Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 15 December 2025 has been entered.
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.
Claim(s) 1, 3, 7-9, and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Arduca (US 5119965) further in view of Bergman (US 2002564).
Claim 1: Arduca discloses a tamper-evidence cover comprising: a bottle neck comprising a centre line, a mouth and a cork 3 (closure); and a capsule 1 (overcap) consisting of an upper portion 4 (cap portion), a skirt 5 (cylindrical jacket portion), and only a frangible connecting means (single weakening line) [see C. 2 L. 57-68]; wherein capsule 1 (overcap) is a cup-shaped film, wherein the upper portion 4 (cap portion) comprises a top surface 13 (top part) that is arranged transversely to the centre line and an adjacent flange 17 (short cylindrical skirt), wherein the skirt 5 (cylindrical jacket portion) is adjacent to the flange 17 (short cylindrical skirt), wherein the frangible connecting means (single weakening line) is positioned between the upper portion 4 (cap portion) and the skirt 5 (cylindrical jacket portion), wherein the capsule 1 (overcap) comprises a smooth or embossed surface apart from the frangible connecting means (single weakening line), wherein the frangible connecting means (single weakening line) consists of a circumferential line of the capsule 1 (overcap) comprising at least a weakened line of metal (compressed line part), wherein the frangible connecting means (single weakening line) entirely surrounds the bottle neck and runs perpendicular to the centre line, wherein the upper portion 4 (cap portion) can be removed directly from the skirt 5 (jacket portion) at the frangible connecting means (single weakening line) where the upper portion 4 (cap portion) and the skirt 5 (cylindrical jacket portion) remain whole, and wherein the capsule 1 (overcap) is made of a film consisting of aluminium (see fig. 1, 4, and C. 2 L. 50-52 & 57-68).
Arduca does not disclose the single weakening line consisting of a circumferential line comprising at least a compressed line part and a slit, wherein the slit has a length and a width that allows the introduction of a knife blade or a fingernail that can be raised in an upward direction parallel to the centre line of the bottle neck, wherein the slit is part of the single weakening line running perpendicular to the centre line and has the form of a rinq segment that is arranged perpendicular to the centre line of the bottle neck, and wherein the cap portion can be raised and removed directly from the jacket portion at the single weaking line where the cap portion and the cylindrical jacket portion remain whole.
Bergman teaches a top A having a slit 14 running with the grain of the fibrous material of which apron 13 of the top A is made such that an operator can insert his thumb nail B or any other sharp object to cause the slit 14 to initiate tearing in line and parallel with the slit 14 (see fig. 1 -3).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the frangible connecting means (single weakening line) to have a slit 14 along the weakened line of metal (compressed line part), as taught by Bergman, in order to provide a secondary way of initiating tearing of the frangible connecting means (single weakening line) and removing the upper portion 4 (cap portion) to access cork 3 (closure).
The upper portion 4 (cap portion) of the combination inherently or in the alternative obviously can be raised and removed directly from the skirt 5 (cylindrical jacket portion) at the frangible connecting means (single weakening line) where the upper portion 4 (cap portion) and the skirt 5 (cylindrical jacket portion) remain whole as the prior art combination discloses a structurally identical capsule 1 (overcap) to the inventions claimed overcap and as the material of the prior art capsule 1 (overcap) of aluminium is one of the claimed materials of the invention. If there is any difference, the difference must be minor and obvious. The burden is shifted to applicants to show the upper portion 4 (cap portion) of the combination cannot be raised and removed directly from the skirt 5 (cylindrical jacket portion) at the frangible connecting means (single weakening line) where the upper portion 4 (cap portion) and the skirt 5 (cylindrical jacket portion) remain whole. Otherwise a prima facie case of anticipation, or in the alternative, of obviousness has been established.
The combination results in the slit 14 being part of the frangible connecting means (single weakening line) running perpendicular to the centre line and has the form of a ring segment that is arranged perpendicular to the centre line of the bottle neck.
Claim 3: The combination discloses the claimed invention except for wherein the slit 14 has a length of between 2 to 30 mm and a width of between 0.2 to 4 mm.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have made the slit 14 have a length of between 2 to 30 mm and a width of between .2 to 4 mm in order to permit a fingernail to enter and since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or working ranges involves only routine skill in the art. In. re Aller, 105 USPW 233. Examiner notes that no criticality has been established for the claimed ranges.
Claim 7: The combination discloses wherein the part of the frangible connecting means (single weakening line) running perpendicularly to the centre line comprises a predefined number of longitudinal incisions.
Claim 8: The combination discloses wherein the part of the frangible connecting means (single weakening line) running perpendicularly to the centre line comprises one incision or cut in the form of slit 14.
Claim 9: The combination discloses wherein the upper portion 4 (cap portion) is peelable from the skirt 5 (cylindrical jacket portion) along the frangible connecting means (single weakening line) (see fig. 1-2).
The combination does not disclose a peeling strength between 1 to 10 N.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to made the peeling strength be between 1 to 10 N in order to permit an elderly person to open the capsule 1 (overcap) and since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or working ranges involves only routine skill in the art. In. re Aller, 105 USPW 233. Examiner notes that no criticality has been established for the claimed range.
Claim 14: The combination discloses wherein the capsule 1 (overcap) is a cylindrical or conical cup-shaped capsule crimped onto the bottle neck in that the contour of the capsule 1 (overcap) corresponds to the outer contour of the bottle neck with the cork 3 (closure) (see fig. 1).
Claim(s) 12-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Arduca (US 5119965) and Bergman (US 2002564) as applied to claim 2 above, and further in view of Granger (US 6301767).
Claim 12: The combination discloses the claimed invention except for the film thickness of the cap portion being 30% or more thicker than that of the cylindrical jacket portion.
Granger teaches a cap 10 having a head 22 with a thickness of .1mm and a skirt 21 having a thickness of .075mm such that the head 22 is 33.33% (30% or more) greater than the thickness of the skirt 21 (see fig. 9).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have made the top surface 13 (top part) of the upper portion 4 (cap portion) 33.33% thicker than the skirt 5 (cylindrical jacket portion), as taught by Granger, in order to reinforce the top surface 13 (top part) such that it does not become damaged or prematurely broken when the skirt 5 (cylindrical jacket portion) is moved in direction 12.
Claim 13: The combination discloses the claimed invention except for the film thickness of the cap portion being between 100 um and 300um.
Granger teaches a cap 10 having a head 22 with a thickness of . 1mm (100 um) (see fig. 9).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have made the top surface 13 (top part) of the upper portion 4 (cap portion) have a thickness of 1mm (100 um), as taught by Granger, since it has been held that changing the size or range of an article is not ordinarily a matter of invention. Appropriate selection of size, weight, ratios, etc. is considered routine, and is typically a matter of design choice. See In re Rose 105 USPQ 237 (CCPA 1955) and also MPEP 2144.04. Examiner notes that no criticality has been established for the claimed range.
Response to Arguments
Applicant's arguments filed 15 December 2025 have been fully considered but they are not persuasive.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
In response to applicant’s argument that there is no teaching suggestion, or motivation in Arduca to modify Arduca with Berman, the Examiner replies that “[T]he rationale to modify or combine the prior art does not have to be expressly stated in the prior art; the rationale may be expressly or impliedly contained in the prior art or it can be reasoned from knowledge generally available to one of ordinary skill in the art, established scientific principles, or legal precedent established by prior case law”. MPEP 2144 I.
In response to applicant’s argument that the capsule of Arduca represents a stand-alone solution that would not be modified by a skilled person in a manner towards the claimed invention and 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, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the frangible connecting means (single weakening line) to have a slit 14 along the weakened line of metal (compressed line part), as taught by Bergman, in order to provide a secondary way of initiating tearing of the frangible connecting means (single weakening line) and removing the upper portion 4 (cap portion) to access cork 3 (closure).
In response to applicant’s argument that a skilled person would not change the consciously chosen type of capsule that can be opened by a simple movement to another type and that it is unlikely and normally not obvious for the invention type ordinarily chose to be changed during development, the Examiner responds that no change to the chosen type of capsule has occurred. The capsule remains openable by the original simple movement.
In response to applicant’s argument that the simple movement means without requiring a knife blade or a finger nail as an additional tool, the Examiner responds that there is no indication in Arduca that the simple movement means without requiring a knife blade or a finger nail as an additional tool. Arguments of counsel cannot take the place of evidence in the record MPEP 2113 II. Additionally, nothing in the disclosure of Arduca criticizes, discredits, or otherwise discourages the ability to introduce a knife blade or fingernail into a slit and raise that knife blade or fingernail in an upward direction as is required for a teaching away. In fact, Arduca explicitly permits the use of perforations or cuts in the frangible connecting means (single weakening line) (see C. 2 L. 64-68).
In response to applicant’s argument that Arduca does not teach the features in present claim 1 requiring the overcap 10 to have a smooth or embossed surface apart from the single weakening line 20 as Arduca teaches an indentation 11 in the skirt to prevent the capsule from slipping from the bottle when in place, the Examiner responds that the broadest most reasonably interpretation of the claimed limitation of “wherein the overcap comprises a smooth or embossed surface apart from the single weakening line” is that the cap has at least one surface other than the single weakening line that is smooth or embossed. The limitation does not require that every surface of the cap other than the single weakening line be smooth or embossed. As at least one surface of the skirt 5 (cylindrical jacket portion) of the capsule 1 (overcap) is smooth, the limitation is met.
In response to applicant’s argument that Arduca fails to suggest replacing the bridges by a compressed line part as Arduca discloses that “one section of the weakened connecting means may be formed so that it is slightly stronger than the rest of the connecting means” which “can be achieved by making one connecting bridge wider than the rest” such that a skilled person would not be inclined to replace bridges by a compressed line part, the Examiner replies that this argument is not commensurate in scope with the rejection at hand in which no bridge is replaced by a compressed line part. En arguendo, the above cited disclosure indicates that it is optional for one section of the weakened connecting means to be slightly stronger than the rest of the connecting means. Additionally, nothing in the disclosure of Arduca criticizes, discredits, or otherwise discourages replacing bridges by compressed lines as is required for a teaching away.
In response to applicant’s argument that the solutions of Berman and Arduca rely on different opening mechanisms and would not have been combined by one having ordinary skill in the art as Berman teaches a quick-opening feature that is a diagonally extending slot adapted to facilitate tearing of the fibrous material grain beyond the slot to loosen the cap for removal and relies on the flange or apron 13 to not remain in its original whole form, while the solutions of Arduca and the present claim rely on the cap portion and the cylindrical jacket portion to remain in their original, whole forms upon opening or removal of the cap portion and Arduca is silent towards tearing or destroying the cap portion (upper portion 4) in order to open the capsule in a simple movement such that a person having ordinary skill in the art would not have combined Arduca and Bergman as in the manner of the Office, the Examiner responds that it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, Bergman is in the field of the inventor’s endeavor of closures with weakening lines to initiate opening and is reasonably pertinent to the particular problem with which the inventor was concerned of initiating tearing to open a closure by the introduction of a fingernail in a slit. As Arduca discloses a frangible connecting means the teaching of Berman of a structure for initiating tearing is highly relevant. The Examiner notes that Arduca explicitly permits the use of perforations or cuts in the frangible connecting means (single weakening line) (see C. 2 L. 64-68).
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALLAN D STEVENS whose telephone number is (571)270-7798. The examiner can normally be reached Monday-Friday 12-8 ET.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Orlando E. Aviles can be reached at (571)270-5531. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALLAN D STEVENS/Primary Examiner, Art Unit 3736
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