DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Arguments
Applicant’s arguments, see p. 8-14, filed 11/20/2025, with respect to claims 1, 2, and 5-12 have been fully considered and are persuasive. The previous rejection of these claims has been withdrawn.
Applicant’s amendments and arguments, see p. 16, filed 11/20/2025, with respect to the rejection(s) of claim(s) 13 under 35 U.S.C. 102 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of 35 U.S.C. 103 over Ott (US Patent No. 8,505,760).
In response to applicant's argument that safety elements are unclear as to their purpose, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. In this case, Ott teaches a second safety element configured and able to support a transfer rib. Drawings and pictures can anticipate claims if they clearly show the structure which is claimed. In re Mraz, 455 F.2d 1069, 173 USPQ 25 (CCPA 1972). MPEP 2125 (I).
Allowable Subject Matter
Claims 1, 2, and 5-12 are allowed.
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.
Claim(s) 13-23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ott (US Patent No. 8,505,760).
Re: Claim 13, Ott discloses the claimed invention including a pouring element for a composite package, comprising a main body with a pouring tube (3) and a circumferential fastening flange (20) (Depicted in Fig. 2), a hollow cylindrical cutting element (2) arranged concentrically and guided movably in the pouring tube and a resealable screw cap (1) (Depicted in Fig. 1), wherein the screw cap comprises a cap surface and a force transfer element(s) (26) extending from the cap surface (Fig. 3) and comprising a sidewall comprising an edge which acts on corresponding force transfer element(s) (9-11) of the cutting element (Fig. 1) to directly drive the cutting element during the screw movement of the screw cap for the first opening of the composite package by the screw cap and thereby move the cutting element along an opening path (Depicted in Fig. 2, Col. 5, lines 35-51, cap elements acting on those of the cutting element), wherein the cutting element can be driven for the first opening of the composite package by the screw cap, wherein at least one second safety element is positioned in a region near a top of the pouring tube remote from the circumferential fastening flange and configured to support at least one transfer rib(s) (14, 29) of the cutting element thereon to prevent the cutting element from tilting or falling out of the pouring tube (Depicted in Annotated Fig. 2 below and Fig. 1, flange 14 of cutting element rests on the second safety element before being forced over it to open the device), except for at least one second safety element extends substantially more in a circumferential direction than an axial direction. However, the Federal Circuit has held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. MPEP 2144.04(IV)(A) (discussing Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984)). Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Ott by causing the safety element to extends more in the circumferential direction than axial. Applicant appears to have placed no criticality on any particular configuration of the second safety element (see Specification wherein its only required that there’s at least one and cannot extend all the around the circumference) and it appears that the device of Ott would work appropriately if made within the claimed further extension of the second safety element.
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Re: Claim 14, Ott discloses the claimed invention including the at least one second safety element is chamfered on at least one side facing away from the circumferential fastening flange (Depicted in Annotated Fig. 2 above).
Re: Claim 15, Ott discloses the claimed invention including the cutting element can be driven for the first opening of the composite package by the screw cap such that an opening path is plotted with an at least predominantly axial piercing segment , wherein the cutting element is arranged such that it can be guided along the opening path (Depicted in Figs. 1-3, Col. 3 & 4, lines 48-51 & 48-55, opening path plotted).
Re: Claim 16, Ott discloses the claimed invention including the predominantly axial piercing segment of the opening path is followed by a straight rotational segment about the longitudinal axis of the pouring tube (Col. 5, lines 7-28, follows opening path of downward movement then rotational movement).
Re: Claim 17, Ott discloses the claimed invention including an additional pure rotational section is upstream of the opening path, wherein the cutting element is arranged such that it is held securely in an original holding position additionally with the second safety element (Depicted in Annotated Fig. 2 above, flange 14 of cutting element rests on the second safety element before being forced over it to open the device).
Re: Claim 18, Ott discloses the claimed invention including at least two guide ribs (18, 19) formed internally on the pouring tube interact correspondingly with transfer means (15-17) formed externally on the cutting element (Fig. 1, Col. 3, lines 47-51, guide ribs with transfer means).
Re: Claim 19, Ott discloses the claimed invention including the pouring tube has at least two first safety elements (42, 50) which, together with the at least two guide ribs, are designed to achieve guidance on both sides for the transfer means of the cutting element along the piercing and/or rotational segment of the opening path ((Annotated in Fig. 2, Col. 3, lines 47-51, guides the cutting element).
Re: Claim 20, Ott discloses the claimed invention including the second safety element of the extension extends in the radial direction of the at least two guide ribs (Depicted in Annotated Fig. 2 above) except specifying extends less than 80 percent. However, it would have been obvious to one having ordinary skill in the art at the time of the effective filing date to include the second safety element extends less than 80 percent. Since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Re: Claim 21, Ott discloses the claimed invention including the number of transfer means is identical to the number of second safety elements (Figs. 1-3 depict at identical corresponding features).
Re: Claim 22, Ott discloses the claimed invention including cutting teeth (5-7) of the cutting element maintain sufficient distance from a lower surface of the circumferential fastening flange (Fig. 3 depicts recessed teeth).
Re: Claim 23, Ott discloses the claimed invention including the at least one transfer rib(s) is positioned near a top of the cutting element remote from the circumferential fastening flange (Depicted in Fig. 3).
Conclusion
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 CHARLES P. CHEYNEY whose telephone number is (571)272-9971. The examiner can normally be reached Monday - Friday, 8:00 am - 4:30 pm.
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/CHARLES P. CHEYNEY/Primary Examiner, Art Unit 3754