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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 22 April 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 a direction parallel 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.
Claim 2: The combination discloses wherein the slit 14 is 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, see page 8, filed 22 April 2025, with respect to claim 1 in view of Lloveras Calvo (WO 9801357)) have been fully considered and are persuasive. The rejection of claim 1 has been withdrawn.
Applicant’s arguments, see pages 9-10, filed 22 April 2025, with respect to claims 1-3, 7-10, and 14 in view of Stattmann (US 1481035) have been fully considered and are persuasive. The rejection of claims 1-3, 7-10, and 14 has been withdrawn.
Applicant's arguments of pages 11-13 filed 22 April 2025 have been fully considered but they are not persuasive.
In response to applicant’s argument that a skilled worker would not have been compelled to combine Arduca (US 5119965) and Bergman (US 2002564) in the same manner as the examiner as Bergman is directed towards fibrous structures that are usually made of fairly heavy oil or wax impregnated paper, 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.
In response to applicant’s argument that a person having skill in the art would not be compelled to modify Arduca with Bergman as in the manner of the Office Action because FIG. 3 of Bergman shows a slit 14 that has been torn with torn edges being shown to be jagged or rough and the jagged or rough edges of Bergman are prone to provide pain or injury in a metal structure that the present application is intended to avoid, the Examiner replies that this argument is a piecemeal analysis of the references. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Additionally, the Examiner notes that nothing the disclosure of Arduca criticizes, discredits, or otherwise discourages the solution as is required for a teaching away. Further, the tamper-evidence cover of the prior art combination results in a structurally identical capsule 1 (overcap) to the inventions claimed overcap with the material of the prior art capsule 1 (overcap) of aluminium being one of the claimed materials of the invention, such that if there is any difference, the difference must be minor and obvious. As such, the tamper-evidence cover of the prior art combination functions identically to the claimed tamper-evidence cover and likewise avoids pain or injury in a metal structure in as much as the claimed invention does.
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