DETAILED OFFICIAL 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 .
Examiner Note
It is noted that all references hereinafter to Applicant’s specification (“spec”) are to the published application US 2024/0002098, unless stated otherwise. Further, any italicized text utilized hereinafter is to be interpreted as emphasis placed thereupon.
Election/Restrictions
Applicant’s election without traverse of the Invention of Group I, claims 1-11 in the reply filed on 18 December 2025 is acknowledged. Claims 12-14 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Information Disclosure Statement
The information disclosure statement (IDS) filed 18 May 2023 is in compliance with 37 CFR 1.97 and has been considered.
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 1-11 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Regarding claim 1, the recitation of “preferably” in the phrases “preferably comprising a recycled Polyethylene Terephthalate (rPET)”, “preferably at most 0.90 mm, preferably 0.80 mm”, and “preferably at least 4.5, preferably at least 5.0” render the claim indefinite, as it is unclear whether the limitations following “preferably” constitute limitations of the claimed invention. Applicant is respectfully directed to MPEP 2173.05(d), which indicates that description of examples or preferences is properly set forth in the specification rather than the claims – preferences stated in the claims lead to confusion over the intended scope of the claim.
In the instant case, it is not clear whether the claimed narrower limitations/ranges (following “preferably”) are limitations of the invention. Therefore the metes and bounds of the scope of the claim are unclear and cannot be readily envisaged or determined by one of ordinary skill in the art or the public (see MPEP 2173; MPEP 2173.02; MPEP 2173.02(II)).
For examination on the merits, each of the foregoing phrases are interpreted as preferences and not required limitations. In order to overcome the indefiniteness issues, the following amendments are respectfully suggested for correction.
“- the plastic material is a Polyethylene Terephthalate (PET),
“- the flange has a thickness of at most 1.0 mm,
“- the body has a total stretch ratio of at least 4.0,
Claims 5, 7, and 9-11 are indefinite for the same reasons set forth above in the rejection of claim 1 – it is not clear whether the claimed narrower limitations/ranges which follow “preferably” constitute limitations of the invention, and as such the metes and bounds of the scope of the claim are unclear and cannot be readily envisaged/determined. Claims 5, 7, and 9-11 are interpreted for examination on the merits in accordance with the suggested amendments for correction set forth hereinbelow. It is noted that the amendments to claim 11 include additions respectfully suggested by the Examiner to improve upon claim clarity/readability, and eliminate any potential issues regarding [in]sufficient antecedent basis.
[claim 5] “…wherein the PET comprises at least 50% by weight
[claim 7] “…wherein the PET comprises at least 50% by weight
[claim 9] “…wherein the banderole is of from 50 to 150 g/m2
[claim 10] “…wherein the banderole is at least partially bonded to the side wall
[claim 11] “…having a ratio between the surface area of the opening and the surface area of the bottom of from 1/1.2 to 1.5/1
Claim 6, which is directly dependent upon claim 5, recites “wherein the mechanically recycled Polyethylene Terephthalate (rPET) is a granule grade rPET, a flake grade rPET, or a mixture thereof”. However, as set forth above in the rejection of claim 5, it is unclear whether the claimed cup container defined by claim 5 requires the recycled Polyethylene Terephthalate which is a mechanically recycled Polyethylene Terephthalate (rPET), as the latter (mechanically recycled rPET) constitutes a preference, rather than a required limitation. As such, it is unclear whether the recitation in claim 6 constitutes a limitation of the claimed invention, or a further preference of the preference recited in claim 5.
Given that claim 7 is also directly dependent upon claim 5, and in view of the subject matter/interpretation of claim 7 set forth above in the suggested amendments thereto, claim 6 is interpreted for examination on the merits as being read on by a cup container which reads on (i.e. meets) the limitations of claim 7.
Claims 2-11 are indefinite and rejected under 112(b) as they are directly or ultimately dependent upon claim 1 and therefore include, and do not remedy the indefiniteness issues of claim 1 identified above.
Appropriate action is required.
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.
This application currently names joint inventors. In considering patentability of the claims the Examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the Examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
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 1-8 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Hernandez (ES 2391515; “Hernandez”) (copy and machine translation provided herewith, translation relied upon), in view of Zhang et al. (US 2010/0108693; “Zhang”), Beal et al. (US 2016/0319098; “Beal”), and Desai et al. (US 8,617,673; “Desai”).
Nahill et al. (US 6,112,925; “Nahill”) and Tanchette (WO 2020/208243; “Tanchette”) (copy provided herewith) are optionally relied upon as evidentiary references in support of the grounds of rejection.
Regarding claim 1, Hernandez discloses a thermoformed container, e.g. cup for food products such as yogurt [Figs. 1-2; 0003, 0008, 0064-0073]. The container is formed from a thermoplastic material, and includes a thermoformed hollow body defining an opening, sidewall, bottom opposite the opening in a horizontal direction, and a flange outwardly peripheral to the opening, said flange integral with the body and forming an opening edge with the sidewall; and a banderole positioned over substantially all of the sidewall [Figs. 1-2; 0064-0073, 0232-0235, 0271-0291]. The thermoformed container of Hernandez depicted in Fig. 1 is reproduced hereinbelow to illustrate the basis of the rejection, captioned as Figure 1.
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Figure 1. Thermoformed Container of Hernandez
With respect to the differences relative to the claimed cup container, Hernandez is silent regarding the thermoplastic comprising polyethylene terephthalate (PET), regarding the flange thickness being at most 1.0 mm, and regarding the body having a total stretch ratio of at least 4.0.
Zhang teaches that thermoplastic polymers suitable for thermoforming into cup containers include PET, polylactic acid (PLA), polystyrene (PS), and combinations thereof [Abstract; 0025, 0042; claims 19, 22; ]. See MPEP 2144.07 – the selection of a known material based on its suitability for its intended use has been held prima facie obvious; the selection of a known plastic to make a container of a type made of plastics prior to the [claimed] invention was held obvious.
Beal is directed to thermoformed (PLA-based) cup containers, e.g. yogurt cups comprising a thermoformed hollow body defining an opening, sidewall, bottom opposite the opening in a horizontal direction, and a flange outwardly peripheral to the opening, said flange integral with the body and forming an opening edge with the sidewall; and a banderole positioned around a substantial portion of the sidewall [Abstract; Figs. 1, 2A, 2C; 0021-0022, 0024, 0049-0063, 0065, 0067, 0080, 0083, 0087]. Beal teaches that the thermoforming process is known by one of ordinary skill in the art, typically comprising stretching under heating a thermoplastic monolayer or multilayer sheet material in a mold cavity [0019-0022, 0050, 0083-0087] – one of ordinary skill in the art can thermoform the sheet to obtain the final product exhibiting the desired shape [0087].
Beal teaches that the flange suitably/typically exhibits a thickness of from 0.6 to 2 mm, of which is the initial thickness of the thermoplastic sheet (prior to thermoforming) [0020, 0066]; teaches that the thermoformed portions of the cup container, e.g. hollow body including sidewall and bottom suitably/typically exhibit a thickness of from 50 µm to 2 mm [0051]; and teaches that the total stretch ratio of the cup container is suitably/typically at least 2.5, preferably at least 4 [0011, 0019, 0049, 0083, 0087-0093]. See MPEP 2144.04(IV)(A) – where the only difference between the prior art and the claimed invention is a recitation of relative dimensions, and the claimed invention having said relative dimensions would not perform differently than the prior art, the claimed invention was held not patentably distinct from the prior art. See MPEP 2144.04(IV)(B) – it has been held that the configuration of a claimed container was a matter of choice which one of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration was significant.
Desai is directed to/teaches a multilayer (or monolayer) thermoplastic sheet readily suitable for thermoforming into containers, including form-fill-seal (thermoforming) applications [Abstract; col. 1 ln. 20-39; col. 2 ln. 57-61; col. 3 ln. 7-9; col. 4 ln. 6-12; col. 6 ln. 58-63]. The sheet includes a primary resin layer formed from mechanically processed flake-grade recycled PET (rPET), and a secondary resin layer formed from virgin PET, wherein the primary layer defines about 70 wt.% (60-90 wt.%) and the secondary layer defines about 10-40 wt.% of the total weight of the multilayer sheet, with the thicknesses of said layers being proportional thereto [col. 1 ln. 26-39; col. 4 ln. 14-36; col. 5 ln. 53-57; col. 6 ln. 6-10, 40-63]. Nahill evidences that flake-grade rPET is approved for use – alone, or in one or more layers – in food containers by the FDA [col. 8 ln. 47-65]. Tanchette evidences that bottles (beverage packaging) formed from 100% rPET (recycled by mechanical routes) have been commercialized [p. 1 ln. 12-14], and that rPET is known and commercially available [p. 6 ln. 9-29].
Hernandez, Zhang, Beal, and Desai each constitute prior art which is directly analogous to the claimed invention (MPEP 2141.01(a)(I)). Hernandez does not specify or require that the thermoformed container be formed from a particular thermoplastic polymer, and does not specify the particular dimensions (e.g. thickness, total stretch ratio) of the thermoformed container, wherein Zhang teaches that PET and PLA are suitable thermoplastics for thermoforming into containers, Beal teaches suitable dimensions for thermoformed thermoplastic (e.g. PLA) yogurt cup containers, and Desai teaches a thermoplastic multilayer sheet based on PET readily suitable for thermoforming into containers.
In view of the combined teachings of the foregoing prior art, and as supported by the aforecited MPEP sections, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the invention to have modified the container of Hernandez by (i) utilizing the thermoplastic PET-based multilayer sheet of Desai as the thermoplastic material from which the container is thermoformed, and by (ii) thermoforming the container in accordance with the total stretch ratio and sheet/flange thickness specifications of Beal, to achieve the predictable result of a thermoformed cup container based on PET and having suitable/typical dimensions known to, and well-recognized by, one possessing ordinary skill in the art of thermoforming thermoplastic cup containers for food products, e.g. yogurt.
In accordance with the aforesaid modifications, the thermoformed container of Hernandez (hereinafter “modified Hernandez”) – in addition to comprising the elements set forth/cited above (¶20; Figure 1) – would have been (thermo)formed from a multilayer thermoplastic sheet comprising 60-90 wt.% rPET (primary layer) and 10-40 wt.% PET (secondary layer) having an initial thickness of 0.6 to 2 mm (and final thickness of 0.05 to 2 mm), wherein the flange of the container would have exhibited a thickness of 0.6 to 2 mm; and would have exhibited a total stretch ratio of at least 2.5, preferably at least 4.
As such, the thermoformed container of modified Hernandez above reads on the cup container defined by each and every limitation of claim 1. The PET-based thermoplastic reads on “the plastic material is a Polyethylene Terephthalate (PET)”; the flange thickness of 0.6 to 2 mm overlaps with, and thereby renders prima facie obvious the claimed range of “at most 1.0 mm” (MPEP 2144.05(I)); and the total stretch ratio of at least 2.5 encompasses and thereby renders prima facie obvious the claimed total stretch ratio of “at least 4.0” (MPEP 2144.05(I)). Alternatively, the preferred total stretch ratio of at least 4 is identical to claimed range.
Regarding claim 2, the rejection of claim 1 above reads on the cup container defined by claim 2 – as shown in Figure 1 above, the opening and the bottom of the thermoformed container of modified Hernandez define parallel planes in a horizontal direction, wherein the sidewall connects the opening edge formed by the flange with the bottom at a bottom edge thereof.
Regarding claim 3, the rejection of claim 1 above reads on the cup container defined by claim 3 – as shown in Figure 1 above, the sidewall of the thermoformed container of modified Hernandez is a cylinder/cylindrical.
Regarding claim 4, in view of the rejection of claim 1 above, the rejection of claim 3 above is incorporated herein by reference and reads on the cup container defined by claim 4.
Regarding claim 5, the rejection of claim 1 above reads on the cup container defined by claim 5 – the multilayer sheet from which the container of modified Hernandez is formed comprises about 70 wt.%, and specifically/more-broadly 60-90 wt.% rPET (flake-grade mechanically recycled PET), each of which are within the claimed range of at least 50% by weight of a recycled PET (see rejection of claim 5 under 112(b) above).
Regarding claims 6-7, the rejection of claim 5 above reads on each cup container defined by claims 6-7. That is, “about 70 wt.% rPET”, or alternatively “60-90 wt.% rPET”, wherein said rPET is flake-grade mechanically recycled PET (claim 6), reads on “at least 50% by weight of a flake grade mechanically recycled Polyethylene Terephthalate (rPET)” (claim 7) – see rejection of claim 6 and claim 7 under 112(b) above.
Regarding claim 8, in view of the rejection of claim 1 above, Hernandez discloses that the banderole is suitably made of paper, e.g. kraft paper [0003, 0088-0091, 0101-0103, 026-0270]. The aforesaid paper banderole reads on “the banderole is non heat shrinkable flexible material having a layer of paper material” as defined in claim 8.
Regarding claim 11, as shown above in Figure 1, the bottom and the opening of the container of Hernandez each define a surface area. The surface area of the opening – which is substantially/completely circular and delimited by the circumferential upper edge of tapered portion (12), i.e. the upper edge of portion (12) where it meets/transitions into the flange (11) – is only marginally larger than the horizontally planar surface area of the substantially/completely circular bottom, in the respective parallel horizontal planes.
That is, the container of Hernandez reproduced in Figure 1 above reasonably and clearly depicts, based on the respective parallel horizontal planes, the surface area of the opening (the area of the aperture through which a food product is placed into the container) being greater than the surface area of the bottom, i.e. the ratios thereof being, at least, greater than 1:1. The aforesaid range of at least greater than 1:1 is within the lower bound (1:1.2), and encompasses the upper bound (1.5:1) of the claimed range (1:1.2 to 1.5:1) of the ratio between the surface (area) of the opening and the surface (area) of the bottom, and thereby renders the claimed range prima facie obvious (MPEP 2144.05(I)).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Hernandez in view of Zhang, Beal, and Desai as applied to claim 1 above, further in view of Jequier (EP 3299309; “Jequier”) (copy provided herewith).
Regarding claim 9, in view of the rejection of claim 1 above, and as set forth above in the rejection of claim 8, Hernandez discloses that the banderole is suitably made of paper, such as kraft paper [0003, 0088-0091, 0101-0103, 026-0270]. However, Hernandez is silent regarding the grammage of the banderole being from 50 to 150 g/m2 as claimed.
Jequier is directed to thermoformed (e.g. form-fill-sealed (FSS)) thermoplastic cup container for yogurt, inclusive of a banderole which covers substantially all of the sidewall of the container and is shape-fitted thereto (as is the banderole of Hernandez) [Abstract; Figs. 1-3; 0006-0010, 0022]. Jequier teaches that the banderole – which is suitably made of paper or a laminate thereof with a thermoplastic film, and in particular kraft paper – suitably/preferably exhibits a grammage of 110-160 g/m2 [0009-0010], allowing for increased container rigidity (e.g. increased top-load strength) in the sidewall section covered by the banderole [0013, 0017; Table 2]. Jequier constitutes prior art which is directly analogous to the claimed invention.
In view of the combined teachings of the foregoing prior art, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the paper (e.g. kraft paper) banderole of the thermoformed container of Hernandez (as modified above in the rejection of claim 1) by utilizing a kraft paper having a particular grammage of 110-160 g/2, in order to increase the overall container rigidity (e.g. increased top-load strength).
In accordance with the aforesaid modification, the thermoformed container of modified Hernandez would have comprised all of the elements/features as set forth above in the rejection of claim 1 (see also rejection of claim 8), wherein the paper banderole (e.g. kraft paper) would have exhibited a grammage of 110-160 g/m2, of which is within the lower bound (50 g/m2), and encompasses the upper bound (150 g/m2) of the claimed range, thereby rendering the claimed range prima facie obvious (MPEP 2144.05(I)).
Claims 1-4 and 8-11 are rejected under 35 U.S.C. 103 as being unpatentable over Jequier, in view of Beal.
Regarding claim 1, Jequier discloses a thermoformed thermoplastic cup container for yogurt, inclusive of a banderole which covers all of, or substantially all of, the sidewall of the container and is shape-fitted thereto [Abstract; Figs. 1, 3; 0006-0010, 0012-0013, 0022-0030]. The container includes a thermoformed hollow body (25) defined by an opening, a sidewall, a bottom (28) opposite the opening in the horizontal direction, and flange (23) integral with the body and extending peripherally outward from the opening, said flange forming an opening edge with the sidewall; and a banderole (30) extending from a lower edge (29) of the bottom (28) to a lower surface (22) of the flange (23) [Fig. 1; 0022-0030, 0036].
The banderole is glued or laminated to the outer surface of the sidewall [0018, 0029, 0036]. The body, including the bottom, sidewall, and opening, is a cylinder/cylindrical and the corresponding cross-section is a circle [0023]. The container of Jequier depicted in Fig. 1 is reproduced hereinbelow to illustrate the basis of the rejection, captioned as Figure 2.
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Figure 2. Thermoformed Cup Container of Jequier
Jequier discloses that the thermoplastic film (sheet) which is thermoformed (e.g. deep-drawn) into the hollow body and which includes said flange integral therewith, is preferably PET, or may alternatively (or in combination) be formed from PLA [0028]; the thickness of the body, as well as the flange integral therewith, is from 100-600 µm (0.1-0.6 mm) [0027]. The flange thickness of from 0.1-0.6 mm is within the claimed range of at most 1.0 mm. The thermoplastic being PET reads on the claimed plastic material being PET.
With respect to the difference relative to the claimed cup container, Jequier is silent regarding the body exhibiting a total stretch ratio of at least 4.0. However, as set forth/cited above, the container is thermoformed, e.g. deep-drawn, and in the alternative to PET, may be formed from PLA.
Beal is directed to thermoformed (PLA-based) cup containers, e.g. yogurt cups comprising a thermoformed hollow body defining an opening, sidewall, bottom opposite the opening in a horizontal direction, and a flange outwardly peripheral to the opening, said flange integral with the body and forming an opening edge with the sidewall; and a banderole positioned around a substantial portion of the sidewall [Abstract; Figs. 1, 2A, 2C; 0021-0022, 0024, 0049-0063, 0065, 0067, 0080, 0083, 0087]. Beal teaches that the thermoforming process is known by one of ordinary skill in the art, typically comprising stretching under heating a thermoplastic monolayer or multilayer sheet material in a mold cavity [0019-0022, 0050, 0083-0087] – one of ordinary skill in the art can thermoform the sheet to obtain the final product exhibiting the desired shape [0087].
Beal teaches that the thermoformed portions of the cup container, e.g. hollow body including sidewall and bottom – which suitably/typically exhibit a thickness of from 50 µm to 2 mm [0051] (encompasses thickness range disclosed by Jequier) – are thermoformed to a total stretch ratio of at least 2.5, preferably at least 4 [0011, 0019, 0049, 0083, 0087-0093]. See MPEP 2144.04(IV)(A) – where the only difference between the prior art and the claimed invention is a recitation of relative dimensions, and the claimed invention having said relative dimensions would not perform differently than the prior art, the claimed invention was held not patentably distinct from the prior art. See MPEP 2144.04(IV)(B) – it has been held that the configuration of a claimed container was a matter of choice which one of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration was significant.
Jequier and Beal each constitute prior art which is directly analogous to the claimed invention. In view of the combined teachings of the foregoing prior art, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the thermoformed PET cup container of Jequier by thermoforming the cup container to a total stretch ratio of at least 2.5 (i.e. utilizing a total stretch ratio of at least 2.5 in the deep-draw thermoforming process), preferably at least 4, as the total stretch ratio would have been well-known/recognized by one of ordinary skill in the art as suitable for deep-draw thermoforming polyester-based thermoplastics, having a thickness within the range specified by Jequier, into yogurt cup containers, thereby predictably resulting in (or in order to achieve the predictable result of) the hollow body of the thermoformed PET cup container exhibiting the aforesaid total stretch ratio. Additionally/alternatively, PET and PLA would have been readily recognized as functionally equivalent materials intended and suitable for formation of yogurt cup containers, and suitable for/capable of being thermoformed (e.g. deep-drawn) at a total stretch ratio of at least 2.5 into said cup containers (MPEP 2144.06(II); MPEP 2144.07).
In accordance with the aforesaid modification, the thermoformed PET cup container of Jequier (hereinafter “modified Jequier”) – in addition to comprising the elements set forth/cited above (¶44-46; Figure 2) – would have been thermoformed to a total stretch ratio of at least 2.5, preferably at least 4, i.e. the hollow body would have exhibited a total stretch ratio of at least 2.5, preferably at least 4. As such, the thermoformed PET cup container of modified Jequier set forth above reads on the cup container defined by each and every limitation of claim 1.
Regarding claim 2, the rejection of claim 1 above reads on the cup container defined by claim 2 – the opening and bottom (28) of the hollow body of modified Jequier define parallel planes in a horizontal direction, wherein the sidewall of the body connects the opening edge and the bottom at a bottom edge thereof.
Regarding claim 3, the rejection of claim 1 above reads on the cup container defined by claim 3 – the sidewall of the hollow body is a cylinder; alternatively the hollow body of the container of modified Jequier may be a truncated cone [Jequier, 0023].
Regarding claim 4, the rejection of claim 1 above reads on the cup container defined by claim 4 – the sidewall of the hollow body is a circle/circular in the horizontal direction.
Regarding claims 8-9, in view of the rejection of claim 1 above, Jequier discloses that the banderole (30) is formed from paper, e.g. kraft paper, or a laminate thereof with a thermoplastic film; exhibits a grammage of 110-160 g/m2; and is glued or laminated to the sidewall via a sealing layer, e.g. hot melt or adhesive layer [0006, 0009-0010, 0017-0021, 0029-0030, 0036]. The banderole reads on “the banderole is a non heat shrinkable flexible material having a layer of paper material, plastic material, metal material or a combination thereof, and optionally at least a side layer of a bonding material, a lacquer material, or a combination thereof” (claim 8), and the grammage of 110-160 g/m2 overlaps with (within lower bound and encompasses upper bound) the claimed range of 50 to 150 g/m2 (claim 9), thereby rendering the claimed range prima facie obvious (MPEP 2144.05(I)).
Regarding claim 10, in view of the rejection of claim 1 above, the rejection of claims 8-9 above is incorporated herein by reference and reads on the cup container defined by claim 10 – the banderole (30) of modified Jequier is bonded to the sidewall.
Regarding claim 11, in view of the rejection of claim 1 above, the container of Jequier depicted in Fig. 1 and reproduced in Figure 2 above, as well as the container depicted in Fig. 3, exhibits a ratio of the surface area of the opening (i.e. area of the circular aperture constituting the opening) to a surface area of the bottom (i.e. area of the circular inner surface of the bottom (28) of the hollow body (25), or i.e. area of the lower edge (29) of the bottom (28) of the hollow body (25) excluding the banderole (30)) of 1:1, of which is within the claimed range of 1:1.2 to 1.5:1. That is, the surface area of the opening of the hollow body is equal to the surface area of the bottom of the hollow body of the container of modified Jequier.
Claims 5-7 are rejected under 35 U.S.C. 103 as being unpatentable over Jequier in view of Beal as applied to claim 1 above, further in view of Desai, Nahill, and Tanchette.
Regarding claim 5, as set forth above in the rejection of claim 1 above, the thermoformed cup (hollow body and integral flange thereof) container of modified Jequier is formed from PET. Jequier, as modified, is silent regarding the thermoplastic material (PET) comprising at least 50 wt.% of a flake-grade mechanically recycled PET (rPET).
Desai teaches that rPET (flake-grade, mechanically recycled) is suitable for extrusion into sheet form or for thermoforming into desired shapes (objects/articles), thereby reducing the quantity of plastic waste subject to incineration or disposed in landfills [col. 1 ln. 20-39]. Desai teaches that rPET is readily thermoformable [col. 3 ln. 7-10; col. 6 ln. 45-52; claim 2].
Nahill teaches that flake-grade rPET is approved for use by the FDA in food containers, and may be utilized in molded container applications to reduce costs or for other benefits [Abstract; col. 8 ln. 47-65].
Tanchette teaches that mechanically recycled PET is suitable for use in packaging container applications, and that containers, e.g. bottles formed from 100% rPET are known/have been commercialized – use of rPET allows for preservation of the environment (reuse of recycled materials) [p. 1 ln. 12-14; p. 6 ln. 9-29].
Desai, Nahill, and Tanchette each constitute prior art which is directly analogous to the claimed invention – use of rPET in molded container applications.
In view of the combined teachings of the foregoing prior art, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the thermoformed PET cup container of modified Jequier (set forth above in the rejection of claim 1) by substituting, wholly or in-part (i.e. any amount up to 100 wt.%), the PET utilized to form the hollow body of the container with flake-grade mechanically recycled PET (rPET), as said rPET would have been recognized as readily thermoformable, suitable for use in food-contact/packaging applications, e.g. food containers/bottles, and/or in order to reduce costs (e.g. relative to use of 100% virgin PET) and/or contribute favorably to preservation of the environment (reuse of recycled material, reducing discarded/disposed waste).
In accordance with the aforesaid modification, the thermoformed hollow body (25) of the cup container of modified Jequier, inclusive of all the elements/features set forth above in the rejection of claim 1, would have been formed from up to 100 wt.% rPET (flake-grade mechanically recycled), the remaining amount being virgin PET (i.e. embodiments where less than 100 wt.% rPET is utilized) in accordance with the aforecited disclosure of Jequier. The resultant thermoformed cup container of modified Jequier formed from 100 wt.% rPET, or embodiments of the resultant container encompassed within the aforesaid modification(s), e.g. less than 100 wt.% rPET with balance virgin PET, read(s) on each cup container defined by claims 5-7 (MPEP 2144.05(I)), specifically, “the PET comprises at least 50% by weight of recycled Polyethylene Terephthalate” (claim 5) and “the PET comprises at least 50% by weight of a flake grade mechanically recycled Polyethylene Terephthalate” (claim 7 and claim 6), in accordance with the rejection of claim 6 and claim 7 under 112(b) above.
Pertinent Prior Art
The following constitutes a list of prior art which are not relied upon herein, but are considered pertinent to the claimed invention and/or written description thereof. The prior art are purposely made of record hereinafter to facilitate compact/expedient prosecution, and consideration thereof is respectfully suggested.
US 2008/0187694 to Alvarez et al. – directed to thermoformed containers comprising outer sleeves (banderoles) based on paper; teaches that the outer sleeve may be made of paper, plastic/film, metallic laminations, and/or mixtures thereof, may cover the entire sidewall or portions thereof, suitably exhibits a thickness of 0.06-0.90 mm, and may exhibit a weight of about 2.3-3.0 grams [Abstract; Fig. 1; 0039-0043]
Conclusion
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to Michael C. Romanowski whose telephone number is (571)270-1387. The Examiner can normally be reached M-F, 09:30-17:30.
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/MICHAEL C. ROMANOWSKI/Primary Examiner, Art Unit 1782