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 .
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.
Claims 1 and 3-11 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.
Claim 1 lines 14-15 recite, “…where a transparent insert may be placed in said gap,…” It is unclear if a transparent insert is being positively recited or not.
Claims 3-11 fail to cure the deficiencies.
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.
Claim(s) 1 and 3-6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gessler, JR. et al. (US 2019/0344924 A1; hereinafter Gessler) in view of Pinkstone (US 2022/0033134 A1).
Regarding claim 1, Gessler discloses a product engagement packaging system and display comprising at least one wall that defines an interior space; wherein said at least one wall comprises four rectangular sidewalls (see Fig. 1), a rectangular top wall and a rectangular bottom wall that define said interior space; a top portion (106); a tray portion (102); a separation line (124), said separation line defining said top portion and said tray portion; where said top portion is above the separation line and said tray portion is below said separation line when said packaging is oriented in an upright position (see Figures 1-3); wherein said top portion and said tray portion are configured to be separated at said separation line and said tray portion retained to display product containers (see Par. 0049-0050). Gessler lacks a circular view port in the bottom wall.
Pinkstone teaches a packaging with four walls comprising a gap (169) in a bottom wall with a transparent insert, the transparent insert allowing a user to observe product expiration dates and other time-sensitive printed material (see Par. 0049). It would have been obvious to one of ordinary skill in the art at the time of Applicant’s filing to modify Gessler’s container to include a sealed window in a bottom wall in order to allow visual access to contents, as taught by Pinkstone. Examiner further notes that it would have been obvious to make the opening in a circular shape or rectangular shape, since such a modification would have involved a mere change in the shape of a component. A change in shape is generally recognized as being within the level of ordinary skill in the art. In re Dailey, 357 F. 2d 669,149 USPQ 47 (CCPA 1966).
Regarding claim 3, Gessler, as modified above, discloses a packaging wherein said top wall comprises at least one flap (Gessler; 118/138).
Regarding claims 4-5, Gessler, as modified above, discloses a packaging wherein said separation line is formed by perforations (Gessler; 124; see Fig. 4) in said four rectangular sidewalls.
Regarding claim 6, Gessler, as modified above, discloses a packaging wherein said packaging is formed from paper (Gessler; see Par. 0070).
Claim(s) 7-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gessler in view of Pinkstone as applied to claim 1 above, and further in view of Wischusen, III (US 2006/0054676 A1; hereinafter Wischusen).
Regarding claims 7-8, Gessler, as modified above, discloses the claimed invention except for the packaging being formed from plastic. Wischusen teaches an easy open container to be separated into a tray portion and cover portion wherein said packaging is formed from plastic (see Par. 0027). It would have been obvious to one of ordinary skill in the art at the time of Applicant’s filing to further modify Gessler’s packaging to be formed from plastic as well as paperboard in order to form a container of suitable strength, as taught by Wischusen.
Claim(s) 9-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gessler in view of Pinkstone as applied to claim 1 above, and further in view of Frost (US 2016/0159513 A1).
Regarding claims 9-10, Gessler, as modified above, discloses the claimed invention except for a top portion chad. Frost teaches retail ready packaging wherein a separation line (50) includes at least one chad (400); and wherein said chad is retained on a top portion after separation of said top portion and a tray portion. It would have been obvious to one of ordinary skill in the art at the time of Applicant’s filing to further modify Gessler’s tear line to include upper portion chads in order to help initiate separation (Frost; see Par. 0037).
Claim(s) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gessler in view of Pinkstone as applied to Claim 1 above, and further in view of Agalopoulos et al. (US 2010/0243517 A1; hereinafter Agalopoulos).
Regarding claim 11, Gessler, as modified above, discloses the claimed invention except for product information. Agalopoulos teaches a shippable display unit wherein a tray portion comprises a border, wherein said border is adaptable to include product information (210 and 250; see Figures 1-2). It would have been obvious to one of ordinary skill in the art at the time of Applicant’s filing to further modify Gessler’s packaging display tray to include product information, as taught by Agalopoulos’s display tray.
Response to Arguments
Applicant’s arguments, see Pages 5-6, filed 08/04/2025, with respect to the rejection(s) of claim(s) 1-6 and 12 under USC 102(a)(1)—in view of Gessler have been fully considered and are persuasive. Gessler lacks a sealed viewing window in the bottom wall of the container. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of USC 103(a)—Gessler in view of Pinkstone.
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 CHRISTOPHER R DEMEREE whose telephone number is (571)270-1982. The examiner can normally be reached 9:00 am - 5:00 pm, Monday through Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, NATHAN J NEWHOUSE can be reached at (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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/CHRISTOPHER R DEMEREE/Primary Examiner, Art Unit 3734