the tube head (page 4, lines 44-48).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 3-5, 10 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Evans.
Regarding claim 3, Evans discloses the tube according to claim 2, but is silent on the notch axial height measurement.
However, supplying the notch with an axial height of the order of a millimetre would have been an obvious matter of design choice to a person of ordinary skill in the art, since such a modification would have involved a mere change in the size of a component (see MPEP §2144.04(IV)). A change in size is generally recognized as being within the level of ordinary skill in the art.
Regarding claim 4, Evans discloses the tube according to claim 2, but is silent on the notch width measurement.
However, supplying the notch with a width of the order of a millimetre would have been an obvious matter of design choice to a person of ordinary skill in the art, since such a modification would have involved a mere change in the size of a component (see MPEP §2144.04(IV)). A change in size is generally recognized as being within the level of ordinary skill in the art.
Regarding claim 5, Evans discloses the tube according to claim 2, but is silent on the explicit notch shape.
However, supplying the notch with a generally rectangular shape would have been an obvious matter of design choice to a person of ordinary skill in the art, since such a modification would have involved a mere change in the shape of a component (see MPEP §2144.04 (IV)). A change in shape is generally recognized as being within the level of ordinary skill in the art.
Regarding claim 10, Evans discloses the tube according to claim 1, but is silent on the diameter of the tube head.
However, supplying the tube head with a diameter between 20 and 60 mm would have been an obvious matter of design choice to a person of ordinary skill in the art, since such a modification would have involved a mere change in the size of a component (see MPEP §2144.04(IV)). A change in size is generally recognized as being within the level of ordinary skill in the art.
Regarding claim 12, Evans discloses the tube according to claim 11, but does not teach the tube comprising at least 50% by mass of paper.
However, it would have been obvious to one having ordinary skill in the art at the time the invention was made to have the tube comprising at least 50% by mass of paper, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice.
Claims 6-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Evans in view of Borger (US 2006/0273063 A1).
Regarding claim 6, Evans discloses the tube according to claim 1, but does not teach the mark is formed by a finger.
However, Borger teaches a head (item 212, figure 7) for a container (item 210, figure 7; ¶[0032]);
wherein the mark (item 240, figure 7) is formed by a finger (item 247, figure 7) which extends the annular side wall axially downwards below the reference plane, the lower end of the finger forming the portion which is offset axially downwards with respect to the reference plane (figure 7; ¶[0032]).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to have substitute the notch mark of Evans with the finger mark as taught by Borger to angularly index a container head about the container axis. Borger teaches that the orientation mark may be embodied interchangeably as a recess or protrusion (item 351, figure 8 reversed as item 247, figure 7). A simple substitution of one known orientation structure for another yielding predictable results (see MPEP §2144.04).
Regarding claim 7, Evans as modified discloses the tube according to claim 6, but is silent on the finger axial height measurement.
However, supplying the finger with an axial height of the order of a millimetre would have been an obvious matter of design choice to a person of ordinary skill in the art, since such a modification would have involved a mere change in the size of a component (see MPEP §2144.04(IV)). A change in size is generally recognized as being within the level of ordinary skill in the art.
Regarding claim 8, Evans as modified discloses the tube according to claim 6, but is silent on the finger width measurement.
However, supplying the finger with a width of the order of a millimetre would have been an obvious matter of design choice to a person of ordinary skill in the art, since such a modification would have involved a mere change in the size of a component (see MPEP §2144.04(IV)). A change in size is generally recognized as being within the level of ordinary skill in the art.
Regarding claim 9, Evans as modified discloses the tube according to claim 6, but is silent on the explicit finger shape.
However, supplying the finger with a generally rectangular shape would have been an obvious matter of design choice to a person of ordinary skill in the art, since such a modification would have involved a mere change in the shape of a component (see MPEP §2144.04(IV)). A change in shape is generally recognized as being within the level of ordinary skill in the art.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The prior art cited on PTO-892 disclose subject matter related to various types of dispensing heads which are related to the instant invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NOAH J ARIF whose telephone number is (571)272-9620. The examiner can normally be reached 9am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Paul R Durand can be reached at (571)272-4459. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/NOAH JACOB ARIF/Examiner, Art Unit 3754
/PAUL R DURAND/Supervisory Patent Examiner, Art Unit 3754 July 24, 2026
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