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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 5 August 2025 has been entered.
Specification
The disclosure is objected to because reference character “35” has been used to designate opening, or opening section, bead and opening bead. Examiner suggests amending “opening, or opening section, bead” to read “opening bead or opening section bead”.
The disclosure is objected to because reference character “36” has been used to designate retaining, or holding section, bead and retaining bead. Examiner suggests amending “retaining, or holding section, bead” to read “retaining bead or holding section bead”.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: the first latch element in claims 27 and 38, the further first latch element in claims 27 and 38, and the holding element which is equivalent to element for holding in claim 30 .
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 (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.
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.
Claim(s) 38 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ver Hage (US 4037746) further in view of Cargile (US 5460287).
Claim 38: Ver Hage discloses a combination comprising a container, a sealing cap, a ring, and a tear-off film, wherein the container comprises an opening and a neck 12 (mouth section) extending cylindrical starting from the opening, and the sealing cap is removably attached to the container and closes the opening in a closed position, and has a cylindrical shell surface which, in the closed position, at least partially encloses the neck 12 (mouth section), wherein a bead 60 (first latch element) is provided on an inner surface of the shell surface of the sealing cap and a further first latch element is provided on an outer surface of the neck 12 (mouth section) of the container, wherein the bead 60 (first latch element) on the inner surface of the shell surface and the further first latch element on the outer surface of the mouth section engage with each other, and a first circumferential protrusion is provided below the further first latch element in the neck 12 (mouth section), an upper edge of the ring is circumferentially connected to the shell surface via the tear-off film, wherein the tear-off film is in contact with the first circumferential protrusion, wherein a circumferential groove or score line 68 is formed on the external surface [see C. 4 L. 36-40] such that the tear-off film is flush with the inner surface of the shell surface and an inner surface of the ring, wherein the ring has a score line 70 (predetermined breaking point), which is configured as a material thinning, and a tear tab 74 (grip element), the tear tab 74 (grip element) is shaped in such a manner that pulling on the tear tab 74 (grip element) breaks the ring at the score line 70 (predetermined breaking point) and tears the tear-off film so that the ring is separated from the sealing cap, the material thinning runs from an upper edge of the ring to a lower edge of the ring (see annotated fig. 4 below and fig. 2).
Ver Hage does not disclose wherein the container has a second protrusion, and the ring has a protrusion on its inner side, wherein the second protrusion of the container and the protrusion of the ring are formed as second latch elements and are in a latching connection with one another or wherein the tear-off film is thinner than 0.8 mm.
It would have been obvious to one having ordinary skill in the art before the effective filing date to have made the tear-off film be thinner than 0.8 mm in order to easily tear and since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980)
Cargile teaches a container 10 and lid 12, wherein the lid 12 has a skirt 34 provided with a reduced thickness line providing a tearable means defining a tear strip 30, wherein the container 10 has an upper bead 26 and a lower bead 28 (second protrusion) which both extend around an outer periphery 16 of the container 10 for engaging the tear strip 30 and the upper bead 26 is in contact with the reduced thickness line, wherein the tear strip 30 has a protrusion on its inner side, wherein the lower bead 28 (second protrusion) of the container 10 and the protrusion of the tear strip 30 are formed as second latch elements and are in a latching connection with one another (see annotated partial fig. 4 below and fig. 1).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the container to have a lower bead 28 (second protrusion) below the first circumferential protrusion and to have modified the ring to have a protrusion below the circumferential groove or score line 68 and in latching connection with the lower bead 28 (second protrusion), as taught by Cargile, in order to further positively lock the container and ring.
The first latch element for engaging the further first latch element is/are interpreted under 35 U.S.C. 112(f) as an inwardly protruding snap bead on the shell surface, and equivalents thereof.
The further first latch element for engaging the first latch element is/are interpreted under 35 U.S.C. 112(f) as an outwardly protruding snap bead on the mouth section and equivalents thereof.
PNG
media_image1.png
494
628
media_image1.png
Greyscale
PNG
media_image2.png
349
247
media_image2.png
Greyscale
Claim(s) 21-23, 28, 29, 32, 33, 34, and 36 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ver Hage (US 4037746) further in view of Cargile (US 5460287).
Claim 21. Ver Hage discloses a combination comprising a container, a sealing cap, a ring, and a tear-off film, wherein the container comprises an opening and a neck 12 (mouth section) extending cylindrical starting from the opening, and the sealing cap is removably attached to the container and closes the opening in a closed position, and has a cylindrical shell surface which, in the closed position, at least partially encloses the neck 12 (mouth section), wherein a bead 60 (first latch element) is provided on an inner surface of the shell surface of the sealing cap and a further first latch element is provided on an outer surface of the neck 12 (mouth section) of the container, wherein the bead 60 (first latch element) on the inner surface of the shell surface and the further first latch element on the outer surface of the neck 12 (mouth section) engage with each other, and a first circumferential protrusion is provided below the bead 60 (first latch element), when in the closed position, in the neck 12 (mouth section), an upper edge of the ring is circumferentially connected to the shell surface via the tear-off film, wherein the tear-off film is in contact with the first circumferential protrusion, wherein a circumferential groove or score line 68 is formed on the external surface [see C. 4 L. 36-40] such that in a disassembled state the tear-off film is flush with the inner surface of the shell surface and an inner surface of the ring, wherein the ring has a score line 70 (predetermined breaking point), which is configured as a material thinning, and a tear tab 74 (grip element) (see annotated fig. 4 above and fig. 2).
Ver Hage does not disclose wherein the container has a second circumferential protrusion and the ring has a circumferential protrusion on its inner side, wherein the second circumferential protrusion of the container and the circumferential protrusion of the ring are formed as second latch elements and are in a latching connection with one another.
Cargile teaches a container 10 and lid 12, wherein the lid 12 has a skirt 34 provided with a reduced thickness line providing a tearable means defining a tear strip 30, wherein the container 10 has an upper bead 26 and a lower bead 28 (second circumferential protrusion) which both extend around an outer periphery 16 of the container 10 for engaging the tear strip 30 and the upper bead 26 is in contact with the reduced thickness line, wherein the tear strip 30 has a circumferential protrusion on its inner side, wherein the lower bead 28 (second circumferential protrusion) of the container 10 and the circumferential protrusion of the tear strip 30 are formed as second latch elements and are in a latching connection with one another (see annotated partial fig. 4 above and fig. 1).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the container to have a lower bead 28 (second circumferential protrusion) below the first circumferential protrusion and to have modified the ring to have a circumferential protrusion below the circumferential groove or score line 68 and in latching connection with the lower bead 28 (second circumferential protrusion), as taught by Cargile, in order to further positively lock the container and ring.
The first latch element for engaging the further first latch element is/are interpreted under 35 U.S.C. 112(f) as an inwardly protruding snap bead on the shell surface, and equivalents thereof.
The further first latch element for engaging the first latch element is/are interpreted under 35 U.S.C. 112(f) as an outwardly protruding snap bead on the mouth section and equivalents thereof.
Claim 22: The combination discloses wherein in the closed position of the sealing cap, the second latch elements are connected under tensile force acting in the longitudinal direction of the container (see fig. 4).
Claim 23: The combination discloses wherein the further first latch element on the neck 12 (mouth section) is formed as an outwardly protruding snap bead and the bead 60 (first latch element) on the shell surface is formed as an inwardly protruding snap bead (see annotated fig. 4 above).
Claim 28: The combination discloses wherein the sealing cap has an inner skirt 50 (holder) on a side facing the container in the closed position (see annotated fig. 4 above).
Claim 29: The combination discloses wherein the inner skirt 50 (holder) is capable of holding some desiccant tablet (see fig. 4).
Claim 32: The combination discloses wherein the inner surface of the shell surface of the sealing cap having an inner surface 56 and the neck 12 (mouth section) having a third cylindrical sealing surface 44 (sealing surface), which are in contact (see fig. 3-4).
Claim 33: The combination discloses the container, the sealing cap and the ring being made of plastic material (see C. 3 L. 14-16).
Claim 34: The combination discloses wherein the sealing cap and the ring are suitable for being slid onto the container in one production step, and that thereby a pretension is caused between the container and the sealing cap, the ring and the tear-off film (see fig. 2 and annotated fig. 4 above).
Claim 36: The combination discloses wherein the circumferential protrusion of the ring is formed by a radial inwards step of the inner surface of the ring, wherein the inner surface of the ring has a smaller diameter in an area of the radial inwards step than an inner surface of the tear-off film.
Claim(s) 24-27 and 35 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ver Hage (US 4037746) and Cargile (US 5460287) as applied to claim 23 above, and further in view of Proctor (US 4694968).
Claim 24: The combination does not disclose the snap bead in the mouth section extending around the container, except for an opening section.
Proctor teaches a device 10 having a cap element 11 and a container element 12, wherein the container element 12 has a flange 50 (snap bead) in its mouth section which extends substantially around the container 30 except for a transversely extending slot 53 (opening section), and an index means 49 indicating the position of the transversely extending slot 53 (opening section), and the cap element 11 has inwardly protruding arcuate locking flanges 32 & 33, small projection 35, and an index tab 25 substantially aligned with the small projection 35, wherein the small projection 35 is smaller than the transversely extending slot 53 (opening section), and wherein there is a gap 34 between the inwardly protruding arcuate locking flanges 32 & 33 (see fig. 1-3).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the neck 12 (mouth section) to have an index means 49, to have modified the outwardly protruding snap bead to have the form of the flange 50 (snap bead) and transversely extending slot 53 (opening section), and to have modified the bead 60 (first latching element) formed as the inwardly protruding snap bead to have the form of the inwardly protruding arcuate locking flanges 32 & 33, small projection 35, and index tab 25, as taught by Proctor, in order to provide childproofing such that children cannot access contents.
Claim 25: The combination discloses wherein the snap bead on the shell surface is divided into arcuate locking flanges 32 & 33 (at least one holding section bead) and one small projection 35 (opening section bead), and the snap bead on the shell surface is interrupted between said arcuate locking flanges 32 & 33 (at least one holding section bead) and one small projection 35 (opening section bead), wherein the small projection 35 (opening section bead) is smaller than a transversely extending slot 53 opening section) (see fig. 1 and 4 ‘968).
Claim 26: The combination discloses wherein the arcuate locking flanges 32 & 33 (holding section bead) extends over one half of the circumference of the shell surface which is situated opposite the small projection 35 (opening section bead) (see fig. 1 ‘968).
Claim 27: The combination discloses wherein the container has an index means 49 (indicator) indicating a position of the transversely extending slot 53 (opening section), and the sealing cap has on an outer surface an index tab 25 (opening tab) which is aligned with the small projection 35 (opening section bead) in the radial direction (see fig. 1-3 ‘968).
Claim 35: The combination discloses wherein the snap bead in the arcuate locking flanges 32 & 33 (holding section bead) has a gap 34 (interruption) (see fig. 1 ‘968).
Claim(s) 30 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ver Hage (US 4037746) and Cargile (US 5460287) as applied to claim 29 above, and further in view of Schneider (DE 102014106507).
Schneider teaches a closure 7 having a chamber wall section 13 on a side facing a container 1 in a closed position, wherein a desiccant chamber 10 is located within the chamber wall section 13 and contains a desiccant 11, and wherein the chamber wall section 13 has an inward-facing projection 16 (holding element) for restraining a chamber cover 14 of a moisture-permeable material (see fig. 1a).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the inner skirt 50 (holder) of the combination to have an inward-facing projection 16 (holding element) for holding a chamber cover 14, as taught by Schneider, in order to allow moisture to escape to a desiccant and be bound by therein to keep packaged goods dry.
The holding element which is equivalent to element for holding is/are interpreted under 35 U.S.C. 112(f) as hook-shaped latching element, and equivalents thereof.
Claim(s) 31 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ver Hage (US 4037746) and Cargile (US 5460287) as applied to claim 21 above, and further in view of Miskin (US 3595420).
Claim 31: The combination discloses the claimed invention except for an outer surface of the shell surface of the sealing cap having a knurling.
Miskin teaches an outer surface of a shell surface of a cap portion 12 having a knurling (see fig. 1).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the outer surface of the shell surface of the sealing cap to have knurling, as taught by Miskin, in order to enhance grip for a user.
Claim(s) 37 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hage (US 4037746) further in view of Cargile (US 5460287) and Curry (US 4385708) as further evidenced by Lohrer (US 3622028).
Claim 37: Ver Hage discloses a combination comprising a container, a sealing cap, a ring and a tear-off film, wherein the container comprises an opening and a neck 12 (mouth section) extending cylindrical starting from the opening, and the sealing cap is removably attached to the container and closes the opening in a closed position, and has a cylindrical shell surface which, in the closed position, at least partially encloses the mouth section, wherein a bead 60 (first latch) is provided on an inner surface of the shell surface of the sealing cap and a further first latch is provided on an outer surface of the neck 12 (mouth section), and a first circumferential protrusion is provided below the further first latch in the neck 12 (mouth section), an upper edge of the ring is circumferentially connected to the shell surface via the tear-off film, wherein the tear-off film is in contact with the first circumferential protrusion, wherein a circumferential groove 68 is formed on the external surface [see C. 4 L. 36-40] such that the tear-off film is flush with the inner surface of the shell surface and the inner surface of the ring, at least in a disassembled state, wherein the ring has a score line 70 (predetermined breaking point), which is configured as a material thinning, and a tear tab 74 (grip element), the tear tab 74 (grip element) is shaped in such a manner that pulling on the tear tab 74 (grip element) breaks the ring at the score line 70 (predetermined breaking point) and tears the tear-off film so that the ring is separated from the sealing cap, the material thinning runs from the upper edge of the ring to a lower edge of the ring, wherein the tear-off film is in contact with a radially most outward point of the first circumferential protrusion, such that the tear-off film is under tension, at least in part due to the contact between the tear-off film and the first circumferential protrusion, and pressed against the first circumferential protrusion (see annotated fig. 4 above and fig. 2).
Ver Hage does not disclose wherein the container has a second protrusion and the ring has a protrusion on its inner side, wherein the second protrusion of the container and the protrusion of the ring are formed as second latches and are in a latching connection with one another, or the first circumferential protrusion comprises a rounded tip, where the tear-off film is in contact with a radially most outward point of the rounded tip.
Curry teaches a tamper proof lid 10 and container 34, wherein the container 34 includes a neck finish 38 having a radially outwardly directed bead 42 that comprises a rounded tip, wherein the lid 10 has a weakening line 18, wherein a diameter of the lid 10 is less than the adjacent portion of the container neck finish 38 such that when the lid 10 is applied to the container neck finish 38 the lid 10 is radially expanded and has an interference fit with the adjacent neck finish 38, wherein a circumference of a radially most outward point of the rounded tip of the radially outwardly directed bead 42 of the neck finish 38 is larger than a circumference of the lid 10 in a disassembled state such that the lid 10 is under tension and pressed against the radially outwardly directed bead 42 (see C. 2 L. 17-23 and fig. 5 where dotted lines depict the original shape of the lid 10 and solid lines depict the lid in its expanded as applied configuration).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the first circumferential protrusion to be a radially outwardly directed bead 42 with a rounded tip having a diameter larger than the tear-off film in a disassembled state, as taught by Curry, in order to enhance the sealing of the container.
When locating the radially most outward point of the rounded tip of the first circumferential protrusion there are two identified, predictable solutions. One being aligned with the tear-off film and the other offset from the tear-off film. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have located the radially most outward point of the rounded tip of the first circumferential protrusion aligned with the tear-off film, as it would have been obvious to try the first identified predictable solution with a reasonable expectation of success. This alignment is further evidenced by Lohrer which teaches a radially most outward point of a rounded tip of a protuberance 3 of a bottle 1 aligned with a tear strip 12 of a closure cap 4 (see right side of figure 1).
Cargile teaches a container 10 and lid 12, wherein the lid 12 has a skirt 34 provided with a reduced thickness line providing a tearable means defining a tear strip 30, wherein the container 10 has an upper bead 26 and a lower bead 28 (second protrusion) which both extend around an outer periphery 16 of the container 10 for engaging the tear strip 30 and the upper bead 26 is in contact with the reduced thickness line, wherein the tear strip 30 has a protrusion on its inner side, wherein the lower bead 28 (second protrusion) of the container 10 and the protrusion of the tear strip 30 are formed as second latching elements and are in a latching connection with one another (see annotated partial fig. 4 above and fig. 1).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the container to have a lower bead 28 (second protrusion) below the first circumferential protrusion and to have modified the ring to have a protrusion below the circumferential groove or score line 68 and in latching connection with the lower bead 28 (second protrusion), as taught by Cargile, in order to further positively lock the container and ring. The combination results in the tear-off film being under tension at least in part due to the engagement between the lower bead 28 (second protrusion) and protrusion.
Response to Arguments
The drawing objections in paragraph 2 of office action dated 23 April 2025 are withdrawn in light of the amended disclosure filed 5 August 2025.
The specification objections in paragraph 29 of office action dated 23 April 2025 are withdrawn in light of the amended disclosure filed 5 August 2025.
The claim objections in paragraph 30-31 of office action dated 23 April 2025 are withdrawn in light of the amended claims filed 5 August 2025.
The 35 U.S.C. § 112 rejections in paragraphs 35-49 of office action dated 23 April 2025 are withdrawn in light of the amended claims filed 5 August 2025.
Applicant’s arguments, see page 16-17 directed to Lohrer, filed 23 July 2025, with respect to the rejection(s) of claim(s) 37 under 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Hage (US 4037746) further in view of Cargile (US 5460287) and Curry (US 4385708) as further evidenced by Lohrer (US 3622028).
Applicant's arguments filed 5 August 2025 have been fully considered but they are not persuasive.
In response to applicant’s argument that in the marked up version of Ver Hage’s Figure 4 included in the Final Action the Examiner labels Ver Hage’s score line 68 as corresponding to the claimed tear-off film, the Examiner responds that the annotated tear-off film is directed to the material that exists between the annotated shell surface and ring when the circumferential groove or score line 68 is formed on the external surface (C. 4 L. 36-40).
In response to applicant’s argument that from the description of 4:32-56 of Ver Hage it is clear that item 68 is a score line formed on outer surface 56 of outer skirt 48 of cap 10, the Examiner replies that this disclosure explicitly states that “an internal circumferential groove or score line 68 is formed in surface 56” and that “[t]his groove could also be formed on the external surface of skirt 48 with the same result”. Thus, it is not clear that item 68 is a score line as argued by applicant as Ver Hage explicitly discloses “circumferential groove or score line 68”. Additionally, it is not clear that item 68 must be formed on outer surface 56 as argued by applicant. The circumferential groove or score line 68 could also be formed on the external surface of skirt 48.
In response to applicant’s argument that there is no indication in Ver Hage that outer skirt 48 is made from a film, the Examiner responds that the original disclosure provides that “it is advantageous if the sealing cap and the ring are injection-molded in one piece and thus have the same material” and that “the shell surface 30 of the sealing cap 3 is connected to the upper edge 50 of the ring 5 via a tear-off film 7”. This disclosure, along with that of original figure 10 which shows all parts of the sealing cap 3 being identically hatched, indicate that the sealing cap is disclosed as being a single piece. The Oxford Languages Dictionary defines “film” as material in the form of a thin flexible sheet. As the material that exists between the annotated shell surface and ring when the circumferential groove or score line 68 is formed on the external surface, which is annotated as tear-off film, is a thin plastic, and therefore flexible, the portion annotated tear-off film meets the broadest most reasonable interpretation of film (see C. 4 L. 36-40 and annotated fig. 4 above).
In response to applicant’s argument that outer skirt 48 is part of the cap, the Examiner replies that the portion of the cylindrical skirt 48 annotated as “tear-off film” being part of the cap 10 does not prevent it from reading on the claimed tear-off film. From P. 0022 of the invention, “it is advantageous if the sealing cap and the ring are injection-molded in one piece and thus have the same material” and from P. 0028 “the shell surface 30 of the sealing cap 3 is connected to the upper edge 50 of the ring 5 via a tear-off film 7”. Additionally, original figure 10 shows all parts of the sealing cap 3 being identically hatched, such that the sealing cap is disclosed as being a single piece. Identically to the disclosed invention in which the tear-off film is part of the sealing cap 3, the portion of the cylindrical skirt 48 annotated as “tear-off film” is part of the cap 10.
In response to applicant’s argument that there is no indication in Ver Hage that skirt 48 is made from a different material than the cap, the Examiner responds that identically to the disclose invention, in which the sealing cap 3 is formed from a single piece, the cap 10 is also a single piece. Applicant appears to be arguing that the tear-off film must be made from a different material than the combination of the sealing cap, ring, and tear-off film. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., the tear-off film being made from a different material than the combination of the sealing cap, ring, and tear-off film) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
In response to applicant’s argument that even if Ver Hage’s score line 68 could be fairly construed to be a tear-off film, it is not in contact with the first circumferential protrusion (identified as corresponding to Ver Hage’s surface) because Ver Hage’s score line 68 is formed on surface 56 between beads 58 and 60, the Examiner responds that this argument is not commensurate in scope with the rejection at hand which relies on the embodiment in which the circumferential groove or score line 68 is formed on the external surface. Additionally, the annotated first circumferential protrusion also exists between beads 58 and 60 and can be seen in contact with the annotated tear-off film when the circumferential groove or score line 68 is formed on the external surface (see annotated fig. 4 above and C. 4 L. 36-40).
In response to applicant’s argument that Ver Hage does not disclose a ring as claimed because Ver Hage states that “[c]ap 10 has a flat disc top 46 with a depending outer cylindrical skirt 48 and a depending inner skirt 50” such that cylindrical skirt 48 is part of cap 10 not a ring as required by all of the independent claims, the Examiner replies that the portion of the cylindrical skirt 48 annotated as “ring” being part of the cap 10 does not prevent it from reading on the claimed ring. From P. 0022 of the invention, “it is advantageous if the sealing cap and the ring are injection-molded in one piece and thus have the same material”. Original figure 10 shows all parts of the sealing cap 3 being identically hatched, such that the sealing cap is disclosed as being a single piece. Identically to the disclosed invention in which the ring 5 is part of the sealing cap 3, the portion of the cylindrical skirt 48 annotated as “ring” is part of the cap 10.
In response to applicant’s argument that the Examiner has not demonstrated the facts of the rejection to claim 38 mirror the facts of Boesch, the Examiner responds that the circumferential groove or score line 68 is formed in the skirt 48 to facilitate removal means. The thickness of the remaining material is a result effective variable which controls the amount of force required to facilitate removal. Examiner notes that the motivation of claim 38 of “to easily tear” does not appear to have been challenged.
In response to applicant’s argument to claim 38 that the Examiner’s reasoning lacks rationale underpinning as Ver Hage does not disclose a tear-off film, the Examiner responds that the material that exists between the annotated shell surface and ring when the circumferential groove or score line 68 is formed on the external surface, which is annotated as tear-off film, reads on the claimed tear-off film (see C. 4 L. 36-40 and annotated fig. 4 above).
In response to applicant’s argument that the Examiner does not provide reasons to add a ring to Ver Hage’s container, the Examiner replies that Ver Hage discloses a ring and does not require a ring to be added (see annotated fig. 4 above). In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., a ring being part of the container) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
In response to applicant’s argument that there is no reason to combine Cargile’s teachings with Ver Hage because Ver Hage already discloses a way to “further positively lock the container and ring” in that Ver Hage’s cap 10 includes depending inner skirt 50, which in conjunction with depending outer skirt 48 seals the cap 10 to bottle neck 12 by virtue of the space between the outer surface 52 of the inner skirt and the inner surface 56 of the outer skirt being slightly less than the thickness of bottle neck 12 such that surfaces 52 and 56 fit snugly against surfaces 18 and 44 forming sealing surfaces and that there is no need in Ver Hage for Cargile’s second protrusion given that Ver Hage already discloses a mechanism to “further positively lock the container and ring”, the Examiner replies that whether Ver Hage had one, two, or a greater number of preexisting ways to positively lock the container and ring does not negate the fact that a further locking between the container and ring would be beneficial. In fact, as Ver Hage discloses multiple means for positively locking the container and ring this reinforces that additional locking between the container and ring was desired by Ver Hage.
In response to applicant’s argument that as tear strip 30 is not formed circumferentially neither is lower bead 28 as lower bead 28 engages tear strip 30, the Examiner replies that the Oxford Languages Dictionary defines circumferential as denoting or relating to the circumference of a curved geometric figure. The broadest most reasonable interpretation of “second circumferential protrusion” is a protrusion which extends along the circumference. The claim does not require the second circumferential protrusion to extend around the entire circumference of the container. Further, from figure 3 it can clearly be seen that the lower bead 28 extends along the circumferences of the container 10.
In response to applicant’s argument that the element identified as the protrusion of the cap in the partial marked-up version of Cargile’s Figure 4 is not formed circumferentially because Figure 8 does not show the protrusion labeled in Figure 4, the Examiner replies that the Oxford Languages Dictionary defines circumferential as denoting or relating to the circumference of a curved geometric figure. The broadest most reasonable interpretation of “circumferential protrusion” is a protrusion which extends along the circumference. As the annotated protrusion exists it must have some amount of circumferential extent along the lid 12. Additionally, while figures 4 and 8 do not appear to agree, the drawings must be evaluated for what they reasonably disclose and suggest to one of ordinary skill in the art. In re Aslanian, 590 F.2d 911, 200 USPQ 500 (CCPA 1979). Here, particularly in light of Cargile’s disclosure that additional positive locking occurs under the lower bead 28 figure 4 reasonably discloses that a protrusion exists under lower bead 28 (C. 4 L. 46-48).
In response to applicant’s argument that Lohrer does not disclose or suggest a rounded tip, the Examiner responds that it is indisputable that the protuberance 3 of Lohrer is disclosed as having a rounded tip (see fig. 1).
Examiner agrees with applicant that “Lohrer does use protuberance 3 to enhance[e] a seal”.
In response to applicant's arguments that Curry does not disclose a tear-off film in contact with a circumferential protrusion, let alone a circumferential protrusion with a rounded tip, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
In response to applicant’s argument that Curry cannot provide any evidence in this regard in contrast to the statement in the office action, the Examiner replies that arguments of counsel cannot take the place of evidence in the record MPEP 2113 II. Curry provides factual evidence that a “seal is particularly enhanced when the neck finish 38 is provided with the radially outwardly directed bead 42 as shown in FIG. 6” (see C. 6 L. 19-24).
In response to applicant’s argument that in Curry the frangible skirt portion 16 is also defined by a circumferential weakening line 20 and that Curry does not even show a circumferential tear-off film, the Examiner inquires as to how Curry could both have a circumferential weakening line 20 and not have any circumferential tear-off film.
In response to applicant’s argument that because Curry does not even show a circumferential tear-off film Curry does not provide further evidence of the claimed rounded tip, the Examiner replies that a tear-off film need not be present in order for a rounded tip of a circumferential protrusion to exist.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALLAN D STEVENS whose telephone number is (571)270-7798. The examiner can normally be reached Monday-Friday 12-8 ET.
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, Orlando E. Aviles can be reached at (571)270-5531. 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.
/ALLAN D STEVENS/Primary Examiner, Art Unit 3736
Prosecution Insights