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 .
This action is written in response to the amendment filed 05/05/2025
Claims 28, 55-61 and 69-70 are presented for examination
This action is Final
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 28, 55-61 and 69-71 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.
Applicant has not provided structure or support from the disclosure that represents the claimed clipping portion. Paragraph [0034] of Applicant’s disclosure teaches the cover removal fixture 540 is clipped to the cover 520. The disclosure fails to provide how and where the fixture is clipped and does not provide for the cover removal fixture to have a clipping portion as claimed in claim 1. This clipping also fails to be shown in the drawings. Appropriate action is required.
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 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.
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) 28, 70 and 71 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kraus (US 3,954,174) in view of Albright (US 2016/0206870) in view of Shaw (US 597,623) in view of Bonnin (US 2011/0202063).
Claim 28, 71: Kraus discloses a container assembly 10 for holding nested pharmaceutical container parts, comprising:
a container tub 40 comprising:
a bottom,
a top lip 42 that provides a horizontal top sealing surface that has a peripheral outline, and
sidewalls located between the bottom and the top lip (fig. 3),
a peelable tub cover 32 consisting of a sheet of flexible material sealed on a lower surface to the sealing surface of the top lip of the rectangular container to seal the contents of the container (col. 2, ll. 48-67; fig. 2).
Kraus discloses a feature 31 to assist in the removal of the cover from the container tub (fig. 2) but fails to disclose a fixture attached to the cover. Albright teaches a cover removal fixture 112/108 distinct from and attached to the tub cover on an upper surface of the tub cover [0031-0032]. Therefore, it would have been obvious to one having ordinary skill in the art at the time of the effective filing date of the invention to modify the cover in Kraus to include the removing feature of Albright to provide an easily accessible and greppable fixture for removal of the cover.
To use equivalence as a rationale supporting an obviousness-type rejection, the equivalency must be recognized in the prior art. In re Ruff, 256 F.2d 590, 118 USPQ 340 (CCPA 1958). Albright represents evidence that pull tabs attached to covers or lids were art-recognized equivalent structures for extending tab portions. Therefore, because these two removing and gripping features were art-recognized equivalents at the time the invention was made, one of ordinary skill in the art would have found it obvious to substitute the pull tab for the extended tab portion. An express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious. In re Fout, 675 F.2d 297, 213 USPQ 532 (CCPA 1982).
Kraus fails to disclose a ball-shaped appendage. Shaw teaches wherein the cover removal fixture 6 includes anappendage extending from the cover and comprising a cylindrical pole with a spherical upper portion having a larger radius that a radius of the cylindrical pole to allow it to be engaged by an engagement tool (fig. 2). It would have been obvious to one having ordinary skill in the art at the time of the effective filing date of the invention to modify the removal fixture of Kraus-Albright to include the ball shaped fixture of Shaw to assist in easily gripping the feature for removal of the cover.
Shaw teaches an appendage having a 3D circular appendage feature but fails to teach a ball-shaped or spherical shape. The ball-shaped handle shape found in Bonnin (fig. 1A) would be an obvious shape substitution with the cylindrical shape of Shaw for easier gripping. It is noted that it would have been an obvious matter of design choice to change the circular shape to a ball shape, since such a modification would have involved a mere change in the shape of a component. A change in shape is generally recognized as being within the level of ordinary skill in the art. In re Dailey 357 F.2d 669, 149 USPQ 47 (CCPA 1966) MPEP 214.04 IV B
Claim 70. Kraus-Albright-Shaw-Bonnin the container assembly of Claim 28 wherein the engagement tool has an engagement portion capable of receiving the cylindrical pole and lifting the spherical upper portion (Shaw; fig. 2).
Claim(s) 52-59 and 60-68 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kraus (US 3,954,174) in view of Albright (US 2016/0206870) in view of Shaw (US 597,623) in view of Bonnin (US 2011/0202063) in view of Gabel (US 2011/0024419).
Claims 55-57, 60-61: Kraus-Albright-Shaw-Bonnin discloses a container nest/closure holding a plurality of pharmaceutical containers inside a tub but fails to disclose a plurality of container/closure nests in a tub. Gabel teaches the container assembly further comprising a plurality of closure nests disposed within a container tub (fig. 1). It would have been obvious to one having ordinary skill in the art at the time of the effective filing date of the invention to modify the tray of Kraus to include the nested articles of Liversidge to protect and transport articles for surgical use.
Claims 58-59. Kraus-Albright-Shaw-Bonnin discloses a container nest/closure holding a plurality of pharmaceutical containers inside a tub but fails to disclose a plurality of container/closure nests in a tub. Gabel teaches the container assembly further comprising a closure nests disposed within a container tub and a plurality of closures associated with the closure nest (abstract, fig. 1). It would have been obvious to one having ordinary skill in the art at the time of the effective filing date of the invention to modify the tray of Kraus to include the nested articles of Liversidge to protect and transport articles for surgical use.
Response to Arguments
Applicant's arguments filed 09//1/2025 have been fully considered but they are not persuasive. The 112, 2nd rejection above has been further amended to state the structure needed to claim the clipping portion, has not been provided and noted that there is no support for the clipping portion to be part of the cover removal fixture as claimed.
Regarding the 103 rejection of claim 28, the claim describes the structure of the cover removal fixture. Applicant fails to claim that this structure is used for lifting. Prior art Kraus-Albright-Shaw teaches the structure of the fixture, where Shaw shows a cover fixture with a pole structure and an upper circular structure. Shaw teaches a structure engageable by a tool but fails to disclose a ball shaped appendage. While Bonin is not used to lift the cover (unclaimed), a ball-shaped feature is used for gripping. Substituting the flat circle of Shaw with the wound ball of Bonnin would be obvious to one having ordinary skill in the art since the intended use of both features is for gripping. The rejection is respectfully maintained.
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.
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/RAVEN COLLINS/ Examiner, Art Unit 3735
/Anthony D Stashick/ Supervisory Patent Examiner, Art Unit 3735