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 7/31/2025, wherein claims 1, 15-23 were amended, claims 2 and 11 are cancelled. Claims 1, 3-10, 12-23 are pending.
Specification
The amendment filed 7/31/2025 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: Removal of the term "about" is considered new matter. The original specification does not support exact measurement of angles.
Applicant is required to cancel the new matter in the reply to this Office Action.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 15-22 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claims 15-22 remove the term "about" in front of the angle value (X degrees) . For specific instances: “between 60 degrees to 90 degrees” (claim 15), “from 65 to 85” (claim 16), “from 75 to 82” (claim 17), “from 77 to 79 degrees” (claim 18), “between 50 percent to 98 percent” (claim 20), “from 150 degrees to 210 degrees” (claim 21), “is equal to greater than” (claim 22).
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, 3-10, 12-23 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.
Claim 1 recites the limitation "the at least one product" in line 8. There is insufficient antecedent basis for this limitation in the claim. Line 1 of claim 1 does not state the presence of at least one product in the invention. Claims 3-10 and 12-23 directly or indirectly depend from claim 1 and are also rejected.
The term “the at least one product extending at least partially into the at least one front cutout” in claim 9 is a relative term which renders the claim indefinite. The term “the at least one product extending at least partially into the at least one front cutout” 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. What is the limitation being placed by the claim? It sounds as though the product is intended to intersect the cutout. So that in the storage position, the product extends outside of receptacle. However, with respect to the term “partially into”, it also sounds like the at least one product can extend “fully into” the at least one front cutout. Meaning that the product can be fully within the at least one cut out. Is this also a correct interpretation? Why is the modifier “partially into” present?
The term “the angle of inclination is between 60 degrees to 90 degrees” in claim 15 is a relative term which renders the claim indefinite. The term “the angle of inclination is between 60 degrees to 90 degrees” 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. With the presence of a “foot” inclination can never be 90 degrees. It is recognized that the as filed specification states “about 90 degrees”. Therefore “about” can be broadly interpreted. The prior art says about 5 degrees to about 30 degrees with respect to the vertical, therefore reading on the present claim. For the purposes of examination, the term “about” shall be present before the angle statements.
The term “___ percent of an outer surface facing the front wall of the at least one product is visible through the front cut out” in claim 19 and 20 is a relative term which renders the claim indefinite. The term “___ percent of an outer surface facing the front wall; of the at least one product is visible through the front cut out” 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. What is considered the bounds of the outer surface facing the front wall? The drawings show a cylindrical product in which less than 50 percent of the product is shown in the front view. The outer surface has no concrete bounds, especially on an ovular product. It would appear that a user can pick and choose arbitrary bounds to meet the claimed limitation. It is unclear what an outer surface facing the front wall would be considered.
The term “the first plane and the second plane are disposed at an angle of from about 150 degrees to about 210 degrees” in claim 19 and 20 is a relative term which renders the claim indefinite. The term “the first plane and the second plane are disposed at an angle of from about 150 degrees to about 210 degrees” 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. How can the surfaces 116 and 118 have a relationship both above and below 180 degrees? If we assume the cross section of figure 1E is showing a relationship that is under 180 degrees, what does a structure of above 180 degrees look like? The structure would change. The device would protrude outward and change the format of the cutout. For example, cut out size and placement would be different. Depending on reference (clockwise or counterclockwise), the relationship shown in figure 1E can be described by either a relationship above or below 180 degrees, but not both.
The term “wherein the first plane and the second plane are disposed at an angle of from 150 degrees to 210 degrees” in claim 21 is a relative term which renders the claim indefinite. The term “wherein the first plane and the second plane are disposed at an angle of from 150 degrees to about degrees” 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. Claim 1 is essentially claiming a relationship in which a portion of the front wall is not parallel with the rear wall. The first plane will be parallel with the rear wall. Therefore, a relationship of 180 degrees cannot exist between the first and second plane. If a relationship of 180 degrees existed, it would contradict claim 1 and both surfaces of the front wall would run parallel to the rear wall. A range from 150 degrees to 210 degrees includes and angle of 180 degrees which would contradict claim 1.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1, 3-8, 12-13, 15-18, and 21-23 is/are rejected under 35 U.S.C. 102a(1) as being anticipated by Cerone (US 20210261315 A1).
With respect to claim 1, Cerone discloses a container for packaging at least one product, the container comprising: a front wall (14) defining a first foot region (14 bottom) at a lower end thereof; a rear portion (46) comprising a rear wall (50) and a bottom wall (56), wherein the bottom wall (56) has a first end connected to the rear wall (50) and a second end opposite the first end; and a second foot region (40) connected to the second end of the bottom wall (56); wherein the front wall (14), the rear wall (50), and the bottom wall (56) at least partially define a receptacle therebetween, the at least one product being at least partially received within the receptacle; and wherein the first foot region (bottom of 14) and the second foot region (40) are attached to each other to form a foot that extends downwardly from the bottom wall away from the receptacle, such that upon positioning the container in an upright position by placing the foot and the first end of the bottom wall on a horizontal planar surface (configuration of page 2 [0029]), the container is configured to remain upright with the rear wall (50) and the bottom wall (56) each being inclined obliquely to the horizontal planar surface wherein the rear wall and at least a portion of the front wall (pull tab 33) are inclined at different angles relative to the horizontal planar surface.
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With respect to claim 3, Cerone discloses the container according to claim 1, wherein the first foot region (14) is greater in length and width than the second foot region (40). (visible in figure 2 and 4)
With respect to claim 4, Cerone discloses the container according to claim 1, wherein the foot (14 + 40) is substantially perpendicular to the bottom wall (56).
With respect to claim 5, Cerone discloses the container according to claim 1, further comprising a first side wall (58) connected to the rear wall (50) and the bottom wall (56), and a second side wall (other 58) disposed opposite to the first side wall and connected to the rear wall and the bottom wall, wherein each of the first side wall and the second side wall (58s) is disposed between the front wall (14) and the rear wall (50), such that the receptacle is partially defined between the first and second side walls (58s), and wherein the at least one product is at least partially received between the first side wall and the second side wall.
With respect to claim 6, Cerone discloses the container according to claim 5, further comprising a first side connecting portion (24 near 58) connected to the first side wall and a second side (other 24 near other 58) connecting portion connected to the second side wall, wherein each of the first side connecting portion and the second side connecting portion (side portions of 24) is spaced apart from the rear wall (50) and attached to the front wall (14).
With respect to claim 7, Cerone discloses the container according to claim 5, further comprising a top wall (54) disposed opposite to the bottom wall and connected to the rear wall (50), the first side wall and the second side wall (58s), and a top connecting portion (obstructed by sleeve in annotated figure 1 above) connected to the top wall, wherein the top connecting portion is attached to the front wall (14). (the portion is connected to the front panel along top portion of 24.)
With respect to claim 8, Cerone discloses the container according to claim 7, wherein each of the first sidewall and the second side wall (58) extends substantially perpendicular to the rear wall (50) and bottom wall (56).
With respect to claim 12, Cerone discloses the container according to claim 1, wherein the front wall (14) and the rear portion (46) comprise discrete components.
With respect to claim 13, Cerone discloses the container according to claim 12,wherein the discrete components are made of carton board. (page 2 [0032]-[0033])
Examiner Note: Carton board is synonymous with paperboard.
With respect to claim 15, Cerone discloses the container according to claim 1, wherein an angle of inclination is defined between a rear surface of the front wall (14) and the horizontal plane, and the angle of inclination is between 60 degrees to 90 degrees. (page 2 [0028])
With respect to claim 16, Cerone discloses the container according to claim 15,wherein the angle of inclination is between from 65 to 85. (page 2 [0028] – prior art states angle with respect to vertical of about 10 degrees to about 20 degrees)
With respect to claim 17, Cerone discloses the container according to claim 15,wherein tie angle of inclination is between from 75 to 82. (page 2 [0028] – prior art states angle with respect to vertical of about 10 degrees to about 15 degrees)
With respect to claim 18, Cerone discloses the container according to claim 15,wherein the angle of inclination is between from 77 to 79 degrees. (page 2 [0028] – prior art states angle with respect to vertical of about 10 degrees to about 15 degrees)
With respect to claim 21, Cerone discloses the container according to claim 1, wherein the front wall comprises a front parallel portion (middle portion of 14) and a front inclined portion (top portion of 14), wherein the front parallel portion lies in a first plane and the front inclined portion lies in a second plane, and wherein the first plane and the second plane are disposed at an angle of from 150 degrees to 210 degrees. (they exist at an angle of 180 degrees)
With respect to claim 22, Cerone discloses the container according to claim 1, wherein a length of the first foot region (bottom of 14) is equal to or greater than a length of the second foot region (40).
With respect to claim 23, Cerone discloses the container according to claim 1, wherein the rear wall (50) and the bottom wall (56) are each inclined obliquely at different angles to the horizontal plane defined by a free end of the foot (14 + 40) and the second end of the bottom wall.
Claim(s) 1, 9-10, 14, 19 is/are rejected under 35 U.S.C. 102a(1) as being anticipated by Marcel (FR 2737197 A1).
With respect to claim 1, Marcel discloses a container for packaging at least one product, the container comprising: a front wall defining a first foot region (figure 1) at a lower end thereof; a rear portion comprising a rear wall and a bottom wall (fig 2), wherein the bottom wall has a first end connected to the rear wall and a second end opposite the first end; and a second foot region (figure 2) connected to the second end of the bottom wall; wherein the front wall, the rear wall, and the bottom wall (figures 1 and 2) at least partially define a receptacle therebetween, the at least one product (4) being at least partially received within the receptacle; and wherein the first foot region and the second foot region (figures 1 and 2) are attached to each other to form a foot that extends downwardly from the bottom wall away from the receptacle, such that upon positioning the container in an upright position by placing the foot and the first end of the bottom wall on a horizontal planar surface (configuration of figure 4), the container is configured to remain upright with the rear wall and the bottom wall each being inclined obliquely to the horizontal planar surface, wherein the rear wall and at least a portion of the front wall (flat surface around hang tab cutout or flat surface around edges that is perpendicular to the rest of the front surface, visible in figure 2) are inclined at different angles relative to the horizontal planar surface.
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With respect to claim 9, Marcel discloses the container according to claim 1, wherein the front wall defines at least one front cutout (cutout in sheet 1 around 6) extending therethrough, the at least one product extending at least partially into the at least one front cutout (it extends fully within the at least one cutout).
With respect to claim 10, Marcel discloses the container according to claim 9, wherein the rear wall defines at least one rear cutout (8) extending therethrough and at least partially aligned with the at least one front cutout (cutout around 6).
With respect to claim 14, Marcel discloses the container according to claim 10, wherein the at least one front cutout has a first surface area (surface area of 6) and the at least one rear cutout (surface area of 8) has a second surface area, wherein the first surface area is greater than the second surface area.
With respect to claim 19, Marcel discloses the container according to claim 9,further comprising the at least one product (4), wherein 50 percent or greater of an outer surface facing the front wall of the at least one product within the container is visible through the front cutout (hole of 6).
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) 15-16 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Marcel (FR 2737197 A1) alternate view.
With respect to claim 1, Marcel discloses a container for packaging at least one product, the container comprising: a front wall defining a first foot region (figure 1) at a lower end thereof; a rear portion comprising a rear wall and a bottom wall (fig 2), wherein the bottom wall has a first end connected to the rear wall and a second end opposite the first end; and a second foot region (figure 2) connected to the second end of the bottom wall; wherein the front wall, the rear wall, and the bottom wall (figures 1 and 2) at least partially define a receptacle therebetween, the at least one product (4) being at least partially received within the receptacle; and wherein the first foot region and the second foot region (figures 1 and 2) are attached to each other to form a foot that extends downwardly from the bottom wall away from the receptacle, such that upon positioning the container in an upright position by placing the foot and the first end of the bottom wall on a horizontal planar surface (configuration of figure 4), the container is configured to remain upright with the rear wall and the bottom wall each being inclined obliquely to the horizontal planar surface
Marcel failed to directly disclose wherein the rear wall and at least a portion of the front wall are inclined at different angles relative to the horizontal planar surface. However, Official Notice is taken that the hang tab (figure 1 below) is often manufactured by punching out material of the front wall and partial retention of the punched out material 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 a partially retained punch out member (i.e., producing a portion of the front wall that runs at a different angle than the rear wall relative to the horizontal plane) with this well-known technique in order to produce the hang tab.
Examiner Note: Although not argued, Marcels rear wall features a chamfered edge that runs at a different angle than the front wall (relative to a horizontal plane) as well. Further attached Non Patent Literature Quadrel depicts a relationship in which the hang tab is retained and angled different than the rest of the front wall.
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With respect to claim 9, Marcel discloses the container according to claim 1, wherein the front wall defines at least one front cutout (cutout in sheet 1 around 6) extending therethrough, the at least one product extending at least partially into the at least one front cutout (it extends fully within the at least one cutout).
With respect to claim 10, Marcel discloses the container according to claim 9, wherein the rear wall defines at least one rear cutout (8) extending therethrough and at least partially aligned with the at least one front cutout (cutout around 6).
With respect to claim 14, Marcel discloses the container according to claim 10, wherein the at least one front cutout has a first surface area (surface area of 6) and the at least one rear cutout (surface area of 8) has a second surface area, wherein the first surface area is greater than the second surface area.
With respect to claim 19, Marcel discloses the container according to claim 9,further comprising the at least one product (4), wherein 50 percent or greater of an outer surface facing the front wall of the at least one product within the container is visible through the front cutout (hole of 6).
Claim(s) 15-16 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Marcel (FR 2737197 A1) in view of Cerone (US 20210261315 A1).
With respect to claim 15, the references as applied to claim 1, above, disclose all the limitations of the claims except for The container according to claim 1, wherein an angle of inclination is defined between a rear surface of the front wall and the horizontal plane, and the angle of inclination is between 60 degrees to 90 degrees. However, in a similar field of endeavor, namely display packaging, Cerone taught of a display package that rests at an incline in the claimed range (page 2 [0028]). Therefore, it would have been obvious to one of ordinary skill in the art of packages before the effective filing date of the claimed invention to include an incline between about 60 to about 90 degrees as taught by Cerone in the package of Marcel since the claimed invention is only a combination of these old and well-known elements which would have performed the same function in combination as each did separately. In the present case Marcel teaches an inclined package and adding an incline of about 60 to about 90 degrees as taught by Marcel would maintain the same functionality of Marcel, making the results predictable to one of ordinary skill in the art (MPEP 2143).
Examiner Note: Although not stated, it can be presumed, based on drawings that the Marcel reference alone meets the claim language.
With respect to claim 16, the references as applied to claim 15, above, disclose all the limitations of the claims. Marcel in view of Cerone further discloses wherein the angle of inclination is between from 65 to 85. The angle of inclination is taught by Cerone, refer to claim 15 rejection, above, for combination rationale.
With respect to claim 20, the references as applied to claim 15, above, disclose all the limitations of the claims. Cerone further discloses further comprising the at least one product (4), wherein between 50 percent to 98 percent of an outer surface facing the front wall of the at least one product within the container is visible through a front cutout (cutout around 6) in the front wall.
Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 3338723 A, US 5305875 A, US 5564569 A, US 20050218092 A1, US 20110240503 A1, US 20150291303 A1, US 20170253406 A1, US 20210261315 A1, US 20220185564 A1, US 20230226270 A1
Response to Arguments
Applicant's arguments filed 7/31/2025 have been fully considered but they are not persuasive. With respect to the 112b rejection over the recitation of "the at least one product" on line 8, claim 1, applicant asserts the product is introduced in line 1 of claim 1. However, line 1 of claim 1 does not introduce the presence of at least one product, instead the product is used to describe intended function.
With respect to the 112b rejection of claim 9, applicant asserts support from a passage that discusses features 188 and 183. Neither features 188 or 183 are part of the elected species. The support passage also does not clarify the intended limitation being stated in claim 9. Claim 9 sounds like the at least one product is extending up to the cutout in the storage position. However, no drawings (especially side views) clearly show such a relationship (in the elected embodiment).
With respect to the 112b rejection of the first and second plane having an angle of 150 to 210 degrees, the applicant argues the drawing amendments address the issues. However the drawing amendments do not. Let’s say the angle of figure 2E shows is 150 degrees. What does an angle of 210 degrees look like? An angle of 180 would be flat. So an angle of 210 degrees would mean that the top half is protruding outward. This would change the utility, function and shape of the cutout. This modification is not obvious over the presently described invention.
With respect to the Cerone and Marcel reference, applicant argues that Cerone fails to disclose a container that, upon placing the foot and the first end of the bottom wall on a horizontal surface, has a rear wall and at least a portion of the front wall that are inclined at different angles relative to the horizontal planar surface, instead they are parallel. The surfaces are broadly claimed and a portion of the front wall of each reference have been identified.
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