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 9/15/2025 regarding the 35 USC 103 rejections of Claims 1-4, 6-9, 11-13 have been considered but are moot because the arguments do not apply to the references being used in the current rejection.
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 (i.e., changing from AIA to pre-AIA ) 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, 6, 9, 11 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Antier et al. (US 8485373 – hereafter referred to as Antier) in view of Skillen et al. (US 9884706 – hereafter referred to as Skillen). The Examiner’s Annotated Diagram 1 for Antier follows:
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Examiner's Annotated Diagram 1
In regards to Claim 1, Altier teaches a tamper-proof container (Examiner’s Annotated Diagram 1, Item A and Column 1, Lines 17-31) comprising: a container (Body – 3) having a top portion (Lid Device - 1), a bottom portion (Bottle or container has an inherent bottom – End Wall - 22), and a side wall (at 3 on Diagram 1, Figure 6), the top portion (1) defining a cavity (Annotated Diagram 1, Item B – Cavity) wherein contents can be held (inherent in a container with dispensing cap);a cap (Lid – 120) provided on the container (A) comprising: an inner surface (Inner Surface of 110 – Base) provided over the cavity (B) and containing an orifice (Orifice – 116); a neck (Neck – 111) extending around the inner surface (Inner surface of 110 – Base) and having at least one tamper evidence mechanism (Taught in Figures 8A through 8C and on Annotated Diagram 1, Item D), (NOT EXPLICITLY TAUGHT) {the neck including and a sloped portion (Front Portion – 121 – where tamper evidence portion and front slope are aligned at the front of the cap.), located at a front side of the cap (See Annotated Diagram 6 and 7 items 130 and slope – 121 are at the front of the Lid Device - 1)}; and a lid (Lid - 120) connected to the cap (1) pivotally via a hinge (Annotated Diagram 1, Item C, and Column 3 – Lines 46-51) and moveable between a closed position and an opened position (The reversible lid position between the open and closed positions is taught in Column 3, Lines 51-55.), the lid (1) comprising an extended part (Tab – 123) extending over the sloped portion (121) of the neck (111) ,wherein the tamper evidence mechanism (Taught in Figures 8A through 8C and on Annotated Diagram 1, Item D), includes a male component (Stud – 140), a female component (Window – 119) and a locking member (Strand – 130), the female component (119) of the tamper evidence mechanism (D) provided on the neck (111) of the cap (20) and comprising a recess on a rim of the neck (See Annotated Diagram 1, Figure 7 – where window – 119 is recessed with respect to the outer surface of the base component-110 of the neck – 111), (NOT EXPLICITLY TAUGHT) {wherein the tamper evidence mechanism is located between the sloped portion of the cap and the hinge}, and wherein the lid (120) of the cap (1) may be opened by pushing up from under the extended part (123) (See Column 3, Lines 56-63 – in order to “…apply a force directed upwards…” to open the container.).
Altier does not teach neck and tamper evidence configuration as claimed in the revised claim language.
Skillen – in a similar disclosure on tamper evident closures with frangible elements – does teach the missing limitations. See Annotated Diagram 2 for Skillen that follows:
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Examiner's Annotated Diagram 2
Skillen teaches: the neck (Skillen – Closure Deck – 16 and Column 4, Liens 38-57) including and a sloped portion (Annotated Diagram 2, Item B on Figures 1 and 5) located at a front side of the cap (See Annotated Diagram 2, Figures 1 and 5 where this limitation is met) AND ALSO TEACHES - wherein the tamper evidence mechanism (76 – Frangible Elements, consisting of Tear Strip – 74 and Locking Tab – 78 in the shoulder – 80 of the tear strip – 74) is located between the sloped portion of the cap and the hinge (See Figure 5 where the tamper mechanism – 76 is located between B and hinge at 34) (MOTIVATION: enhancing tamper evidence by preventing the movement of the cap – 32 prior to intended use of the container after purchase – Column 6, Lines 58-64.)
It would have been obvious to one having ordinary skill in the art at the time the application was filed to modify the frangible tamper evidence structure of Altier, providing the cap and tamper evidence structure taught by Skillen (Neck – 16 and Sloped portion – Diagram 2, Item B, Tamper Evidence Mechanism including 76 – Frangible Elements, consisting of Tear Strip – 74 and Locking Tab – 78 in the shoulder – 80 of the tear strip – 74), motivated by the benefit of enhancing tamper evidence by preventing the movement of the cap – 32 prior to intended use of the container after purchase – Column 6, Lines 58-64.. Moreover, simple substitution of a known element for another (Configurations of tamper evidence mechanisms on the next of a container closure) with a predictable result (Enhancing tamper evidence) 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 2, Altier – as modified above - continues to teach a tamper-proof container (Examiner’s Annotated Diagram 1, Item A and Column 1, Lines 17-31): wherein the lid (120) comprises a plug (Cylindrical Sealing Skirt - 122 sub 1) projecting from the inner surface of the lid (120) (See Annotated Diagram 1, Figure 7 where the skirt – 1221 depends from the inner surface of lid 120), and wherein the lid (120) fits into the orifice (116) to seal the orifice (116) when the tamper-proof container is in the closed position (See Column 3, Lines 30-34 where the skirt 1221 is suitable to “…close off the opening in substantially leak tight manner.” – meeting this limitation.).
In regards to Claim 3, Altier continues to teach a tamper-proof container (Examiner’s Annotated Diagram 1, Item A and Column 1, Lines 17-31): wherein the seal between the plug (1221) and the orifice (116) is moisture tight and resealable (See Column 3, Lines 30-34 where the skirt 1221 is suitable to “…close off the opening in substantially leak tight manner.” – meeting this limitation.).
In regards to Claim 4, Altier continues to teach a tamper-proof container (Examiner’s Annotated Diagram 1, Item A and Column 1, Lines 17-31): wherein the plug (1221) enters the orifice (116) prior to the male component (140) of the tamper evidence mechanism (D) completing its engagement with the corresponding female component (119) of the tamper evidence mechanism (D) (See Figure 2 of Altier – where – in a similar embodiment where the tamper evidence mechanism components are reversed – but the geometries are the same, where the plug (122) is entering the orifice (119) prior to latch engagement.) NOTE THAT: Since the prior art and the instant application have the same structures, the sequence of closing and the claimed structures does not carry patentable significance if the same structures are present – as is true in this case.
In regards to Claim 6, Altier continues to teach a tamper-proof container (Examiner’s Annotated Diagram 1, Item A and Column 1, Lines 17-31) wherein the sloped portion (121) is made of a soft material (A soft material is interpreted to mean any material with some flexibility to allow deformation – see Column 3, Lines 49-56 where the closure is plastic) and has an angle between about 35 degrees and about 90 degrees relative to a horizontal axis (Altier has an angle that falls within this limitation, and has the capability – with appropriate design choices to match a range of slopes, as the point of the extended part - 123 is to allow opening leverage.).
In regards to Claim 9, Altier continues to teach a tamper-proof container (Examiner’s Annotated Diagram 1, Item A and Column 1, Lines 17-31): wherein the male component (140) of the tamper evidence mechanism (D) is provided on a rim (Ramp Face – 141) of the lid (120) (See Annotated Diagram 1, Figure 6 where the Male component – 140 is on the Rim of the Lid – and 141 is a component of that rim per Annotated Diagram 1).
In regards to Claim 11, Altier continues to teach a tamper-proof container (Examiner’s Annotated Diagram 1, Item A and Column 1, Lines 17-31): wherein the locking member (D) is provided on the female component (Window – 119) and extends in a horizontal direction (Annotated Diagram 1, Item F – in Figures 8A through 8C) from one end of the female component (119) to the other end of the female component (119). NOTE THAT: Per MPEP 2144.IV. B. Changes in shape – in this case – the Female component – must be significant. See In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
In regards to Claim 13, Altier teaches a cap (Altier, Lid Device - 1) comprising: an inner surface (Inner Surface of Base – 110) containing an orifice (Orifice – 116); a neck (Neck – 111) extending around the inner surface (Inner Surface of Base – 110) and having at least one tamper evidence mechanism (Taught in Figures 8A through 8C and on Annotated Diagram 1, Item D), the neck including and a sloped portion (Front Portion – 121 – where the tamper evidence portion and front portion are aligned at the front of the cap.) located at a front side of the cap (20) (Positional configuration taught in Annotated Diagram 1, Figures 6 and 7); and a lid (120) connected to the cap (1) pivotally via a hinge (Annotated Diagram 1, Item C and Column 3, Lines 51-55) and moveable between a closed position and an opened position (The Reversible lid position (open and closed) taught in Column 3, Lines 46-51), the lid (120) comprising an extended part (Tab – 123) extending over the sloped portion (121) of the neck (111), wherein the tamper evidence mechanism (D) includes a male component (Stud – 140), a female component (Window – 119) and a locking member (Strand – 130), the female component (119) of the tamper evidence mechanism (D) provided on the neck (111) of the cap (1) and comprising a recess (See Annotated Diagram 1, Figure 7 where the window – 119 is recessed with respect to the outer surface of the base component – 110 of the neck – 111) on a rim (Annotated Diagram 1, Item E) of the neck (111), wherein the tamper evidence mechanism is located between the sloped portion of the cap and the hinge, and wherein the lid (120) of the cap (1) may be opened by pushing up from under the extended part (123) (See Column 3, Lines 56-63 – in order to “…apply a force directed upwards…” to open the container.).
EXAMINER’S NOTE: The modification of claim 1 was already applied that showed the claimed structures are available and taught in the prior art. The modification is repeated here for clarity.
Skillen teaches: the neck (Skillen – Closure Deck – 16 and Column 4, Liens 38-57) including and a sloped portion (Annotated Diagram 2, Item B on Figures 1 and 5) located at a front side of the cap (See Annotated Diagram 2, Figures 1 and 5 where this limitation is met) AND ALSO TEACHES - wherein the tamper evidence mechanism (76 – Frangible Elements, consisting of Tear Strip – 74 and Locking Tab – 78 in the shoulder – 80 of the tear strip – 74) is located between the sloped portion of the cap and the hinge (See Figure 5 where the tamper mechanism – 76 is located between B and hinge at 34) (MOTIVATION: enhancing tamper evidence by preventing the movement of the cap – 32 prior to intended use of the container after purchase – Column 6, Lines 58-64.)
It would have been obvious to one having ordinary skill in the art at the time the application was filed to modify the frangible tamper evidence structure of Altier, providing the cap and tamper evidence structure taught by Skillen (Neck – 16 and Sloped portion – Diagram 2, Item B, Tamper Evidence Mechanism including 76 – Frangible Elements, consisting of Tear Strip – 74 and Locking Tab – 78 in the shoulder – 80 of the tear strip – 74), motivated by the benefit of enhancing tamper evidence by preventing the movement of the cap – 32 prior to intended use of the container after purchase – Column 6, Lines 58-64.. Moreover, simple substitution of a known element for another (Configurations of tamper evidence mechanisms on the next of a container closure) with a predictable result (Enhancing tamper evidence) 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 7 is rejected under 35 U.S.C. 103 as being unpatentable over Antier in view of Skillen and in further view of Jaeckel et al. (WO 03026981 – hereafter referred to as Jaeckel).
In regards to Claim 7, Altier teaches a tamper-proof container (Examiner’s Annotated Diagram 1, Item A and Column 1, Lines 17-31): wherein the soft material (Antier, Plastic (soft) material – Column 4, Lines 50-54) of the sloped portion (121)
Antier is silent on the types of plastic materials that can be used in the container and closure.
However, Jaeckel – in a similar disclosure or a container and closure with a wide range of acceptable plastics that can be selected from a group comprising: (IN AN APPARENT CHOICE OF LIMITATIONS TO SELECT FROM, THE EXAMINER CHOOSES LDPE)
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 Soft Plastic Materials of the closure of Antier with the LDPE material of Jaeckel (Translation – Description, Paragraph 8 – material teaching list) in order to create the soft to the touch characteristic desired by the consumer (Translation – Description, Paragraph 7).
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 to further specify the type of plastic used in the manufacture of Muhlemann’s closure because Applicant has not disclosed that a “soft material” provides an advantage, is used for a particular purpose, or solves a stated problem that is 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 Antier’s plastic because the “soft” characteristic is inherent in the material in order for the deformation and rupturing of the frangible portions to occur.
Therefore, it would have been an obvious matter of design choice to modify Antier to obtain the invention as claimed.
Claims 8 is rejected under 35 U.S.C. 103 as being unpatentable over Antier in view of Skillen and in further view of Muhlemann (CH 713025 – hereafter referred to as Muhlemann).
In regards to Claim 8, Altier continues to teach a tamper-proof container (Examiner’s Annotated Diagram 1, Item A and Column 1, Lines 17-31): with a tamper evidence mechanism (D).
Altier does not teach two tamper evidence mechanisms on opposite sides of the cap.
wherein the container includes two tamper evidence mechanisms provided on opposite sides on the neck of the cap.
Muhlemann – in a similar disclosure on a cap with a security element with a multiple frangible connections – does teach the missing concepts. The Examiner’s Annotated Diagram 2 for Muhlemann follows:
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Examiner's Annotated Diagram 3
However, Muhlemann teaches: wherein the previously taught container includes two tamper evidence mechanisms (Two Locking Means – 5 and Paragraph 0030 – line 324) provided on opposite sides on the neck of the cap (See Annotated Diagram 3, where the tamper evidence mechanisms (5) are on opposing sides of the cap. (MOTIVATION: To easily fabricate a plastic tamper-proof cap with childproof features – Paragraph 0011, Line 131.)
It would have been obvious to one having ordinary skill in the art at the time the application was filed to modify the single tamper evident mechanism structure of Antier, providing the dual tamper evident mechanism configuration taught by Muhlemann, motivated by the benefit of fabricating a plastic tamper-proof cap with childproof features – Paragraph 0011, Line 131. Moreover, simple substitution of a known element for another (Single tamper evidence mechanism with multiple tamper evidence mechanisms) with a predictable result (improved visibility of tampering) 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 12 is rejected under 35 U.S.C. 103 as being unpatentable over Antier in view of Skillen and in further view of Dubach (US 5497906 – hereafter referred to as Dubach).
In regards to Claim 12, Altier teaches a tamper-proof container (Examiner’s Annotated Diagram 1, Item A and Column 1, Lines 17-31): wherein the locking member (130) is connected with one point of connection at BOTH ENDS of the female component, and two points of connection at the other end of the female component.
Antier does not explicitly teach different connection structure at each end of the frangible component.
Dubach – in a similar disclosure on a cap with a security element with a multiple frangible connections – does teach the missing concepts. The Examiner’s Annotated Diagram 3 for Dubach follows:
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Examiner's Annotated Diagram 4
However, Dubach teaches: a similar locking member where one side is connected at two points of connection (Annotated Diagram 3, Figure 14C at Bottom) and both sides are connected at one point of connection (Annotated Diagram 3, Figure 14C at bottom – Note the various configurations and attachment points taught within Dubach’s disclosure.)(MOTIVATION: to enable quick identification of the container’s secured versus opened state – Column 4, Lines 56-63).
It would have been obvious to one having ordinary skill in the art at the time the application was filed to modify the frangible member connection structure of Antier, providing the one and two point connecting structural configuration taught by Dubach, motivated by the benefit of controlling the failure point for the frangible structure based on the design requirements and to advantageously modify the container for quick identification of the container’s secured versus opened state (Column 4, Lines 56-63). Moreover, simple substitution of a known element for another (Singe frangible tamper connection with multiple frangible tamper connections) with a predictable result (quick identification of secured versus opened state) 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to John M. Hoppmann whose telephone number is (571)272-7344. The examiner can normally be reached from Monday-Friday 7:30 - 4:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nathan Jenness can be reached on 571.270.5055. The fax phone number for the organization where this application or proceeding is assigned is (571) 273-8300.
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/JOHN MARTIN HOPPMANN/Examiner, Art Unit 3733
/DON M ANDERSON/Primary Examiner, Art Unit 3733