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 § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-8, 10-11 and 14-19 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Boukobza (US-20090308835-A1).
Boukobza discloses a bottle for a non-carbonated fluid (1, intended use), comprising: a sidewall (2); and a base section (3); the base section comprises a plurality of ribs (7, 10) extending from a center dome (6) to a flex surface about the sidewall to resist deformation in the sidewall (pars. 0019, 0052, showing comparatively that the state of the art is capable of resisting deformation), wherein the center dome extends within the sidewall (Figs. 1A, 1C), wherein the base section comprises a support ring (5) positioned between the center dome and the flex surface, wherein the center dome, the support ring, and the flex surface comprise a substantially flat "U" shape in cross-section (Fig. 1C), wherein the plurality of ribs comprises plurality of fully extending ribs (7) and a plurality of partially extending ribs (10), wherein the central dome comprises a boss and wherein the plurality of fully extending ribs extends from adjacent to the boss, through the support ring, and through the flex surface (Fig. 1B), wherein the central dome comprises a mid-section (4) and wherein the plurality of partially extending ribs extends from the mid-section, through the support ring, and through the flex surface (Fig. 1B), wherein each of the plurality of the fully extending ribs is positioned adjacent to a pair of the plurality of partially extending ribs (Fig. 1B), wherein the sidewall comprises a cylindrical shape (par. 0011), further comprising a polyethylene terephthalate material (par. 0021), wherein the flex surface with the plurality of ribs flex in response to a negative internal bottle pressure to resist deformation in the sidewall (based on the material and rib structure disclosed by Boukobza), and a volume of water therein (par. 0006).
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) 9 and 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Boukobza.
Boukobza discloses wherein the plurality of fully extending ribs comprises five fully extending ribs, and wherein the plurality of partially extending ribs comprises five partially extending ribs (Fig. 1B), but fails to specifically teach wherein the bottle has a twenty ounce volume or uses 20.5 grams of PET.
It would have been obvious to one of ordinary skill in the art at the time the invention was made to have manufactured the bottle with different sizes, in order to adjust the amount of material contained and since such a modification would have been a change in size of an existing component. A change in size is generally recognized as being within the level of ordinary skill in the art.
Response to Arguments
Applicant's arguments filed 11/05/2025 have been fully considered but they are not persuasive.
Regarding applicant’s argument that Boukobza fails to teach flexibility, the examiner maintains that the Boukobza teaches the same material and rib arrangement taught by applicant and therefore would be capable of flexing in response to some pressure value. The claims do not require a specific pressure that the ribs flex under.
Where the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on “inherency” under 35 USC § 102, on prima facie obviousness” under 35 USC § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO' s inability to manufacture products or to obtain and compare prior art products.” [In re Best, 562 F2d 1252, 1255, 195 USPQ 430, 433-4 (CCPA 1977); MPEP §2112.01].
The applicant has not provided sufficient evidence that the portions would not flex under pressure. An argument by the applicant is not evidence unless it is an admission, in which case, an examiner may use the admission in making a rejection. See MPEP § 2129 and § 2144.03 for a discussion of admissions as prior art.
Arguments presented by applicant cannot take the place of evidence in the record. See In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984); In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965); In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997) ("An assertion of what seems to follow from common experience is just attorney argument and not the kind of factual evidence that is required to rebut a prima facie case of obviousness."). See MPEP § 716.01(c) for examples of applicant statements which are not evidence and which must be supported by an appropriate affidavit or declaration.
Regarding applicant’s argument that Boukobza, teaches away from the claimed invention, it is noted that Boukobza teaches a different structure from the current state of the art, but, Boukobza also discloses the current state of the art and this state of the art reads on applicant’s current claims.
Conclusion
THIS ACTION IS MADE FINAL. 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 JEFFREY R ALLEN whose telephone number is (571)270-7426. The examiner can normally be reached 9:00 am - 5:00 pm, Monday-Friday.
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, Nathan Jenness can be reached at (571)270-5055. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JEFFREY R ALLEN/Primary Examiner, Art Unit 3733
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