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 .
Response to Arguments
The amendment filed on 12/31/2025 has been entered. Claims 1, 9, 13, 21-22, 29-43 are pending for this application.
The Applicant’s response cancelled previous claims 7, 14-17 and 26-28.
The Applicant’s response added new claims 29-43.
Applicant's arguments regarding the 35 USC 103 rejections of Claims 1, 7, 9, 13-17 and 21-22 have been considered but are moot in light of the applicant’s amendments.
EXAMINER’S NOTE ON THE NATURE OF THE INNOVATION.
The previous claims revolved around the development of a manufacturing process (hence, drawn to the non-elected invention) that revolves around using two different types of Tab-Attaching End Wall converting machines that are fed by a common Web of Tab Preform stock (See Figures 27 and 28 of the instant application) where the Tab Preform stock – 2 and 102, is capable of being run on two different machines.
The current claims focus on distinguishing dimensions of a single tab and end-wall structure.
THE APPLICANT’S RESPONSE TO EXAMINER’S NOTE on page 7 of Response to Arguments: Two examination considerations should be noted:
In response to applicant's argument that the range of features claimed in the improvement of the tabbed end wall (Can ends, tabs, and relative shapes of the portions thereof), the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). In this case, the critical dimensions and clearances and the ratios derived from those dimensions are shown in the prior art as well as the motivation to decrease material usage to generate those features.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, manufacturing industries have long focused on decreasing material usage – thus saving production costs (see McEldowney et al. (US 20070278230 – Paragraph 0005)).
The applicant arguments (after amendment of the claims) set out five main reasons for the uniqueness of the claimed structure of the tab and end wall that are responded to below:
First Point (Page 9) – the applicant states that: “…none of the references disclose a tab length “between about 0.810 inch to about 0.860 inch…” and that “…the prior art fail to teach or suggest the specific tab length now recited…in the amended claims.”
The Examiner disagrees, pointing out that the “specificity” upon which the claim rests is with a dimensional range where each end is preceded by “about.” In an effort to quantify the range of values at each end of the vaguely claimed range, the Examiner used the Applicant’s specification where the original ranges are taken as the claimed acceptable variance in inches. These values and projected ranges are included the in the Examiner’s Analysis Chart A – that follows below:
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Examiner's Analysis Chart A
NOTE THAT: the applicant does not define or limit the claims with an expected range of values. Also note that – given the claimed allowable variance of critical values are anticipated at some point in the range of the prior art or are obvious – as outlined in the arguments in the 35 U.S.C. 103 below.
The Examiner asserts that the previously cited prior art makes the claimed ranges obvious for the reasons noted in the rejection.
Second Point (Page 9) – the applicant states that the : “…Office Characterizes the previously recited range as being “optimum,” but lacks adequate evidence to demonstrate that one of ordinary skill in the art would have considered these values to be optimum.”
The Examiner’s disagrees with the characterization of the arrival at Optimal Values. Given the economic pressures for reducing materials used in manufacturing will result in material savings (See McEldowney et al. (US 20070278230 – Paragraph 0005). The argument of discovering an optimal value for smaller tab critical dimensions (Tab Length, Tab Width, Finger Access Distance, Center Panel Diameter) is disclosed in the prior art cited for the purpose of material savings. At issue is whether one of ordinary skill in the art would arrive at the claimed ranges (i.e., a smaller tab).
The Examiner maintains that these desirable characteristics are critical for reduction of material used in manufacture (As shown in McEldowney), since it has been held that where the general conditions of a claim (Tab, End wall Dimensions and clearances and resulting aspect ratios) are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Third Point (Page 9) – the applicant states that the : “…reliance on In re Aller is improper…” given the previous versions of the claimed features as well as the revisions of Claims 1, 9 and 21.
The Examiner disagrees, pointing out that per MPEP 2144.05, Section 2B states that: “…a particular parameter must first be recognized as a result-effected variable, I.e., A variable which achieves a recognized results, before the determination of the optimum or workable ranges of said variable which can be characterized as “obvious to try.” The Examiner identified the ability to open the tab distance is a “desirable characteristic” or a “results effective variable on Page 21 of Non-Final Office Action dated 10/2/2025 – where the desirable characteristic is the “ability to open the tab (Tab force for Opening).” In re Aller is the case in the MPEP 2144.05. Section 2B that established the legal principle and framework that was applied in the previous and current rejections.
The Examiner maintains that the results effective variables of Tab Length, Width, End-Wall Dimensions and clearances and resulting aspect ratios are knowns within the art (See Rejection – Page 20-22 where these common elements are shown to point to the results effective variable of “ability to open the tab.”). The legal principle articulated in In re Aller is applied properly as articulated in MPEP 2144.05 Section 2B.
Fourth and Fifth Points (Page 10) – the applicant states that the prior art does not anticipate the new ranges of “between about 0.810 inch to about 0.860 inch.”
The Examiner disagrees – pointing out that In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, the results effective variable analysis above shows that the art has continuously innovated by reducing the size and structure of tabs to realize material savings during fabrication (See McEldowney et al. (US 20070278230 – Paragraph 0005).
The Examiner maintains that the references do teach the elements claimed as shown in the previous rejections and the rejections that follow.
If the fourth and fifth points are arguing against the number of references used then IT SHOULD BE NOTED THAT reliance on a large number of references in a rejection does not, without more analysis on the motivation of the individual invention, weigh against the obviousness of the claimed invention. See In re Gorman, 933 F.2d 982, 18 USPQ2d 1885 (Fed. Cir. 1991).
The applicant is thanked for their detailed responses with respect to the arguments and explanations given.
Specification
The amendment filed 12/31/2025 is objected to under 35 U.S.C. 132(a) because it introduces new matter into the disclosure. 35 U.S.C. 132(a) states that no amendment shall introduce new matter into the disclosure of the invention. The added material which is not supported by the original disclosure is as follows:
Claim 9 – Tab Length/Finger Access Length Ratio
Claim 33 – Tab Length/Finger Access Length Ratio
Claim 37, 39, 41 – Tab Length/Finger Access Length Ratio
Claim 40, 41, 42 – End Panel Diameter/Tab Length Ratio
Claim 43 – End Panel Diameter/Nose Portion Position Ratio
Claim 43 – A Nose Portion Distance
Applicant is required to cancel the new matter in the reply to this Office Action.
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required:
The term “an end panel diameter” as referenced in Claims 9, an “end panel diameter” is not referenced in the specification.
The term “a center panel diameter” as referenced in Claims 32, a “center panel diameter is not referenced in the specification.
The limitation of “about 0.810 inch” with respect to tab length is outside the specification’s supported length limitations of “between 0.810-0.950 inch” on Page 6, Lines 18-24.
The term “a nose portion distance” as referenced in Claim 43, the limitation is not referenced in the specification.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
Claims 1, 9, 21, 30 and 34 are rejected under 35 U.S.C. 112(a) as failing to comply with the written description requirement with respect to the tab length limitation of “about 0.810 inch.” The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor at the time the application was filed, had possession of the claimed invention.
The specification states that the length of the tab is “…between 0.810-0.950 inch, and preferably only about 0.860 inch.” The claims introduce an indefinite “about” to the clearly defined endpoints of the length of the tab – exceeding the boundary set forth and supported by the specification.
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.
Claims 1, 9, 13, 21-22, 29-43 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention for the following reasons:
Claims 1, 9 and 21 are rejected under 35 U.S.C. 112(b) as failing to set forth the subject matter which the inventor or a joint inventor regards as the invention for the following reasons:
Claim 1 (Line 6), Claim 9 (Line 12), Claim 21 (Line 10), Applicant recites “a length of the tab”. The claimed range of “between about 0.810 inch and about 0.860 inch” (Claim 1, Line 6) is indefinite because it applies an approximating term “about” to the maximum and minimum boundaries of the range, and it is unclear whether a value outside of a non-approximated range of 0.05 inch would be acceptable. For example, one could consider 0.790 inch or 0.880 inch to be “about/approximately/or other term that is indefinite outside the lower or upper boundary of claimed range of 0.810 inch to 0.860 inch ”, but 0.790 or 0.880 inch would fall outside of a range of 0.810 inch to 0.860 inch that is indicated by the limitation “between.” Therefore, the metes and bounds of the claim are unclear. Examiner notes that the Specification does not define any tolerances regarding how to interpret the broadening term “about.” Correction is required. For purposes of examination, the claimed range “between about 0.810 inch and about 0.860 inch” is not being interpreted to require that the range must be between 0.810 inch to 0.860 inch, thus giving importance to the term broadening term “about” (i.e. a tab length of 0.900 inch in the prior art will be deemed to meet the claimed approximated range of “between about 0.810 inch and about 0.860 inch”).
The application, based on the following added limitations – is replete with the use of the approximating term “about” – which generates a similar 112 (b) rejection where the metes and bounds of the claim become unclear because of their use. The following claims are rejected under 35 U.S.C. 112 (b) for the introduction of indefiniteness:
Tab width – Claim 1, Line 7; Claim 9, Line 12 – where the tab width limitation is “between about 0.616 inch and about 0.620 inch.”
Aspect ratio – Claim 1, Line 9 – where the aspect ratio limitation is “between about 1.30:1 and about 1.396:1.”
Finger Access Distance – Claim 9, Lines 13-15 – where the finger access distance limitation is “between about 0.325 inch and about 0.500 from the perimeter of the can end.”
Finger Access Distance – Claim 21, Lines 11-12 – where the finger access distance limitation is “between 0.325-0.500 inch (does not use about) from the perimeter of the can end (Can end limitation is not specified in this independent claim set – there is no locating feature to determine a distance from.).
Tab Length to Finger Access distance ratio – Claim 21, Lines 13-15 – where the ratio is “between about 1.62:1 to and about 2.07:1.” NOTE THAT: the ratio derived from two indefinite terms is indefinite.
End Panel Diameter – Claim 43 – Lines 1-3 – where the end panel diameter is “…between about 1.650 inch and 1.780 inch.”
Nose Portion Distance – Claim 43, Lines 1-3 – where the nose portion distance is “…between about 0.290 inch and about 0.595 inch.”
Any ratio characteristic that depends on and is derived from an indefinite structural measurement (that is – a structure measurement preceded by the word “about” or “between about”):
Claim 1 – Tab Length/Width ratio
Claim 9 – Tab Length/Finger Access Length Ratio
Claim 33 – Tab Length/Finger Access Length Ratio
Claim 36 – Tab Length/Tab Width Ratio
Claim 37, 39, 41 – Tab Length/Finger Access Length Ratio
Claim 40, 41, 42 – End Panel Diameter/Tab Length Ratio
Claim 43 – End Panel Diameter/Nose Portion Position Ratio
Claims 13, 21-22, and 29-43 are rejected under 35 U.S.C. 112(b) as depending from the rejection of the parent claims.
Appropriate correction is required.
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.
Claims 1, 29-31 are rejected under 35 U.S.C. 103 as being unpatentable over Turner et al. (WO 97300902 – hereafter referred to as Turner) in view of Brown (US 4015744 – hereafter referred to as Brown) and in further view of McEldowney et al. (US 20070278230 – hereafter referred to as McEldowney). See Examiner’s Annotated Diagram A for Turner below:
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Examiner's Annotated Diagram A
In regards to Claim 1, Turner teaches a tab (See Examiner’s Annotated Diagram A, Tab – 50) for a can end (Diagram A, Figures 1 and 2 – Can End - 10), the tab (50) comprising: a body (Annotated Diagram A, Item A including parts 51-53) including a first end (Located at the Nose Portion – 51), a second end (Located at the Ring Pull Portion – 52) disposed opposite and distal from the first end (See Figure 1 where this limitation is taught), a length (Length of Item A of Annotated Diagram A at Item FF) measured by the distance between the first end (At 51) and the second end (At 52), and a width (Shown on Figure 1, Diagram A at Item EE);a nose portion (51) disposed at or about the first end (At 51); and a lift portion (52) disposed at or about the second end (At 52), (NOT EXPLICITLY TAUGHT) {wherein the length (FF) of the tab (50) is between about 0.810 inch and about 0.860 inch (See 35 U.S.C. 112 (b) above – interpreted as a range about a target value where the range from the Specification is .07 inch or 1.8 mm on each side of the target value on Page 5, Line 24 of the Specification.)}, wherein the width (EE) of the tab (50) is between about 0.616 inch and about 0.620 inch (See 35 U.S.C. 112 (b) above – interpreted as a range about a target value where the range from the Specification is .02 inch or 0.51 mm on each side of the target value on Page 5, Line 28-29 of the Specification.), wherein an aspect ratio of the tab is defined as the length (FF) divided by the width (EE), (NOT EXPLICITLY TAUGHT) {wherein the aspect ratio of the tab (50) is between about 1.30:1 and about 1.396:1 (The aspect ratio cannot be examined – as the variance of the ranges of the values that make up the ratio are undefined.)}, wherein the lift portion (52) includes a finger hole (BB) comprising (NOT EXPLICILTY TAUGHT) {a symmetrical oblong opening having two opposing parallel segments extending laterally across the width of the lift portion}.
Turner does not explicitly teach a tab length of less than 0.985 inches, only a length ABOUT 0.990 inches.
Brown – in a similar disclosure on tabbed closures on an end wall – does teach the following length: a tab length and width in inches (Column 7, Lines 30-45 teaches a tab length of 0.900 inches and a tab width of 0.624 inches.) and an aspect ratio of 1.44 (as defined as tab length divided by tab width per where the aspect ratio is within the claimed range of the instant application of 1.5:1 to 1.3:1.)
It would have been obvious to one having ordinary skill in the art at the time the application was filed to modify the tab dimensions taught by Turner, providing the tab dimensions and resulting properties taught by Brown (Tab length of 0.900 inches, tab width of 0.624 inches – Column 7, Lines 30-45, Aspect Ratio of 1.44:1), motivated by the benefit of providing a compact opening structure (Column 5, Lines 37-40). Moreover, simple substitution of a known element (Tab size and comparative dimensional ratios) for another with a predictable result (Minimizing materials used for fabrication.) is rationale (B) of the rationales supporting a conclusion of obviousness issued by the Supreme Court in KSR v. Teleflex. See MPEP 2141(III).
Further, Turner as modified by Brown discloses the claimed invention except for overlapping ranges of the tab length (The claimed range with assumed deviation of the range overlaps with Browns range of “about 0.900 inches”) for tab length.
It would have been obvious to one having ordinary skill in the art at the time the invention was made to optimize and arrive at the optimum length for the tab based on common ergonomic considerations including opening force, recognizing that the length of the tab is directly correlated to the ability to open the tab (force required to open tab balanced against material savings of a smaller tab), which is a desirable characteristic (Cost Savings), since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. Please note that in the instant application, the Applicant has not disclosed any criticality for the claimed limitation (The initial range of criticality is established in the specification as between 0.810 inch-0.950 inch – Specification – Page 5, Lines 20-24.).
The tab fingerhole shape of Turner as modified by Brown does not include the configuration of the instant application.
McEldowney – in a similar disclosure on tabbed closures for containers – does teach the missing limitations. See Examiner’s Annotated Diagram C for McEldowney that follows:
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Examiner's Annotated Diagram C
However, McEldowney does teach the missing shape of the fingerhole – including: wherein the lift portion includes a finger hole comprising a symmetrical oblong opening having two opposing parallel segments extending laterally across the width of the lift portion (See Annotated Diagram C where McEldowney teaches the fingerhole configuration claimed in the instant application.)(MOTIVATION: Reducing tab gauge stock while maintaining tab strength – Paragraph 0005.)
It would have been obvious to one having ordinary skill in the art at the time the application was filed to modify the fingerhole structure of Turner as modified by Brown, providing the symmetrical oblong opening having two opposing parallel segments extending laterally across the width of the lift portion of McEldowney (See Figure 3 of Annotated Diagram C), motivated by the benefit of reducing tab gauge stock while maintaining tab strength – Paragraph 0005. Moreover, the combination of prior art elements according to known methods to yield predictable results is Rationale (A) of the rationales supporting a conclusion of obviousness issued by the Supreme Court in KSR v. Teleflex. See MPEP 2141(III).
In regrade to Claim 29, Turner – as modified above – already teaches a tab (Turner – 50):, wherein the length (FF) of the tab (50) is about 0.860 inch (See Examiner’s Variance Analysis Chart 1 – where Turner’s tab length of 0.900 falls within the variance of the claimed tab length given the undefined term “about.”)
In regards to Claim 30, the further limitation: wherein the length (FF) of the tab (50) is about 0.810 inch (See 35 U.S.C. 112 (a) where this limitation is not supported in the specification).
In regards to Claim 31, Turner continues to teach a tab (Turner – 50) width (EE) of about 0.625 inches.
Turner’s tab width does not exactly match the tab width claimed in the instant application.
However, Turner discloses the claimed invention except for a tab width of specifically 0.616 inch. It would have been obvious to one having ordinary skill in the art at the time the invention was made to optimize and arrive at “about 0.616”, recognizing that tab width is directly correlated to strength of the tab with respect to the opening force required, which is a desirable characteristic, since it has been held that discovering an optimum value of a result effective variable (tab width that supports the required opening force) involves only routine skill in the art. In re Boesch, 167 F.2d 272, 205 USPQ 215 (CCPA 1980). Please note that in the instant application, the Applicant has not disclosed any criticality for the claimed limitation.
NOTE: The difference between the Turner’s tab and the claimed invention is 0.009 inches or 0.23 millimeters which – when viewing Examiner’s Variance Analysis Chart – each of the values overlap.
Claim 9, 21-22, and 32-43 are rejected under 35 U.S.C. 103 as being unpatentable over Turner Brown/McEldowney and in further view of Ramsey et al. (US 20170253371 – hereafter referred to as Ramsey).
In regards to Claim 9, Turner as modified in the parent claim, teaches all the limitations of the parent claim.
Turner, as modified previously, does teach an end panel (Turner - End Panel - 20) diameter of 2.25” and a finger access distance (GG) as well as: a rivet (Rivet – 70); and a tab (50) affixed to the end panel (20) by the rivet, wherein the tab (50) comprises: a body (A) including a first end (51), a second end (52) disposed opposite and distal from the first end (51)(See Annotated Diagram A, Figure 1 where this configuration is shown.), a length (Diagram A, Item FF, Page 10, Lines 1-8 -length claimed) measured by the distance between the first end (51) and the second end (52), and a width (Diagram A, Item EE); a nose portion (At Item 51)) disposed at or about the first end (51); and a lift portion (At 52) disposed at or about the second end (52) (NOTE: the functions of nose and lift portions are described on Translation, Pate 9, Lines 20-33), wherein the length (FF) of the tab (50) is between about 0.810 inch to about 0.860 inch (See parent Claim for motivation and modification and 35 U.S.C. 112 (b) where the range of “between about” is indefinite), wherein the width (Diagram A, Item EE) of the tab (50) is between about 0.616 inch and 0.620 inch (See Parent Claim for motivation and modification and 35 U.S.C. 112 (b) where the range of “between about” is indefinite), wherein the tab (50) is affixed to the center panel (Main Panel – 20) with the second end of the tab (52) disposed a finger access distance (Diagram A, Item GG).
Turner – as modified previously - does not teach an end panel diameter claimed in the preamble of Claim 9, nor the indefinitely claimed finger access distance.
Ramsey – in a similar disclosure on tabbed closures for smaller diameter containers – an end panel having an end panel diameter between 1.650 inch and 1.780 inch (Ramsey – teaches a 42mm panel – or 1.654 inches); wherein the previously taught tab is affixed to the previously taught center panel with the previously taught second end of the tab disposed a finger access distance between 0.236 inch and 0.590 inch (Paragraph 0078 -where the Finger Access Clearance – F is clearly claimed between two SINGULAR values) (NOT EXPLICITLY TAUGHT) {between about 0.325 inch and about 0.500 inch} from a perimeter (Ramsey – Seam – 60 – outer surface) of the previously taught can end (MOTIVATION: to decrease the material used on the formation of the end wall structure – Paragraph 0115.).
With respect to the end panel diameter, it would have been obvious to one having ordinary skill in the art at the time the invention was made to optimize and arrive at the optimum diameter to the end wall based on common ergonomic considerations including opening force, recognizing that the diameter of the end wall is directly correlated to the ability to open the tab (force required to open tab balanced against material savings of a smaller end wall), which is a desirable characteristic (Cost Savings), since it has been held that where the general conditions of a claim are disclosed in the prior art (An end-wall diameter that is within the range claimed by the applicant.), discovering the optimum or workable range or value involves only routine skill in the art. In re Aller, 105 USPQ 233. Please note that in the instant application, the Applicant has not disclosed any criticality for the claimed limitation (The initial range of criticality is established in the specification as between about 1.650-1.780 inches – Specification – Page 7, Lines 20-23.).
With respect to the finger access distance, it would have been obvious to one having ordinary skill in the art at the time the invention was made to optimize and arrive at the optimum range for the finger access distance of between 0.236 inch and 0.590 inch based on common ergonomic considerations including opening force, recognizing that the length of the tab and finger access length are directly correlated to the ability to open the tab (force required to open tab balanced against material savings of a smaller tab), which is a desirable characteristic (Cost Savings), since it has been held that where the general conditions of a claim are disclosed in the prior art (An overlapping range of finger access distances, where Ramsey encompasses the range indefinitely claimed by the instant application of between about 0.325-0.500 inches – Page 10, Lines 4-8.) discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. Please note that in the instant application, the Applicant has not disclosed any criticality for the claimed limitation (The initial range of criticality is established in the specification as between 0.325-0.500 inches – Page 10, Lines 4-8.).
The above modifications – while overlapping the claimed ranges – do not match the ranges exactly.
However, it would have been obvious to one having ordinary skill in the art at the time the application was filed to modify the dimensional ranges of end panel diameter and finger access distance to the claimed ranges, motivated by the resulting material savings of the end wall assembly – Paragraph 0115. Moreover, the combination of prior art elements (Reducing metal required for same functional requirements – opening) according to known methods (Material reductions constrained by ergonomic factors of opening force and space) to yield predictable results (reduction in material required during manufacture) is Rationale (A) of the rationales supporting a conclusion of obviousness issued by the Supreme Court in KSR v. Teleflex. See MPEP 2141(III).
In regards to Claim 32, Turner teaches a tab (Turner, See Examiner’s Annotated Diagram A, Tab – 50) for a can end (Diagram A, Figures 1 and 2 – Can End - 10): wherein the tab (50) is configured to be affixed to a center panel (Main Panel - 20) of the can end (10), the center panel (20) having a diameter (NOT EXPLICITLY TAUGHT) {between about 1.650 inch and about 1.780 inch, with the second end of the tab is disposed a finger access distance between about 0.325 inch and about 0.500 inch from a perimeter of the can end.}
Turner as modified previously does not teach a center panel diameter or resulting finger access distance.
Ramsey – in a similar disclosure on smaller can ends – does teach a panel diameter: between about 38-52 mm (about 1.50 - 2.05 inch) (NOT EXPLICTLY TAUGHT) {between about 1.650 inch and about 1.780 inch}, with the second end of the tab is disposed a finger access distance (GG) between about 0.325 inch and about 0.500 (An overlapping range of finger access distances, where Ramsey encompasses the range between 6-15 mm (i.e., 0.236-0.591 inch) from a perimeter of the can end.) (MOTIVATION: to decrease the material used on the formation of the end wall structure – Paragraph 0115.).
Ramsey’s ranges does not match the claimed range of Center Panel diameter of about 1.650 inch and about 1.780 inch or a finger access distance between 0.325-0.500.
With respect to the finger access distance, it would have been obvious to one having ordinary skill in the art at the time the invention was made to optimize and arrive at the optimum range for the finger access distance of between 0.236 inch and 0.590 inch based on common ergonomic considerations including opening force, recognizing that the length of the tab and finger access length are directly correlated to the ability to open the tab (force required to open tab balanced against material savings of a smaller tab), which is a desirable characteristic (Cost Savings), since it has been held that where the general conditions of a claim are disclosed in the prior art (An overlapping range of finger access distances, where Ramsey encompasses the range indefinitely claimed by the instant application of between about 0.325-0.500 inches – Page 10, Lines 4-8.) discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. Please note that in the instant application, the Applicant has not disclosed any criticality for the claimed limitation (The initial range of criticality is established in the specification as between 0.325-0.500 inches – Page 10, Lines 4-8.).
With respect to the end panel diameter range, it would have been obvious to one having ordinary skill in the art at the time the invention was made to optimize and arrive at the optimum diameter range to the end wall based on common ergonomic considerations including opening force, recognizing that the diameter of the end wall is directly correlated to the ability to open the tab based on available finger access distance (force required to open tab balanced against material savings of a smaller end wall), which is a desirable characteristic (Cost Savings), since it has been held that where the general conditions of a claim are disclosed in the prior art (An end-wall diameter that is within the range claimed by the applicant and a requirement for a finger access opening.), discovering the optimum or workable range or value involves only routine skill in the art. In re Aller, 105 USPQ 233. Please note that in the instant application, the Applicant has not disclosed any criticality for the claimed limitation (The initial range of criticality is established in the specification as between about 1.650-1.780 inches – Specification – Page 7, Lines 20-23.).
The above modifications – while overlapping the claimed ranges – do not match the ranges exactly.
However, it would have been obvious to one having ordinary skill in the art at the time the application was filed to modify the dimensional ranges of end panel diameter and finger access distance to the claimed ranges, motivated by the resulting material savings of the end wall assembly – Paragraph 0115. Moreover, the combination of prior art elements (Reducing metal required for same functional requirements – opening) according to known methods (Material reductions constrained by ergonomic factors of opening force and space) to yield predictable results (reduction in material required during manufacture) is Rationale (A) of the rationales supporting a conclusion of obviousness issued by the Supreme Court in KSR v. Teleflex. See MPEP 2141(III).
In regards to Claim 33, Turner teaches a tab (Turner, See Examiner’s Annotated Diagram A, Tab – 50) for a can end (Diagram A, Figures 1 and 2 – Can End - 10): wherein a ratio of the length (FF) of the tab (50) to the finger access distance (GG) , defined by the length of the tab divided by the finger access distance, is between about 1.72:1 and about 2.07:1 (NEW MATTER), (The aspect ratio cannot be examined – as the variance of the ranges of the values that make up the ratio are undefined.) (See 35 U.S.C. 112 (b) where this limitation is indefinite).
In regards to Claim 34, Turner teaches a tab (Turner, See Examiner’s Annotated Diagram A, Tab – 50) for a can end (Diagram A, Figures 1 and 2 – Can End - 10): wherein the length of the tab is about 0.810 inch (See 35 U.S.C. 112 (a) where this limitation is not supported in the specification).
In regards to Claim 35, Turner teaches a tab (Turner, See Examiner’s Annotated Diagram A, Tab – 50) for a can end (Diagram A, Figures 1 and 2 – Can End - 10): wherein the width of the tab is about 0.625 inch.
Turner’s tab width does not exactly match the tab width claimed in the instant application (about 0.616 inch width.).
However, Turner discloses the claimed invention except for a tab width of specifically 0.616 inch. It would have been obvious to one having ordinary skill in the art at the time the invention was made to optimize and arrive at “about 0.616”, recognizing that tab width is directly correlated to strength of the tab with respect to the opening force required, which is a desirable characteristic, since it has been held that discovering an optimum value of a result effective variable (tab width that supports the required opening force) involves only routine skill in the art. In re Boesch, 167 F.2d 272, 205 USPQ 215 (CCPA 1980). Please note that in the instant application, the Applicant has not disclosed any criticality for the claimed limitation.
NOTE: The difference between the Turner’s tab and the claimed invention is 0.009 inches or 0.23 millimeters which – when viewing Examiner’s Variance Analysis Chart – each of the values overlap.
In regards to Claim 36, Turner teaches a tab (Turner, See Examiner’s Annotated Diagram A, Tab – 50) for a can end (Diagram A, Figures 1 and 2 – Can End - 10): wherein an aspect ratio of the tab (50) is about 1.396:1 (NEW MATTER), (The aspect ratio cannot be examined – as the variance of the ranges of the values that make up the ratio are undefined.), the aspect ratio defined as the length (FF) of the tab (50) divided by a width (EE) of the tab (50).
In regards to Claim 37, Turner teaches a tab (Turner, See Examiner’s Annotated Diagram A, Tab – 50) for a can end (Diagram A, Figures 1 and 2 – Can End - 10): wherein a ratio of the length (FF) of the tab (50) to the finger access distance (GG), defined by the length (FF) of the tab (50) divided by the finger access distance (GG), is between about 1.72:1 and about 2.07:1 (NEW MATTER), (The aspect ratio cannot be examined – as the variance of the ranges of the values that make up the ratio are undefined.).
In regards to Claim 38, Turner teaches a tab (Turner, See Examiner’s Annotated Diagram A, Tab – 50) for a can end (Diagram A, Figures 1 and 2 – Can End - 10): wherein a ratio of the length (FF) of the tab (50) to the finger access distance (GG), defined by the length (FF) of the tab (50) divided by the finger access distance (GG), is between about 1.62:1 and about 1.72:1 (NEW MATTER), (The aspect ratio cannot be examined – as the variance of the ranges of the values that make up the ratio are undefined.).
In regards to Claim 39, Turner teaches a tab (Turner, See Examiner’s Annotated Diagram A, Tab – 50) for a can end (Diagram A, Figures 1 and 2 – Can End - 10): wherein the length (FF) of the tab (50) is about 0.860 inch (See Examiner’s Variance Analysis Chart 1 – where Turner’s tab length of 0.900 falls within the variance of the claimed tab length given the undefined term “about.”), the finger access distance (GG) is about 0.414 ich (See Parent Claim for Motivation and Modification to this limitation), and a ratio of the length (FF) of the tab (50) to the finger access distance (GG), defined by the length (FF) of the tab (50) divided by the finger access distance (GG), is about 2.07:1 (NEW MATTER), (The aspect ratio cannot be examined – as the variance of the ranges of the values that make up the ratio are undefined.).
In regards to Claim 40, Turner teaches a tab (Turner, See Examiner’s Annotated Diagram A, Tab – 50) for a can end (Diagram A, Figures 1 and 2 – Can End - 10): wherein a ratio of the end panel diameter to the length of the tab (NEW MATTER), defined by the end panel diameter divided by the length of the tab, is between about 1.91:1 and about 2.06:1 (The aspect ratio cannot be examined – as the variance of the ranges of the values that make up the ratio are undefined.).
In regards to Claim 41, Turner teaches a tab (Turner, See Examiner’s Annotated Diagram A, Tab – 50) for a can end (Diagram A, Figures 1 and 2 – Can End - 10) wherein: the length (FF) of the tab (50) is about 0.860 inch (See Examiner’s Variance Analysis Chart 1 – where Turner’s tab length of 0.900 falls within the variance of the claimed tab length given the undefined term “about.”), the width (EE) of the tab (50) is about 0.616 inch (Turner teaches 0.625 inch – see modification below), the finger access distance (GG) is about 0.414 inch (Turner – as modified in the parent claim, already teaches a range that encompasses this limitation), a ratio of the length (FF) of the tab (50) to the finger access distance (GG), defined by the length (FF) of the tab (50) divided by the finger access distance ((GG), is about 2.07:1 (NEW MATTER), and a ratio of the previously taught end panel diameter to the length of the previously taught tab, defined by the previously taught end panel diameter divided by the length of the tab, is between about 1.91:1 and about 2.06:1 (NEW MATTER), (The aspect ratio cannot be examined – as the variance of the ranges of the values that make up the ratio are undefined.).
SEPARATE INDEPENDENT CLAIM SET:
In regards to Claim 21, Turner - as modified previously - teaches a tab (Turner, See Examiner’s Annotated Diagram A, Tab – 50) for a can end (Diagram A, Figures 1 and 2 – Can End – 10) comprising: an end panel (End Panel - 10) having an outer perimeter (See Annotated Diagram A, Figure 1 where the end panel has an outer perimeter at 14.); a rivet (Rivet – 70); and a tab (Tab-50) affixed to the end panel (10) by the rivet (70), wherein the tab (50) comprises: a body (Diagram A, Item A) including a first end (Diagram A, At 51), a second end (At 52) disposed opposite and distal from the first end (51)(See Diagram A, Figure 1 where this is true.), and a length (Diagram A, Tab Length – FF) measured by the distance between the first end (At 51) and the second end (At 52); a nose portion (51) disposed at or about the first end (At 51); and a lift portion (52) disposed at or about the second end (At 52), wherein the length (FF) of the tab (50) is between about 0.810 inch to about 0.860 inch, and wherein the lift portion (52) is disposed a finger access distance (GG) between 0.325 inch and 0.500 inch from the outer perimeter (14) of the end panel (10), wherein a ratio of the length of the tab to the finger access distance, defined by the length of the tab divided by the finger access distance, is between about 1.62:1 and about 2.07:1.
Turner does not explicitly teach a tab length of less than 0.985 inches, only a length ABOUT 0.990 inches.
Brown – in a similar disclosure on tabbed closures on an end wall – does teach the following length: a tab length and width in inches (Column 7, Lines 30-45 teaches a tab length of 0.900 inches and a tab width of 0.624 inches.).
It would have been obvious to one having ordinary skill in the art at the time the application was filed to modify the tab dimensions taught by Turner, providing the tab dimensions and resulting properties taught by Brown (Tab length of 0.900 inches, tab width of 0.624 inches – Column 7, Lines 30-45), motivated by the benefit of providing a compact opening structure (Column 5, Lines 37-40). Moreover, simple substitution of a known element (Tab size) for another with a predictable result (Minimizing materials used for fabrication.) is rationale (B) of the rationales supporting a conclusion of obviousness issued by the Supreme Court in KSR v. Teleflex. See MPEP 2141(III).
Further, Turner as modified by Brown discloses the claimed invention except for overlapping ranges of the tab length (The claimed range with assumed deviation of the range overlaps with Browns range of “about 0.900 inches”) for tab length.
It would have been obvious to one having ordinary skill in the art at the time the invention was made to optimize and arrive at the optimum length for the tab based on common ergonomic considerations including opening force, recognizing that the length of the tab is directly correlated to the ability to open the tab (force required to open tab balanced against material savings of a smaller tab), which is a desirable characteristic (Cost Savings), since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. Please note that in the instant application, the Applicant has not disclosed any criticality for the claimed limitation (The initial range of criticality is established in the specification as between 0.810 inch-0.950 inch – Specification – Page 5, Lines 20-24.).
Turner as modified previously does not teach a finger access distance.
Ramsey – in a similar disclosure on smaller can ends – does teach a panel diameter: between about 38-52 mm (about 1.50 - 2.05 inch) (NOT EXPLICTLY TAUGHT) {between about 1.650 inch and about 1.780 inch}, with the second end of the tab is disposed a finger access distance (GG) between about 0.325 inch and about 0.500 (An overlapping range of finger access distances, where Ramsey encompasses the range between 6-15 mm (i.e., 0.236-0.591 inch) from a perimeter of the can end.) (MOTIVATION: to decrease the material used on the formation of the end wall structure – Paragraph 0115.).
Ramsey’s ranges does not match the claimed range of for a finger access distance between 0.325-0.500 inches.
With respect to the finger access distance, it would have been obvious to one having ordinary skill in the art at the time the invention was made to optimize and arrive at the optimum range for the finger access distance of between 0.236 inch and 0.590 inch based on common ergonomic considerations including opening force, recognizing that the length of the tab and finger access length are directly correlated to the ability to open the tab (force required to open tab balanced against material savings of a smaller tab), which is a desirable characteristic (Cost Savings), since it has been held that where the general conditions of a claim are disclosed in the prior art (An overlapping range of finger access distances, where Ramsey encompasses the range indefinitely claimed by the instant application of between about 0.325-0.500 inches – Page 10, Lines 4-8.) discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. Please note that in the instant application, the Applicant has not disclosed any criticality for the claimed limitation (The initial range of criticality is established in the specification as between 0.325-0.500 inches – Page 10, Lines 4-8.).
The above modifications – while overlapping the claimed range of finger access distance – does not match the ranges exactly.
However, it would have been obvious to one having ordinary skill in the art at the time the application was filed to modify the dimensional ranges of end panel diameter and finger access distance to the claimed ranges, motivated by the resulting material savings of the end wall assembly – Paragraph 0115. Moreover, the combination of prior art elements (Reducing metal required for same functional requirements – opening) according to known methods (Material reductions constrained by ergonomic factors of opening force and space) to yield predictable results (reduction in material required during manufacture) is Rationale (A) of the rationales supporting a conclusion of obviousness issued by the Supreme Court in KSR v. Teleflex. See MPEP 2141(III).
In regards to Claim 22, Turner – as modified above - already teaches a tab (See Examiner’s Annotated Diagram A, Tab – 50) for a can end (Diagram A, Figures 1 and 2 – Can End - 10): wherein the lift portion is disposed finger access distance (Turner – GG) is about 0.414 inch (Ramsey teaches - An overlapping range of finger access distances, that encompasses value of “about 0.414 inch” claimed by the instant application of between about 0.325-0.500 inches – Page 10, Lines 4-8.) from the outer perimeter (14) of the end panel (10) (See Modification and Motivation in the parent claim.).
In regards to Claim 42, Turner teaches a tab (See Examiner’s Annotated Diagram A, Tab – 50) for a can end (Diagram A, Figures 1 and 2 – Can End - 10): wherein a ratio of an end panel diameter of the end panel to the length of the tab, defined by the end panel diameter divided by the length of the tab, is between about 1.91:1 and about 2.06:1 (The aspect ratio cannot be examined – as the variance of the ranges of the values that make up the ratio are undefined.).
In regards to Claim 43, Turner teaches a tab (See Examiner’s Annotated Diagram A, Tab – 50) for a can end (Diagram A, Figures 1 and 2 – Can End - 10): the end panel (10) and the length (FF) of the tab (50) is about 0.860 inch (See Parent Claim for motivation and modification), (NEW MATTER) {and the nose portion is disposed a nose portion distance between about 0.290 inch and about 0.595 inch (Indefinite) from the outer perimeter of the end panel on a side of the outer perimeter facing the nose portion.}
Turner – as previously modified – does not teach an explicit end panel diameter value.
Ramsey does teach an end panel diameter between about 38-52 mm (about 1.50 - 2.05 inch) (NOT EXPLICTLY TAUGHT) {between about 1.650 inch and about 1.780 inch – The claimed range)},
With respect to the end panel diameter, it would have been obvious to one having ordinary skill in the art at the time the invention was made to optimize and arrive at the optimum diameter to the end wall based on common ergonomic considerations including opening force, recognizing that the diameter of the end wall is directly correlated to the ability to open the tab (force required to open tab balanced against material savings of a smaller end wall), which is a desirable characteristic (Cost Savings), since it has been held that where the general conditions of a claim are disclosed in the prior art (An end-wall diameter that is within the range claimed by the applicant.), discovering the optimum or workable range or value involves only routine skill in the art. In re Aller, 105 USPQ 233. Please note that in the instant application, the Applicant has not disclosed any criticality for the claimed limitation (The initial range of criticality is established in the specification as between about 1.650-1.780 inches – Specification – Page 7, Lines 20-23.).
The above modification – while overlapping the claimed range – do not match the range exactly.
However, it would have been obvious to one having ordinary skill in the art at the time the application was filed to modify the dimensional ranges of end panel diameter and finger access distance to the claimed ranges, motivated by the resulting material savings of the end wall assembly – Paragraph 0115. Moreover, the combination of prior art elements (Reducing metal required for same functional requirements – opening) according to known methods (Material reductions constrained by ergonomic factors of opening force and space) to yield predictable results (reduction in material required during manufacture) is Rationale (A) of the rationales supporting a conclusion of obviousness issued by the Supreme Court in KSR v. Teleflex. See MPEP 2141(III).
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Turner in view of Brown/McEldowney/Ramsey and in further view of Burleson Jr. et al. (US 20120263835 hereafter referred to as Burleson). The Examiner’s Annotated Diagram B for Burleson follows:
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Examiner's Annotated Diagram B
However, In regards to Claim 13, Turner – as modified above – teaches a can end (Turner – Can End – 10): wherein the end panel (Turner, Can End Panel - 20) comprises a score line (Score Panel – 80) defining a tear panel (Per Page 13, Lines 25-40 describe the area within the score panel – 80 becoming the tear panel – meeting this limitation.), (NOT TAUGHT) {
Turner does not teach structures to manipulate the tab positioning for opening operations.
However, Burleson – in a similar disclosure on tabbed frangible end wall structure – does teach the missing limitations including: a first arc-shaped bead (Burleson, Annotated Diagram B, Item A1), and a second arc-shaped bead (Annotated Diagram C, Item A2); and wherein the first arc-shaped bead (A1) and the second arc-shaped bead (A2) are disposed beneath the previously taught tab (See Annotated Diagram B, Figure 1 where the tab is over both arc-shaped beads), locating beads (Burleson - Support Beads – 40) that both support the previously taught tab located near the arch shaped beads (A1 and A2)(See Annotated Diagram B, Figure 3 where A1 and A2 are near the locating beads (40) where this limitation is met.) that also serve as alignment features during the manufacturing process (Paragraph 0018 – as the locating beads – 40 “During the manufacturing process, support beads – 40 act as an alignment feature to facilitate the correct alignment of the can end – 10). (MOTIVATION: improving the strength of the can end with embossed or debossed beads. – Paragraph 0002.)
It would have been obvious to one having ordinary skill in the art at the time the application was filed to modify the end wall structure taught by Turner as modified by Brown, providing the arch shaped beads (Burleson – Annotated Diagram B, Items A1 and A2) and locating beads (40) of Burleson motivated by the benefit of improving the strength of the can end with embossed or debossed beads. – Paragraph 0002. Moreover, the combination of prior art elements (arch shaped or locating beads to increase strength and position tab for opening operations) according to known methods (manufacture of end-panels with frangible elements) to yield predictable results (strengthen end panel, provide locating and alignment features during the manufacturing process) is rationale (A) of the rationales supporting a conclusion of obviousness issued by the Supreme Court in KSR v. Teleflex. See MPEP 2141(III).
EXAMINER’S NOTE: Were an argument to be made that the arch shaped beads not separate and distinct structures, it should be noted that per MPEP 2144.04 Section IV – Changes in Size, Shape – Section A, that changes in relative dimensions (continuously connected bead versus separate beads) while performing the same function (Supporting the tab) does not result in a patentable distinction. See In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), “the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device…” .
Therefore, the modified end-wall of Turner/Brown and Burleson anticipates the claimed limitations as presented for examination.
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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/JOHN MARTIN HOPPMANN/Examiner, Art Unit 3733
/ANDREW T KIRSCH/Primary Examiner, Art Unit 3733
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