DETAILED ACTION
Response to Amendment
Due to applicant’s amendment filed on May 20, 2025, the 112(b) rejections in the previous office action (dated 11/20/2024), are hereby withdrawn.
The status of the claim(s) is as follows:
Claim 12 has been amended,
Claims 13-15, 21-22 and 24 were previously presented,
Claims 1, 5, 7-11, 16-20, 23, 25 and 26 were and still are withdrawn from further consideration, and
Claims 2-4 and 6 have been cancelled.
Therefore, claims 12-15, 21-22 and 24 are currently pending.
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 12-15, 21, 22 and 24 is/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 pre-AIA the applicant regards as the invention.
In claim 12, ln. 14-17, the phrase, “… at least one registration marker on the base layer or the permeable layer that designates an area where the humidity control agent is placed and is read by a registration device to determine if the humidity control agent is properly arranged on the base layer…” renders the claim to be vague and indefinite because it is unclear as to what structural limitations or relationships are being encompassed with such language.
In other words, the above limitation can be construed in multiple ways (as shown below):
For instance,
Applicant defines a humidity control packet (i.e. a product) having a base layer and a permeable layer, and at least one registration marker (i.e. indicia) on the base layer or the permeable layer. The first interpretation is that the applicant is now positively reciting “a registration device.” Which suggests that the registration device (i.e. a machine, specifically a camera/scanner/sensor, as per the original disclosure) is part of the claimed invention (i.e. a humidity control packet or product). Therefore, it is unclear as to how a registration device (i.e. a machine) can be considered in the same category as the claimed invention (which is a product).
The second interpretation is that the phrase “…that designates an area where the humidity control agent is placed and is read by…” read as a product-by-process limitation(s), to which no patentable weight has been given by the examiner. Applicant is reminded of the following: Product-by-process claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. “Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” See MPEP §2113(I)
The third interpretation is that the phrase “…that designates an area where the humidity control agent is placed and is read by…” read as “configured to” or functional limitation(s). Applicant is reminded of the following with regards to functional or intended-use limitations: a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art, emphasis added. If the prior art structure is capable of performing the intended use, then it meets the claim. In other words, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. The manner of operating the device does not differentiate an apparatus claim from the prior art. A claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. See MPEP §2114(II)
Thus, further clarification is required.
For the purposes of examination, examiner is treating the noted limitation above as “configured to” or functional limitation(s) in the art rejection herein; emphasis added.
As for claims 13-15, 21, 22 and 24, due to their dependencies from claim 12, they too have these deficiencies.
Examiner's note: The forgoing criticism may not be exhaustive. Applicant should carefully proofread all claims and make all necessary corrections.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 12-15, 21-22 and 24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ferrell (US 5934773 – art of record; hereinafter Ferrell) and further in view of Egberg et al. (US 20150328584 – art of record; hereinafter Egberg), Hattrup et al. (US 20150102100 – art of record; hereinafter Hattrup) and Maeda et al. (US 5944306 – art of record; hereinafter Maeda).
Regarding claim 12, Ferrell teaches a humidity control device (10; for controlling relative humidity), the humidity control device comprising:
a packet (20, 52,54,56 and 58) comprising:
a permeable layer (21-22 and 26) comprising a permeable layer material, the permeable layer including a concave area (as shown in Ferrell Fig. 2), and
a base layer (28) comprising a base layer material;
the permeable layer attached to the base layer;
an adhesive backing (i.e., in the form of double-sided tape (32)) provided on the base layer configured to removable adhere to an inner surface (i.e., bottom wall (16)) of a consumer product package (12);
a humidity control agent (24) arranged on the base layer within the packet between the concave area of the permeable layer and the base layer (Ferrell Col. 4 Ln. 23 – Col. 5 Ln. 56 and Figs. 1-3).
Thus, Ferrell fails to teach the permeable layer material being permeable to water vapor and impermeable to liquids, and an adhesive adhering the permeable layer to the base layer.
Egberg is in the same field of endeavor as the claimed invention and Ferrell, which is an environmentally controlled product package. Egberg teaches a humidity control device (20) for controlling headspace relative humidity in a consumer product package (22), the humidity control device comprising:
a base layer (14) comprising a base layer material;
a permeable layer (16) comprising a permeable layer material, said permeable layer material being permeable to water vapor (i.e., gas) and impermeable to liquids, wherein the permeable layer is coupled to the base layer via an adhesive (i.e. heat sealed – which suggests a heat activated adhesive); and
a humidity control agent (10) arranged on the base layer and between the base layer and permeable layer (Egberg [0018-0033] and Figs. 1-2).
With this in mind, 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 permeable layer (of Ferrell) with the permeable layer (as taught by Egberg) which effectively allows the humidity control agent to regulate the internal humidity within the overall package while preventing the overall package content from coming in contact with the humidity control agent (i.e. ensures no leakage or wicking of the humidity control agent into the consumer product package).
Furthermore, the permable layer of both Ferrell and Egberg are considered to be art-recognized equivalents at the time of the invention was made, one ordinary skill in the art would have found it obvious to substitute the permeable layer (of Egberg) for the permeable layer (of Ferrell). An express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious. See MPEP §2143(I)(B) or §2144.06(II)
Ferrell further fails to teach at least one registration marker on the base layer or the permeable layer that designates an area where the humidity control agent is placed and is read by a registration device to determine if the humidity control agent is properly arranged on the base layer.
Hattrup is in the same field of endeavor as the claimed invention, which using alignment marks to create a gaming and/or targeted promotion label (i.e. a scratch-off label) that will be applied onto an existing packaging. Hattrup teaches an embodiment (as shown in Fig. 6) comprising:
a film layer (606; which examiner equates to the claimed base layer),
a mark (i.e. the claimed at least registration marker) on the base layer that designates an area where a TTO layer and scratch off layer is placed or applied on the film layer and is read by a registration device (i.e. either Camera #1 OR Camera #2) to determine if the TTO layer and scratch off layer (610) are properly arranged on the film layer (Hattrup [0114-00126]).
Examiner’s note: Hattrup discloses or teaches the following, “…Camera #2 verifies the mark and could look to verify that the applied mark is in the right location, that the mark is readable, and that the mark includes the proper information…” (see Hattrup [0123]). Examiner construes the above teaching (of Hattrup) to mean that a registration device (i.e. Camera #2) is scanning or looking for a pre-applied mark on the film layer after the TTO layer and scratch off layer are applied on the film layer. The pre-applied mark will be below the applied TTO layer and scratch off layer and making sure the applied layers are in the proper location on the film layer; emphasis added.
With this mind, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to apply the teachings of at least one registration marker and a registration device (as taught by Hattrup) on either the base layer or the permeable layer (of Ferrell) to ensure the proper placement of the humidity control agent relative to the overall humidity control device packet.
Furthermore, it has been held that mere indicia or printed matter does not distinguish over the prior art. Where the only difference between a prior art product and a claimed product is printed matter that is not functionally related to the product, the content of the printed matter will not distinguish the claimed product from the prior art. See MPEP §2112.01(III)
Lastly, Ferrell fails to teach the humidity control agent configured for two-way humidity control of a headspace withing a consumer product package.
Maeda is in the same field of endeavor as the claimed invention and Ferrell, which is an environmentally controlled product package. Maeda teaches a humidity control device (110; as shown in Figs. 2 and 4a-c – for controlling relative humidity), the humidity control device comprising:
a packet (i.e., wrapped) comprising:
Examiner’s note: Maeda further teaches the following, “…If necessary, the humidity control agent may be wrapped with a dust-free material…” (see Col. 3 Ln. 59-61). With this in mind, it can be considered that Maeda teaches the humidity control agent being covered, much like the claimed invention; emphasis added.
a humidity control agent (106) arranged on an interior surface (112) of a consumer product package and the humidity control agent is configured for two-way humidity control (see Maeda Col. 4 Ln. 3-5 and Ln. 27-36 – which states the following, “The humidity control agent 106 absorbs moisture at high humidity and releases it at low humidity, thereby controlling the humidity of the environment at a constant level” – i.e. two-way humidity control as claimed) of a headspace within the consumer product package (Maeda Col. 3 Ln. 51-61, Col. 4 Ln. 3-11 and Col. 4 Ln. 51 – Col. 5 Ln. 16).
With this in mind, 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 humidity control agent (of Ferrell) with the two-way humidity control agent (of Maeda) to enhance the overall humidity control properties of the packet and the resultant structures will work equally well. Further, the humidity control agent of both Ferrell and Maeda are considered to be art-recognized equivalents at the time of the invention was made, one of ordinary skill in the art would have found it obvious to substitute the humidity control agent (of Maeda) for the humidity control agent (of Ferrell). An express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious. See MPEP §2143(I)(B) or §2144.06(II).
Regarding claim 13, modified Ferrell as above further teaches wherein the permeable layer comprises at least one of a polymeric film (Egberg [0019]).
Regarding claim 14, modified Ferrell as above further teaches wherein the permeable layer being perforated via a plurality of apertures (22; see Ferrell Figs. 1-3); however, Ferrell teaches the permable layer being microperforated.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the size of the plurality of apertures (of Ferrell) to be micro (i.e., very small or microperforated) to adjust the water-vapor transmission rate (WVTR). Such modifications would have involved a mere change in the size of a component - a change in size is generally recognized as being within the level of ordinary skill in the art and since such a modification would have involved a mere change in the proportions of components - a change in proportion is generally recognized as being within the level of ordinary skill in the art. See MPEP §2144.04(IV)(A)
Regarding claim 15, modified Ferrell as above further teaches wherein the permeable layer comprises a material with a WVTR of between 10 and 85 grams of water per 100 square inches per 24 hours (Egberg [0018-0033] and Figs. 1-2)
Regarding claim 21, modified Ferrell as above further teaches wherein the base layer is flexible or foldable.
Examiner’s note: Egberg disclose or teach a humidity control device packet or pouch (20) made from a base layer (14; which is a film layer) and a permeable layer (16; which is also a film layer). Since, these layers are being shaped or conformed into individual pouch or packet, then these layers (of Egberg which includes the base layer) are considered to be flexible and foldable; emphasis added.
Regarding claim 22, modified Ferrell as above further teaches wherein the base layer is rigid (see Ferrell Fig. 2).
Regarding claim 24, modified Ferrell as above further teaches wherein the permeable layer material and the base material are different materials (see Ferrell Fig. 2).
Response to Arguments
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Therefore, applicant's arguments filed May 20, 2025 with respect to claim 12 have been considered but are moot (in view of the newly applied art, specifically Hattrup).
Conclusion
Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 extension fee 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 date of this final action.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The cited documents are listed on the attached PTO-892 form.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRIJESH V. PATEL whose telephone number is (571)270-1878. The examiner can normally be reached on Monday - Thursday 6:00 am - 4:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Orlando E. Avilés can be reached on 571-270-5531. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/B. V. P./
Examiner, Art Unit 3736
/ORLANDO E AVILES/Supervisory Patent Examiner, Art Unit 3736
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