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 .
Withdrawn Rejections
Any rejections and or objections, made in the previous Office Action, and not repeated below, are hereby withdrawn due to Applicant’s amendments and/or arguments in the response dated March 10, 2026. However, new rejections may have been made using the same prior art if still applicable to the newly presented amendments and/or arguments.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1 – 4 and 6 – 20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim1 – 9, 11 – 14, and 17 – 22 of U.S. Patent No. 11,462,132 to Bellamah. Although the claims at issue are not identical, they are not patentably distinct from each other because they are both direct towards labels.
Bellamah discloses a label for a pack for consumer goods, the label comprising: a continuous sheet of polymer material including, a pull tab, and one or more panels configured to at least partially cover the pack, the one or more panels including, an upper front panel connected along a first transverse fold line to the pull tab, an upper front panel side flap connected along a first longitudinal fold line to the upper front panel, the upper front panel side flap including, a first edge of the upper front panel side flap extending transversely outward from a lower end of the first longitudinal fold line, a second edge of the upper front panel side flap extending upwardly from a distal end of the first edge of the upper front panel side flap, and a third edge of the upper front panel side flap extending upwardly and inwardly from an upper end of the second edge of the upper front panel side flap to an upper end of the first longitudinal fold line; a top panel connected along a second transverse fold line to the upper front panel; and a top panel side flap connected along a second longitudinal fold line to the top panel, the top panel side flap including, a first edge of the top panel side flap extending transversely outward form a lower end of the second longitudinal fold line, a second edge of the top panel side flap extending upwardly and outwardly from a distal end of the first edge of the top panel side flap, a third edge of the top panel side flap extending upwardly from an upper end of the second edge of the top panel side flap, and a fourth edge of the top panel side flap extending inwardly from an upper end of the third edge of the top panel side flap to an upper end of the second longitudinal fold line (Claims 1, 12, 13, 14, and 21) as in claim 1. With respect to claim 2, the upper front panel side flap is a first upper front panel side flap, and the one or more panels further comprise: a second upper front panel side flap connected along a third longitudinal fold line to the upper front panel, the third longitudinal fold line being parallel with the first longitudinal fold line, and the second upper front panel side flap including, a first edge of the second upper front panel side flap extending transversely outward from a lower end of the third longitudinal fold line, a second edge of the second upper front panel side flap extending upwardly from a distal end of the first edge, and a third edge of the second upper front panel side flap extending upwardly and inwardly from an upper end of the second edge of the second upper front panel side flap to an upper end of the third longitudinal fold line (Claims 1, 13 and 21). Regarding claim 3, the first upper front panel side flap and the second upper front panel side flap each has a trapezoidal shape (Claim 11). For claim 4, the top panel side flap is a first top panel side flap, and the one or more panels further comprise: a second top panel side flap connected along a third longitudinal fold line to the top panel, the third longitudinal fold line being parallel with the second longitudinal fold line, and the second top panel side flap including, a first edge of the second top panel side flap extending transversely outward form a lower end of the third longitudinal fold line, a second edge of the second top panel side flap extending upwardly and outwardly from a distal end of the first edge of the second top panel side flap, a third edge of the second top panel side flap extending upwardly from an upper end of the second edge of the second top panel side flap, and a fourth edge of the second top panel side flap extending inwardly from an upper end of the third edge of the second top panel side flap to an upper end of the third longitudinal fold line (Claims 14 and 21). With regard to claim 6, the one or more panels further comprise: an upper back panel connected along a third transverse fold line to the top panel; a lower back panel connected along a fourth transverse fold line to the upper back panel; a bottom panel connected along a fifth transverse fold line to the lower back panel; and a lower front panel connected along a sixth transverse fold line to the bottom panel, the pull tab being configured to resealably adhere to at least a portion of the lower front panel (Claims 1, 5, 17, 19, and 21). As in claim 7, the one or more panels further comprise: an upper back panel side flap connected to the upper back panel along a third longitudinal fold line, the upper back panel having at least one angle that is greater than ninety degrees (Claims 17 and 21). With respect to claim 8, the upper back panel side flap is a first upper back panel side flap, and the one or more panels further comprise: a second upper back panel side flap connected to the upper back panel along a fourth longitudinal fold line, the fourth longitudinal fold line being parallel with the third longitudinal fold line, and the second upper back panel side flap having at least one angle that is greater than ninety degrees (Claims 18 and 21). Regarding claim 9, the one or more panels further include a lower back panel side flap connected to the lower back panel along a third longitudinal fold line, the lower back panel side flap having at least one angle that is greater than ninety degrees (Claims 19 and 20). For claim 10, the lower back panel side flap is a first lower back panel side flap, and the one or more panels further comprise: a second lower back panel side flap connected to the lower back panel along a fourth longitudinal fold line, the fourth longitudinal fold line being parallel with the third longitudinal fold line, and the second lower back panel side flap having at least one angle that is greater than ninety degrees (Claims 20 and 21). In claim 11, the one or more panels further comprise: a bottom panel side flap connected to the bottom panel along a third longitudinal fold line (Claim 5). With regard to claim 12, the bottom panel side flap is a first bottom panel side flap, and the one or more panels further comprise: a second bottom panel side flap connected to the bottom panel along a fourth longitudinal fold line, the fourth longitudinal fold line being parallel with the third longitudinal fold line (Claim 5). As in claim 13, the one or more panels further comprise: a lower front panel side flap connected to the lower front panel along a third longitudinal fold line (Claim 6). With respect to claim 14, the lower front panel side flap is a first lower front panel side flap, and the one or more panels further comprise: a second lower front panel side flap connected to the lower front panel along a fourth longitudinal fold line, the fourth longitudinal fold line being parallel with the third longitudinal fold line (Claims 6 and 21). Regarding claim 15, a resealable adhesive is on an entire surface of a first surface of the pull tab, and a permanent adhesive is on at least one of the one or more panels such that the one or more panels adhere to one or more walls of the pack (Claims 1 and 22). For claim 16, the continuous sheet includes the permanent adhesive on each of the one or more panels (Claims 1, 21 and 22). In claim 17, a resealable adhesive is on an entire surface of a first surface of the pull tab, a deadener is on at least a portion of the resealable adhesive, and a permanent adhesive is on at least a portion of the deadener (Claims 1 and 9). With regard to claim 18, the one or more panels are configured to at least partially cover a hinged lid of the pack (Claim 3). As in claim 19, the one or more panels are configured to cover over 25% of the pack (Claim 4). With respect to claim 20, the polymer material includes polyethylene, polyethylene terephthalate (PET), or a combination of polyethylene and polyethylene terephthalate (PET) (Claims 7 and 8).
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.
Claims 1 – 4, 6 – 16, 18 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Focke et al. (USPN 4,121,756) in view of Müller (WO 2013/131620 A1).
Focke et al. disclose a label for a pack for consumer goods (Figures; Abstract), the label comprising: a continuous sheet material (Column 2, line 6) including a pull tab (Figure 1, #!6), and one or more panels configured to at least partially cover the pack (Figure 1; Column 2, line 7 to Column 3, line 49), the one or more panels including an upper front panel connected along a first transverse fold line to the pull tab (Figure 1, #15), an upper front panel side flap connected along a first longitudinal fold line to the upper front panel, the upper front panel side flap including, a first edge of the upper front panel side flap extending transversely outward from a lower end of the first longitudinal fold line, a second edge of the upper front panel side flap extending upwardly from a distal end of the first edge of the upper front panel side flap, and a third edge of the upper front panel side flap extending upwardly and inwardly from an upper end of the second edge of the upper front panel side flap to an upper end of the first longitudinal fold line (Figure 1, #35); a top panel connected along a second transverse fold line to the upper front panel (Figure 1, #14); and a top panel side flap connected along a second longitudinal fold line to the top panel, the top panel side flap including, a first edge of the top panel side flap extending transversely outward form a lower end of the second longitudinal fold line, a second edge of the top panel side flap extending upwardly and outwardly from a distal end of the first edge of the top panel side flap, a third edge of the top panel side flap extending upwardly from an upper end of the second edge of the top panel side flap, and a fourth edge of the top panel side flap extending inwardly from an upper end of the third edge of the top panel side flap to an upper end of the second longitudinal fold line (Figure 1, #33) as in claim 1. With respect to claim 2, the upper front panel side flap is a first upper front panel side flap, and the one or more panels further comprise: a second upper front panel side flap connected along a third longitudinal fold line to the upper front panel, the third longitudinal fold line being parallel with the first longitudinal fold line, and the second upper front panel side flap including, a first edge of the second upper front panel side flap extending transversely outward from a lower end of the third longitudinal fold line, a second edge of the second upper front panel side flap extending upwardly from a distal end of the first edge, and a third edge of the second upper front panel side flap extending upwardly and inwardly from an upper end of the second edge of the second upper front panel side flap to an upper end of the third longitudinal fold line (Figure 1, #36). Regarding claim 3, the first upper front panel side flap and the second upper front panel side flap each has a trapezoidal shape (Figure 1, #35 and 36). For claim 4, the top panel side flap is a first top panel side flap, and the one or more panels further comprise: a second top panel side flap connected along a third longitudinal fold line to the top panel, the third longitudinal fold line being parallel with the second longitudinal fold line, and the second top panel side flap including, a first edge of the second top panel side flap extending transversely outward form a lower end of the third longitudinal fold line, a second edge of the second top panel side flap extending upwardly and outwardly from a distal end of the first edge of the second top panel side flap, a third edge of the second top panel side flap extending upwardly from an upper end of the second edge of the second top panel side flap, and a fourth edge of the second top panel side flap extending inwardly from an upper end of the third edge of the second top panel side flap to an upper end of the third longitudinal fold line (Figure 1, #34). With regard to claim 6, the one or more panels further comprise: an upper back panel connected along a third transverse fold line to the top panel (Figure 1, #13); a lower back panel connected along a fourth transverse fold line to the upper back panel; a bottom panel connected along a fifth transverse fold line to the lower back panel (Figure 1, #12); and a lower front panel connected along a sixth transverse fold line to the bottom panel (Figure 1, #10), the pull tab being configured to resealably adhere to at least a portion of the lower front panel (Figure 1, #47). As in claim 7, the one or more panels further comprise: an upper back panel side flap connected to the upper back panel along a third longitudinal fold line, the upper back panel having at least one angle that is greater than ninety degrees (Figure 1, #31). With respect to claim 8, the upper back panel side flap is a first upper back panel side flap, and the one or more panels further comprise: a second upper back panel side flap connected to the upper back panel along a fourth longitudinal fold line, the fourth longitudinal fold line being parallel with the third longitudinal fold line, and the second upper back panel side flap having at least one angle that is greater than ninety degrees (Figure 1, #32). Regarding claim 9, the one or more panels further include a lower back panel side flap connected to the lower back panel along a third longitudinal fold line, the lower back panel side flap having at least one angle that is greater than ninety degrees (Figure 1, #29). For claim 10, the lower back panel side flap is a first lower back panel side flap, and the one or more panels further comprise: a second lower back panel side flap connected to the lower back panel along a fourth longitudinal fold line, the fourth longitudinal fold line being parallel with the third longitudinal fold line, and the second lower back panel side flap having at least one angle that is greater than ninety degrees (Figure 1, #30). In claim 11, the one or more panels further comprise: a bottom panel side flap connected to the bottom panel along a third longitudinal fold line (Figure 1, #27). With regard to claim 12, the bottom panel side flap is a first bottom panel side flap, and the one or more panels further comprise: a second bottom panel side flap connected to the bottom panel along a fourth longitudinal fold line, the fourth longitudinal fold line being parallel with the third longitudinal fold line (Figure 1, #28). As in claim 13, the one or more panels further comprise: a lower front panel side flap connected to the lower front panel along a third longitudinal fold line (Figure 1, #23)). With respect to claim 14, the lower front panel side flap is a first lower front panel side flap, and the one or more panels further comprise: a second lower front panel side flap connected to the lower front panel along a fourth longitudinal fold line, the fourth longitudinal fold line being parallel with the third longitudinal fold line (Figure 1, #24). With regard to claim 18, the one or more panels are configured to at least partially cover a hinged lid of the pack (Figure 2). As in claim 19, the one or more panels are configured to cover over 25% of the pack (Figures 1 and 2). However, Focke et al. fail to disclose a continuous sheet of polymer material, a resealable adhesive is on an entire surface of a first surface of the pull tab, and a permanent adhesive is on at least one of the one or more panels such that the one or more panels adhere to one or more walls of the pack, and the continuous sheet includes the permanent adhesive on each of the one or more panels.
Müller teach a for a pack for consumer goods (Figures 1 and 2, Abstract), the reseal label comprising: a continuous sheet of polymer material (Page 9, lines 6 – 7) including, a pull tab (Figure 1, #21), and one or more panels configured to at least partially cover the pack (Figure 1; Page 12, line 7 to Page 13, line 6), a resealable adhesive is on an entire surface of a first surface of the pull tab, and a permanent adhesive is on at least one of the one or more panels such that the one or more panels adhere to one or more walls of the pack (Page 13, lines 9 to Page 14, line 12, wherein the adhesive of the overwrap is in contact with the panels of the stiffening material), and the continuous sheet includes the permanent adhesive on each of the one or more panels (Page 13, lines 9 to Page 14, line 12, wherein the adhesive of the overwrap is in contact with the panels of the stiffening material) for the purpose of making a container for consumer goods (Abstract).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have a continuous sheet of polymer material with a permanent and releasable adhesive in Focke et al. in order to make a container for consumer goods as taught by Müller.
Claims 5, 17, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Focke et al. (USPN 4,121,756) in view of Müller (WO 2013/131620 A1) as applied to claims 1 and 4 above, and further in view of Parker (USPN 6,505,735).
Focke et al, as modified with Müller, discloses the claimed invention except for the first top panel side flap and the second top panel side flap each has a pentagonal shape, a deadener is on at least a portion of the resealable adhesive, and a permanent adhesive is on at least a portion of the deadener, and the polymer material includes polyethylene, polyethylene terephthalate (PET), or a combination of polyethylene and polyethylene terephthalate (PET).
Parker teaches the use of a deadener, a mask of varnish, on a tacky adhesive on a tab of label (Column 2, lines 12 – 16) for the purpose of controlling how the adhesive adheres to a surface (Column 2, lines 12 – 16).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have a deadener on the adhesive of Müller in order to control ow the adhesive adheres to a surface as taught by Parker.
With regard to the limitation of “the first top panel side flap and the second top panel side flap each has a pentagonal shape”, it is well settled that a particular shape of a prior invention carries no patentable weight unless the applicant can demonstrate that the new shape provides significant unforeseen improvements to the invention. In the instant case, the application does not indicate any new, significant attributes of the invention due to its shape which would have been unforeseen to one of ordinary skill in the art. A change in size or shape is generally recognized as being within the level of ordinary skill in the art, absent unexpected results. MPEP 2144.04 (I) and (IV). One of ordinary skill in the art would have been motivated to change the shape of the top panel side flaps in order to change the visual attractiveness of the packaging. It is desirable to change the visual attractiveness of the packaging in order to make the consumer goods more appealing to the consumer.
With regard to the limitation of “the polymer material includes polyethylene, polyethylene terephthalate (PET), or a combination of polyethylene and polyethylene terephthalate (PET)”, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have select polyethylene or polyethylene terephthalate (PET), since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. MP2144.07.
Response to Arguments
Applicant’s arguments with respect to claims 1 – 20 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Please see the newly presented rejection in view of Focke et al.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The prior art is cited to show the state of the art with regard to consumer good containers made from a single sheet of material having panels separated by fold lines.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 Patricia L Nordmeyer whose telephone number is (571)272-1496. The examiner can normally be reached 10am - 6:30pm EST, Monday - Friday.
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/Patricia L. Nordmeyer/
Primary Examiner
Art Unit 1788
/pln/Primary Examiner, Art Unit 1788 March 30, 2026