Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 17 March 2026 has been entered.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because reference characters "531" and "5311" have both been used to designate collar.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because reference characters "5371" and "5372" have both been used to designate surface.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because reference characters "5372" and "5373" have both been used to designate a bottom surface of a locking tab.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because they are replete with instances a single reference character being used to designate multiple structures. See reference character 5371 which has bene used to designate surface and free side, 5732 which has been used to designate two different surfaces, 562 which designates different structures between at least figures 9 and 12A, and 565 which designates different structures between at least figure 9 and figures 12A & 12D.
The drawings are objected to as failing to comply with C.F.R 1.84(t) because the drawing sheet numbering must be larger than the numbers used as reference characters to avoid confusion. MPEP 608.02 V.
The drawings are objected to because 533 is not directed to the bottom portion in at least figure 12E.
The drawings are objected to because a portion of a removed lead line remains in the upper righthand side of figure 12C that was originally associated with 5431.
The drawings are objected to because 532 is not directed to the skirt in figure 12D.
The drawings are objected to because 543 is not directed to the arcuate ledge in figure 12C, 12D, and the rightmost instance in f12F.
The drawings are objected to because 531 is not directed to the annular collar in fig. 12D and 12F.
The drawings are objected to because the uppermost instance of 534 is not directed to a locking tab in figure 12B.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description: 5372, 5371, 5311, 5373, 5312, 547, 546. Corrected drawing sheets in compliance with 37 CFR 1.121(d), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.121(b) 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. 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 § 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1, 5-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Aneas (US 20130233822) further in view of Fournier (US 20150360826) and Hudson (US 20120205375).
Claim 1: Aneas discloses a stopping device 50 (closure device) for sealing a container having a neck with an opening and an annular collar, the stopping device 50 (closure device) comprising: a stopper 51 having a flange; and a cap 52 (cap assembly) configured to surround both the stopper 51 and the neck in a sealed condition, the cap 52 (cap assembly) comprising: a ring 53 containing the stopper 51 and comprising a plurality of locking tabs 537, and a crown 54 comprising a skirt telescopically mounted over the ring 53 and connected to the ring 53 by a plurality of external ribs 535, the skirt being configured to radially deflect the plurality of locking tabs 537 inwardly under the annular collar when the crown 54 is axially displaced towards the neck of the container, wherein a first locking tab of the plurality of locking tabs 537 has a first axial height and a second locking tab of the plurality of locking tabs 537 has a second axial height, wherein the first locking tab of the plurality of locking tabs 537 has a first width and the second locking tab of the plurality of locking tabs 537 has a second width (see fig. 7, 11-13, annotated fig. 14 and annotated partial fig. 8 below).
Aneas does not disclose the first axial height being less than the second axial height or the first width being less than the second width.
Fournier teaches a fastener ring 2’ comprising flaps 26a’ & 26b’, wherein two diametrically opposite flaps 26b’ have a first axial height and another two diametrically opposite flaps 26a’ have a second axial height, the first axial height being less than the second axial height (see fig. 4).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the second locking tabs to have a second axial height with the first axial height being less than the second axial height, as taught by Fournier, in order to permit the stopping device 50 (closure device) to be engageable below a relatively wide range of manufacturing tolerances of the collar 13.
Hudson teaches a lid 42 having a pair of diametrically located seal ribs 48 having a greater width than another pair of diametrically located seal ribs 48 (see fig. 10).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have increased the width of one pair of diametrically located locking tabs 537 in relation to the width of the other pair of diametrically located locking tabs 537, as taught by Hudson, in order to increase the surface area of engagement for better fastening.
When increasing the width of one pair of diametrically disposed locking tabs 537 in relation to the width of the other pair of diametrically disposed locking tabs 537 there are two identified, predictable solutions. One being increasing the width of the first locking tabs and the other being increasing the width of the second locking tabs. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have increased the width of the second locking tabs, as it would have been obvious to try the second identified predictable solution with a reasonable expectation of success.
Examiner notes that no criticality has been established for the relative widths of the first and second locking tabs and as such the first and second widths appear to be design choice. Further, it would have been an obvious matter of design choice to have made the second width greater than the first width, since applicant has not disclosed that the second locking tab having a second width greater than a first width of the first locking tab solves any stated problem or is for any particular purpose and since such a modification would have involved a mere change in the size of a component.
Examiner notes that no criticality has been established for the relative heights of the first and second locking tabs and as such the first and second axial heights appear to be obvious matters of design choice.
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Claim 5: The combination discloses the stopper 51 having a flange, and the ring 53 has an inner circumferential surface including a plurality of ribs 538 (raised steps) extending inwardly radially from the inner circumferential surface to a diameter that is less than or equal to the diameter of the flange (see annotated fig. 14 above and fig. 6 and 8).
Claim 6: The combination discloses wherein the plurality of ribs 538 (raised steps) are present in less than 50% of an inner circumference of the ring 53 (see fig. 8).
Claim 7: The combination discloses a container 1 equipped with the stopping device 50 (closure device) of claim 9 (see fig. 2).
Claim 8: The combination discloses a method of sealing a container 1 with the stopping device 50 (closure device) of claim 1, the method comprising: inserting the neck 12 of the container 1 into the ring 53 (see fig. 4, 6 & 10); and applying an axial force until the stopper is inserted into the opening in the neck 12 of the container 1 and the plurality of locking tabs 537 are radially deflected under the annular collar 13 (see P. 0059-0060 and progression of fig. 6, 10, and 12-14).
Claim(s) 3 and 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Aneas (US 20130233822), Fournier (US 20150360826), and Hudson (US 20120205375) as applied to claim 1 above, and further in view of Schmitt (US 20100089862).
Claim 3: The combination discloses the stopper 51 including a flange (see annotated fig. 14 above).
Aneas does not disclose wherein the ring further comprises a plurality of retaining arms configured to extend radially inward and contact a surface of the stopper flange in an unsealed condition.
Schmitt teaches a closure comprising a stopper 10 having a flange; and a cap 20 configured to surround both the stopper 10 and a neck of a container in a sealed condition, the cap 20 comprising a plurality of holding members 22 (retaining arms) configured to extend radially inward and contact a surface of the flange in an unsealed condition (see fig. 6a-6b) , wherein the cap 20 further includes a plurality of first cap openings 26 and each first cap opening 26 is adjacent to one holding member 22 (retaining arm) of the plurality of holding members 22 (retaining arms), such that upon axial displacement of the cap 20 towards the neck, a widened edge 3 deflects each of the holding member 22 (retaining arm) into the respective adjacent first cap opening 26 and the stopper 10 is inserted into an opening in a sealed condition (see fig. 8a).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the ring 53 to have a plurality of first cap openings 26 adjacent to respective plurality of holding members 22 (retaining arms) which are configured to extend radially inward and contact a surface of the flange in an unsealed condition and to deflect into respective first cap opening 26 upon axial displacement of the ring 53 towards the neck, as taught by Schmitt, in order to positively restrain the stopper 51 in its desired axial position within the ring 53.
Claim 4: The combination discloses wherein the ring 53 further includes a plurality of first cap openings 26 (apertures) and each first cap opening 26 (aperture) is adjacent to one holding member 22 (retaining arm) of the plurality of holding members 22 (retaining arms), such that upon axial displacement of the ring 53 towards the neck 12, the annular collar 13 deflects each of the holding member 22 (retaining arm) into the respective adjacent first cap opening 26 (aperture) and the stopper 51 is inserted into the opening in the sealed condition (see fig. 6a, 6b, and 8a ‘862).
Claim(s) 9-10 and 13-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Aneas (US 20130233822) further in view of Fukuoka (EP 0028411), Fournier (US 20150360826), and Hudson (US 20120205375).
Claim 9: Aneas discloses a stopping device 50 (closure device) for sealing a container having a neck with an opening and an annular collar, the stopping device 50 (closure device) comprising: a stopper 51 having a flange; and a cap 52 (cap assembly) configured to surround both the stopper 51 and the neck in a sealed condition, the cap 52 (cap assembly) comprising: a ring 53 containing the stopper 51 and including a plurality of locking tabs 537, and a crown 54 comprising a skirt telescopically mounted over the ring 53, the skirt being configured to radially deflect the plurality of locking tabs 537 inwardly under the annular collar, wherein the ring 53 comprises an inner circumferential surface, wherein a first locking tab of the plurality of locking tabs 537 has a first axial height and a width and a second locking tab of the plurality of locking tabs 537 has a first axial height and a second width (see fig. 7, 8, 10, an annotated fig. 14 and annotated partial fig. 8 above).
Aneas does not disclose the inner circumferential surface including a plurality of raised steps extending inwardly radially from the inner circumferential surface to a diameter that is less than or equal to the diameter of the flange to provide an interference fit between the stopper and the ring, the first axial height being less than the second axial height, or the first width being less than the second width.
Fukuoka teaches an inner cap 2 having a sidewall 2b having an inner surface including four projections 7 (plurality of raised steps) extending inwardly radially from the inner surface to a diameter that is less than the diameter of a top plate 3a of a rubber plug 3 to provide an interference fit between the rubber plug 3 and the inner cap 2 (see P. 4 L. 13-16. and fig. 3 and 7-8).
Fournier teaches a fastener ring 2’ comprising flaps 26a’ & 26b’, wherein two diametrically opposite flaps 26b’ have a first axial height and another two diametrically opposite flaps 26a’ have a second axial height, the first axial height being less than the second axial height (see fig. 4).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the second locking tabs to have a second axial height with the first axial height being less than the second axial height, as taught by Fournier, in order to permit the stopping device 50 (closure device) to be engageable below a relatively wide range of manufacturing tolerances of the collar 13.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have provided the ring 53 with four projections 7 (plurality of raised steps) extending inwardly radially from the inner circumferential surface of the ring 53 to a diameter that is less than the diameter of the flange of the stopper 51, as taught by Fukuoka, in order to assist in positively restraining the stopper 51 in its desired location.
Hudson teaches a lid 42 having seal ribs 48 of different widths (see fig. 10).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have increased the width of the second locking tabs in relation to the width of the first locking tabs, as taught by Hudson, in order to increase the surface area of engagement for better fastening.
When increasing the width of one pair of diametrically disposed locking tabs 537 in relation to the width of the other pair of diametrically disposed locking tabs 537 there are two identified, predictable solutions. One being increasing the width of the first locking tabs and the other being increasing the width of the second locking tabs. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have increased the width of the second locking tabs, as it would have been obvious to try the second identified predictable solution with a reasonable expectation of success.
Examiner notes that no criticality has been established for the relative widths of the first and second locking tabs and as such the first and second widths appear to be design choice. Further, it would have been an obvious matter of design choice to have made the second width greater than the first width, since applicant has not disclosed that the second locking tab having a second width greater than a first width of the first locking tab solves any stated problem or is for any particular purpose and since such a modification would have involved a mere change in the size of a component.
Examiner notes that no criticality has been established for the relative heights of the first and second locking tabs and as such the first and second axial heights appear to be obvious matters of design choice.
Claim 10: The combination discloses wherein the four projections 7 (plurality of raised steps) are present in less than 50% of an inner circumference of the ring 53 (see fig. 3 ‘411).
Claim 13: The combination discloses a method of sealing a container 1 with the stopping device 50 (closure device) of claim 9, the method comprising: inserting the neck 12 of the container 1 into the ring 53 (see fig. 4, 6 & 10); and applying an axial force until the stopper is inserted into the opening in the neck 12 of the container 1 and the plurality of locking tabs 537 are radially deflected under the annular collar 13 (see P. 0059-0060 and progression of fig. 6, 10, and 12-14).
Claim 14: The combination discloses a container 1 equipped with the stopping device 50 (closure device) of claim 9 (see fig. 2).
Claim 15: The combination discloses the ring 53 comprises a top portion having a bottom surface including a collar 562 (protuberance) configured to apply a force to a top surface of the stopper 51 (see fig. 8 and 13-14).
Claim 16: The combination discloses wherein the collar 562 (protuberance) is radially inward of the four projections 7 (plurality of raised steps) (see fig. 8 and 13-14).
Claim 17: The combination discloses wherein the collar 562 (protuberance) is in the form of a circle (see fig. 8 and 13-14).
Claim(s) 11, 12, and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Aneas (US 20130233822), Fournier (US 20150360826), Fukuoka (EP 0028411), and Hudson (US 20120205375) as applied to claim 9 above, and further in view of Schmitt (US 20100089862).
Claim 11: The combination discloses the claimed invention except for wherein the ring further comprises a plurality of retaining arms configured to extend radially inward and contact a surface of the stopper flange in an unsealed condition.
Schmitt teaches a closure comprising a stopper 10 having a flange; and a cap 20 configured to surround both the stopper 10 and a neck of a container in a sealed condition, the cap 20 comprising a plurality of holding members 22 (retaining arms) configured to extend radially inward and contact a surface of the flange in an unsealed condition (see fig. 6a-6b) , wherein the cap 20 further includes a plurality of first cap openings 26 and each first cap opening 26 is adjacent to one holding member 22 (retaining arm) of the plurality of holding members 22 (retaining arms), such that upon axial displacement of the cap 20 towards the neck, a widened edge 3 deflects each of the holding member 22 (retaining arm) into the respective adjacent first cap opening 26 and the stopper 10 is inserted into an opening in a sealed condition (see fig. 8a).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the ring 53 to have a plurality of first cap openings 26 adjacent to respective plurality of holding members 22 (retaining arms) which are configured to extend radially inward and contact a surface of the flange in an unsealed condition and to deflect into respective first cap opening 26 upon axial displacement of the ring 53 towards the neck, as taught by Schmitt, in order to positively restrain the stopper 51 in its desired axial position within the ring 53.
Claim 12: The combination discloses wherein the ring 53 further includes a plurality of first cap openings 26 (apertures) and each first cap opening 26 (aperture) is adjacent to one holding member 22 (retaining arm) of the plurality of holding members 22 (retaining arms), such that upon axial displacement of the ring 53 towards the neck 12, the annular collar 13 deflects each of the holding member 22 (retaining arm) into the respective adjacent first cap opening 26 (aperture) and the stopper 51 is inserted into the opening in the sealed condition (see fig. 6a, 6b, and 8a ‘862).
Claim 20: The combination discloses wherein the plurality of holding members 22 (retaining arms) extend radially inward of the four projections 7 (plurality of raised steps) (see fig. 13 ‘862 and 8 ‘411).
Claim(s) 18 and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Aneas (US 20130233822), Fournier (US 20150360826), Fukuoka (EP 0028411), and Hudson (US 20120205375) as applied to claim 15 above, and further in view of Schmitt (US 20100089862).
Claim 18: The combination does not disclose wherein the protuberance comprises a plurality of segments.
Schmitt teaches a cap 20 having spacers 23 that apply a force to a top surface of a stopper 10, wherein the spacers 23 are in the form of a plurality of segments in a circular shape (see fig. 5a, 6a, 9a).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the circular collar 562 (protuberance) to be a plurality of segments in a circular shape, as taught by Schmitt, in order to reduce materials and associated costs.
Claim 19: The combination discloses the plurality of segments being of equal size and spaced evenly (see fig. 9a ‘862).
Response to Arguments
Applicant's arguments filed 17 February 2026 have been fully considered but they are not persuasive.
In response to applicant’s remarks directed to the drawings, the Examiner responds that no replacement sheets or marked-up versions were provided.
In response to applicant’s argument that the motivation to modify Aneas in view of Hudson does not come from Aneas nor Hudson, the Examiner replies that “[T]he rationale to modify or combine the prior art does not have to be expressly stated in the prior art; the rationale may be expressly or impliedly contained in the prior art or it can be reasoned from knowledge generally available to one of ordinary skill in the art, established scientific principles, or legal precedent established by prior case law”. MPEP 2144 I.
In response to applicant’s argument that the alleged different widths of the discontinuous rib 48 of the ice cream container lid is because of the oval shape of the ice cream container (that is not present in Aneas) and the gaps are for venting while citing P. 0046, the Examiner responds that Arguments of counsel cannot take the place of evidence in the record MPEP 2113 II. Nowhere does Hudson attribute the different widths of the discontinuous rib 48 to be a result of the oval shape of the ice cream container. En arguendo, this does not negate the factual evidence that Hudson teaches a lid 42 having seal ribs 48 of different widths which would lead a POSITA to modify the locking tabs to be of different width, with one pair having a larger width than the other. (see fig. 10). Additionally, Hudson provides factual evidence at P. 0044 that “the shape of the inner wall does not have to be oval”.
In response to applicant’s argument that the Office cites general legal principles in supporting its conclusory statements without sufficient articulation of how the legal principles apply to the present claims, the Examiner replies that this argument is not commensurate in scope with the rejections at hand which no longer cite In re Rose.
In response to applicant’s argument that the Office’s premise that a POSITA would “increase the surface area of engagement” of the locking tabs 537 of Aneas “for better fastening” is unsupported and improper and that the Office does not provide any supporting evidence that a POSITA would make such a modification, the Examiner replies that “[T]he rationale to modify or combine the prior art does not have to be expressly stated in the prior art; the rationale may be expressly or impliedly contained in the prior art or it can be reasoned from knowledge generally available to one of ordinary skill in the art, established scientific principles, or legal precedent established by prior case law”. MPEP 2144 I. Here, it is a well known concept of physics that a larger surface area of engagement will lead to better fastening. Not only will a larger surface area of engagement result in a decreased likelihood of misalignment between the two components, but P=F/A such that a larger surface area of engagement leads to lower pressure concentrations.
In response to applicant’s argument that the Office fails to provide any support that the solution of Hudson is “known” to address any problem addressed by the Office in “better fastening” for Aneas and that the Office’s premise that a POSITA would “increase the surface area of engagement” of the locking tabs 537 of Aneas “for better fastening” does not support the modification to produce differential width tabs, so it attempts to alter his premise by making a conclusory statement that producing a width of one of the locking tabs 537 wider/narrower than another of the locking tabs 537 would also result “better fastening”, the Examiner replies that Hudson explicitly teaches a lid 42 having seal ribs 48 of different widths which would lead a POSITA to modify the locking tabs to be of different width, with one pair having a larger width than the other. (see fig. 10). Further, as no criticality has been established for the relative widths of the first and second locking tabs, the first and second widths appear to be design choice and it would have been an obvious matter of design choice to have made the second width greater than the first width, since applicant has not disclosed that the second locking tab having a second width greater than a first width of the first locking tab solves any stated problem or is for any particular purpose and since such a modification would have involved a mere change in the size of a component.
In response to applicant’s argument that the Office proposed modification is actually to make one of the locking tabs 537 narrower than another of the locking tabs 537 which would actually reduce the surface area of engagement reducing the fastening, not resulting in the proposed modification of “better fastening” and that the Office general conclusory statement of its being obvious to “increase the surface area of engagement” does not support any modification of making one tab wider/narrower than another, the Examiner responds that this argument is not commensurate in scope with the rejection at hand which relies on Hudson’s teaching to increase the width of the second locking tabs, not to reduce the width of one of the locking tabs relative to another of the locking tabs. Additionally, the obvious matter of design choice likewise increases the width of the second width, and does not reduce the width of one of the locking tabs relative to another of the locking tabs as argued.
In response to applicant’s argument that the Office’s “obvious to try” modification is improper for at least failing to provide that the differential width tab is a “known” solution to the proposed problem of “better fastening”, the Examiner replies that when increasing the width of one pair of diametrically disposed locking tabs 537 in relation to the width of the other pair of diametrically disposed locking tabs 537 there are only two identified, predictable solutions. One being increasing the width of the first locking tabs and the other being increasing the width of the second locking tabs.
In response to applicant’s argument that the Office’s further proposed modification of Aneas/Hudson further in view of Fournier is also not supported by its motivation as Hudson clearly distinguishes from the differential snapping positions of Fournier in that the oval shaped ice cream container lid 40 has a seal rib 48 that is non-continuous and in a single plane, where Hudson discloses that the seal rib 48 seals the lid 42 to the container 12 in a single configuration and the breaks in the rib 48 are for venting, the Examiner responds that Hudson teaches a lid 42 having seal ribs 48 of different widths (see fig. 10). This teaching provides that it was well known to those of ordinary skill in the art before the effective filing date of the invention to have provided ribs of unequal lengths on a lid. As such, it would have been obvious to one of ordinary skill in the art before the effective filing date to have increased the width of the second locking tabs, as taught by Hudson, in order to increase the surface area of engagement for better fastening. By increasing the width of the second locking tabs the surface area of engagement is likewise increased which results in better fastening due to a larger area of contact. The first and second locking tabs being at different vertical positions of the combination does not detract from an increased width of the second locking tabs resulting in better fastening. Examiner notes that Hudson is a secondary reference which is not being modified by Fournier in any fashion and that Hudson is not relied upon for any teaching of venting.
In response to applicant’s argument that the non-continuous seal rib 48 of the oval shaped ice cream container lid is in a single plane and the Office’s proposed motivation of “better fastening” based on Hudson has no relevance to the different vertical snapping positions of Fournier, that the Office fails to address the different snapping positions of Fournier with respect to the “better fastening” provided by the non-continuous rib of Hudson, and that the Office again is missing the point because the different axial heights of Fournier provide different snapping positions, such that some contact zones (27a; 27b) come into operating engagement below the bottom shoulder (12), while other contact zones (27a; 27b) remain inoperative to provide and thus the Office’s generic argument of “better fastening” does not address that the flaps of differential heights do not work together such that some are always inoperative and the Office does not provide any reasoning why some snapping positions should provide “better fastening” than another, the Examiner responds that Hudson teaches a lid 42 having seal ribs 48 of different widths (see fig. 10). This teaching provides that it was well known to those of ordinary skill in the art before the effective filing date of the invention to have provided ribs of unequal lengths on a lid. As such, it would have been obvious to one of ordinary skill in the art before the effective filing date to have increased the width of the second locking tabs, as taught by Hudson, in order to increase the surface area of engagement for better fastening. By increasing the width of the second locking tabs the surface area of engagement is likewise increased which results in better fastening due to a larger area of contact. The first and second locking tabs being at different vertical positions of the combination does not detract from an increased width of the second locking tabs resulting in better fastening.
In response to applicant’s any new motivation that the Office may propose of making one snapping position of Aneas in view of Fournier stronger than another snapping position would be based purely on hindsight, the Examiner responds that Hudson teaches a lid 42 having seal ribs 48 of different widths (see fig. 10). This teaching provides that it was well known to those of ordinary skill in the art before the effective filing date of the invention to have provided ribs of unequal lengths on a lid. As such, it would have been obvious to one of ordinary skill in the art before the effective filing date to have increased the width of the second locking tabs, as taught by Hudson, in order to increase the surface area of engagement for better fastening. By increasing the width of the second locking tabs the surface area of engagement is likewise increased which results in better fastening due to a larger area of contact. The first and second locking tabs being at different vertical positions of the combination does not detract from an increased with of the second locking tabs resulting in better fastening. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
In response to applicant’s argument that the Office applies an improper “change in size” modification as the “change in size” in In re Rose that the Office is relying on to address the present claims is based on a holding on changing “the overall size of the article under consideration” and that In re Rose has no relevance to the relative size of one component to another in the same article, the Examiner replies that this argument is no longer commensurate in scope with the rejection at hand which does not cite to In re Rose.
In response to applicant’s argument that the Office proposed modification is based on modifying Aneas with both differential widths and differential heights in combining the three references and that In re Rose cannot support the Office’s proposition, the Examiner responds that the modifications to the width and axial height of the second locking tabs rely on explicit prior art teachings. Additionally, the differential widths and heights have been found to be obvious matters of design choice where it would have been an obvious matter of design choice to have made the second width greater than the first width, since applicant has not disclosed that the second locking tab having a second width greater than a first width of the first locking tab solves any stated problem or is for any particular purpose and since such a modification would have involved a mere change in the size of a component.
In response to applicant’s argument that criticality is not required when the Office fails to provide a prima facie case of obviousness, that the Office seemingly takes all of these liberties in the proposed modification relying on an allegation that “no criticality has been established for the relative heights of the first and second locking tabs and as such the first and second axial heights appear to be obvious matters of design choice”, and that MPEP 2142 explicitly states that the Office bears the initial burden of using facts and reasoning to establish a prima facie conclusion of obviousness and if the Office does not produce a prima facie case the applicant is under no obligation to submit evidence or arguments to show non-obviousness, the Examiner initially responds that a prima facie case of obviousness has been established relying on prior art teachings. Additionally, Applicant has provided no evidence rebutting the finding that it would have been an obvious matter of design choice to have made the second width greater than the first width, since applicant has not disclosed that the second locking tab having a second width greater than a first width of the first locking tab solves any stated problem or is for any particular purpose and since such a modification would have involved a mere change in the size of a component and that the first and second axial heights appear to be obvious matters of design choice.
In response to applicant’s argument that the Applicant disagrees with Office’s argument that no criticality is provided, the Examiner responds that no evidence of criticality has been presented.
In response to applicant’s argument that the establishment of criticality is a moot point because the Office has failed to provide an articulated reasoning for the various modifications, the Examiner replies that the Office has established a prima facie case of obviousness relying on prior art teachings and alternatively on design choice.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALLAN D STEVENS whose telephone number is (571)270-7798. The examiner can normally be reached Monday-Friday 12-8 ET.
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/ALLAN D STEVENS/Primary Examiner, Art Unit 3736
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