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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Election/Restrictions
Claims 13-26 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected method, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on August 27, 2025.
Applicant's election with traverse of Group I (claims 1-12) in the reply filed on August 27, 2025 is acknowledged. The traversal is on the grounds that Applicants believe that the corresponding special technical feature does make a contribution over the prior art in view of Jupin. Applicants argue that Jupin does not teach a head being intended to be welded to a tubular skirt in order to form the packaging, wherein the head is thermoformed from a sheet. This is not found persuasive because 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. The statement that the head is intended to be welded to a tubular skirt, does not positively claim the welded connection and only requires that the prior art is capable of being welded to a tubular skirt. It is the examiner’s position that Jupin teaches a head that is capable of being welded to a tubular skirt. Additionally, Jupin teaches that the head is thermoformed from a sheet, to the degree set forth in the claims, since Jupin teaches a portion of the head that is thermoformed from a sheet.
The requirement is still deemed proper and is therefore made FINAL.
Claim Rejections - 35 USC § 112
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.
Claim 12 is 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 12 recites the limitation "the cap" in line . There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 102
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 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.
Claims 1-10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Jupin et al. (U.S. 5,556,678). Jupin et al. teaches a tube head 1 intended to form a packaging, said head being intended to be welded to a tubular skirt in order to form said packaging (col. 4 lines 27-35), wherein said head is thermoformed from a sheet (col. 1 lines 44-47).
Note it had been held that "even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 227 USPQ 964, 966 (Fed. Cir. 1985)
Regarding claim 2, said head comprises an external face and an internal face (figure 6), said internal face (inner surface of 7) being intended to be in contact with the product contained in the packaging, said head comprising on its periphery a welding zone located on its external face for welding of said skirt (see lead line 18 in figure 2).
Regarding claim 3, wherein said welding zone is on a collar, shown at lead line 18.
Regarding claim 4, said head comprises a step at the limit of the welding zone (step shown in figures 1 and 6).
Regarding claim 5, said step has a height close to the thickness of the skirt, making it possible to obtain a smooth surface when the head and the skirt are assembled (figures 1 and 6).
Regarding claim 6, said step is used as a bearing zone when stacking tube heads (capable of being used as a bearing zone to the degree set forth in the claim).
Regarding claim 7, said head forms only a single piece with a cap (layer 9 of lining 7 is not distinguishable from 8; col. 4 lines 1-6; cap can be element 28).
Regarding claim 8, said head comprises an orifice 3 for extracting the product contained in the tube.
Regarding claim 9, said head comprises tamper-proofing means (see threads at lead line 2 and protrusion on shoulder, capable of being used with a tamper-proof closure, also element 28 is a tamper indicating means).
Regarding claim 10, the sheet is a single-layer or multilayer sheet (multi-layer sheet forms 7).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 11 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Jupin et al. (U.S. 5,556,678) in view of Komota et al. (JP 2004025802A). Jupin et al. discloses the claimed invention except for the printing. Komota et al. teaches that it is known to print the sheet prior to thermoforming (see paragraph [0017]). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide the head of Jupin et al. with printing as taught by Komota et al., in order to provide instructions or advertise contents.
Further regarding claim 12, the cap is also printed before its thermoforming (cap may be element 28).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The prior art is cited for the head structure.
THIS ACTION IS NON-FINAL.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NIKI MARINA ELOSHWAY whose telephone number is (571)272-4538. The examiner can normally be reached Monday through Friday 7: 00 a.m. to 3:00 p.m..
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Orlando E. Avilés can be reached at 571-270-5531. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/NIKI M ELOSHWAY/Examiner, Art Unit 3736