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 .
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.
Specification
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: the term “ratio” in claims 9, 10, and 17 is not found in the specification.
Appropriate correction is required.
Election/Restrictions
Examiner telephoned to request an election of Species. However, in light of the interview on 4 June 2026, it is understood that all claims were intended to claim the embodiment of Figs. 18-37 where the slot is in the top wall, not in a separate lid. As discussed in the interview, instances of “lid” were deleted for the purpose of examination. With this in mind, all claims are now directed to the embodiment with the slot in the top surface, not in a separate lid.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12 , 14, 15, 16, 17, and 18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, respectively, and respectively (bold claim numbers are of the instant application): 12 to 1 and 7; 14 to 1, 2, 7; 15 to 1, 3, 7; 16 to 1 and 7; 17 to 1, 7, 9; 18 to 1, 7, 10 of U.S. Patent No. 10,377,559. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the instant application include the term “inner edge” which the slots of the patented application do not include but inherently have within the walls defining the slot.
Instant Application: 19/183,158
U.S. Patent No. 10,377,559
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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.
Claim 9, 10, 12-18 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 12 recites the limitation "the inner edge" in the last clause. There is insufficient antecedent basis for this limitation in the claim.
Claims 13, 14, 16, 17, recite the limitation "the slot" in line 1. There is insufficient antecedent basis for this limitation in the claim. As noted in the attached interview summary, the last clause of claim 12 is interpreted as describing the slot, appropriate correction is required.
Regarding claims 9, 10, and 17, the term “approximately” is indefinite because applicant does not indicate what range or tolerance would satisfy “approximately.”
The claims not addressed above are rejected since they depend from a rejected claim.
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.
(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.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1, 4-7, 9, 10 are rejected under 35 U.S.C. 102(a)(1) as anticipated by Lax et al. (US 4865208) or, in the alternative, under 35 U.S.C. 103 as obvious over Lax et al. (US 4865208) in view of Hradisky et al. (US 2013/0074456); and
Claim(s) 1-5, and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Lax et al. (US 4865208) in view of Hradisky et al. (US 2013/0074456).
Regarding claim 1, Lax discloses a holder for a bottle with a neck and fully capable of holding a squeeze pouch including a flexible portion containing a food or beverage, the holder comprising:
as seen in fig. 2, one single continuous side wall at 16 including an aperture 22, wherein the side wall is fully capable of surrounding a circumference of the flexible portion of the squeeze pouch when a squeeze pouch is contained in the holder to protect the flexible portion of the squeeze pouch from pressure;
a top wall 28 including a slot contiguous with the aperture 24G, fig. 3(a), wherein the slot is adapted to receive a spout of a bottle and is fully capable of receiving the spout or neck of a squeeze pouch,
said top wall having an inner edge, not numbered, best seen in fig. 3(c) which defines a boundary of the slot, wherein the inner edge of the top wall comprises a first wall, a second wall opposite to the first wall (the first and second walls are at ends of R2 call out line), and
a back wall (curved portion adjacent to a handle at 50) extending between the first wall and the second wall, and wherein a first portion of the slot has a first width (widest part of the curved opening 24G), and a second portion of the slot has a second width (the portion where the two openings, 22 and 24G, meet, fig. 3(a)), the first width being greater than the second width; and
a base at 36 comprising a base aperture (the bottom is open),
wherein, fig. 5, the base aperture is fully capable of allowing a squeeze pouch to be fully inserted into the holder through the base aperture, before the food or beverage in the squeeze pouch is consumed, such that the spout of the squeeze pouch may be received by the slot of the top wall;
wherein a length of the aperture, fig. 2 and 5, is less than half of a length of the side wall from the top wall to the base.
Because it may be determined that Lax does not teach a slot having two opposing side walls and a back wall, due to the curvature of the slot and the walls not being discrete, the following reference is applied in order further prosecution.
Hradisky is analogous art in regard to slots for holding the neck of a container.
Hradisky teaches a holder 40 for a flexible food pouch 12, fig. 1. The neck of the food pouches at 16, fig. 3 and inserted into slots 58 in the top part of the holder that include, as seen in fig. 4 of Hradisky, a curved tapered first portion in front of 60/62, two inward protrusions at 64/66 to form a snap fit and a flat back wall below reference character 68, fig. 4 of Hradisky.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the shape of the neck holding slot of Lax to have the known slot shape for securing the neck of a container that includes two flat opposing side walls and a flat back wall and a wider tapered opening portion in the slot in order to prevent a spout with flat sides (reference fig. 12 of Hradisky) from rotating unintentionally within the slot and in order to provide a holding means that guides the spout into the slot while still retaining the spout via snap-fit protrusions with the same reasonable expectation of laterally securing the neck of a container within the slot of a holder for said container.
Regarding claims 2-3, Lax as modified above further discloses, see annotated fig. 4 of Hradisky:
that the first portion of the slot tapers inwardly as it extends from the side wall toward the center of the top wall, and the second width of the second portion of the slot is substantially constant along a length of the second portion of the slot.
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Regarding claim 4, Lax discloses a handle 50 extending from an exterior surface of the side wall.
Regarding claim 5, Lax discloses that a widest point of the aperture is greater than a second width of the second portion of the slot, fig. 2 and 3(a).
Regarding claims 6 and 7 as seen in fig. 4 and 6, Lax discloses the holder is substantially rigid and is made in one-piece.
Regarding claim 9, Lax further discloses that an aperture width is between approximately 1.0 inches and 1.75 inches, col. 4: 56-58: 1.055 inches.
Regarding claim 10, Lax discloses a width of the second portion of the slot at the back wall as : 1.055 inches, col. 4: 56-58 and a width of the skirt/holder width as 4.657 inches, col. 7: 40-45. The ratio of these widths is slightly less than 3:13 which is understood to be approximate to a ratio of 2:13 as the difference between 2:13 and 3:13 is only about 7 hundredths (a difference of 0.072). With this in mind, Lax meets the claimed ratio limitation.
Regarding claim 11, the references applied above teach all of claim 1, as applied above. Hradisky further teaches that the slot includes opposing inward projections 64 and 66, fig. 4, in order to snap fit the spout within the slot 58, [0030] near the bottom of page 2.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the slot of Lax or Lax in view of Hradisky to include opposing inwardly pointed projections on opposing walls of the slot in order to snap fit the spout within the slot as per the teaching of Hradisky.
Claim(s) 1, 8, 12-18 are rejected under 35 U.S.C. 103 as being unpatentable over Bassi (US 2015/0090622) in view of Ichikawa et al. (US 5579945)
Regarding claim 1, 8, 12, 16, Bassi discloses a holder for a squeeze pouch [0001], including a flexible portion containing a food or beverage, the holder comprising [0021-0022]:
a housing 13 comprising one single continuous side wall, wherein the side wall surrounds a circumference of the flexible portion of the squeeze pouch when the squeeze pouch is contained in the holder to protect the flexible portion of the squeeze pouch from pressure, [0004],
said housing having a top end and a base, the base comprising a base aperture [0022], wherein the base aperture is adapted to allow the squeeze pouch to be fully inserted into the holder through the base aperture before the food or beverage in the squeeze pouch is consumed; and
a removable bottom wall 15 adapted to be secured to the base of the housing,
wherein the inner edge of the top wall comprises a first wall, a second wall opposite to the first wall, and a back wall extending between the first wall and the second wall.
Bassi does not disclose any particulars of the top wall or a top wall inner edge and discloses no means for holding the spout of the flexible container other than “…an opening whereby nipple of foodstuff pouch may be visible and dispensable to user.” [0022].
Ichikawa is analogous art in regard to holders for flexible pouches and teaches, fig. 5A, a holder, outer housing 41, a flexible container 1, a top wall 45 having a guide notch 48, a pair of inwardly projecting stoppers, 50, on opposing sides of the guide notch, col. 6: 50-end. At arrow 47 in fig. 5A, the first portion of the slot includes a tapered section followed by a section having a constant width and a back wall.
Ichikawa further teaches that a side wall of the holder includes a slot – side opening at 47. The side opening allows the mouth 11 of the container 1 to be inserted into the guide notch that secures the mouth, col. 7:30-55 of Ichikawa. The side wall slot of Ichikawa has a width that is larger than a top wall slot width, fig. 5A.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the top wall of the holder of Bassi to include a slot means for securing the neck of a flexible pouch and modify the side wall of Bassi to include an opening that will allow the mouth of the flexible container to be inserted into the top wall slot as per the teaching of Ichikawa.
Regarding claim 13, Bassi as modified above includes a slot portion with a substantially constant width, fig. 5A of Ichikawa.
Regarding claim 14, a portion of the slot of Bassi as modified above by Ichikawa tapers inwardly as it extends from the lid side wall toward the center of the top wall, see annotated fig. 5A of Ichikawa.
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Regarding claim 15, fig. 5 and 6, Bassi discloses a handle 17 extending from an exterior surface of the side wall.
Regarding claim 17, Neither Bassi or Ichikawa disclose any particular dimensions. The specification of the instant invention makes no mention of “ratio” holder of claim 12, and discloses the dimensions as “examples only” page 37: 9-10. Furthermore, no bounds are given for the term “approximately.”
With this in mind, it would have been obvious matter of design choice to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the relative dimensions of the slot and housing width such that a ratio of the widths is in a range from approximately 1:13 to 2:13 or other ratios as required by container dimensions the designer intends to place within the holder with the same expectations of allowing the holder slot to securely hold the spout of the container while allowing the container to fit within the housing. See MPEP 2411 .04, Section IV. Part A.
Regarding claim 18, Bassi as modified above includes a first projection 50 extends inwardly from the first wall of the inner edge, and a second projection 50 extends inwardly from the second wall of the inner edge toward the first projection for securing the neck of a flexible pouch, fig. 5A, col. 7: 30-45 of Ichikawa.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MOLLIE L IMPINK whose telephone number is (571)270-1705. The examiner can normally be reached Monday-Friday (7:30-3:30).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anthony Stashick can be reached at (571) 272-4561. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MOLLIE IMPINK/Primary Examiner, Art Unit 3799
MOLLIE LLEWELLYN IMPINK
Primary Examiner
Art Unit 3799
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