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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on April 20, 2026 was filed after the mailing date of the Non-Final rejection mailed on February 5, 2026. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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 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 of this title, 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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 3, 5-6, 8, 10, 12, and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Cabilli et al. US 2019/0225412 in view of Andreae et al. US 2017/0008694, MacMahon et al. US 2009/0232944, Dhariwal et al. US 2019/0315096 Toft et al. US 2019/0202191, and Deeb et al. US 2014/0220192.
Regarding Claim 1, Cabilli et al. discloses a beverage container (cartridge 10) that is compostable (‘412, Paragraph [0043]). The beverage container (cartridge 10) comprises a container wall (body 14) that encloses a volume (‘412, Paragraph [0040]) wherein the container wall (body 14) is made of a wall material comprising at least one cutout opening (opening at flange 146) and a second laminate structure (bottom wall 142) that completely covers the at least one cutout opening (opening at flange 146) so that the second laminate structure (bottom wall 142) as the container wall (body 14) completely encloses the volume (‘412, FIGS. 1-2) (‘412, Paragraph [0063]).
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Cabilli et al. is silent regarding the container wall being made of a wall material that comprises a first laminate structure in addition to the second laminate structure wherein the volume is enclosed by both the first laminate structure and the second laminate structure as the container wall.
Andreae et al. discloses a compostable beverage container (‘694, Paragraph [0004]). The beverage container comprises a container wall that encloses a volume wherein the container wall is made of a wall material comprising at least two different laminate structure of a first laminate structure (film/foil 18 composed of several layers of film/foil) (‘694, Paragraph [0060]) and a second laminate structure (housing 22 composed of a laminate of at least two material layers) (‘694, FIG. 6) (‘694, Paragraphs [0064]-[0065]).
Both Cabilli et al. and Andreae et al. are directed towards the same field of endeavor of compostable beverage capsules made of at least one laminate structure. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the compostable beverage capsule of Cabilli et al. and construct the container wall out of a first laminate structure in addition to the second laminate structure as taught by Andreae et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Andreae et al. teaches that there was known utility in the beverage capsule art to construct compostable beverage capsules with a container wall made out of a first laminate structure in addition to the second laminate structure.
Further regarding Claim 1, Cabilli et al. discloses the beverage container (cartridge 10) having different shapes (‘412, Paragraph [0049]). However, Cabilli et al. modified with Andreae et al. is silent regarding the shape of the beverage container being such that the first laminate structure comprising at least two separate elements that are circumferentially sealed to each other at a flange to enclose the volume wherein the at least two separate elements each comprises a circumferential edge section which are arranged to overlap to form the flange.
MacMahon et al. discloses a beverage container (pad 10) comprising a container wall that encloses a volume wherein the container wall is made of a wall material comprising a laminate structure wherein the laminate structure consists of at least two separate elements (upper sheet 11, lower sheet 12) that are circumferentially sealed to each other at a flange to enclose the volume wherein the at least two separate elements (upper sheet 11, lower sheet 12) each comprise a circumferential edge section (peripheral seam 15) which are arranged to overlap to form the flange (‘944, FIGS. 4-5) (‘944, Paragraphs [0002] and [0080]).
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Both modified Cabilli et al. and MacMahon et al. are directed towards the same field of endeavor of beverage containers used with beverage machines to make a beverage. Cabilli et al. discloses the beverage container (cartridge 10) having different shapes (‘412, Paragraph [0049]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the shape of the beverage container of Cabilli et al. and construct the beverage container such that the container wall is made of a wall material comprising a laminate structure wherein the laminate structure comprises at least two separate elements that are circumferentially sealed to each other at a flange to enclose the volume wherein the at least two separate elements each comprise a circumferential edge section which are arranged to overlap to form the flange as taught by MacMahon et al. since the configuration of the claimed beverage container is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant in view of In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (MPEP § 2144.04.IV.B.). MacMahon et al. teaches that there was known utility in the beverage container art to construct a beverage container with the claimed shape.
Further regarding Claim 1, Andreae et al. discloses the two separate elements of the first laminate structure comprising at least a formable paper material layer (‘694, Paragraph [0026]) and a compostable film material layer as a moisture and/or an oxygen barrier (‘694, Paragraph [0060]) wherein the compostable film material layer is laminated or coextruded with the formable paper material layer (‘694, Paragraphs [0014]-[0015] and [0039]) wherein the compostable film material layer comprises a compostable bioplastic (‘694, Paragraph [0027]). Both Cabilli et al. and Andreae et al. are directed towards the same field of endeavor of compostable beverage capsules made of at least one laminate structure. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the compostable beverage capsule of Cabilli et al. and construct the first laminate structure with at least a formable paper material layer and a compostable film material layer as a moisture and/or an oxygen barrier wherein the compostable film material layer is laminated or coextruded with the formable paper material layer and the compostable film material layer comprises a compostable bioplastic as taught by Andreae et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Andreae et al. teaches that there was known utility in the beverage capsule art to construct the first laminate structure of the beverage container with the claimed materials.
Further regarding Claim 1, Cabilli et al. modified with Andreae et al. and MacMahon et al. is silent regarding the formable paper material layer having a grammage between 80 g/m2 to 150 g/m2.
Dhariwal et al. discloses a biodegradable and compostable polymeric film used in the food industry (‘096, Paragraph [0001]) used to make a co-extruded blown film having a paper layer laminated over an outer surface layer and a sealant product side layer wherein the paper layer has a thickness in the range of 10 gsm to 100 gsm (‘096, Paragraph [0076]), which overlaps the claimed formable paper material layer grammage range of between 80 g/m2 to 150 g/m2. Toft et al. discloses a laminated packaging material (‘191, Paragraph [0001]) for storing coffee or tea drinks (‘191, Paragraph [0024]) wherein the laminated packaging material has a high density paper facing layer having a grammage of from 20 to 100 g/m2 (‘191, Paragraph [0192]) wherein adhesive polymer layers or tie layers are applied together with the respective outer layer or further bulk to barrier bonding layers in a coextrusion coating operation (‘191, Paragraph [0102]), which also overlaps the claimed formable paper material layer grammage range of between 80 g/m2 to 150 g/m2.
Modified Cabilli et al., Dhariwal et al., and Toft et al. are all directed towards the same field of endeavor of laminated food and beverage materials containing a paper layer. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the formable paper material layer of modified Cabilli et al. and construct the formable paper material layer with the claimed grammage range as taught by Dhariwal et al. and Toft et al. since where the claimed grammage range of the formable paper material layer of the food packaging laminate overlaps grammage range of the formable paper material layer of the food packaging laminate disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.).
Further regarding Claim 1, Cabilli et al. modified with Andreae et al., MacMahon et al., Dhariwal et al., and Toft et al. is silent regarding the first laminate structure having an elongation at its breaking point of at least 2%.
Deeb et al. discloses a beverage container comprising a cover comprising a lamination of layers wherein the desired degree of puncture resistance and ability to seal and reseal are affected by adjusting the properties of the film (‘192, Paragraph [0044]).
Both modified Cabilli et al. and Deeb et al. are directed towards the same field of endeavor of beverage containers. Although Deeb et al. does not explicitly disclose the particular claimed values of the elongation at the breaking point of the first laminate structure, Deeb et al. discloses a lamination of layers wherein the desired degree of puncture resistance and ability to seal and reseal are affected by adjusting the properties of the film (‘192, Paragraph [0044]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the elongation at its breaking point of the first laminate structure that constitutes the capsule body relative to the puncture resistance of the bottom wall corresponding to the second laminate structure since differences in the value of the elongation at the breaking point of the first laminate structure with respect to the puncture resistance of the second laminate structure represented by the bottom wall will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such breaking point at elongation and puncture resistance are critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art at the time of the invention would adjust the layer elongation at breaking point relative to the puncture resistance of the beverage container of modified Cabilli et al. based upon the desired degree of puncture resistance and ability to seal and reseal are affected by adjusting the properties of the film as taught by Deeb et al. (‘192, Paragraph [0044]).
Further regarding Claim 1, the limitations “for preparing a beverage in a beverage production machine,” “for containing a substance for the preparation of the beverage,” “which is configured to be formable,” and “which is configured to be openable upon interaction with opening elements of the beverage production machine under the effect of rising pressure of a fluid being injected into the beverage container” are seen to be recitations regarding the intended use of the “beverage container.” In this regard, applicant’s attention is invited to MPEP § 2114.I. and MPEP § 2114.II. which states features of an apparatus may be recited either structurally or functionally in view of In re Schreiber, 128 F.3d 1473, 1478, 44 USPQ2d 1429, 1432 (Fed. Cir. 1997). If an examiner concludes that a functional limitation is an inherent characteristic of the prior art, then to establish a prima facie case of anticipation or obviousness, the examiner should explain that the prior art structure inherently possess the functionally defined limitations of the claimed apparatus in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432. See also Bettcher Industries, Inc. v. Bunzl USA, Inc., 661 F.3d 629, 639-40,100 USPQ2d 1433, 1440 (Fed. Cir. 2011). The burden then shifts to applicant to establish that the prior art does not possess the characteristic relied on in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432; In re Swinehart, 439 F.2d 210, 213, 169 USPQ 226, 228 (CCPA 1971). Additionally, apparatus claims cover what a device is, not what a device does in view of Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claimed in view of Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). Furthermore, if the prior art structure is capable of performing the intended use, then it meets the claim. Nevertheless, Cabilli et al. discloses the beverage container being used in a beverage production machine for preparing a beverage (‘412, Paragraph [0015]) from a substance (ground coffee dose 12) for preparing the beverage (‘412, Paragraph [0037]) and the second laminate structure being capable of being opened under the effect of rising pressure of a fluid injected into the beverage container (‘412, Paragraph [0066]).
Regarding Claim 3, Cabilli et al. discloses the second laminate structure (bottom wall 142) comprising a paper material layer (layer 1422 made of compostable paper) and an interface layer (barrier coating 1423) (‘412, FIG. 3) (‘412, Paragraph [0101]).
Regarding Claim 5, Deeb et al. discloses a beverage container comprising a cover comprising a lamination of layers wherein the desired degree of puncture resistance and ability to seal and reseal are affected by adjusting the properties of the film (‘192, Paragraph [0044]).
Both modified Cabilli et al. and Deeb et al. are directed towards the same field of endeavor of beverage containers. Although Deeb et al. does not explicitly disclose the particular claimed values of the puncture resistance of the second laminate structure, Deeb et al. discloses a lamination of layers wherein the desired degree of puncture resistance and ability to seal and reseal are affected by adjusting the properties of the film (‘192, Paragraph [0044]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the elongation at its breaking point of the first laminate structure that constitutes the capsule body relative to the puncture resistance of the bottom wall corresponding to the second laminate structure since differences in the value of the elongation at the breaking point of the first laminate structure with respect to the puncture resistance of the second laminate structure represented by the bottom wall will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such breaking point at elongation and puncture resistance are critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art at the time of the invention would adjust the layer elongation at breaking point relative to the puncture resistance of the beverage container of modified Cabilli et al. based upon the desired degree of puncture resistance and ability to seal and reseal are affected by adjusting the properties of the film as taught by Deeb et al. (‘192, Paragraph [0044]).
Regarding Claim 6, Cabilli et al. discloses the second laminate structure (bottom wall 142) being connected to the at least one cutout formed by sidewall 140 and flange 146 (‘412, FIG. 1) (‘4412, Paragraph [0045]). Andreae et al. discloses the second laminate structure being formed from the sidewall and flange (‘694, FIG. 6). The combination of Cabilli et al. modified with Andreae et al. teaches the first laminate structure of the sidewall and flange being completely covered by the second laminate structure at the bottom of the capsule to cover the at least one cutout opening wherein the second laminate structure (bottom wall 142) is provided on a same side as the volume with respect to the first laminate structure (‘412, FIG. 1).
Regarding Claim 8, Cabilli et al. discloses the first laminate structure comprising one or more further cutout openings (opening at flange 144 that is closed by wall 16) that is covered completely by the lid (‘412, FIG. 1) (‘412, Paragraph [0044]). Andreae et al. discloses the lid having the laminate structure (‘694, Paragraph [0036]).
Further regarding Claim 8, the limitations “wherein the second laminate structure covering the one or more further cutout opening is configured to be opened by an injection element of the beverage production machine for injecting the fluid into the beverage container” are intended use limitations and as such are rejected for the same reasons regarding intended use enumerated in the rejections of Claim 1 provided above.
Regarding Claim 10, Cabilli et al. discloses the PLA layer having a thickness of between 10 and 200 microns (‘412, Paragraph [0090]). Andreae et al. discloses the compostable film layer comprising a layered structure comprising a moisture barrier layer (PLA layers 25, 26) (‘694, FIG. 6) (‘694, Paragraph [0064]). The disclosure of the PLA layer being between 10 and 200 microns thick overlaps the claimed moisture barrier layer thickness of between 10 micrometers to 40 micrometers. Where the claimed moisture barrier layer thickness ranges overlaps moisture barrier layer thicknesses disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Andreae et al. also discloses the material layers being adhered to one another by means of a compostable adhesive (‘694, Paragraph [0023]) and a gas barrier layer (PVOH oxygen barrier layer) (‘694, Paragraph [0013]). Although Cabilli et al. modified with Andreae et al. does not explicitly disclose the adhesive layer having a thickness in the range between 1 micrometers to 10 micrometers or the gas barrier layer having a thickness in the range of between 1 micrometer to 20 micrometers, differences in the layer thickness of the adhesive layer and gas barrier layer will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such layer thickness of the adhesive layer and gas barrier layer is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art at the time of the invention would adjust the layer thickness of the adhesive layer and the gas barrier layer based upon the desired bonding strength between adjacent layers and based upon the desired oxygen barrier, respectively.
Regarding Claim 12, Cabilli et al. discloses the beverage container being in the form of a pod or a capsule (‘412, Paragraph [0033]).
Regarding Claim 17, Andreae et al. discloses an embodiment wherein the compostable film material layer comprising the gas barrier layer (material layer 27 that acts as an oxygen barrier) being sandwiched between two moisture barrier layers (PLA layers 25, 26) forming the top and the bottom of the compostable film material layer (‘694, FIG. 5) (‘694, Paragraph [0064]) and with two adhesive layers which are provided between each of the moisture barrier layers and the gas barrier layer, respectively (‘694, Paragraph [0023]).
Claims 4 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Cabilli et al. US 2019/0225412 in view of Andreae et al. US 2017/0008694, MacMahon et al. US 2009/0232944, Dhariwal et al. US 2019/0315096, Toft et al. US 2019/0202191, and Deeb et al. US 2014/0220192 as applied to claim 3 above in further view of Reati US 2008/0299262.
Regarding Claim 4, Cabilli et al. discloses the second laminate structure (bottom wall 142) further comprising an add on layer (layer 1420 made of polylactic acid) (‘412, Paragraph [0101]).
Cabilli et al. modified with Andreae et al., MacMahon et al., Dhariwal et al., Toft et al., and Deeb et al. is silent regarding the second laminate structure further comprising a filter layer.
Reati discloses a beverage container comprising a container wall that encloses a volume wherein the container wall is made of a wall material comprising a filter layer (filtering permeable material 301) that completely covers at least one cutout opening (opening 111) (‘262, FIG. 1) (‘262, Paragraph [0040]).
Both modified Cabilli et al. and Reati are directed towards the same field of endeavor of beverage capsules comprising a container wall made of a wall material comprising at least one cutout opening covered by a structure. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage capsule of modified Cabilli et al. and construct the second laminate structure with a filter layer since Reati teaches that it was known in the art beverage container art to cover at least one cutout opening of the beverage container with a filter layer.
Regarding Claim 16, Cabilli et al. discloses the add on layer (layer 1420 made of polylactic acid) being provided opposite to the interface layer (barrier coating 1423) with respect to the paper material layer (layer 1422 made of compostable paper) (‘412, FIG. 3) (‘412, Paragraphs [0101]).
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Cabilli et al. US 2019/0225412 in view of Andreae et al. US 2017/0008694, MacMahon et al. US 2009/0232944, Dhariwal et al. US 2019/0315096, Toft et al. US 2019/0202191, and Deeb et al. US 2014/0220192 as applied to claim 1 above in further view of Boyd et al. US 2002/0048621.
Regarding Claim 11, Cabilli et al. modified with Andreae et al., MacMahon et al., Dhariwal et al., Toft et al., and Deeb et al. is silent regarding the container wall comprising an identifier wherein the identifier comprises information relating to beverage preparation parameters.
Boyd et al. discloses a beverage container (packet 10) comprising a container wall (filter portions 12 and 14) that encloses a volume wherein the container wall (filter portions 12 and 14) comprises an identifier (machine interpretable feature 30) wherein the identifier (machine interpretable feature 30) comprises information relating to beverage preparation parameters (‘621, FIG. 2) (‘621, Paragraphs [0027]-[0028]).
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Both modified Cabilli et al. and Boyd et al. are directed towards the same field of endeavor of beverage containers used in a beverage production machine to prepare a beverage. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage container of modified Cabilli et al. and incorporate an identifier onto the container wall of the beverage container as taught by Boyd et al. in order to add directions for making a particular coffee beverage (‘621, Paragraph [0032]).
Response to Arguments
Applicant's arguments filed May 5, 2026 with respect to the obviousness rejections under 35 USC 103(a) to Cabilli et al. in view of Andreae et al., MacMahon et al., Dhariwal et al., Toft et al., and Deeb et al. have been fully considered but they are not persuasive.
Applicant argues on Page 7 of the Remarks that the Patent Office fails to provide any reason that would have motivated the skilled artisan to adjust modified Cabilli with the secondary reference of Deeb to reach the claimed invention. Applicant asserts that the statement the one of ordinary skill in the art would adjust the layer elongation at breaking point relative to the puncture resistance of the beverage container of modified Cabilli based upon the desired degree of puncture resistance and ability to seal and reseal are affected by adjusting the properties of the film as taught by Deeb does not establish any reason or motivation for the skilled artisan to modify Cabilli to include elastomeric layers sandwiched between non-elastomeric layers taught by Deeb to reach the claimed elongation. Applicant contends that Deeb explicitly discloses the use of elastomeric layers for resealing properties and that Cabilli does not suggest the need for resealing. Applicant continues that the body 14 of Cabilli, corresponding to the claimed first laminate structure, is not perforated and no resealing properties are needed or desired.
Examiner argues the primary reference of Cabilli et al. discloses the cartridge being perforated when in use (‘412, Paragraph [0075]). The secondary reference of Deeb also discloses perforation of the capsule (‘192, Paragraph [0025]). The resealing properties disclosed in Deeb would be advantageous to incorporate into the capsule of Cabilli et al. to prevent leakage of any liquid (‘192, Paragraph [0006]). With respect to applicant’s arguments pertaining to have elastomeric layers sandwiched between non-elastomeric layers, it is noted that Claim 1 recites the transitional phrase “comprising,” which is inclusive or open ended and does not exclude additional, unrecited elements or method steps in view of Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376, 71 USPQ2d 1837, 1843 (Fed. Cir. 2004) (MPEP § 2111.03.I.). The “comprising” term recited does not preclude the presence of unrecited elastomeric and/or non-elastomeric materials. Furthermore, Claim 1 only specifies the first laminate structure to have a paper material layer, which is taught by Andreae et al. Claim 1 does not preclude the presence of elastomeric and/or non-elastomeric materials. Both modified Cabilli et al. and Deeb et al. are directed towards the same field of endeavor of beverage containers. Although Deeb et al. does not explicitly disclose the particular claimed values of the elongation at the breaking point of the first laminate structure, Deeb et al. discloses a lamination of layers wherein the desired degree of puncture resistance and ability to seal and reseal are affected by adjusting the properties of the film (‘192, Paragraph [0044]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the elongation at its breaking point of the first laminate structure that constitutes the capsule body relative to the puncture resistance of the bottom wall corresponding to the second laminate structure since differences in the value of the elongation at the breaking point of the first laminate structure with respect to the puncture resistance of the second laminate structure represented by the bottom wall will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such breaking point at elongation and puncture resistance are critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art at the time of the invention would adjust the layer elongation at breaking point relative to the puncture resistance of the beverage container of modified Cabilli et al. based upon the desired degree of puncture resistance and ability to seal and reseal are affected by adjusting the properties of the film as taught by Deeb et al. (‘192, Paragraph [0044]). Therefore, these arguments are not found persuasive.
Examiner notes that applicant’s comments on Page 8 of the Remarks with respect to the obviousness rejections under 35 USC 103(a) of Claims 4, 11, and 16 does not specifically and distinctly point out the supposed errors of the Office Action.
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 ERICSON M LACHICA whose telephone number is (571)270-0278. The examiner can normally be reached M-F, 8:30am-5pm, EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ERICSON M LACHICA/Examiner, Art Unit 1792
Prosecution Insights