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 .
Election/Restrictions
Applicant's election with traverse of Group 1, Species C, in the reply filed on 12/23/2024 is acknowledged. Claims 27-39 are drawn to an unelected group and are withdrawn from consideration. Claims 12 and 18-25 are drawn to an unelected species and are withdrawn from consideration. Claims 1-11, 13-17, and 26 are examined in this action. The traversal is on the ground(s) that there is no serious burden to the examiner. This is not found persuasive.
Regarding the groups, Group I, being drawn to a blank, is classified under B65D5 and, as an internal container is not claimed, includes a field of search for applications that are independent of a wrapping a single container as disclosed. Group II, which includes specific structure for a container requires a field of search that includes containers (but not blanks) for a complete field of search. While there is some overlap, each group is substantially different in scope and conducting a search for both is a serious burden on the examiner.
Regarding the species, the distinct species each hold a separate status in the art when they are classifiable together and would require entirely distinct consideration of prior art as they include mutually exclusive features. This separate and distinct consideration is a serious burden. The examiner notes that upon allowance of a generic claim, applicant will be entitled to consideration of claims to additional species which depend from other otherwise require all limitations of an allowable generic claim as provided by 37 CFR 1.141.
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.
Claims 4-5 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.
Regarding claim 4, claim 4 recites “the at least two narrow panels are configured to at least partially cover an opening of the outer container to provide tamper resistance” when parent claim 2 recites “the blank is configured to be at least partially wrapped around an outer container”. Claim 4 does not actually recite a container, and the container is recited as functional language, and the claimed subject matter is directed at a blank. This combination of limitations renders the claim indefinite because it is unclear what the structural difference is between a blank that wraps around a container and is not configured to cover an opening and a blank that wraps around a container and is configured to cover an opening.
Regarding claim 5, Claim 5 recites “the first tear strip is configured to be aligned with and at least partially cover an opening of the outer container to provide tamper resistance” when parent claim 2 recites “the blank is configured to be at least partially wrapped around an outer container”. Claim 5 does not actually recite a container, and the container is recited as functional language, and the claimed subject matter is directed at a blank. This combination of limitations renders the claim indefinite because it is unclear what the structural difference is between a blank that wraps around a container and is not configured to cover an opening and a blank that wraps around a container and is configured to cover an opening.
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 1-7, 9-11, 13-15, and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Davis (US 5,540,381) in view of Lipinski (US 2013/0068653 A1).
Regarding claim 1, Davis teaches a blank (Fig. 4), comprising: two or more wide panels 78, 96; and at least two narrow panels 86, 114 attached to the two or more wide panels, each of the two or more wide panels being separated from each other by at least one of the at least two narrow panels. Davis teaches a first narrow panel, of the at least two narrow panels, but does not teach a tear strip, instead teaching that it is necessary to cut or tear the sleeve to remove the container (col 5 lines 50-52). Lipinski teaches an analogous sleeve for a container and teaches it providing a tear strip 120 having a first longitudinal length that spans across a first width the panel that contains the tear strip, the first longitudinal length being perpendicular to a second longitudinal length of the blank of Lipinski. Lipinski teaches providing such a tear strip on one or more of the panel portions to facilitate separating the sleeve from the container (0019) and Lipinski illustrates providing the tear strip along one of the side panels of the sleeve (Fig 2) and teaches placing it on either side (0020). It would have been obvious to modify the structure of Davis by including a tear strip in a first narrow panel as taught by Lipinski for the purpose of facilitating a user to open the container. Accordingly, one of ordinary skill in the art would find it obvious to put a tear strip in panel 114 of Davis (panel 114 being the first narrow panel applies to claim 13) or alternatively in panel 86 (panel 86 being the first narrow panel applies to claim 14).
Regarding claim 2, Davis illustrates the blank is configured to be at least partially wrapped around an outer container 10 (Fig. 1), a first shape of the two or more wide panels being conformed to a second shape of two major surfaces on the outer container (Fig. 3).
Regarding claim 3, Davis illustrates the two or more wide panels are configured to directly contact and at least partially cover the two major surfaces, the two major surfaces opposing each other on the outer container (Figs. 1 and 3)
Regarding claim 4, Davis illustrates the sleeve circumferentially encloses the container (Fig. 7) and teaches the sleeve provides evidence of tampering (col 5 lines 52-57). The container is not actually claimed, so the examiner understands that the structure of Davis anticipates the at least two narrow panels are configured to at least partially cover an opening of the outer container to provide tamper resistance as the narrow panels hold a container lid in place.
Regarding claim 5, Davis illustrates the sleeve circumferentially encloses the container (Fig. 7) and teaches the sleeve provides evidence of tampering (col 5 lines 52-57). Davis is modified with the tear strip of Lipinski. The container is not actually claimed, so the examiner understands that the modified structure of Davis anticipates the first tear strip is configured to be aligned with and at least partially cover an opening of the outer container to provide tamper resistance.
Regarding claim 6, Davis teaches an outer surface of the two or more wide panels includes indicia, the indicia including consumer information (col 2 lines 4-7, col 1 lines 9-48). Additionally, it has been held that where the only difference between a prior art product and a claimed product is printed matter that is not functionally related to the product, the content of the printed matter will not distinguish the claimed product from the prior art. In re Ngai, 367 F.3d 1336, 1339, 70 USPQ2d 1862, 1864 (Fed. Cir. 2004). See MPEP 2112.01 III.
Regarding claim 7, Davis teaches a first outer surface of the two or more wide panels and a second outer surface of the at least two narrow panels includes indicia, the indicia including consumer information (col 2 lines 4-7, col 1 lines 9-48). Additionally, it has been held that where the only difference between a prior art product and a claimed product is printed matter that is not functionally related to the product, the content of the printed matter will not distinguish the claimed product from the prior art. In re Ngai, 367 F.3d 1336, 1339, 70 USPQ2d 1862, 1864 (Fed. Cir. 2004). See MPEP 2112.01 III.
Regarding claim 9, the specification (0265) describes various relative sizes of panels, but doesn’t describe any special purpose for these dimensions. It has been held that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art, In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947). See MPEP 2144.04, I. Davis teaches the top and bottom panels have a width based on the size of the container dimensions (col 5 lines 14-19) and Davis does not teach any particular width for the other elements, though Davis illustrates a each of the two or more wide panels have a second width that is about twice as wide as the first width, and Davis illustrates a narrow panel width F2 that is approximately half the width of a top panel MW, so a specifically forming the container of Davis with this relative dimension would be a minor aesthetic change. It would have been obvious to one of ordinary skill in the art to have the top and panels be the same width to use the sleeve of Davis on a container having a top and bottom that are the same dimensions, and forming inner panels that have a width that is half the width of the wide panels would have been an obvious matter of design choice, since applicant has not disclosed that a width of exactly half solves any stated problem or is for any particular purpose and it appears that the invention would perform equally well with various widths.
Regarding claim 10, Davis teaches the at least two narrow panels include a second narrow panel. Davis does not explicitly teach the first narrow panel and the second narrow panel each having a same width that is the first width. Davis teaches the top panel is symmetric about line MW (col 4 lines 16-17), and illustrates the overall top-down profile of the blank that appears to show a symmetry. It would have been obvious to one of ordinary skill in the art to provide narrow panels having the same width to provide a symmetric aesthetic.
Regarding claim 11, Davis teaches the blank is a single web of material (Fig. 4).
Regarding claim 13, the specification and drawings of the elected species describes the first narrow panel 7720 (0251) on a top end of the Drawing having a tab 7765 for joining to the other side of the blank (0285). For consistency with the disclosure, the examiner interprets a panel including such a glue tab to be on a terminal end of the blank. Davis modified with a tear strip to be located in panel 114, as described above regarding claim 1, teaches terminal panels on distal ends of the blank include the first narrow panel 114 and a first wide panel 78 of the two or more wide panels (Fig. 4).
Regarding claim 14, the specification and drawings of the elected species describes the first narrow panel 7720 (0251) on a top end of the Drawing having a tab 7765 for joining to the other side of the blank (0285). For consistency with the disclosure, the examiner interprets a panel including such a glue tab to be on a terminal end of the blank. Davis modified with a tear strip to be located in panel 86, as described above regarding claim 1, teaches terminal panels on distal ends of the blank include a second narrow panel 114 of the at least two narrow panels and a first wide panel 78 of the two or more wide panels.
Regarding claim 15, Davis teaches a tab 126 extends from a distal end of the second narrow panel, the tab being configured to be adhesively connected to the first wide panel when the blank is wrapped around an outer container (col 4 lines 36-39; Fig. 1).
Regarding claim 26, Davis is modified with the tear strip of Lipinski, and Lipinski illustrates the first tear strip is defined at least in part by a pair of parallel rows of slits (Fig. 2), a tear direction of the first tear strip being one or a single direction (0019) or bi-directional.
Claims 1-8, 11, 13-16, and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Arneson (US 3,372,800) in view of Oliff (US 4,453,664) in view of Lipinski (US 2013/0068653 A1).
Regarding claim 1, Arneson teaches a blank, comprising: two or more wide panels (forming the top and bottom); and at least two narrow panels 18, 20 attached to the two or more wide panels, each of the two or more wide panels being separated from each other by at least one of the at least two narrow panels. Arneson does not teach a tear strip. Oliff teaches an analogous carrier and teaches providing a first tear strip 12 in a side panel of the container, the first tear strip having a first longitudinal length that spans across a first width of the side panel and perpendicular to a longitudinal length of the blank. Oliff is entirely vague about the structure of this tear strip, and the examiner merely relies on Oliff to establish that it is known in the art to apply tear strips to the precise style and application of container taught by Arneson. Lipinski teaches an analogous sleeve for a container and teaches it providing a tear strip 120 having a first longitudinal length that spans across a first width the panel that contains the tear strip, the first longitudinal length being perpendicular to a second longitudinal length of the blank of Lipinski. Lipinski teaches providing such a tear strip on one or more of the panel portions to facilitate separating the sleeve from the container (0019) and Lipinski illustrates providing the tear strip along one of the side panels of the sleeve (Fig 2) and teaches placing it on either side or both sides (0020). It would have been obvious to modify the structure of Arneson by including one or more tear strips as taught by Lipinski for the purpose of facilitating a user to open the container. Accordingly, one of ordinary skill in the art would find it obvious to put a tear strip in panel 20 of Arneson (panel 20 being the first narrow panel, applies to claim 13), put a tear strip in panel 18 (panel 18 being the first narrow panel, applies to claims 14-16), or alternatively to put tear strips in both panels 18 and 20 (panel 18 being the first narrow panel, applies to claims 14-17).
Regarding claim 2, Arneson teaches the blank is configured to be at least partially wrapped around an outer container (Fig. 1), a first shape of the two or more wide panels being conformed to a second shape of two major surfaces on the outer container 10.
Regarding claim 3, Arneson teaches the two or more wide panels are configured to directly contact and at least partially cover the two major surfaces, the two major surfaces opposing each other on the outer container (Fig. 1).
Regarding claim 4, Arneson illustrates the sleeve circumferentially encloses the container (Fig. 1). The container is not actually claimed, so the examiner understands that the structure of Arneson anticipates the at least two narrow panels are configured to at least partially cover an opening of the outer container to provide tamper resistance as the narrow panels hold a container lid in place.
Regarding claim 5, Arneson illustrates the sleeve circumferentially encloses the container (Fig. 1), and Arneson is modified with the tear strip of Lipinski. The container is not actually claimed, so the examiner understands that the modified structure of Arneson anticipates the first tear strip is configured to be aligned with and at least partially cover an opening of the outer container to provide tamper resistance.
Regarding claims 6-7, the office does not consider indicia including consumer information a patentable feature as it has been held that where the only difference between a prior art product and a claimed product is printed matter that is not functionally related to the product, the content of the printed matter will not distinguish the claimed product from the prior art. In re Ngai, 367 F.3d 1336, 1339, 70 USPQ2d 1862, 1864 (Fed. Cir. 2004). See MPEP 2112.01 III.
Regarding claim 8, Arneson teaches each of the two or more wide panels have first major surfaces that are substantially rectangular in shape, the first major surfaces having first rounded corners (Fig. 6).
Regarding claim 11, Arneson illustrates the blank is a single web of material (Fig. 6).
Regarding claim 13, the specification and drawings of the elected species describes the first narrow panel 7720 (0251) on a top end of the Drawing 79A having a tab 7765 for joining to the other side of the blank (0285). For consistency with the disclosure, the examiner interprets a panel including such a glue tab to be on a terminal end of the blank. Arneson modified with a tear strip to be located in panel 20, as described regarding claim 1 above, teaches terminal panels on distal ends of the blank include the first narrow panel 20 and a first wide panel (the container bottom) of the two or more wide panels (Fig. 6).
Regarding claim 14, the specification and drawings of the elected species describes the first narrow panel 7720 (0251) on a top end of the Drawing 79A having a tab 7765 for joining to the other side of the blank (0285). For consistency with the disclosure, the examiner interprets a panel including such a glue tab to be on a terminal end of the blank. Arneson modified with a tear strip to be located in panel 18, as described regarding claim 1 above, teaches terminal panels on distal ends of the blank include a second narrow panel 20 of the at least two narrow panels and a first wide panel (the container bottom) of the two or more wide panels (Fig. 6).
Regarding claim 15, Arneson teaches a tab 21 extends from a distal end of the second narrow panel 20, the tab being configured to be adhesively connected to the first wide panel when the blank is wrapped around an outer container (col 3 lines 39-40; Fig. 2).
Regarding claim 16, Arneson illustrates the first narrow panel 18 is between the first wide panel (the container bottom) and a second wide panel (the container top), the second wide panel being one of the two or more wide panels, the first wide panel and the second wide panel being equally sized panels (Figs. 1-3 and 6).
Regarding claim 26, Arneson is modified with the tear strip of Lipinski, and Lipinski illustrates the first tear strip is defined at least in part by a pair of parallel rows of slits (Fig. 2), a tear direction of the first tear strip being one or a single direction (0019) or bi-directional.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Arneson (US 3,372,800) in view of Oliff (US 4,453,664) in view of Lipinski (US 2013/0068653 A1) as applied to claim 16 above, and further in view of Grapp (US 3,065,896).
Regarding claim 17, Arneson is modified to include one or more tear strips as taught by Lipinski, and Lipinski teaches a side edge of the panel define a pair of alignment notches (on either side of the grasping member; Fig. 1; 0019). Lipinski teaches the grasping member 134 can be in either side of the tear strip (0019). Grapp teaches an analogous container with a tear strip and teaches a tab could be formed in both ends of the strip so that it could be torn from the carton in either direction (col 4 lines 9-14). It would have been obvious to one of ordinary skill in the art to form the tear strip of Lipinski with a grasping member on both sides as taught by Grapp for that purpose. A grasping member on both sides would result in side edges of the second narrow panel define a pair of alignment notches (each on either end of one of the tear lines forming the tear strip), the pair of alignment notches being aligned across a third width of the of the second narrow panel, the third width being perpendicular to the second longitudinal length.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See attached PTO-892 for other references teaching analogous blanks having features pertinent to the disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILLIP D SCHMIDT whose telephone number is (571)272-3459. The examiner can normally be reached Monday-Friday; hours vary approximately 0800-1900.
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, Nathan Newhouse can be reached on 571-272-4544. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PHILLIP D SCHMIDT/Examiner, Art Unit 3734
/NATHAN J NEWHOUSE/Supervisory Patent Examiner, Art Unit 3734
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