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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 03/03/2026 has been entered.
Status of Claims
Claims 1-5, 10-15, 18-23, 25-27, 29-31 and 33-37 are pending and are presented for this examination. Claims 24, 28 and 32 are cancelled. Claim 37 is newly added.
Status of Previous Rejection
103 rejections over Robertson are maintained from previous final office action 09/08/2025.
103 rejections over Selepack are withdrawn.
112 4th paragraph rejections are withdrawn in view of cancellation of claims 24, 28 and 32.
In addition, a new ground of art rejection is rendered as follows.
Status of Declaration
The Declaration under 37 CFR 1.132 filed 03/03/2026 is insufficient to overcome the rejection of claimed invention based upon Robertson and/ Selepack as set forth in the last Office action because applicant’s statement is an allegation – a totally unsupported or uncorroborated statement; e.g., conclusory statements unsupported by factual objective evidence.
To be of probative value, objective evidence must be factually supported by an appropriate declaration. See: MPEP §716.01(c).
Arguments of counsel cannot take the place of evidence in the record. See: In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965).
Applicant argues in 132 Declaration paragraph 5 that requiring production of the requested comparative alloys is impracticable, argument is not persuasive because patent office does not have the laboratory or equipment to produce comparative alloys. Prima facie case of obviousness is established due to closeness of Mg. Hence, burden is shifted to applicant to present clear and convincing evidence of the contrary. Patent office does not bear the burden and cost to establish testing environment for production of requested comparative alloy.
Applicant argues in 132 Declaration paragraph 6 that low Mg below 1.1 wt% would fail to meet the required package strength requirement and high Mg >=2.0% cannot be processed into aluminum alloy food cans. Argument is completely unpersuasive for lacking any evidence support for the following reasons:
First, applicant’s own disclosure discloses Mg is 0.8-2.6% (instant application PGPUB [0039]) which encompass high Mg >=2.0% and low Mg <1.1%. Where is the evidence that Mg should be between 1.1-1.23% in the instant application? The answer is NONE.
Second, Mg content used for aluminum alloy food can is known to be between 0.8-1.5% as evidenced by Daly (US 5,362,340) and Selepack (US 5,985,058).
Applicant also argues in 132 Declaration paragraph 9 that even small increase in TS such as Alloy A and Alloy B are readily detectable and measurably reduce formability and process margin. Argument is not persuasive because no evidence in Table of Page 3 of Declaration demonstrates that formability and process margin are reduced due to small 0.673% difference in TS. As a matter of fact, Table in paragraph 8 of the Declaration has no indication of formability and process margin at all, let alone reduced formability and process margin.
Applicant also argues in 132 Declaration paragraph 10 that Mg 1.3% may occasionally be formable in the aluminum alloy package forming process and correspondingly increases the risk of cracking, tearing and forming failure during package manufacture. Argument is not persuasive for lack of any evidence support of applicant’s conclusory statement.
Applicant also argues in 132 Declaration paragraph 10 that increasing the Mg content above 1.23% in the instant application increases the risk of failure during the aluminum alloy package manufacturing process. Argument is not persuasive for lack of any evidence support of applicant’s conclusory statement. It should be noted instant application and original claims both disclose Mg at 0.8-2.6% and a review of instant application original disclosure found no criticality of Mg in the range of 1.1-1.23%.
Applicant also argues in 132 Declaration paragraphs 11 and 12 that TS difference at 0.68ksi and 1.08 Ksi would cause significant processing issues during the aluminum alloy package forming process. Argument is not persuasive for lack of any evidence support of applicant’s conclusory statement.
Applicant also argues in 132 Declaration paragraphs 13 and 14 that TS difference at 2.2 ksi and 0.8 Ksi would cause significant processing issues during the aluminum alloy package forming process. Argument is not persuasive for lack of any evidence support of applicant’s conclusory statement.
Applicant also argues that Mg at 0.9% would fail to meet required performance specification. Argument is not persuasive for lack of any evidence support of applicant’s conclusory statement. instant application and original claims both disclose Mg at 0.8-2.6% and a review of instant application original disclosure found no criticality of Mg in the range of 1.1-1.23%, let alone at 0.9%.
Because applicant’s conclusory statement without any evidence support and absent criticality of Mg 1.1-1.23%, prima facie case of obviousness is maintained.
Information Disclosure Statement
The information disclosure statement (IDS) was submitted on 07/02/2024 and is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Interpretation
Instant applicant recited “recycled material” includes post-industrial scrap, post- consumer scrap according to instant application PGPUB paragraph [0029] and claim 4. Hence, claimed “recycled material” does not exclude plant scrap or can scrap which are all considered post-industrial scrap or post- consumer scrap as required by instant application.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
Claims 1-5, 10-15, 18-20, 23, 25-26, 29-30 and 33-35 and 37 are rejected under 35 U.S.C. 103(a) as being unpatentable over Selepack (US 5,985,058).
As for claims 1-5, 10-15, 18-20, 23, 35 and 37, Selepack discloses an aluminum composition for recycling aluminum container. (Title) The compositions is used to make aluminum sheet useful for aluminum beverage and food container body stock, (Abstract) which meets instant claim 20 required aluminum package for process food application.
The aluminum composition can be formed in part from scrap metal material such as plant scrap, container scrap and consumer scrap and is formed at least about 95% total scrap. (Col 8 lines 42-48) At least 95% suggests at least 50%, at least 70% of recycled content as required by instant claims 1, 3, 11, 13 and 18. Plant scrap meets instant claims 2, 12, 12, 19 third component.
Hence, scrap metal material reads on first components consists of recycled material. 5% the remainder is expected to be second component comprises non-recycled material. Consumer scraps read on instant claims 4 and 14 post consumer scrap. The body stock is coated which supports instant claims 23 and 37 wherein clause. The second component is expected to be an alloying element selected from Si, Fe, Cu, Mg and Mn as disclosed by Selepack. (Col 13 lines 20-40 and claim 26) Hence, instant claims 5 and 15 are met.
The aluminum sheet has YS 38-43 ksi, TS at least 42-47 ksi, elongation is 4-8% (Col 14 lines 1-14) which are all within claims 1 , 10 required TS and YS and elongation ranges.
Table 11 below illustrates overlapping or close to compositions ranges. In particular, Mg 0.9-1.5 overlaps claimed 1.1-1.23%.
A prima facie case of obviousness exists where the claimed ranges and prior art ranges overlap or are close enough that one skilled in the art would have expected them to have the same properties. See MPEP 2144.05 I.
Table 11
Element
Applicant
(weight %)
Selepack et al.
(weight %)
Col 4 lines 40-46
Claim 26
Overlap
(weight %)
Si
<=0.6
0.05-0.5
0.05-0.5
Fe
<=0.8
0.05-0.6
0.05-0.6
Cu
0.05-0.25
0.05-0.5
0.05-0.25
Mg
1.1-1.23
0.9-1.5
1.1-1.23
Mn
0.6-1.4
0.8-1.2
0.8-1.2
Ti
<=0.1
0
0
Cr
Substantially free
0
0
Zn
<=0.3
0
0
Ga
<=0.05
0
0
As for claim 11, Selepack discloses broad range of aluminum alloy composition overlapping instant claims required ranges as illustrated in Table 12 below.
Table 12
Element
Applicant
(weight %)
Selepack et al.
(weight %)
Claim 26
Overlap
(weight %)
Si
<=0.6
0.05-0.5
0.05-0.5
Fe
<=0.8
0.05-0.6
0.05-0.6
Cu
0.05-0.25
0.05-0.5
0.05-0.25
Mg
1.1-1.23
0.9-1.5
1.1-1.23
Mn
0.6-1.4
0.8-1.2
0.8-1.2
Ti
<=0.1
0
0
Cr
Substantially free
0
0
Zn
<=0.3
0
0
Ga
<=0.05
0
0
As for claims 25, 29 and 33, Table 13 below illustrates overlapping compositions.
Table 13
Element
Applicant
(weight %)
Selepack et al.
(weight %)
Broad range
Overlap
(weight %)
Si
0.15-0.27
0.05-0.5
0.15-0.27
Fe
0.45-0.55
0.05-0.6
0.45-0.55
Cu
0.15-0.2
0.05-0.5
0.15-0.2
Mn
0.86-0.98
0.8-1.2
0.86-0.98
Ti
0.007-0.02
0
0 is close to 0.007
Cr
<=0.02
0
0
Zn
<=0.12
0
0
Ga
<=0.04
0
0
Other
<=0.15
0
0
As for claims 26, 30 and 34, Table 10 below illustrates overlapping compositions.
Table 14
Element
Applicant
(weight %)
Selepack et al.
(weight %)
Broad range
Overlap
(weight %)
Si
0.17-0.25
0.05-0.5
0.17-0.25
Fe
0.49-0.54
0.05-0.6
0.49-0.54
Cu
0.17-0.19
0.05-0.5
0.17-0.19
Mn
0.89-0.96
0.8-1.2
0.89-0.96
Ti
0.009-0.018
0
0
Cr
Substantially free
0
0
Zn
<=0.065
0
0
Ga
<=0.015
0
0
other
<=0.15
0
0
Claims 22, 25-26, 29-30 and 33-34 are rejected under 35 U.S.C. 103(a) as being unpatentable over Selepack in view of Robertson (US 4,260,419)
As for claim 22, Selepack discloses drawing and ironing are well known in the art for forming two pieces can bodies. (Col 1 lines 20-25)
Robertson discloses drawing and redrawing; and drawing and ironing are functional equivalent for forming two pieces can bodies. (Col 2 lines 35-40)
Hence, it would have been obvious to one skill in the art, at the time the invention is made to replace drawing and ironing of Selepack, with drawing and redrawing, as functional equivalent as suggested by Robertson with expected success.
As for claims 25-26, 29-30 and 33-34, Selepack does not expressly discloses presence of Ti.
Robertson discloses a similar Al alloy sheet compositions as Selepack. Ti is 0-0.2% (Abstract lines 4)
Hence, it would have been obvious to one skill in the art, at the time the invention is made to apply Ti amount as disclosed by Robertson, in the Al alloy sheet of Selepack for the benefit of corrosion resistance.
Claims 27,31 and 36 are rejected under 35 U.S.C. 103(a) as being unpatentable over Selepack in view of Selepack’382 (US20150101382A1).
As for claims 27, 31 and 36, Selepack does not disclose the recycled material is used beverage container.
Selepack’382 discloses the container scrap is used beverage containers (“UBCs”) (paragraph [0101]) which meets instant claims 27, 31, 36 required recycled material being used beverage cans.
Hence, it would have been obvious to one skill art, at the time the invention is made to apply well known container scrap such as used beverage containers as disclosed by Selpack’382, in the aluminum alloy sheet of Selepack with expected success.
Claims 1-5, 10-15, 18-20, 22-23 and 25-27, 29-31 and 33-37 are rejected under 35 U.S.C. 103(a) as being unpatentable over Robertson (US 4,260,419).
As for claims 1-5, 14 and 18-20, 22-23, 35 and 37, Robertson discloses an aluminum sheet for manufacturing an aluminum container component including drawn and ironed can bodies and easy open can ends (Claim 5) which suggests an aluminum package for processed food application as required by instant claims 18 and 20. The aluminum sheet has YS at 37-45 ksi, UTS at 38-46 ksi (Claim 6). Hence, YS and UTS are both within instant claims 1 and 18 required YS and UTS. The aluminum sheet comprises an aluminum alloy compositions (Claim 1) formed from aluminum container scrap and additional primary aluminum. (Claim 1) The aluminum container scrap reads on instant claim 1 amended first component consists of recycled material. The additional primary aluminum reads on instant claim 1 required second component as non-recycled material and instant claim 5 required the second component being prime aluminum. The fact only 18% of the additional primary aluminum is necessary (Col 7 line 14) suggests the aluminum container scrap (i.e. claimed recycled content) is at least 50% as required by instant claims 1 and 18, at least 70% as required by instant claim 3. The aluminum container scrap contains 25% AA 5182 (Col 5 line 25) which supports instant claims 4, 14 and 35 required scrap AA 5182. The fact the aluminum container scrap may also comprises plant scrap such as ingot scalping produced in a rolling mill (Col 5 line 30-31) suggests instant claims 2 and 19 required third component. Since the aluminum container component reads on claimed aluminum alloy sheet, a polymeric coating layer on the aluminum container component (Col 17 lines 38 and line 59) supports instant claims 23,37 required wherein clause.
Robertson discloses drawing and redrawing for forming two pieces can bodies. (Col 2 lines 35-40) Hence, instant claim 22 is met.
Robertson expressly claims (emphasis added) in claims 1 and 4 the aluminum alloy composition is formed by the addition of less than about 25% by weight of primary aluminum. Since the aluminum alloy composition is formed from the aluminum container scrap and the additional primary aluminum (Claim 1) in proportion to achieve the aluminum alloy compositions, Robertson suggests greater than 75% by weight of aluminum container scrap (i.e. claimed first component comprising recycled content). Hence, greater than 75% by weight supports claimed recycled content of at least 50%, wherein greater than 75% is calculated by dividing greater than 75% of aluminum container scrap by a sum of (75% of aluminum container scrap +25% of the additional primary aluminum).
Since aluminum container scrap contains 75% or more AA3000 series Al can body alloys and 25% or less AA5000 series AL can end alloys (Claim 2 of Col 18 lines 47-50) which suggest the aluminum container scrap does not comprise plant scrap, the aluminum container scrap supports instant claimed first component “consists of” recycled material. It also supports instant claims 27, 31 and 36 required wherein clause.
Table 1 below illustrates broad range overlapping compositions.
A prima facie case of obviousness exists where the claimed ranges and prior art ranges overlap or are close enough that one skilled in the art would have expected them to have the same properties. See MPEP 2144.05 I.
Table 1
Element
Applicant
(weight %)
Roberton et al.
(weight %)
Broad range
Col 5 Table II
Overlap
(weight %)
Si
<=0.6
0.1-1
0.1-0.6
Fe
<=0.8
0.1-0.9
0.1-0.8
Cu
0.05-0.25
0.05-0.4
0.05-0.25
Mg
1.1-1.23
About 1.3-2.5
About 1.3 is close to 1.23
Mn
0.8-1.4
0.4-1
0.8-1
Ti
<=0.1
0-0.2
0-0.1
Cr
Substantially free
<=0.1
Substantially free
Zn
<=0.25
<=0.25
<=0.25
Ga
<=0.05
0
0
Other
<=0.15
<=0.2
<=0.15
Regarding instant claimed Mg amount, first, about 1.3 is considered close to claimed 1.23%. A prima facie case of obviousness exists where the claimed ranges and prior art ranges overlap or are close enough that one skilled in the art would have expected them to have the same properties. See MPEP 2144.05 I.
Second, Robertson explicitly discloses in Table III (Col 7) that 26% primary Al would be necessary to bring the melt to a 0.9% Mg AA 3004 composition (Col 7 line 30-35) Table III (Col 7 lines 20-30) demonstrates that melt composition has Mg at 1.21% when 26% primary Al is added. That is, Robertson suggests prime Al is added to dilute Mg content. Hence, Mg is a result effective variable to arrive at desired % of primary Al addition according to MPEP 2144.05 II.
If a particular parameter is recognized as a result-effective variable, then the determination of the optimum or workable ranges of said parameter might be characterized as routine experimentation.
In the instant case, it would have been obvious to one skill in the art, at the time the invention is made to have reduced Mg to 1.21%, in the Al alloy sheet of Robertson if 26% primary aluminum is desired to be added to dilute Mg.
As for claim 10, Roberson discloses broad ranges of YS 37-45 ksi, UTS 38-46 ksi, elongation 1-8% which all overlapping claimed YS, UTS and elongation.
As for claim 11, Robertson discloses broad range of aluminum alloy composition. (Col 3 lines 53-57) overlapping instant claims required ranges as illustrated in Table 2 below.
Table 2
Element
Applicant
(weight %)
Roberton et al.
(weight %)
Broad range
Col 5 Table II
Overlap
(weight %)
Si
<=0.6
0.1-1
0.1-0.6
Fe
<=0.8
0.1-0.9
0.1-0.8
Cu
0.05-0.25
0.05-0.4
0.05-0.25
Mg
1.1-1.23
About 1.3-2.5
About 1.3 is close to 1.23
Mn
0.8-1.4
0.4-1
0.8-1
Ti
<=0.1
0-0.2
0-0.1
Cr
Substantially free
<=0.1
Substantially free
Zn
<=0.25
<=0.25
<=0.25
Ga
<=0.05
0
0
other
<=0.15
<=0.2
<=0.15
Instant amended Mg is rejected for the same reason set forth in the rejection of claim 1.
As for claims 12-15, they are rejected for the same reason set forth in rejections of claims 2-5 respectively over Robertson above.
As for claims 25, 29 and 33, Table 6 below illustrates overlapping compositions.
Table 6
Element
Applicant
(weight %)
Roberton et al.
(weight %)
Broad range
Col 5 Table II
Overlap
(weight %)
Si
0.15-0.27
0.1-1
0.15-0.27
Fe
0.45-0.55
0.1-0.9
0.45-0.55
Cu
0.15-0.2
0.05-0.4
0.15-0.2
Mn
0.86-0.98
0.4-1
0.86-0.98
Ti
0.007-0.02
0-0.2
0.007-0.02
Cr
<=0.02
<=0.1
<=0.02
Zn
<=0.12
<=0.25
<=0.12
Ga
<=0.04
0
0
other
<=0.15
<=0.2
<=0.15
As for claims 26, 30 and 34, Table 7 below illustrates overlapping compositions.
Table 7
Element
Applicant
(weight %)
Roberton et al.
(weight %)
Broad range
Col 5 Table II
Overlap
(weight %)
Si
0.17-0.25
0.1-1
0.17-0.25
Fe
0.49-0.54
0.1-0.9
0.49-0.54
Cu
0.17-0.19
0.05-0.4
0.17-0.19
Mg
1.13-1.21
About 1.3-2.5
About 1.3 is close to 1.21
Mn
0.89-0.96
0.4-1
0.86-0.98
Ti
0.009-0.018
0-0.2
0.009-0.018
Cr
Substantially free
<=0.1
Substantially free
Zn
<=0.065
<=0.25
<=0.065
Ga
<=0.015
0
0
other
<=0.15
<=0.2
<=0.15
Claim 21 is rejected under 35 U.S.C. 103(a) as being unpatentable over Robertson in view of Yokio (JP2012167333A)
As for claim 21, Robertson discloses forming circular blanks which are drawn into shallow cups by stretching the metal over a punch and through a die (i.e. claimed drawing). The shallow drawn cups are then redrawn and ironed in a drawn and iron process.
Yokio discloses aluminum can body can be formed by drawing or DI processing (drawing, ironing). (Page 1 Description Technical field). Yokio further discloses instant claim required forming a blank, drawing the blank or drawing and ironing to form a can body comprising opening and cylindrical container, forming the cylindrical container with a bottom, trimming and flanging the opening. (English translation Page 4 paragraph 4)
That is, drawing or (drawing and ironing) are functional equivalent to form aluminum can.
Hence, it would have been obvious to replace DI processing with drawing only as suggested by Yokio, in the process of Robertson with expected success.
Claim 21 is rejected under 35 U.S.C. 103(a) as being unpatentable over Selepack in view of Yokio (JP2011029695)
As for claim 21, it is rejected for the same reason set forth in the rejection of claim 21 above over Robertson in view of Yokio.
Response to Argument
Applicant’s response filed on 03/06/2026 is considered but is not persuasive for the following reasons:
In response to argument that 2nd 132 Declaration overcome Robertson, argument is not persuasive for the reason set forth in the Status of Declaration paragraph.
In response to argument that Robertson provides no motivation to adjust Mg to claimed 1.1 to 1.23%, argument is not persuasive because 1.3 is considered close to 1.23% absent criticality of 1.1-1.23. Since applicant’s newly submitted 132 Dec fails to demonstrate any criticality of 1.1-1.23%, prima facie case of obviousness due to closeness is maintained. Second, Roberston discloses AA3004 is a known Al alloy to be used in the aluminum can bodies with Mg 0.8-1.3%. (Col 2 last two lines and Table 1)
In response to argument that Selepack’382 does not disclose or suggest the aluminum alloy sheet is a coated aluminum alloy sheet, argument is moot since selepack’382 is withdrawn.
Newly cited Selepack explicitly discloses Mg 0.9-1.5% is well known Al alloy composition to make aluminum alloy sheet for body stock.
Conclusion
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/JENNY R WU/Primary Examiner, Art Unit 1733
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