DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim 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) 1, 4, 5, 7, 8 and 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Akiyama et al. (US-7115309-B2) in view of Krishnakumar et al. (US-5989661-A).
Regarding claims 1, 4, 5, 8 and 9, Akiyama discloses a copolyester container (1, col. 5, lines 4-13) that is stretch blow molded from a preform (col. 1, lines 7-10) comprising a stretched container body (Fig. 1) having a container neck (at 2) attached thereto, the container neck having an outlet opening, and the container body (5) having a second opening closed by a weld seam (col. 4, lines 46-55), wherein the container comprises a tube having a tube neck (at 3) and a tube end opposite the tube neck, wherein the outlet opening is situated in a region of the tube neck and the second opening is situated in a region of the tube and the second opening is sealed by the weld seam (Fig. 1), wherein the container is comprises of a single layer for easier recycling (Fig. 2), wherein the copolyester of the container includes a copolymer (col. 5, lines 4-13). Note that the relation of the final container to the upstretched container and the welding and welding temperatures of the preform are being treated as product by process limitations, and prior art container reads on the final structure claimed. Where the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on “inherency” under 35 USC § 102, on prima facie obviousness” under 35 USC § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO' s inability to manufacture products or to obtain and compare prior art products.” [In re Best, 562 F2d 1252, 1255, 195 USPQ 430, 433-4 (CCPA 1977); MPEP §2112.01].
Akiyama fails to teach wherein the copolyester of the container is polyethylene terephthalate (PET) having a copolymer content between 4 wt. % and 10 wt. %, and the copolymer comprises isophthalic acid, diethylene glycol, furan dicarboxylic acid, propylene glycol, or butylene glycol: or wherein the copolyester of the container is polyethylene furanoate (PEF) having a copolymer content below 5 wt. %, wherein the copolymer is terephthalic acid, isophthalic acid or diethylene glycol, propylene glycol, spiroglycol or butylene glycol.
Krishnakumar teaches that it is known in the art to manufacture a container with polyethylene terephthalate (PET) having a copolymer content between 4 wt. % and 10 wt. %, and the copolymer is isophthalic acid, diethylene glycol, furan dicarboxylic acid, propylene glycol, or butylene glycol (col. 10, lines 27-36), and the PET is produced from a regenerate (col. 10 lines 65-67).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to have manufactured the container with polyethylene terephthalate (PET) having a copolymer content between 4 wt. % and 10 wt. %, and the copolymer is isophthalic acid, diethylene glycol, furan dicarboxylic acid, propylene glycol, or butylene glycol, in order to adjust the durability of the container and since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. It would have been obvious to one of ordinary skill in the art at the time the invention was made to have to have manufactured the container with 30% regenerate for recycling purposes and since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice.
Regarding claim 7, Akiyama teaches wherein the weld can with stand strains but fails to specifically teach wherein the weld is 5 mm and can withstand a tensile force of 100 N. It would have been obvious to one of ordinary skill in the art at the time the invention was made to have manufactured the weld to withstand a tensile strength, in order to ensure that the container can be used normally. It would have been obvious to one of ordinary skill in the art at the time the invention was made to have manufactured the weld to be 5 mm, in order to correspond to the container sizer and since such a modification would have been a change in size of an existing component. A change in size is generally recognized as being within the level of ordinary skill in the art.
Applicants may rebut a prima facie case of obviousness based on optimization of a variable disclosed in a range in the prior art by showing that the claimed variable was not recognized in the prior art to be a result-effective variable. E.I. Dupont de Nemours & Company v. Synvina C.V., 904 F.3d 996, 1008, 128 USPQ2d 1193, 1202 (Fed. Cir. 2018). ("The idea behind the 'result-effective variable' analysis is straightforward. Our predecessor court reasoned that a person of ordinary skill would not always be motivated to optimize a parameter 'if there is no evidence in the record that the prior art recognized that [that] particular parameter affected the result.' Antonie, 559 F.2d at 620.) For example, in Antonie the claimed device was characterized by a certain ratio, and the prior art did not disclose that ratio and was silent regarding one of the variables in the ratio. Id. at 619. Our predecessor court thus reversed the Board’s conclusion of obviousness. Id. at 620. Antonie described the situation where a 'parameter optimized was not recognized to be a result-effective variable' as an 'exception' to the general principle in Aller that 'the discovery of an optimum value of a variable in a known process is normally obvious.' Id. at 620. Our subsequent cases have confirmed that this exception is a narrow one. … In summarizing the relevant precedent from our predecessor court, we observed in Applied Materials that '[i]n cases in which the disclosure in the prior art was insufficient to find a variable result-effective, there was essentially no disclosure of the relationship between the variable and the result in the prior art.' 692 F.3d at 1297. Likewise, if the prior art does recognize that the variable affects the relevant property or result, then the variable is result-effective. Id. ('A recognition in the prior art that a property is affected by the variable is sufficient to find the variable result-effective.')"). Applicants must articulate why the variable at issue would not have been recognized in the prior art as result-effective. However, it should be noted that after KSR, the presence of a known result-effective variable would be one, but not the only, motivation for a person of ordinary skill in the art to experiment to reach another workable product or process. KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). See subsection II.B above for additional information about consideration of result-effective variables within an obviousness analysis
Claim(s) 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Akiyama and Krishnakumar in view of Vandormael et al. (US-20180117871-A1).
Akiyama fails to teach wherein the container has an integral handle formed with a reach-through opening, wherein the weld seam bounds off the reach-through opening by joining a first and second wall end bordering on the reach-through opening.
Vandormael teaches that it is known the art to manufacture a container with an integral handle formed with a reach-through opening, wherein a bottom of the container bounds off the reach-through opening by joining a first and second wall end bordering on the reach-through opening (Fig. 2).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to have manufactured the container with a handle, in order to make it easier to hold the container.
Response to Arguments
Applicant's arguments filed 4/21/2026 have been fully considered but they are not persuasive.
Regarding applicant’s argument that the prior art references above fail to teach PEF, it is noted that the claims recite PEF in the alternative. PEF is not required by the claims. The references above read on the alternative language as shown in the rejection above.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEFFREY R ALLEN whose telephone number is (571)270-7426. The examiner can normally be reached 9:00 am - 5:00 pm, Monday-Friday.
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/JEFFREY R ALLEN/Primary Examiner, Art Unit 3733
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