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 § 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 1-4, 6-9 and 11-15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Gustafson et al. (US D634,626).
Regarding claims 1, 11 and 13, Gustafson discloses an oral care tray (See toothbrush package shown in Figs. 1-7) holding an oral care device (toothbrush), the tray comprising: a first top surface (See Fig. 4 labeled below) having a portion positioned on a first plane (plane running down the left side of Fig. 4); a first compartment (See Fig. 4 labeled below) having a first bottom surface (See Fig. 4 labeled below), the first bottom surface having a portion positioned on a second plane (flat plane running vertically along the first bottom surface labeled in Fig. 4 below) parallel to the first plane, the second plane separated from the first plane by a first vertical distance (distance between the first top surface and the first bottom surface labeled in Fig. 4 below); a second compartment (See Fig. 4 labeled below) having a second bottom surface (See Fig. 4 labeled below), the second bottom surface having a portion positioned on a third plane (flat plane running vertically along the second bottom surface labeled in Fig. 4 below) parallel to the first plane, the third plane separated from the second plane by a second vertical distance (distance between the first top surface and the second bottom surface labeled in Fig. 4 below), the second vertical distance being less than the first vertical distance (See Fig. 4 labeled below and also Fig. 6); and a divider (See Fig. 4 labeled below) separating the first compartment and the second compartment, the divider including a second top surface (See Fig. 4 labeled below), the divider extending from the first bottom surface and the second bottom surface toward the first top surface.
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Regarding claim 2, Gustafson discloses the first bottom surface has a first width (at W1 labeled in Fig. 1 below), and the second bottom surface has a second width (at W2 labeled in Fig. 1 below), the first width and the second width are equal (as shown in Fig. 1 labeled below).
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Regarding claim 3, Gustafson discloses the first bottom surface has a first width (at W1 labeled in Fig. 1 below), and the second bottom surface has a second width (at W2 labeled in Fig. 1 below), the first width and the second width being unequal (as shown in Fig. 1 labeled below).
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Regarding claims 4 and 14-15, Gustafson discloses the first bottom surface extends a first longitudinal distance and the second bottom surface extends a second longitudinal distance, the first longitudinal distance being greater than the second longitudinal distance (See Fig. 4 labeled below).
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Regarding claim 6, Gustafson discloses the divider is bound by a first sidewall and a second sidewall, the first sidewall coupling the first bottom surface with the divider via a first connection edge, and the second sidewall coupling the second bottom surface with the divider via a second connection edge (See Fig. 1 labeled below).
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Regarding claim 7, Gustafson discloses the first sidewall is substantially perpendicular relative to the first bottom surface (See Fig. 1 above and Fig. 4).
Regarding claim 8, Gustafson discloses the second sidewall is angled at an angle greater than 90 degrees relative to the second bottom surface (See Fig. 1 above and Fig. 4).
Regarding claim 9, Gustafson discloses the first sidewall and the second sidewall are spaced apart such that the divider includes a thickness defining the second top surface.
Regarding claim 12, Gustafson discloses the first compartment is configured to receive a first portion of the oral care device and the divider is configured to engage a second portion the oral care device, such that when the oral care device is received by the first compartment a head of the oral care device is held above the second bottom surface of the second compartment.
Claims 1, 3, 4 and 6-16 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Moskovich et al. (US 2014/0339111).
Regarding claims 1, 11 and 13, Moskovich discloses an oral care tray (See toothbrush package shown in Fig. 3) holding an oral care device (toothbrush at 20), the tray comprising: a first top surface (See Fig. 3 labeled below) having a portion positioned on a first plane; a first compartment (See Fig. 3 labeled below) having a first bottom surface (flat bottom surface at the bottom of the first compartment – See Fig. 3 labeled below), the first bottom surface having a portion positioned on a second plane (flat plane running along the first bottom surface labeled in Fig. 3 below) parallel to the first plane, the second plane separated from the first plane by a first vertical distance (distance between the first top surface and the first bottom surface labeled in Fig. 3 below); a second compartment (See Fig. 3 labeled below) having a second bottom surface (flat bottom surface at 153 at the bottom of the second compartment – See Fig. 3 labeled below), the second bottom surface having a portion positioned on a third plane (flat plane running along the second bottom surface labeled in Fig. 3 below) parallel to the first plane, the third plane separated from the second plane by a second vertical distance (distance between the first top surface and the second bottom surface labeled in Fig. 3 below), the second vertical distance being less than the first vertical distance (the distance between the first top surface and 153 is less than the distance between the first top surface and the flat bottom surface of 144 - See Fig. 3 labeled below); and a divider (tray portion between the first and second compartments in Fig. 3) separating the first compartment and the second compartment, the divider including a second top surface (at 142 in Fig. 3), the divider extending from the first bottom surface and the second bottom surface toward the first top surface.
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Regarding claim 3, Moskovich discloses the first bottom surface has a first width, and the second bottom surface has a second width, the first width and the second width being unequal (as shown in Fig. 3).
Regarding claims 4 and 14-15, Moskovich discloses the first bottom surface extends a first longitudinal distance and the second bottom surface extends a second longitudinal distance, the first longitudinal distance being greater than the second longitudinal distance (as shown in Fig. 3).
Regarding claim 6, Moskovich discloses the divider is bound by a first sidewall (left-most wall of the first compartment in Fig. 3) and a second sidewall (right-most wall of the second compartment in Fig. 3), the first sidewall coupling the first bottom surface with the divider via a first connection edge (corner between the first sidewall and the second top surface), and the second sidewall coupling the second bottom surface with the divider via a second connection edge (corner between the second sidewall and the second top surface).
Regarding claim 7, Moskovich discloses the second sidewall is substantially perpendicular relative to the second bottom surface (as shown in Fig. 3).
Regarding claim 8, Moskovich discloses the first sidewall is angled at an angle greater than 90 degrees relative to the first bottom surface (as shown in Fig. 3).
Regarding claim 9, Moskovich discloses the first sidewall and the second sidewall are spaced apart such that the divider includes a thickness defining the second top surface.
Regarding claims 10 and 16, Moskovich discloses the second top surface (at 142 in Fig. 3) has a flat profile.
Regarding claim 12, Moskovich discloses the first compartment is configured to receive a first portion of the oral care device and the divider is configured to engage a second portion the oral care device, such that when the oral care device is received by the first compartment a head of the oral care device is held above the second bottom surface of the second compartment (as shown in Fig. 3).
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 5 is rejected under 35 U.S.C. 103 as being unpatentable over Gustafson et al. (US D634,626) as applied to claim 1 above. As described above, Gustafson discloses the claimed invention except for the specific size of the compartments. However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the longitudinal lengths of the first and second compartment to be equal in order to hold the desired contents. To modify the size of the compartments would entail a mere change in size of the components and yield only predictable results. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
Claims 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Gustafson et al. (US D634,626) in view of Hohlbein (US 8,789,701).
Regarding claim 17, Gustafson discloses an oral care system comprising: a tray (See toothbrush package shown in Figs. 1-7) holding an oral care device (toothbrush), the tray comprising: a first top surface (See Fig. 4 labeled on page 3 above) having a portion positioned on a first plane (plane running down the left side of Fig. 4); a first compartment (See Fig. 4 labeled on page 3 above) having a first bottom surface (See Fig. 4 labeled on page 3 above), the first bottom surface having a portion positioned on a second plane (flat plane running vertically along the first bottom surface labeled in Fig. 4 on page 3 above) parallel to the first plane, the second plane separated from the first plane by a first vertical distance (distance between the first top surface and the first bottom surface labeled in Fig. 4 on page 3 above); a second compartment (See Fig. 4 labeled on page 3 above) having a second bottom surface (See Fig. 4 labeled on page 3 above), the second bottom surface having a portion positioned on a third plane (flat plane running vertically along the second bottom surface labeled on Fig. 4 above) parallel to the first plane, the third plane separated from the second plane by a second vertical distance (distance between the first top surface and the second bottom surface labeled on Fig. 4 above), the second vertical distance being less than the first vertical distance (See Fig. 4 labeled on page 3 above and also Fig. 6); and a divider (See Fig. 4 labeled below) separating the first compartment and the second compartment, the divider including a second top surface (See Fig. 4 labeled on page 3 above), the divider extending from the first bottom surface and the second bottom surface toward the first top surface. Gustafson discloses the claimed invention except for the first container configured to house an oral care solution. However, Hohlbein teaches an oral care system (See Fig. 18A) comprising an oral care tray (at 70) which includes an oral care device (toothbrush at 10) and a first container (at 60) configured to house an oral rinse oral care solution (e.g. oral rinse), for the purpose of providing the user with an oral rinse for use with the toothbrush. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided the oral care system of Gustafson with a first container as taught by Hohlbein in order to provide the user with an oral rinse for use with the toothbrush.
Regarding claims 18-19, Gustafson-Hohlbein discloses the claimed invention except for the specific orientation of the bristles on the toothbrush relative to the bottom surface of the tray. However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have arranged the toothbrush of Gustafson-Hohlbein within the tray in any orientation such as facing toward or away from the bottom surface in order to allow for convenient access by the user. It has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70.
Claims 2 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Moskovich et al. (US 2014/0339111) as applied to claims 1 and 6 above. As described above, Moskovich discloses the claimed invention except for the specific size of the compartments. However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the widths and longitudinal lengths of the first and second compartment to be equal in order to hold the desired contents. To modify the size of the compartments would entail a mere change in size of the components and yield only predictable results. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
Claims 17-20 are rejected under 35 U.S.C. 103 as being unpatentable over Moskovich et al. (US 2014/0339111) in view of Hohlbein (US 8,789,701).
Regarding claim 17, Moskovich discloses an oral care tray (See toothbrush package shown in Fig. 3) holding an oral care device (toothbrush at 20), the tray comprising: a first top surface (See Fig. 3 labeled above) having a portion positioned on a first plane; a first compartment (See Fig. 3 labeled above) having a first bottom surface (flat bottom surface at the bottom of the first compartment – See Fig. 3 labeled above), the first bottom surface having a portion positioned on a second plane (flat plane running along the first bottom surface labeled in Fig. 3 above) parallel to the first plane, the second plane separated from the first plane by a first vertical distance (distance between the first top surface and the first bottom surface labeled in Fig. 3 above); a second compartment (See Fig. 3 labeled above) having a second bottom surface (flat bottom surface at 153 at the bottom of the second compartment – See Fig. 3 labeled above), the second bottom surface having a portion positioned on a third plane (flat plane running along the second bottom surface labeled in Fig. 3 above) parallel to the first plane, the third plane separated from the second plane by a second vertical distance (distance between the first top surface and the second bottom surface labeled in Fig. 3 above), the second vertical distance being less than the first vertical distance (the distance between the first top surface and 153 is less than the distance between the first top surface and the flat bottom surface of 144 - See Fig. 3 labeled above); and a divider (tray portion between the first and second compartments in Fig. 3) separating the first compartment and the second compartment, the divider including a second top surface (at 142 in Fig. 3), the divider extending from the first bottom surface and the second bottom surface toward the first top surface. Mostovich discloses the claimed invention except for the first container configured to house an oral care solution. However, Hohlbein teaches an oral care system (See Fig. 18A) comprising an oral care tray (at 70) which includes an oral care device (toothbrush at 10) and a first container (at 60) configured to house an oral rinse oral care solution (e.g. oral rinse), for the purpose of providing the user with an oral rinse for use with the toothbrush. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided the oral care system of Mostovich with a first container as taught by Hohlbein in order to provide the user with an oral rinse for use with the toothbrush.
Regarding claim 18, Mostovich-Hohlbein discloses the claimed invention except for the specific orientation of the bristles on the toothbrush relative to the bottom surface of the tray. However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have arranged the toothbrush of Mostovich-Hohlbein within the tray in any orientation such as facing toward or away from the bottom surface in order to allow for convenient access by the user. It has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70.
Regarding claim 19, Mostovich discloses the head comprises a plurality of bristles, such that when the oral care device is received by the first compartment, the plurality of bristles face towards from the second bottom surface (See Fig. 3).
Regarding claim 20, Moskovich discloses the second top surface (at 142 in Fig. 3) has a flat profile.
Claims 1-10 are rejected under 35 U.S.C. 103 as being unpatentable over White (US 5,193,679).
Regarding claim 1, White discloses tray (at 11 – See Fig. 1) capable of holding an oral care device therein, the tray comprising: a first top surface (upward facing surface at 11d in Fig. 1) having a portion positioned on a first plane; a first compartment (compartment at 12b) having a first bottom surface (flat bottom wall of 12b), the first bottom surface having a portion positioned on a second plane parallel to the first plane, the second plane separated from the first plane by a first vertical distance; a second compartment (compartment at 12c in Fig. 1) having a second bottom surface (flat bottom surface of 12c), the second bottom surface having a portion positioned on a third plane parallel to the first plane, the third plane separated from the second plane by a second vertical distance; and a divider (protruding member at 12d that is between 12c and 12b in Fig. 1) separating the first compartment and the second compartment, the divider including a second top surface (top surface at 12d in Fig. 1), the divider extending from the first bottom surface and the second bottom surface toward the first top surface. White discloses the claimed invention except for the express disclosure that the second vertical distance is less than the first vertical distance. However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the height of the second compartment of White to be less than the height of the first compartment in order to hold the desired contents. To modify the size of the compartments would entail a mere change in size of the components and yield only predictable results. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
Regarding claim 2, White discloses the first bottom surface has a first width, and the second bottom surface has a second width, the first width and the second width are equal.
Regarding claims 3 and 5, White discloses the claimed invention except for the specific size of the compartments. However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the widths and longitudinal lengths of the first and second compartment in order to hold the desired contents. To modify the size of the compartments would entail a mere change in size of the components and yield only predictable results. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
Regarding claim 4, White discloses the first bottom surface extends a first longitudinal distance and the second bottom surface extends a second longitudinal distance, the first longitudinal distance being greater than the second longitudinal distance (See Fig. 1).
Regarding claim 6, White discloses the divider is bound by a first sidewall (vertical wall between 12b and 12d in Fig. 1) and a second sidewall (vertical wall between 12c and 12d in Fig. 1), the first sidewall coupling the first bottom surface with the divider via a first connection edge (left corner of 12d), and the second sidewall coupling the second bottom surface with the divider via a second connection edge (right corner of 12d).
Regarding claim 7, White discloses at least one of the first sidewall or the second sidewall is substantially perpendicular relative to the first bottom surface or the second bottom surface.
Regarding claim 8, White discloses the claimed invention except for the express disclosure of the specific angle of the first and/or second sidewalls relative to the first and second bottom surfaces. However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the shape of the first and/or second compartments of White to have an angled sidewall in order to assist in filling the compartments. Furthermore, to modify the shape of the compartment(s) as claimed would entail a mere change in shape of the compartment(s) and yield only predictable results. A change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. In re Dailey et al., 149 USPQ 47.
Regarding claim 9, White discloses the first sidewall and the second sidewall are spaced apart such that the divider includes a thickness defining the second top surface.
Regarding claim 10, White discloses the second top surface (top surface at 12d in Fig. 1) has a flat profile.
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 and 15-18 of U.S. Patent No. 12,534,262. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claim 1, Patent ‘262 (claim 1) discloses the claimed subject matter except for the specifics of the offset between the first vertical distance and the second vertical distance. However, it would have been obvious to one of ordinary skill in the art to have modified the first vertical distance to be less than, or alternatively, greater than the second vertical distance in order to provide the desired volume within each of the first and second compartments.
Regarding claim 2, Patent ‘262 (claim 1) discloses the claimed subject matter.
Regarding claim 3, Patent ‘262 (claim 1) discloses the claimed subject matter except for the specific widths of the first and second compartments. However, it would have been obvious to one of ordinary skill in the art to have modified the widths of the first and second compartments to be unequal in order to provide the desired volume within each of the first and second compartments.
Regarding claim 4, Patent ‘262 (claims 2-3) discloses the claimed subject matter.
Regarding claim 5, Patent ‘262 (claim 4) discloses the claimed subject matter except for the specific longitudinal distances of the first and second compartments. However, it would have been obvious to one of ordinary skill in the art to have modified the longitudinal distances of the first and second compartments to be equal in order to provide the desired volume within each of the first and second compartments.
Regarding claim 6, Patent ‘262 (claims 1 and 7) discloses the claimed subject matter.
Regarding claim 7, Patent ‘262 (claim 4) discloses the claimed subject matter.
Regarding claim 8, Patent ‘262 (claim 5) discloses the claimed subject matter.
Regarding claim 9, Patent ‘262 (claim 6) discloses the claimed subject matter.
Regarding claim 10, Patent ‘262 (claim 1) discloses the claimed subject matter.
Regarding claim 11, Patent ‘262 (claim 8) discloses the claimed subject matter except for the specifics of the offset between the first vertical distance and the second vertical distance. However, it would have been obvious to one of ordinary skill in the art to have modified the first vertical distance to be less than, or alternatively, greater than the second vertical distance in order to provide the desired volume within each of the first and second compartments.
Regarding claim 12, Patent ‘262 (claim 9) discloses the claimed subject matter.
Regarding claim 13, Patent ‘262 (claim 10) discloses the claimed subject matter.
Regarding claim 14, Patent ‘262 (claim 11) discloses the claimed subject matter.
Regarding claim 15, Patent ‘262 (claim 12) discloses the claimed subject matter.
Regarding claim 16, Patent ‘262 (claim 18) discloses the claimed subject matter.
Regarding claim 17, Patent ‘262 (claim 13) discloses the claimed subject matter except for the specifics of the offset between the first vertical distance and the second vertical distance. However, it would have been obvious to one of ordinary skill in the art to have modified the first vertical distance to be less than, or alternatively, greater than the second vertical distance in order to provide the desired volume within each of the first and second compartments.
Regarding claim 18, Patent ‘262 (claim 15) discloses the claimed subject matter.
Regarding claim 19, Patent ‘262 (claim 16) discloses the claimed subject matter.
Regarding claim 20, Patent ‘262 (claim 17) discloses the claimed subject matter.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEVEN A REYNOLDS whose telephone number is (571)272-9959. The examiner can normally be reached M-F 9am-5pm.
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/STEVEN A. REYNOLDS/Primary Examiner, Art Unit 3735
