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 Amendment
This office action is in response to the reply filed on 9/8/2025, wherein claims 1, 18, 21 were amended, claims 15, 17, 20, 22 are cancelled. Claims 1-9, 12, 14, 18, 21, 23-26 are pending. Claims 10-11, 13, 16, 19 were withdrawn.
Drawings
The amendment filed 8/21/2025 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: Figure 19 is not supported by the specifications. The as filed specification fails to discuss a container with a hinged lid, nor are the dotted lines clear or described previously. Figure 18 is also an embodiment that is not previously described by the specification, figure 18 shows an unsupported receptacle.
Applicant is required to cancel the new matter in the reply to this Office Action.
The drawings are objected to because it is unclear what the dashed lines are indicating and arrows for part numbers are not clearly visible/weakly drawn (low contrast of arrows). Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 112
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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-9,12,14,18,20-21 and 23-25 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The term “regulates” in claim 1 is a relative term which renders the claim indefinite. The term “regulates” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The definition of regulate is "control or maintain the rate or speed of (a machine or process) so that it operates properly." (Oxford Languages) How does the present application meet this definition? Presently, there is no way to control the rate of reaction. However, this still does not fix the issue with the term “regulate”. Claims 2-9,12,14,18,20-21 and 23-25 (dependents) directly or indirectly depend from claim 1 (independent) and are also rejected.
Claim 1 recites the limitation "the closed container" in line 7. There is insufficient antecedent basis for this limitation in the claim.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1-2,7-9, 12, 14, and 23-26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Potter (US 20160106149 A1) .
With respect to claim 1, Potter discloses a receptacle containing an active substance capable of absorbing or releasing said gas, wherein the receptacle regulates an atmosphere outside of the receptacle, wherein the receptacle forms a chamber which is at least partially filled with the active substance, wherein the receptacle comprises two main elements:- a first element (504) comprising: a transverse wall with a first main side (528) facing an interior of the chamber; and - a peripheral wall (530), integrally formed with the first main side of the transverse wall; and - a second element (502) comprising: a bottom wall (figure 14); and a sheath (508, 540) extending from the bottom wall and integrally formed with the bottom wall; wherein the peripheral wall (530) of the first element and the sheath (508,540) of the second element are dimensioned and mutually arranged to surround one another and are in contact with each other in abutting regions so that an inner volume of the chamber, which receives the active substance, is delimited by the bottom wall (figure 14) of the second element, the transverse wall (530) of the first element, and either the peripheral wall of the first element or the sheath (508) of the second element; wherein at least one ventilation groove (542), formed as a recess in at least one of the first or second elements (502), is provided between the peripheral wall (530) of the first element and the sheath (540) of the second element, wherein at least one radial passage (gap between 552s), formed as a recess in at least one of the first or second elements is provided to connect the ventilation groove with the inner volume of the chamber, such that the ventilation groove (542) and the radial passage form (gap between 552s) at least a part of a ventilation path connecting the chamber with the atmosphere out of the receptacle in the container for storing sensitive products, and wherein the ventilation path allows gas exchange between the chamber and the atmosphere gas exchange between the chamber and the atmosphere out of the receptacle in the container (568).
Potter failed to disclose of a container having stored therein sensitive products which are sensitive to a gas such as moisture or oxygen, said container comprising in its inner volume receptacle containing an active substance, wherein the receptacle regulates an atmosphere outside of the receptacle in the closed container (568 fig 16) so as to preserve said sensitive products, and wherein the container comprises a container body and cap. However, this claim can be met if Potters container is discarded within a standard lidded household trash, whilst some of the active substance remains within the container. As would be commonly done, especially, if the product has expired. Alternatively, the last few pouches can be used and placed in the container (when trash is not readily available) to be discarded at a latter point. Potter teaches of a container that emits gas whilst avoiding emitting moisture (abstract) and allowing oxygen to escape (page 12 [0134]). The trash container can have a variety of products thrown inside that can be considered “sensitive” product and benefit from Potters emissions. For example, discarded produce can be considered sensitive products that could be considered preserved from the emission of oxygen from Potters invention. Further, it could be considered that Potters emissions prevent microbial buildup and therefore preserve numerous of trashed elements. Therefore, Official Notice is taken that discarding Potters product in a standard lidded trash can along with normal household trash a was notoriously well-known in the art at the time the invention was effectively filed. It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to combine the lidded trash container with Potters invention with this well-known technique in order to allow for discarding of Potters device.
Examiner Note: Potters design is not intended to be recycled. So the container is only ever intended to be discarded with normal trash.
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With respect to claim 2, Potters discloses the receptacle according to claim 1, wherein an open end of the sheath (540) of the receptacle, remote from the bottom wall, is in abutment against the transverse wall (530) of the first element (502) of the receptacle.
With respect to claim 7, Potters discloses the receptacle according to claim 1, wherein a plurality of ventilation grooves (542) are provided.
With respect to claim 8, Potters discloses the receptacle according to claim 1, wherein the sheath (508) of the receptacle has at least one ventilation groove (542) extending to an open end of the sheath remote from the bottom wall.
With respect to claim 9, Potters discloses the receptacle according to claim 8, wherein an open end of the sheath of the receptacle remote from the bottom wall is a rim (548) comprising at least one radial indentation, wherein the at least one ventilation groove (542) is arranged such that the ventilation groove ends at a radial indentation (552) of the rim or at a section of the ventilation path which connects an end of the ventilation groove (542) with at least one radial indentation (552).
With respect to claim 12, Potters discloses the receptacle according to claim 1, wherein the peripheral wall (530) surrounds the sheath (508) of the receptacle, and the at least one ventilation groove (542) is arranged on an outer peripheral surface of the sheath (508).
With respect to claim 14, Potters discloses the receptacle according to claim 1, wherein the first element of the receptacle is a part of the container. (Technically all elements are considered part of a “container”)
With respect to claim 23, Potters discloses the receptacle of claim 1, wherein the at least one ventilation groove (542) runs in a direction perpendicular to the bottom wall (figure 14) of the second element of the receptacle.
With respect to claim 24, Potters discloses the receptacle according to claim 1, wherein the sheath (540 area) of the second element of the receptacle is in abutment against the first element (504) in a direction perpendicular to the bottom wall and, at this abutment, the radial passage (542) is formed by a radial indentation of the sheath (indentations of 540) of the second element or by a groove of the first element.
With respect to claim 25, Potters discloses the receptacle according to claim 24, wherein the active substance comprises particles (tobacco is comprised of particles), wherein a dimension of the radial passage formed at the abutment is so that particles of the active substance escaping from the chamber cannot escape to the atmosphere out of the receptacle in the container for storing sensitive products. (Potters is dimensioned such that the particulates of tobacco are not intended to escape)
Examiner Note: Everything can broadly be considered to be comprised of particles.
With respect to claim 26, the references as applied to claim 1, above, disclose all the limitations of the claims. Potter further discloses wherein the ventilation path allows passage of gases in both directions between the chamber and the atmosphere in the container and also limits escape of active substance from the chamber toward the atmosphere in the container. (Inherent property of the container, especially in an half opened orientation and also disclosed on page 11 [0128])
Claim(s) 3-6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Potter (US 20160106149 A1).
With respect to claim 3, Potters discloses the receptacle according to claim 1, wherein at least one section of the ventilation path, connecting the chamber of the receptacle with the atmosphere in the container, has a cross-sectional dimension of 0.2 mm or less.
Examiner Note: This could likely be an inherent property, based on the dimensions discussed on page 4 [0049]. Even if one wants to argue that this is absent from Potters invention, it can be considered as a change of shape of Potters design and not novel in view of the guidelines established In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). The implementation of size restrictions on the groove is only a modification in the shape of the ventilation path of Potter and still provides the same results as Potter (i.e. allowing passage of gas between the chamber and atmosphere). The application has presented no argument which shows that the particular configuration of their movable portions for the size of the ventilation groove is significant or is anything more than one of numerous configurations a person of ordinary skill in the art would find obvious for the purpose of allowing passage of an air from the chamber into the container from Potter’s invention. See Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459.
With respect to claim 4, Potters discloses the receptacle according to claim 1, wherein the at least one ventilation groove has a depth of 0.2 mm or less.
Examiner Note: This could likely be an inherent property, based on the dimensions discussed on page 4 [0049]. Even if one wants to argue that this is absent from Potters invention, it can be considered as a change of shape of Potters design and not novel in view of the guidelines established In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). The implementation of size restrictions on the groove is only a modification in the shape of the ventilation path of Potter and still provides the same results as Potter (i.e. allowing passage of gas between the chamber and atmosphere). The application has presented no argument which shows that the particular configuration of their movable portions for the size of the ventilation groove is significant or is anything more than one of numerous configurations a person of ordinary skill in the art would find obvious for the purpose of allowing passage of an air from the chamber into the container from Potter’s invention. See Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459.
With respect to claim 5, Potters discloses the receptacle according to claim 1, wherein a ratio of the length (L) to a depth (d) of each ventilation groove is greater than 10.
Examiner Note: This could likely be an inherent property, based on the dimensions discussed on page 4 [0049]. Even if one wants to argue that this is absent from Potters invention, it can be considered as a change of shape of Potters design and not novel in view of the guidelines established In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). The implementation of size restrictions on the groove is only a modification in the shape of the ventilation path of Potter and still provides the same results as Potter (i.e. allowing passage of gas between the chamber and atmosphere). The application has presented no argument which shows that the particular configuration of their movable portions for the size of the ventilation groove is significant or is anything more than one of numerous configurations a person of ordinary skill in the art would find obvious for the purpose of allowing passage of an air from the chamber into the container from Potter’s invention. See Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459.
With respect to claim 6, Potters discloses the receptacle according to claim 1, wherein a ratio of a length (L) to a width (w) of each ventilation groove is greater than 10.
Examiner Note: This could likely be an inherent property, based on the dimensions discussed on page 4 [0049]. Even if one wants to argue that this is absent from Potters invention, it can be considered as a change of shape of Potters design and not novel in view of the guidelines established In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). The implementation of size restrictions on the groove is only a modification in the shape of the ventilation path of Potter and still provides the same results as Potter (i.e. allowing passage of gas between the chamber and atmosphere). The application has presented no argument which shows that the particular configuration of their movable portions for the size of the ventilation groove is significant or is anything more than one of numerous configurations a person of ordinary skill in the art would find obvious for the purpose of allowing passage of an air from the chamber into the container from Potter’s invention. See Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459.
Claim(s) 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Potter (US 20160106149 A1) in view of Whittle (20030029744).
With respect to claim 21, the references as applied to claim 1, above, disclose all the limitations of the claims except for wherein the cap comprises an annular sealing member, which sealing member cooperates with a side wall of the container body at its open end to establish a circumferential seal between the cap and the container body. This claim can be met by simply placing the container of Potter in a storage vessel. Many storage vessels meet this criteria. Further, the annular sealing member is not specified to be creating an “air tight seal”. However, Whittle is a specific example of a storage container with an annular seal for tobacco products, without the cigar rack one can store this material. Further there are many large wide mouth glass jars with foam or rubber annular sealing members that one could place Potters container in as a form of storage and meet the above claim, such as the Amazon Glass cookie jar (see attached webpage). It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to combine Potter with this well-known technique in order to store multiple cases in one location.
Allowable Subject Matter
Claims 18 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. Claim 18 is objected due to its dependency on the rejected claim 1. Search results for prior art in this field failed to identify wherein the cap is provided with a base with a first main side facing an interior of the container when closing the container; and wherein the first element of the receptacle is integrally formed with the cap, wherein the transverse wall is integrally formed with the base of the cap, and wherein the peripheral wall comprises a skirt integrally formed with the base of the cap.
Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. JP-2012046225-A, WO-2012120887-A1, WO-2014041391-A1, KR 102104834 B1, US 20090095169 A1, US 8458996 B2, US 20150136618 A1, US 20160101914 A1, US 20160106149 A1, US 20190202608 A1, US 20190261681 A1, US 20210228442 A1, US 20230025143 A1.
Response to Arguments
Applicant's arguments filed 8/21/2025 have been fully considered but they are not persuasive. With respect to the previous 112b rejection of the term "regulates", the applicant argues that there is support for the term from the specification. However, the examiner is arguing the definition of the term "regulate" does not meet the claimed invention. The specification fails to redefine the term. Regulate as defined by Oxford Languages means "control or maintain the rate or speed of (a machine or process) so that it operates properly.". There is no control over the rate of reaction. A reaction will occur, whether it is desired or not. The active substance cannot control the rate of reaction. The rate of reaction is determined by other factors and is not being actively control. Therefore, the active substance cannot be considered as regulating..
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 extension fee 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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/S.K.S./Examiner, Art Unit 3735
/ERNESTO A GRANO/Primary Examiner, Art Unit 3735