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 .
Claim Objections
Claim 17 is objected to because of the following informalities: In line 2, “formula” should be --the powdered formula--.
Claim 20 is objected to because of the following informalities: In line 1, “the powdered infant formula” should be --the powdered formula--.
Claim 22 is objected to because of the following informalities: In lines 1-2, “infant formula” should be --the powdered formula--.
Appropriate correction is required.
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 12, 15-18, 20, 22, 25, 27 and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Bates (WO 2016/151519 A1) in view of Estrada (US 8,820,549 B1), Deng (WO 2021/171190 A1) and Manning (WO 2007/086969 A2).
Regarding claim 12, Bates teaches pre-filled, dual-compartment pouch comprising:
a first compartment (60) pre-filled with a volume of water (104) (page 8 line 18-page 9 line 24);
a second compartment (58) pre-filled with a volume of powdered formula (100) (page 8 line 18-page 9 line 24);
a frangible seal (56) separating the first compartment and the second compartment (Fig. 4-11) and configured to rupture upon pressure applied to the first compartment or the second compartment, enabling the powdered formula of the second compartment to mix with the water of the first compartment (page 8 lines 29-33, page 14 line 33-page 15 line 2, page 16 lines 17-22);
a nipple (22) sealed with a tamper-evident cap (24) attached to the top compartment (Fig. 1-11) (page 8 line 18-page 9 line 24) (page 8 lines 29-33, page 14 line 1-page 15 line 2, page 17 lines 16-22) (page 11 line 30-page 17 line 25 and Fig. 1-11).
Bates fails to teach the frangible seal being a frangible heat seal that ruptures in a clean break. Deng teaches a container having an analogous frangible seal and further teaches that it is known and desirable in the prior art to provide and configure the materials and the frangible seal such that the frangible seal is a heat seal that ruptures in a clean break in order to avoid the possibility of contaminating the contents of the container and/or to avoid the impression that the contents of the container are contaminated (page 2 lines 12-18).
Accordingly, one having ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious to modify Bates by configuring the materials and the frangible seal of the pouch such that the frangible seal is a heat seal that ruptures in a clean break upon applied pressure, as taught by Deng, in order to avoid the possibility of contaminating the contents of the pouch and/or to avoid the impression that the contents of the pouch are contaminated.
Bates also fails to teach the first compartment and the second compartment being constructed out of a laminated film that includes and aluminum foil layer positioned so as to create a moisture and light barrier. Estrada teaches an analogous pre-filled, dual-compartment pouch comprising a first (12) and second (14) compartment separated by a frangible seal (16). Estrada further teaches that it is desirable to form the pouch of a laminate including an outer surface of foil in order to create a moisture barrier and protect against direct sunlight to the contents of the pouch (column 2 lines 47-54, column 4 lines 45-56).
Accordingly, one having ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious to modify Bates by forming the pouch of a laminate including an outer surface of foil, as taught by Estrada, in order to create a moisture barrier and protect against direct sunlight to the contents of the pouch.
Bates also fails to teach the first and second compartments being flushed with nitrogen prior to sealing, such that an interior environment of the first and second compartments are substantially free of oxygen and air. Manning teaches an analogous disposable, single-use infant feeing pouch and further teaches that it is known and desirable in the prior art to inject nitrogen gas into the pouch to displace moisture and oxygen so as to prolong the shelf life of the pouch (page 4 lines 19-22, page 7 lines 16-19).
Accordingly, one having ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious to modify Bates by flushing both the bottom and top compartments with nitrogen prior to sealing, such that the interior environment is substantially free of oxygen and air, as taught by Manning, in order to prolong the shelf life of the pouch.
Regarding claim 15, Bates as modified by Estrada, Deng and Manning teaches the pouch of claim 12 above, wherein the nipple is concealed beneath the tamper evident cap until ready for use (Bates: page 15 lines 24-27, page 16 lines 16-22).
Regarding claim 16, Bates as modified by Estrada, Deng and Manning teaches the pouch of claim 12 above, wherein the second compartment is squeezable to initiate mixing by rupturing the frangible seal (Bates: page 8 lines 29-33, page 16 lines 17-22).
Regarding claim 17, Bates as modified by Estrada, Deng and Manning teaches the pouch of claim 12 above, wherein the nipple and cap configuration prevents the powdered formula from flowing until the tamper-evident cap is removed by the user (Bates: page 15 lines 24-27, page 16 lines 16-22).
Regarding claim 18, Bates as modified by Estrada, Deng and Manning teaches the pouch of claim 12 above, wherein the pouch is a disposable, single-use container (Bates: page 1 lines 12-30, page 2 line 13-page 10 line 11, page 11 line 30-page 17 line 25).
Regarding claim 20, Bates as modified by Estrada, Deng and Manning teaches the pouch of claim 12 above, wherein the powdered formula remains completely dry and uncontaminated until the user initiates mixing by squeezing the first compartment or the second compartment (Bates: page 2 line 13-page 10 line 11, page 11 line 30-page 17 line 25).
Regarding claim 22, Bates as modified by Estrada, Deng and Manning teaches the pouch of claim 12 above, wherein the pouch is pre-filled with the powdered formula prior to distribution and sealed in a manner that maintains sanitation and shelf stability (page 2 line 13-page 10 line 11, page 11 line 30-page 17 line 25).
Regarding claim 25, Bates as modified by Estrada, Deng and Manning teaches the pouch of claim 12 above, wherein the user initiates mixing without the need to open the pouch or add any additional powder or water (Bates: page 14 line 32-page 16 line 22).
Regarding claim 27, Bates as modified by Estrada, Deng and Manning teaches the pouch of claim 12 above, wherein the pouch is manufactured using an automated process that includes separate or multi-stage filling and sealing for the first and second compartments, with separate valves (102, 106) at a shared or different stations on the machine (Bates: page 15 lines 4-16, page 15 line 33-page 16 line 15).
It should, however, be noted that method limitations in a product claim do not serve to patentably distinguish the claimed product from the prior art. See In re Thorpe, 777 F.2d 695, 227 USPQ 964 (Fed. Cir. 1985). Thus, even though a product-by-process claim is limited and defined by a process, determination of patentability is based on the product itself. Accordingly, if the product in a product-by-process claim is the same or obvious from a product of the prior art, the claim is unpatentable even though the prior art product was made by a different process. Thorpe, 777 F.2d at 697, 227 USPQ at 966; In re Marosi, 710 F2.d 799, 218 USPQ 289 (Fed. Cir. 1983).
Regarding claim 29, Bates as modified by Estrada, Deng and Manning teaches the pouch of claim 12 above, wherein the pouch is fully sanitary and sterile upon final sealing and eliminates cross-contamination risk by pre-filling all ingredients without user involvement (Bates: page 7 line 4-page 10 line 11, page 11 line 30-page 17 line 25).
Claim 30 is rejected under 35 U.S.C. 103 as being unpatentable over Bates in view of Estrada, Deng and Manning, as applied to claim 12 above, and further in view of Kane et al. (US 2007/0278114 A1, hereinafter Kane).
Regarding claim 30, Bates as modified by Estrada, Deng and Manning teaches the pouch of claim 12 above, but fails to teach the frangible seal being configured to rupture only when pressure exceeds a defined threshold required for mixing. Kane teaches an analogous pouch with two compartments separated by a frangible seal and further teaches that it is known and desirable in the prior art to configure the frangible seal to rupture only when pressure exceeds a defined threshold and to configure the seal to resist unintentional rupture from incidental pressure such as packing or transport (paragraph 35).
Accordingly, one having ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious to modify Bates by configuring the frangible seal to rupture only when pressure exceeds a defined threshold required for mixing, as taught by Kane, in order to ensure the compartments and products remain separate prior to intended mixing and use.
Response to Arguments
Applicant's arguments filed on May 26, 2026 has been fully considered but they are not persuasive.
Applicant's arguments do not comply with 37 CFR 1.111(c) because they do not clearly point out the patentable novelty which he or she thinks the claims present in view of the state of the art disclosed by the references cited or the objections made.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NINA KAY ATTEL whose telephone number is (571)270-3972. The examiner can normally be reached Monday-Friday 7AM-4PM EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nathan Newhouse can be reached at 571-272-4544. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/NINA K ATTEL/Examiner, Art Unit 3734
/NATHAN J NEWHOUSE/Supervisory Patent Examiner, Art Unit 3734
Prosecution Insights