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
Applicant's arguments dated 12/23/2025 regarding the 35 USC 103 rejections of Claims 1-4, 7, 9-26 and 28-30 have been considered and are not persuasive for the reasons that follow:
Applicant’s arguments with respect to the claims under consideration dated 12/23/2025 have been considered and are not persuasive for the following reasons:
With respect to applicant’s arguments on Pages 8-9 with respect to “…in the closed and locked position, the upper surface of the lid is coplanar with the upper surface of the bridge portion.”
The first argument is over the location of the bridge portion as indicated in the Annotated Diagram A of the Non-Final Office Action dated 9/26/2025.
The Examiner Disagrees, and in an effort to clarify the record, the below Annotated Diagram X compares the applicants annotated diagram and the bridge portion – 5226 at Paragraph 00394 of the Specification and Figure 51 of the elected invention to clarify the record on the location of the bridge portion. See Examiner’s Annotated Diagram X below:
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Examiner's Annotated Diagram X
Applicant's arguments do not comply with 37 CFR 1.111(c) because they do not clearly point out the patentable novelty which he or she thinks the claims present in view of the state of the art disclosed by the references cited or the objections made. Further, they do not show how the amendments avoid such references or objections. EXAMINER NOTE: The examiner believes – based on previous interview with the applicant – that this is an inadvertent mistake of the location of the critical feature – that Annotated Diagram X clarifies.
The Examiner argues that the Bridge Portion (M) is clearly the same as the Bridge – 5226 of Figure 51 of the instant application. The 35 U.S.C. 103 rejection is sustained.
In response to the argument that the drawing of Poole does not show the container in the closed position, and therefore cannot meet the “…the upper surface of the lid is coplanar with the upper surface of the bridge portion.” – Page 9, First Paragraph.
Annotated Diagram A below shows the relative configuration of Poole – but does not show the container in the closed position.
The Examiner notes that limiting pick points with the use of coplanar surfaces to increase security of the container (From the most recent IDS, see Kilduff et al. (US 20200156826) or the previously cited Burger (US D818195).)
The Examiner asserts that coplanarity in surfaces is known in the art as a person of ordinary skill in the art is a hypothetical person who is presumed to have known the relevant art at the relevant time. Factors that may be considered in determining the level of ordinary skill in the art may include: (1) "type of problems encountered in the art;" (2) "prior art solutions to those problems;" (3) "rapidity with which innovations are made;" (4) "sophistication of the technology; and" (5) "educational level of active workers in the field." In re GPAC, 57 F.3d 1573, 1579, 35 USPQ2d 1116, 1121 (Fed. Cir. 1995). "In a given case, every factor may not be present, and one or more factors may predominate." Id. See also Custom Accessories, Inc. v. Jeffrey-Allan Indust., Inc., 807 F.2d 955, 962, 1 USPQ2d 1196, 1201 (Fed. Cir. 1986); Environmental Designs, Ltd. v. Union Oil Co., 713 F.2d 693, 696, 218 USPQ 865, 868 (Fed. Cir. 1983).
The Examiner argues that coplanarity of Poole is an obvious design component) is clearly shown in the Design Drawings of Poole and known within the art. The 35 U.S.C. 103 rejection is sustained.
It should be further noted that "A person of ordinary skill in the art is also a person of ordinary creativity, not and automaton." KSR, 550 U.S. at 421, 82 USPQ2d at 1397. "[I]n many cases a person of ordinary skill will be able to fit the teachings of multiple patents together like pieces of a puzzle." Id. at 420, 82 USPQ2d at 1397. Office personnel may also take into account "the inferences and creative steps that a person of ordinary skill in the art would employ." Id. at 418, 82 USPQ2d at 1396.
In this case, the coplanarity of the lid surfaces is a known feature in container fabrication, as clearly shown by Poole, Kilduff and Burger.
In anticipation of questions of the suitability of design patents as prior art, the Examiner points to MPEP 2125 Section I – Where “Drawings and pictures can anticipate claims if they clearly show the structure with is claimed.” See In re Mraz, 455 F.2d 1069, 173 USPQ 25 (CCPA 1972).
The remaining applicant arguments rely on the unpersuasive arguments that are considered above (See Page 10 – Claims 10-13, Page 10 – Claim 15, Page 10 -Claim 16, Claim 24 – Page 11, Claims 25-26 – Page 11, Claim 30 – Page 12.).
The applicant is thanked for the detailed arguments and revisions based on previous office actions.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-4, 7, 9, 14, 17-23, 28-29 are rejected under 35 U.S.C. 103 as being unpatentable over Poole (US D561995 – hereafter referred to as Poole) in view of Seidler (US 6283298 – hereafter referred to as Seidler). The Examiner’s Annotated Diagram A for Poole follows:
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Examiner's Annotated Diagram A
In regards to Claim 1, Poole teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container) comprising: a base (Annotated Diagram A, Item A) including, a bottom wall (Diagram A, Item B), a peripheral wall (Diagram A, Item A2) having a top end and a bottom end (See Annotated Diagram A, Figure 1 where A2 clearly has an upper and lower surface.), the peripheral wall (A2) perpendicular to the bottom wall (See Annotated Diagram A, Figures 3 and 4 where the walls are portrayed as perpendicular), the peripheral wall (A2) and the bottom wall (B) defining a storage area (See Annotated Diagram A, Figure 1 where the Combination of A2 and B creates a volume for storage.), the bottom end of the peripheral wall (A3) at least partially defining a recess (Diagram A, Item L), and the peripheral wall (A2) at least partially defining a receptacle (K) in communication with the recess (See Annotated Diagram A, Figure 2 where the receptacle – K is in communication with the recess – L), the peripheral wall (A2) including, a bridge portion (Diagram A, Figure 1, Item M) at least partially defining the receptacle (K), the top end of the peripheral wall (Diagram A, Figure 1, Item A4) continuous across the bridge portion (M) (See Figure 1 of Diagram A where this is true.); and a lid (Diagram A, Item N) configured to be moved between a closed and locked configuration (Poole has tab – O, and Cooperating Detent – P and Protrusion – Q for closed and locked configuration) and an open configuration (Shown in Figures 1-4 of Diagram A), the lid (N) including, a top wall (N1), and a flexible tab (O) projecting from a bottom surface of the top wall (N1)(See Annotated Diagram A, Figure 1 where this limitation is met.), the flexible tab (O) including a fixed end (Diagram A, Item O1) adjacent to the top wall and a free end (Diagram A, Item O2) opposite the fixed end (O1), the flexible tab (O) configured to move from a relaxed position to a flexed position in response to a force (Diagram A, Item F) in a first direction (Diagram A, Item F direction arrow on Figure 2 of Annotated Diagram.) and return to the relaxed position absent the force (Closed and locked configuration evident from presence of Protrusion – Q interaction with Detent – P) (NOTE: Projection and Detent Containers are well known in the art and the drawings of Poole show the characteristics required for a deflection enabled opening.), (NOT EXPLICITLY TAUGHT) {the flexible tab including a projection, the projection configured to be at least partially in the recess in the closed and locked configuration and engage the peripheral wall to retain the container in the closed and locked configuration, wherein in the closed and locked configuration, the flexible tab is in the relaxed position, at least partially in the receptacle, and configured to engage the base to retain the lid in the closed and locked configuration,} the lid (N) is configured to be moved from the closed and locked configuration to the open configuration (Open Configuration Shown in Figures 1-4 of Annotated Diagram A) by moving the lid (N) in a second direction (G) perpendicular to the first direction (F) with the flexible tab (O) in the flexed position (Tab deflected to disengage the Detent on the Flexible tab from the protrusion), and in the closed and locked configuration, an upper surface of the lid is coplanar with an upper surface of the bridge portion (See Figure 3 for profile view of container assembly – A1 where the lid and upper surface of the bridge are coplanar.).
Poole – while teaching a flexible tab with engagement structures – does not teach a flexible tab with a protrusion.
Seidler – in a similar disclosure on tabbed closures for sealing rectangular containers - does teach the missing limitations. The Examiner’s Annotated Diagram B for Seidler follows:
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Examiner's Annotated Diagram B
Seidler teaches the missing limitations, including: the flexible tab (Seidler, Latch Member – 20) including a projection (Annotated Diagram B, Item S), the projection (S) configured to be at least partially in the previously taught recess in the closed and locked configuration (See Figure 3 for Closed and Locked Configuration for this Latch Assembly) and engage the previously taught peripheral wall (For Seidler – The peripheral wall is at 24 – Front end to the base) to retain the container in the closed and locked configuration (Diagram B, Figure 3), wherein in the closed and locked configuration, the flexible tab (20) is in the relaxed position (The tab is extended to engage the mating engagement slot – 21), at least partially in the receptacle (From Figures 1 and 2 – the tab – 20 is partially in the receptacle at an Engagement slot – 21), and configured to engage the previously taught base to retain the previously taught lid in the closed and locked configuration (Diagram B, Figure 3) (MOTIVATION: Improve airtight containers that protect internal contents that are more efficient to produce – Column 2, Lines 41-47.)
Seidler also teaches: a flexible tab (20) that extends between a proximal end (Annotated Diagram B, Item T) and a distal end (Diagram B, Item U), and the proximal end (T) includes a proximal end surface (Diagram B, Item V) configured to engage the previously taught peripheral wall to retain the lid in the closed and locked configuration.
Seidler also teaches a flexible tab (20) with a free end (Diagram B, Item U) of the flexible tab (20) is tapered along at least a portion (Diagram B, Item X) of a length of the flexible tab (Annotated Diagram B, Tab detail excerpt, Item X shows this limitation being met.)
It would have been obvious to one having ordinary skill in the art at the time the application was filed to modify the tabbed latching structure of Poole, providing the flexible tab with externally oriented projection or Seidler (Latch Member – 20 and Projection – Diagram B, Item S with the associated changes to opening deflection direction – where the peripheral all structure and recess structure are the same as Poole, where Latch Projection has a Proximal – T and Distal – U ends and a ledge at Proximal End Surface – V, Tab Taper - X), motivated by the benefit of advantageously improving airtight containers that protect internal contents that are more efficient to produce – Column 2, Lines 41-47. Moreover, simple substitution of a known element for another (Flexible tab opening latch where the tab and projection orientation is changed from inward facing to outward facing within the container recess.) with a predictable result (Latching the container) is rationale (B) of the rationales supporting a conclusion of obviousness issued by the Supreme Court in KSR v. Teleflex. See MPEP 2141(III).
It should be noted that: modifying the nature of the flexible tab changes the resulting opening properties of the container and the location of the latching mechanism.
At the time the application was filed, it would have been an obvious matter of design choice to a person of ordinary skill in the art change the latch orientation of Poole with the latch orientation of Seidler because Applicant has not disclosed that the orientation of the latch deflection provides an advantage, is used for a particular purpose, or solves a stated problem not already solved in the prior art. One of ordinary skill in the art, furthermore, would have expected Applicant' s invention to perform equally well with the latch orientation of Poole because the container would be latched in the closed position with either tab/projection orientation.Therefore, it would have been an obvious matter of design choice to modify Poole to obtain the invention as claimed.
In regards to Claim 2, Poole already teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container): wherein the base further includes a receptacle wall (Poole, Receptacle Wall – C and Annotated Diagram A) cooperating with the peripheral wall (Diagram A, Item A2) to at least partially define the receptacle (K).
In regards to Claim 3, Poole already teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container): wherein the receptacle wall (Diagram A, Item C) is spaced from the peripheral wall (A2) in the first direction (F) (See Annotated Diagram A, Figures 1 and 2 where the peripheral wall and receptacle walls are spaced apart at the Recess – L).
In regards to Claim 4, Poole already teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container): wherein the receptacle wall (Poole, Diagram A, Item A2) is centered along a transverse axis perpendicular to the first direction (F) and the second direction (G) (See Annotated Diagram A, Figures 1 and 2 where the recess is centered along the transfers axis.)
In regards to Claim 7, Poole – as modified by Seidler – already teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container) comprising: wherein the projection (Seidler -20) is recessed with respect to the peripheral wall (Poole – A3) in the closed and locked configuration (Seidler, Annotated Diagram B, Figure 3 shows this limitation being met.) (See Parent Claim for Motivation and Modification.)
In regards to Claim 9, Poole – as modified by Seidler – already teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container) comprising: wherein the projection (Seidler – S) extends between a proximal end (Annotated Diagram B, Item T) and a distal end (Diagram B, Item U), and the proximal end (T) includes a proximal end surface (Diagram B, Item V) configured to engage the previously taught peripheral wall to retain the lid in the closed and locked configuration. (See Parent Claim for Motivation and Modification.)
In regards to Claim 14, Poole – as modified previously – teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container): wherein the free end (Diagram A, O2) of the flexible tab (O is configured to be aligned or recessed with respect to the bottom wall (B) in the closed and locked configuration (See Diagram 3 of Figure 1 – where the tab is recessed with respect to the bottom – per Figure 2 as well.).
In regards to Claim 17, Poole – as modified previously – teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container): wherein the free end (Seidler, Diagram B, Item U) of the flexible tab (20) is tapered along at least a portion (X) of a length of the flexible tab (20) (See Parent Claim for Motivation and Modification.).
In regards to Claim 18, Poole – as modified previously – teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container): wherein the fixed end (O1) of the flexible tab (O) defines a first width (See Annotated Diagram A, Item O width and Figure 2 where that width – when the container is closed – is perpendicular to Direction F and Direction G) perpendicular to the first direction (F) and the second direction (G), and the free end (O2) of the flexible tab (O) defines a second width (At O2) perpendicular to the first direction (F) and the second direction (G), the second width less than the first width (Note – the tab end a O2 has rounded corners, where the width would be less along those rounded curves.) (EXAMINER’S NOTE: per MPEP 2144.04 Section IV – Changes in Size, Shape – Section A, that changes in relative dimensions (thus in shape) while performing the same function 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…”).
In regards to Claim 19, Poole – as modified previously – teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container): wherein the lid (N) is pivotally coupled to the base (A) (Living Hinge R and Latch Assembly – R demonstrate the Poole has the capability to close.).
In regards to Claim 20, Poole – as modified previously – teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container): a living hinge (Annotated Diagram A, Item R) coupling the lid (N) to the base (A).
In regards to Claim 21, Poole – as modified previously – teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container): wherein the container (A1) defines a rectangular profile (Annotated Diagram A, Figures 1-4 show a rectangular profile.).
In regards to Claim 22, Poole – as modified previously – teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container): wherein the peripheral wall (Diagram A, A2 and A5) includes, a pair of opposing side walls (A2) defining a first length (See Diagram A, Item S where the comparative lengths of the sidewalls – A2 versus End walls – A5), and a pair of opposing end walls (A5) having a second length less than the first length (See Diagram A, Item S where the comparative lengths of the sidewalls – A2 versus End walls – A5 with the end walls being longer.) (EXAMINER’S NOTE: per MPEP 2144.04 Section IV – Changes in Size, Shape – Section A, that changes in relative dimensions (thus in shape) while performing the same function 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…”).
In regards to Claim 23, Poole – as modified previously – teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container): wherein one of the pair of opposing end walls (Diagram A, Item A5) at least partially defines the receptacle (K) (See Diagram A, Figures 1-4).
In regards to Claim 28, Poole – as modified previously – teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container): wherein the receptacle wall (C) extends continuously between a top plane defined by the top end of the peripheral wall (A4) and a bottom plane defined by the bottom end of the peripheral wall (A3) (See Annotated Diagram A, Figures 1-2 where this limitation is met.).
In regards to Claim 29, Poole – as modified previously – teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container): wherein the bottom surface (N1 at peripheral skirt) of the top wall (N) contacts an upper surface (At K – Crossbar structure that is separate from the outer wall of the receptacle wall) of the receptacle wall (C) in the closed and locked configuration (When the lid of Pool is closed then the top of the receptacle wall and the lid wall will be in the configuration claimed.).
Claims 10-13 are rejected under 35 U.S.C. 103 as unpatentable over Poole in view of Seidler and in further view of Robinson (US 20060186077 – hereafter referred to as Robinson).
In regards to Claim 10, Poole – as modified previously - teaches a container all the limitations of the parent claim.
Poole as currently modified, does not teach a tab with parallel ribs.
Robinson – in a similar disclosure on recessed tab closures does teach a tab: wherein the previously taught projection includes a plurality of parallel ribs (63) (See Annotated Diagram C, Figure 3) (Motivation: To facilitate frictional engagement between the latch arm with a user’s thumb – Column 4, Lines 10-14.).
Robinson also teaches:
The plurality of distal ends (External ribs – 64 with each rib numbered 92 - define a curved profile (Figure 17 – top view)).
The profile is convex (Figure 17, bottom view) with respect to the free end of the flexible tab (82) (While Figure 17 is from the top, the convex shape would be the same when viewed from the bottom direction).
The plurality of ribs is tapered along its length (See Figure 15 where this requirement is met.).
MOTIVATION: Paragraph 0029 to strengthen the latch and Paragraph 0028 – provide friction for opening.
It would have been obvious to one having ordinary skill in the art at the time the application was filed to modify the location of the flexible tab as taught in Poole as modified by Seidler with the ribbed structure and configuration as taught by Robinson (Ribs – 63, Curved Profile, Convex Shape, Tapered Ribs and Annotated Diagram C – Figure 3), motivated by the benefit of improving the frictional engagement of the user’s finger with the latch – Column 4, Lines 10-14. Moreover, simple substitution of a known element for another with a predictable result is rationale (B) 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 11, Poole – as modified previously – teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container): wherein the plurality of parallel ribs (92 – ribs) includes a respective plurality of distal ends defining a curved profile (External ribs – 64 with each rib numbered 92 - define a curved profile in the vertical view (Figure 17 – top view)) (See modification and motivation in the parent claim above.) (EXAMINER’S NOTE: per MPEP 2144.04 Section IV – Changes in Size, Shape – Section A, that changes in relative dimensions (thus in shape) while performing the same function 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…”).
In regards to Claim 12, Poole – as modified previously – teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container): wherein the curved profile (Robinson, of Ribs – 92) is convex with respect to the free end of the flexible tab (Flexible tab – 82) and Figure 17, bottom view) (While Figure 17 is from the top, the convex shape would be the same when viewed from the bottom direction) (See modification and motivation in the parent claim above.). (EXAMINER’S NOTE: per MPEP 2144.04 Section IV – Changes in Size, Shape – Section A, that changes in relative dimensions (thus in shape) while performing the same function 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…”).
In regards to Claim 13, Poole – as modified previously – teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container): wherein the each of the plurality of parallel ribs (92) is tapered along at least a portion of a rib length (Ribs – 92 run the length of the tab – and taper to an end – shown in Figure 6) (See modification and motivation in the parent claim above.) (EXAMINER’S NOTE: per MPEP 2144.04 Section IV – Changes in Size, Shape – Section A, that changes in relative dimensions (thus in shape) while performing the same function 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…”).
Claim 15 is rejected under 35 U.S.C. 103 as unpatentable over Poole in view of Seidler in further view of Faerber (US 20190344934 – hereafter referred to as Faerber).
In regards to Claim 15, Poole – as modified previously – teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container): all the limitations of the parent claim with a flexible tab (Diagram A, Item O).
The modified container and closure does not explicitly teach a range of flexing for the flexible tab.
However, Faerber – in a similar disclosure on containers with opening tab structures, explicitly teaches a tab: wherein a similar flexible tab is configured to pivot through an angle ranging from 10 degrees to 0 degrees between the relaxed position and the flexed position (MOTIVATION: in order to allow the user to push deliberately and purposefully to open the container – Paragraph 0009 and 0027.)
It would have been obvious to one having ordinary skill in the art at the time the application was filed to modify pivoting angle of the modified container and closure of Poole as modified by Seidler, providing the range of tab motion claimed by Faerber (between 0 degrees to 10 degrees) motivated by the benefit of requiring a deliberate action to open the container – Paragraphs 0009 and 0027 of Faerber. Moreover, simple substitution of a known element for another with a predictable result is rationale (B) of the rationales supporting a conclusion of obviousness issued by the Supreme Court in KSR v. Teleflex. See MPEP 2141(III).
Faerber’s range of flexing does not exactly match the claimed range of 4 degrees to 8 degrees.
However, it would have been obvious to one having ordinary skill in the at time of the invention was made to adjust the range of tab motion of Faerber (10 degrees to 0 degrees) disclosed in the prior art, discovering the optimum range of 4 degrees to 8 degrees as claimed in the application involves only routine skill in the art. In re Aller, 105 USPQ. Please note that in the instant application, the applicant has not disclosed any criticality for the claimed limitation (i.e. no criticality for the claimed range of motion is established – where the statement – “In at least one embodiment” describes the pivot range, but in the elected embodiment – the specification states the force “may cause the flexible tab – 5122 – to pivot” – paragraph 00417” – where the statement beginning with “may” is not a positive declaration of criticality.)
Claim 16 is rejected under 35 U.S.C. 103 as unpatentable over Poole in view of Seidler in further view of Simonsen (US 20170183133 – hereafter referred to as Simonsen).
In regards to Claim 16, Poole – as modified previously – teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container), including a flexible tab (Diagram A, Item O):
The modified container and closure of Poole as modified by Seidler does not explicitly teach a tab thickness.
However, Simonsen –in a similar disclosure on childproof or resistant containers for potentially dangerous substances – explicitly teaches: wherein the gauge of the material for the container defines a thickness ranging from 1.1 mm to about 1.5mm (Paragraph 0040, last sentence – to minimize the weight of the container and material used in its fabrication – first sentence of Paragraph 0040.).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the perimeter wall thickness of the modified container of Poole and Seidler with the explicit wall thickness characteristic of Simonsen (Simonsen, i.e., a thickness range of 1.1-1.5 mm, Paragraph 0040), in order to advantageously modify the container to minimize the container weight and materials required to fabricate the container (Paragraph 0040).
Simonsen does not exactly match the claimed perimeter wall thickness of 1mm to 1.5mm.
However, It would have been obvious to one having ordinary skill in the at time of the invention was made to adjust the selection of 1.1-1.5mm perimeter wall thickness disclosed in the prior art of Simonsen, discovering the optimum perimeter wall thickness of 1-1.5 mm of the instant application involves only routine skill in the art. In re Aller, 105 USPQ. Please note that in the instant application, the applicant has not disclosed any criticality for the claimed limitation.
Claims 24 is rejected under 35 U.S.C. 103 as being unpatentable over Poole in view of Seidler and in further view of Giraud (WO 2007109166 hereafter referred to as Giraud).
In regards to Claim 24, Poole – as modified previously – teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container): further comprising: a hinge (Annotated Diagram A, Item R) coupling the lid (N) to the base (A).
Poole – as modified previously – is silent on the materials used in the fabrication of the container and closure.
However, Giraud teaches: a container and closure that comprise polypropylene (Paragraph 0036 – “The container and cap may be made from a polymer materials…that may include….polypropylene…”. Note that Giraud teaches an extensive list of materials that is known within the art for the fabrication of containers and closures within paragraph 0036.) (MOTIVATION: to create a unitary container structure – Paragraph 0038).
It would have been obvious to one having ordinary skill in the art at the time the application was filed to modify the unspecified container material of Poole, providing the fabrication material of polypropylene taught by Giraud (Paragraph 0036), motivated by the benefit of providing a unitary container structure – paragraph 0038. Moreover, simple substitution of a known element for another with a predictable result is rationale (B) of the rationales supporting a conclusion of obviousness issued by the Supreme Court in KSR v. Teleflex. See MPEP 2141(III).
Claim 25-26 is rejected under 35 U.S.C. 103 as being unpatentable over Poole as modified by Seidler in further view of Non-Patent Literature article - (See Mark Venables, Light Plastic and Industry, https://www.automotivemanufacturingsolutions.com/light-and-plastic-industry/6530.article?adredir=1 (Year: 2007) – hereinafter referred to NPL).
Regarding Claim 25, Poole – as modified previously – teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container): further comprising: a hinge (Annotated Diagram A, Item R) coupling the lid (N) to the base (A).
The modified container and closure of Poole does not explicitly claim talc as a component of the plastic.
However, NPL teaches that: talc is a known additive to polymers (i.e., plastics) to improve structural characteristics of the plastic based on the required design properties of the material (See NPL, Column 2, highlights), see the below article excerpt that predates the filing of this invention:
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the container of Poole as modified by Seidler to be made of polypropylene with talc as shown by NPL in order to improve the structural characteristics of plastics (See NPL - column 2 of the above diagram, reference - highlights). Also, the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. MPEP 2144.07.
In regards to Claim 26, Poole – as modified previously – teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container) further comprising: a hinge (Annotated Diagram A, Item R) coupling the lid (N) to the base (A): wherein the base and the lid further comprise a colorant. (NOTE: See MPEP 2144.04 - In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947) (The court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art.)
Claim 30 is rejected under 35 U.S.C. 103 as being unpatentable over Poole as modified by Seidler in further view of Burger (US D818195 – Hereafter referred to as Burger). The Examiner’s Annotated Diagram E for Burger follows:
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Examiner's Annotated Diagram E
In regards to Claim 30, Poole – as modified previously – teaches a container (Poole, Annotated Diagram A, Item A1 – Assembly Level Container) with a lid (N) and a Skirt – At edges of N1 in Diagram A, Figure 1) and a Top Wall (N).
Poole – as modified previously – does not teach a receptacle wall skirt that is within the storage area.
Burger – in a similar disclosure on latched, rectangular containers with sealing and childproof characteristics – does teach a lid and skirt interface: wherein the previously taught lid further includes a skirt (Burger, Skirt – 1) extending from a periphery of the bottom surface (Se Figure 1.3 where this limitation is met.) of the previously taught top wall, in the closed and locked configuration (The containers of Burder and Poole are capable of being closed – given the presence of latching mechanisms.), the skirt (1) is within the storage area (Note Offset Skirt that has a lip extending outside of the skirt’s perimeter.) , and the previously taught receptacle wall defines a main portion (Annotated Diagram E, Item 3) and a ledge (Diagram E, Item 4) protruding upward from the main portion (MOTIVATION: Improving Sealing characteristics of a container by creating a labyrinthine path at connection points.).
It would have been obvious to one having ordinary skill in the art at the time the application was filed to modify the sealing skirt structure of Poole as modified by Seidler, providing the sealing structure taught by Burger, motivated by the benefit of improving sealing characteristics of a container by creating a labyrinthine path at connection points. Moreover, simple substitution of a known element (Lid/Skirt relief interactions) for another (Three point lid relief for sealing) with a predictable result (Improvement of Sealing Characteristics) is rationale (B) of the rationales supporting a conclusion of obviousness issued by the Supreme Court in KSR v. Teleflex. See MPEP 2141(III).
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
/NATHAN J JENNESS/Supervisory Patent Examiner, Art Unit 3733 6 April 2026