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.
Response to Amendment
The Amendment filed 20 April 2026 in response to the Non-Final Rejection dated 20 January 2026 (hereinafter “NFOA”) has been entered. Claim 9 has been canceled, claims 1-2, 5-8, and 10-14 have been amended, and new claims 15-20 have been added. As such, claims 1-8 and 10-20 are pending, claims 12-14 remain withdrawn, and claims 1-8, 10-11, and 15-20 are under consideration on the merits.
The amendments to the claims have overcome the rejection of claims 1-11 under 35 U.S.C. 112(b) [NFOA, ¶6-13]. As such, the 112(b) rejection has been withdrawn. However, it is noted that new grounds of rejection under 112(b) are set forth herein, necessitated by the amendments to the claims.
Further, it is noted that any rejection under 35 U.S.C. 103 previously set forth in the NFOA and not repeated herein is overcome and/or hereby withdrawn.
Claim Objections
Claim 5 is objected to because of the following informalities:
Missing percentage symbol (%), and grammar informalities in accordance with the rejection/interpretation of claim 1 under 35 U.S.C. 112(b) below, each of which are identified by the following mark-ups respectfully suggested by the Examiner in order to correct the issues
“wherein the PET comprises at least 75% by weight, optionally 100%, of [[a]]the recycled Polyethylene Terephthalate.”
Appropriate correction is required.
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 1-8, 10-11, and 15-20 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 limitation “the plastic material is a Polyethylene Terephthalate (PET) of a recycled Polyethylene Terephthalate (rPET), wherein the PET comprises at least 50% by weight” (emphasis added) renders the claim indefinite – the metes and bounds of the scope of the limitation are not clear/ambiguous, and cannot be readily determined by one of ordinary skill in the art (MPEP 2173).
In view of the emphasized terms, it is unclear if the plastic material requires at least 50% by weight of PET, requires at least 50% by weight of rPET, or requires at least 50% by weight of at least one of PET and rPET; and unclear whether the remainder amount by weight (i.e., up to 50%) of the plastic material may be any (thermo)plastic material, or is required to be PET or rPET. Phrased alternatively to emphasize the indefiniteness issue(s), it is unclear what thermoplastic polyester material(s) are encompassed by the phrase “a Polyethylene Terephthalate (PET) of a recycled Polyethylene Terephthalate (rPET)”, and unclear whether “the PET comprises at least 50% by weight” is referring to the total weight of the plastic material, or the total combined weight of PET and rPET constituting the plastic material.
For examination on the merits, claim 1 is interpreted in accordance with the following amendment, of which finds support in the spec [0027, 0029, 0066-0068] and coincides with dependent claim 5-7, and is respectfully suggested by the Examiner to overcome the indefiniteness issues.
“the plastic material is a Polyethylene Terephthalate (PET) of a recycled Polyethylene Terephthalate (rPET),”
Claims 2-8, 10-11, and 15-20 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 identified above.
Appropriate action is required.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-8, 10-11, and 15-20 are rejected under 35 U.S.C. 103 as being unpatentable over Jequier (EP 3299309; “Jequier”) (previously cited), in view of:
Beal et al. (US 2016/0319098; “Beal”) (previously cited);
Desai et al. (US 8,617,673; “Desai”), Nahill et al. (US 6,112,925; “Nahill”), and Tanchette (WO 2020/208243; “Tanchette”) (all previously cited); and
Chivrac (US 2016/0332767; “Chivrac”) (previously cited).
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] (substantially covers all the side wall).
The banderole is glued or laminated to the outer surface of the sidewall via a sealing layer, e.g., hot melt or adhesive layer [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 depicted in [Fig. 1] of Jequier is reproduced hereinbelow to illustrate the basis of the rejection, captioned as Figure 1.
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Figure 1. Thermoformed Cup Container of Jequier
The thermoplastic film (sheet) which is thermoformed (e.g., deep-drawn) into the hollow body and which includes said flange integral therewith, is preferably polyethylene terephthalate (PET), or alternatively (or in combination) may be formed from polylactic acid (PLA), polystyrene (PS), polypropylene (PP), or polyethylene (PE) [0028; Tables 1 and 3].
Jequier discloses preferred/inventive embodiments of the container, wherein the thickness of the body, as well as the flange integral therewith, is from 100-600 µm (0.1-0.6 mm) [0027], and the banderole (30) is formed from paper (e.g., kraft paper) or a laminate thereof with a thermoplastic film, wherein the banderole exhibits a grammage of 110-160 g/m2 [0006, 0009-0010, 0017-0021, 0029-0030, 0036].
Additionally, Jequier also discloses comparative cup containers, representative of the prior art and presented to illustrate the improvements thereover exhibited by the preferred embodiments (set forth/cited in preceding paragraph) – the comparative cup containers exhibit body/flange thicknesses of 800 µm or 850 µm, and the corresponding banderoles exhibit a grammage of about 95 g/m2 [Tables 1-3; 0003, 0015-0021, 0031]. In light of the comparative cup containers disclosed by Jequier, Applicant is respectfully directed to MPEP 2123(I) and (II).
MPEP 2123(I) indicates that patents are relevant as prior art for all they contain, specifically, “The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned.” “They are part of the literature of the art, relevant for all they contain.” “A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments.”
MPEP 2123(II) indicates that nonpreferred and alternative embodiments constitute prior art, specifically, “Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments.” “A known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use.”
In view of the totality of the foregoing, Jequier reasonably discloses (as recognized by one of ordinary skill in the art) cup containers exhibiting the structural elements/features set forth above and shown in Figure 1, suitably thermoformed from, inter alia PET, exhibiting body/flange thickness of 800 µm or 850 µm, and comprising a banderole (disposed around and attached to the sidewall of the container, in the manner described above) having a grammage of about 95 g/m2. It is noted that the aforesaid cup container of Jequier forms the basis of the grounds of rejection set forth hereinbelow – the flange thickness of 800 µm or 850 µm is within the claimed range of at most 1.0 mm, and the banderole grammage of 95 g/m2 reads on the claimed banderole grammage of about 95 g/m2.
With respect to the differences between the aforesaid cup container of Jequier and the cup container defined by claim 1, Jequier is silent regarding (i) the body exhibiting a total stretch ratio of at least 4.0, regarding (ii) the PET comprising at least 50% by weight of a recycled PET (rPET), and regarding (iii) the thickness of the banderole (having grammage of about 95 g/m2) being about 100 µm.
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 thicknesses/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.
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].
Chivrac teaches a paper-based banderole – suitable for use with thermoformed cup containers (comprising flange) for yogurt exhibiting a thickness up to 800 µm and a total stretch ratio of at least 4 [Abstract; Figs. 1, 2A, 2C; 0003, 0016, 0049, 0052, 0054-0058] – which has a grammage of about 100 g/m2 corresponding to a thickness of about 100 µm [0119]. See MPEP 2144.07, MPEP 2144.04(IV)(A).
Jequier, Beal, Desai/Nahill/Tanchette, and Chivrac each constitute prior art which is directly analogous to the claimed invention – thermoformed PET containers, including banderoles, and/or use of rPET in molded/thermoformed containers for food-contact 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) cup container of Jequier by:
(I) having thermoformed the cup container to a total stretch ratio of at least 2.5, 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 (e.g., PET, PLA), having a thickness within the range specified by Jequier, into yogurt cup containers (MPEP 2144.07, MPEP 2144.04(IV)(A) and (IV)(B));
(II) having substituted, wholly or in-part (i.e., any amount up to 100 wt.%), the PET utilized to form the hollow body/flange 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); and
(III) having selected/adjusted the banderole (grammage about 95 g/m2) thickness to be about 100 µm, as the aforesaid banderole thickness would have been recognized as suitable for the intended use of the banderole in thermoformed yogurt cup container applications (MPEP 2144.07) and/or an obvious design choice related merely to the relative dimensions of the banderole (in the absence of objective evidence of criticality or an unexpected result associated with the claimed banderole thickness) (MPEP 2144.04(IV)(A) and (IV)(B)).
In accordance with the foregoing modifications (I)-(III), the resultant thermoformed cup container of Jequier would have comprised all of the elements/features set forth above (see ¶17-19, ¶21-24), wherein the cup container also would (I) have exhibited a total stretch ratio of at least 2.5, or at least 4, as a result of the deep-draw thermoforming process, and would (II) have been formed from up to 100 wt.% flake-grade, mechanically recycled PET (rPET), and wherein the banderole having a grammage of 95 g/m2 would (III) have exhibited a corresponding thickness of 100 µm.
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)), and/or the total stretch ratio of at least 4 is identical to said claimed range; the banderole thickness (about 100 µm) and grammage (95 g/m2) are identical to the claimed banderole thickness and grammage; and the thermoplastic material constituting the body/flange comprising up to 100 wt.% of flake-grade, mechanically recycled PET (rPET) (e.g., consisting of flake-grade mechanical rPET) is within the claimed range of at least 50 wt.% rPET. The cup container of Jequier, set forth above (hereinafter “modified Jequier” for simplicity), 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 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 of modified Jequier is a circle/circular in the horizontal direction.
Regarding claims 5-7, the rejection of claim 1 above reads on each cup container defined by claims 5-7 – the thermoplastic material defining the thermoformed cup container of modified Jequier comprises up to 100 wt.% of, i.e., may consist of, flake-grade mechanically recycled PET (rPET) (claim 5, wherein the PET comprises at least 75% by weight, optionally 100 %, of the recycled Polyethylene Terephthalate; claim 6, wherein the recycled Polyethylene Terephthalate, being mechanically recycled, is a granule grade rPET, a flake grade rPET, or a mixture thereof; claim 7 (dep. upon claim 5), wherein the PET comprises at least 90% by weight, optionally 100%, of a flake grade mechanically recycled Polyethylene Terephthalate (rPET)).
Regarding claim 8, the rejection of claim 1 above reads on the cup container defined by claim 8. The banderole of modified Jequier is formed from paper, exhibits a thickness of about 100 µm, and a grammage of 95 g/m2, is glued or laminated to the sidewall of the cup container via a sealing layer, e.g., hot melt or adhesive layer, and covers substantially all of the sidewall (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).
Regarding claim 10, the rejection of claim 1 above reads on the cup container defined by claim 10 – the banderole of modified Jequier is bonded to the sidewall of the hollow body (wherein the banderole is at least partially bonded to the side wall).
Regarding claim 11, in view of the rejection of claim 1 above, the container of Jequier depicted in [Fig. 1] and reproduced in Figure 1 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 cup container of modified Jequier, which is within the claimed range.
Regarding claims 15-16, the rejection of claim 1 above reads on each cup container defined by claims 15-16. That is, the thickness of flange (integrally formed with the hollow body) is 850 µm or 800 µm, in accordance with the aforecited disclosure of Jequier as set forth/noted above in the rejection of claim 1. Each of the aforesaid thicknesses are within the range defined by claim 15 (wherein the flange has the thickness of at most 0.90 mm), and the latter of said thicknesses is within (specifically, touches upper bound of) the range defined by claim 16 (wherein the flange has the thickness of at most 0.80 mm).
Regarding claims 17-18, the rejection of claim 1 above reads on each cup container defined by claims 17-18. The thermoformed cup container of modified Jequier exhibits a total stretch ratio of at least 2.5, or/preferably at least 4, each of which encompass, and thereby render prima facie obvious, the range defined by claim 17 (wherein the body has a total stretch ratio of at least 4.5) and the range defined by claim 18 (wherein the body has a total stretch ratio of at least 5.0). See MPEP 2144.05(I).
Regarding claim 19, the rejection of claim 1 above reads on the cup container defined by claim 19 – the banderole of modified Jequier is fully bonded to the sidewall of the thermoformed hollow body (wherein the banderole is fully bonded to the side wall).
Regarding claim 20, in view of the rejection of claim 1 above, the rejections of claim 3 and claim 11 above are incorporated herein by reference. In view/summary thereof, Jequier implicitly discloses/depicts a ratio between the surface of the opening and the surface of the bottom (see rejection of claim 11) of 1:1, and also discloses that in the alternative to the cylindrical sidewall (i.e., exhibiting said 1:1 ratio), the hollow body may be a truncated cone [0023-0024].
As such, Jequier implicitly discloses, as is/would have been readily recognized by one of ordinary skill in the art, that the ratio between the surface of the opening and the surface of the bottom may be greater than 1:1 – that is, the sidewalls of the truncated cone hollow body taper from the surface of the opening to the surface of the bottom, i.e., the sidewalls extend from the bottom to the flange/opening at corresponding non-right angles relative to the bottom horizontal plane.
In view of the totality of the foregoing, the thermoformed cup container of modified Jequier exhibiting the truncated cone hollow body in accordance with the disclosed alternative embodiment would have necessarily exhibited a ratio between the surface of the opening and the surface of the bottom which would have been greater than 1:1, wherein the aforesaid ratio range of greater than 1:1 encompasses, and thereby renders prima facie obvious, the claimed range of 1.1:1 to 1.2:1, absent evidence of criticality or an unexpected result associated therewith (see MPEP 2144.05(I)).
Response to Arguments
Applicant’s arguments presented on pp. 8-13 of the Remarks filed 20 April 2026 have been fully considered by the Examiner but are moot, as the rejections to which the arguments are directed have been overcome by the amendments to the claims and withdrawn as a result. New grounds of rejection are set forth above, necessitated by said amendments.
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 Michael C. Romanowski whose telephone number is (571)270-1387. The Examiner can normally be reached M-F, 09:30-17:30.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, Applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner’s supervisor, Aaron Austin can be reached at (571) 272-8935. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL C. ROMANOWSKI/Primary Examiner, Art Unit 1782
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