DETAILED ACTION
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 .
Election of Species
Applicant’s election without traverse of Species I in the reply filed on 9/14/26 is acknowledged. Claims 1-14 are considered to read on elected Species I and will be examined herein with claims 15-20 being withdrawn from further consideration.
Drawings
The drawings are objected to because:
In Figures 7B, 7C and 7D, reference character 720 should be 722 (see Figure 7A, currently there is no reference character 720 in the specification.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The disclosure is objected to because of the following informalities:
In paragraph 0035, on line 2, “protective case 200” should be “protective case 100”;
In paragraph 0038, on line 11, “cap 400” should be “cap 300”;
In paragraph 0039, on line 5, “slide 410” should be “slider 410”;
In paragraph 0041, on line 5, “sleeve 600” should be “sleeve 500”;
In paragraph 0042, on lines 4-5, “casing 510” should be “casing 512”; and
In paragraph 0043, on line 6, “container 512” should be “container 200”.
Appropriate correction is required.
Claim Objections
Claims 4, 5, 9, 11 and 14 objected to because of the following informalities:
In regard to claim 4, it is unclear as to whether or not the cylindrical container is intended to be part of the claimed combination, i.e., the language “for protecting a cylindrical container” (see claim 1, line 1) indicates the cylindrical container is not part of the claimed combination, however, the language “a slider that is in contact with the cylindrical container” (see claim 4, lines 1-2) seems to indicate the cylindrical container is intended to be part of the claimed combination. Should the Applicant intend to claim the cylindrical container, an antecedent basis should therefor be defined. Should the Applicant not intend to claim the cylindrical container, “adapted to be” / “for” language should be used when referring thereto. For the purposes of examination, the cylindrical container will be considered not part of the claimed combination.
In regard to claim 5, it is unclear as to whether or not the cylindrical container is intended to be part of the claimed combination, i.e., the language “for protecting a cylindrical container” (see claim 1, line 1) indicates the cylindrical container is not part of the claimed combination, however, the language of claim 5 seems to indicate the cylindrical container is intended to be part of the claimed combination. Should the Applicant intend to claim the cylindrical container, an antecedent basis should therefor be defined. Should the Applicant not intend to claim the cylindrical container, “adapted to be” / “for” language should be used when referring thereto. For the purposes of examination, the cylindrical container will be considered not part of the claimed combination.
In regard to claims 9 and 14, similarly, it is unclear as to whether or not the cylindrical container is intended to be part of the claimed combination.
In regard to claim 11, on line 2, “a” should be “the” since the cylindrical container has already been recited in claim 10 (see line 1).
Appropriate correction is required.
Claim Rejections - 35 USC § 102
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.
Claims 1, 2, 4, 5, 10-12 and 14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Noyack (U.S. Patent 2,168,876).
In regard to claim 1, the Noyack reference discloses a protective case 1 for protecting a cylindrical container 3 comprising:
a first end (at the upper open end of the case) and second end (at the lower closed end of the case);
a first opening (at the first end) for receiving the cylindrical container;
a bottom portion (at the second end) on an opposite end of the first opening; and
a second opening 4 perpendicular to the first opening wherein the second opening is configured to provide access to the cylindrical container while the cylindrical container is enveloped by the protective case. It is noted statements of intended use, such as “configured to provide access to a wheel of the cylindrical container” do not lend any patentable structure to the claim since the cylindrical container (and the wheel thereon) are considered not part of the claimed combination. Further, the protective casing 1 is capable of receiving a cylindrical container having a wheel wherein the wheel would be accessible via the second opening 4.
In regard to claim 2, the second opening 4 extends between the first end and the second end and the second opening is configured to allow an outside force to slidably engage the cylindrical container while the cylindrical container is enveloped by the protective case.
In regard to claim 4, the Noyack device include a slider 5 that is in contact with the cylindrical container while the cylindrical container is enveloped by the protective case wherein the slider extends outward from the second opening and is adapted to vertically move the cylindrical container.
In regard to claim 5, the cylindrical container 3 is a lipstick container (see page 1, lines 1-3).
In regard to claim 10, the Noyack reference discloses a protective case comprising:
a protective sleeve 1 having a first end (at the upper open end thereof) and second end (at the lower closed end thereof);
a first opening (at the first end);
a bottom portion (at the second end) on an opposite end of the first opening; and
a second opening 4 perpendicular to the first opening; and
a slide casing 3 having a slider 5 extending radially from a side wall of the slide casing wherein the slide casing is adapted to be disposed in the protective sleeve and the slider is adapted to be slidably disposed in the second opening.
It is noted statements of intended use, i.e., “for protecting a cylindrical container” do not lend any patentable structure to the claims. Further, the Noyack device is capable of protecting a cylindrical container should a user so choose to employ the device.
In regard to claim 11, the slide casing 3 is “adapted to partially surround a cylindrical container and to retain the cylindrical container in the slide caseing”, i.e., as discussed above, the cylindrical container is considered not to be part of the claimed combination and further, the Noyack device is capable of surrounding and retaining a cylindrical container as claimed.
In regard to claim 12, the slide casing 3 is slidably coupled to the protective sleeve 1.
In regard to claim 14, since the cylindrical container is considered not part of the claimed combination, further limiting the cylindrical container to be a lip balm container, sunblock container, etc., does not impart any additional structural limitations to the claims.
Claim Rejections - 35 USC § 103
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 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Noyack.
In regard to claim 3, although the protective case one or more flanges for providing resistance against movement of the cylindrical container 3, the examiner takes official notice that such tubular sliding elements are commonly equipped with flanges in order to enable the elements to smoothly move with respect to each other while limiting lateral movement of the inner element with respect to the outer element. Accordingly, it would have been obvious to one of ordinary skill in the art at the time the invention was made the case 1 in Noyack device can include such flanges in order to enable the cylindrical container to smoothly move within the case 1 while limiting lateral movement of the cylindrical container with respect to the case 1.
In regard to claim 13, the slide casing 3 includes an aperture 11 in the side wall. Although the slide casing does not include a plural number of apertures, as claimed, it is the examiner’s position it would have been obvious to one of ordinary skill in the art at the time the invention was made the case 1 can include a second opening 4 and the casing 3 can include a second slider 5, which would create a second aperture 11 since it has been held that the mere duplication of the essential working parts of a device involves only routine skill in the art. See St. Regis Paper Co. v. Bemis Co., 193 USPQ 8.
Allowable Subject Matter
Claims 6-9 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The Riley reference is cited as being directed to the state of the art as a teaching of a protective case for a cylindrical container wherein the container has a dispensing wheel at the lower end thereof.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID J WALCZAK whose telephone number is (571)272-4895. The examiner can normally be reached Monday-Friday 6:30-4:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Angwin can be reached at 571-270-3735. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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DJW
9/21/26
/DAVID J WALCZAK/ Primary Examiner, Art Unit 3754
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