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 .
Drawings
The drawings were received on 12 August 2026. These drawings are acceptable.
The drawings are objected to because the secondary axis 47b is not shown properly in figure 1. The axis identified by reference character 47b in figure 1 is not the minor axis.
The drawings are objected to as failing to comply with C.F.R 1.84(h)(3) because the plane upon which a sectional view is taken should be indicated on the view from which the section is cut by a broken line. The ends of the broken line should be designated by Arabic or Roman numerals corresponding to the view number of the sectional view, and should have arrows to indicate the direction of sight. MPEP 608.02 V. The ends of the broken line are not designated by numerals corresponding to the view number of the sectional view.
The drawings are objected to because no single reference character may be used for a given part and a modification of such part. MPEP 608.02(e). See at least 11 which has been used to designate multiple different container closures.
Claim Objections
Claim 1, 12, and 25 are objected to because of the following informalities: “the casing defining only two latch openings diametrically opposite to one another in the casing configured to interact”. Appropriate correction is required. Examiner suggests amendment to “casing and configured”.
Claim 17 is objected to because of the following informalities: “further comprising a ledge, on which the open end of the casing can rest, is formed”. Appropriate correction is required. Examiner suggests deletion of “is”.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: first sealing element in claims 1, 12, and 25 and a second sealing element of claim 9.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 3-6 and 12-26 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 3 is led to be indefinite as it depends on a canceled claim. In light of the original disclosure the claim will be interpreted as if it were dependent from claim 1.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 4 recites the broad recitation the at least one latch opening, and the claim also recites the latch opening which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. Examiner notes that the independent claim uses “only two latch openings”.
The limitation of claims 4 and 6 of “the at least one latch opening” is led to be indefinite. It is unclear if this is a newly recited structure or refers back to the “only two latch openings” of claim 1. In light of the original disclosure and in order to apply art the limitation will be interpreted as the latter.
The limitation of “configured to be latched in the latch opening of the container closure” of the last line of claim 12 is led to be indefinite. Previously claim 12 recited “only two latch openings”. It is unclear if the functional limitation relates to a newly recited latch opening or the previously recited latch openings. Examiner suggests amendment to “configured to be latched in one of the only two latch openings of the container closure”.
Claim 20 is led to be indefinite as it is unclear if “an elliptical cross-section” is a newly recited structure or refers back to “the shape of an ellipse in cross-section” of claim 19 from which claim 20 depends. In light of the original disclosure and in order to apply art the limitation will be interpreted as the latter.
Claim 20 is led to be indefinite as it is unclear if “an elliptical shape” is a newly recited structure or refers back to “the shape of an ellipse” of claim 19 from which claim 20 depends. In light of the original disclosure and in order to apply art the limitation will be interpreted as the latter.
Claim 25 recites the limitation "the container opening" in line 7. There is insufficient antecedent basis for this limitation in the claim.
Claim 25 recites the limitation "the container" in line 10. There is insufficient antecedent basis for this limitation in the claim.
Claim 25 is led to be indefinite as it is unclear if “a container” of line 11 is a newly recited structure or refers back to “the container” of line 10. In light of the original disclosure and in order to apply art the limitation will be interpreted as the latter.
Claim 25 is led to be indefinite as it is unclear if “a container opening” of line 12 is a newly recited structure or refers back to “the container opening” of line 7. In light of the original disclosure and in order to apply art the limitation will be interpreted as the latter.
The limitation of claim 25 of “at least one latch element … configured to be latched in the latch opening” and “at least one latch element, which penetrates the latch opening” is led to be indefinite. Previously the claim recited “only two latch openings”. It is unclear if the claim requires only two latch openings or at least one latch opening. Further, it is unclear if when greater than one latch elements are present, that they be capable of latching into a single latch opening and capable of penetrating a single latch openings. In light of the original disclosure and in order to apply art the claim will be interpreted as if both instances of “the latch opening” read “a respective one of the only two latch openings”.
Claim(s) 12, 14, and 16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Newberry (US 20090101647).
Claim 12: Newberry discloses a container 18, in particular a plastic container (see title), configured to receive some container closure comprising: a casing, an elliptical cover disc which abuts the upper end of the casing, a dispensing opening that is provided in the elliptical cover disc, a first sealing element that is formed on the inner side of the elliptical cover disc and is provided to project sealingly into the container opening, and a cap that closes or opens the dispensing opening, the casing defining only two latch openings diametrically opposite to one another in the casing configured to interact with a latch element of the container 18, and the container 18 comprising: a container opening, a container body, a container neck that surrounds and thereby defines the container opening, and a container shoulder that connects the neck to the container body, and at least one locking tab 66 (latch element) on the container neck configured to be latched in the latch opening of the container closure, wherein the at least one locking tab 66 (latch element) can engage some latch opening on some casing of some container closure whose length exceeds the bounds of the two locking tab 66 of one side of the container 18 (see annotated fig. 1b below).
The first sealing element to project sealingly into the container opening is/are interpreted under 35 U.S.C. 112(f) as cone sealer, truncated cone, and equivalents thereof.
Blow-molded is a product-by-process limitation. “Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted).
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Claim 14: Newberry discloses the at least one locking tab 66 (latch element) being formed on the container neck (see annotated fig. 1b above).
Stretch-blow-molded is a product-by-process limitation. “Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted).
Claim 16: Newberry discloses wherein the container shoulder has a flat shape lying in a horizontal direction (see annotated fig. 1b above).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1, 3, 4, 5, 7, 9, 10, and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chen (US 20160332788) and further in view of Maelstaf (FR 2939413).
Claim 1: Chen discloses a dispenser cap 45 (container closure) for closing a container opening of a container, comprising; a dispenser cap body 45A and tapered portion and tapered portion 45G, together reading on the claimed casing, an outlet surface 45D (elliptical cover disc) which abuts an upper end of the dispenser cap body 45A and tapered portion and tapered portion 45G (casing), a dispensing outlet 45C (dispensing opening) that is provided in the outlet surface 45D (elliptical cover disc), a first sealing element that is formed on an inner side of the outlet surface 45D (elliptical cover disc) and is provided to project sealingly into the container opening, and a lid 45B (cap) that closes or opens the dispensing outlet 45C (dispensing opening), the tapered portion and tapered portion 45G (casing) defining two latch ports 36 (latch openings) diametrically opposite to one another in the dispenser cap body 45A and tapered portion and tapered portion 45G (casing) configured to interact with a latch element (45) of the container (see annotated fig. 7 below).
Chen does not disclose the casing defining only two latch openings diametrically opposite to one another in the casing.
Maelstaf teaches an assembly 1 having a bottle 2 and an insert 4, wherein the bottle 2 has only two windows 14 diametrically opposite to one another and configured to interact with lateral projections 13 of the insert 4 (see fig. 1-2).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the dispenser cap 45 (container closure) to define only two latch ports 36 (latch openings) diametrically opposite to one another and only two associated latch elements (45), as taught by Maelstaf, in order to reduce materials and associated costs.
The first sealing element to project sealingly into the container opening is/are interpreted under 35 U.S.C. 112(f) as cone sealer, truncated cone, and equivalents thereof.
Examiner notes that P. 0065 of Chen discloses that “[d]ispenser cap body 45A may define one or more latch ports 36” which makes clear that Chen does not require four latch ports 36.
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Claim 3: The combination discloses wherein the tapered portion and tapered portion 45G (casing) has an elliptical cross section, wherein the two latch ports 36 (latch openings) are provided on a main axis of the elliptical cross section (see fig. 6 and 4). Examiner notes that a circle is an ellipse.
Claim 4: The combination discloses wherein the at least one latch port 36 (latch opening) has a first latching edge that is oriented parallel to an open end of the tapered portion and tapered portion 45G (casing) and has a shortest distance from the open end of the tapered portion and tapered portion 45G (casing) compared to the other edges of the latch port 36 (latch opening) (see annotated fig. 7 above and annotated fig. below).
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Claim 5: The combination discloses a distance between the first latching edge and the open end of the tapered portion and tapered portion 45G (casing) (see annotated fig. 6 and 7 above).
The combination does not disclose the distance being between 2 and 6 mm or between 2 and 3 mm.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to made the distance between 2 and 6 mm in order to decrease the overall height and save materials and since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or working ranges involves only routine skill in the art. In. re Aller, 105 USPW 233.
Examiner notes that no criticality has been established for either of the claimed ranges.
Claim 6: The combination discloses wherein the at least one latch port 36 (latch opening) has a rounded rectangular shape (see fig. 6-7).
The combination does not disclose wherein the at least one latch opening has a rectangular shape.
Maelstaf teaches a window 14 having a rectangular shape (see fig. 1).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the latch ports 36 (latch openings) to have a rectangular shape, as taught by Maelstaf, in order to better hinder rotation and since this would entail a mere change in shape of the latch ports 36 (latch openings) and yield only predictable results.
Claim 7: The combination discloses wherein the lid 45B (cap) is a hinged cap which is articulated to the tapered portion and tapered portion 45G (casing) (see fig. 6).
Claim 9: The combination discloses a second sealing element formed on an inside of the lid 45B (cap)
The combination does not disclose the second sealing element projecting into the dispensing opening when the cap is placed on the elliptical cover disc.
The combination discloses a prior art dispenser cap 45 (container closure) having all the recited structure, but which differs from the claimed device in that second sealing element surrounds the dispensing outlet 45C (dispensing opening) instead of projecting into the dispensing outlet 45C (dispensing opening) when the lid 45B (cap) is placed on the outlet surface 45D (elliptical cover disc). Maelstaf discloses a prior art insert 4 having a closure member 22 (second sealing element) formed on an inside of a cover 23 and that projects into an orifice 21 (see fig. 1-2). The substitution of one known element (closure member 22 (second sealing element) as shown in Maelstaf) for another (second sealing element as shown in the combination) would have been obvious to one or ordinary skill in the art at the time of the invention since the substitution of the closure member 22 (second sealing element) in Maelstaf would have yielded predictable results, namely, engagement with the dispensing outlet 45C (dispensing opening) in the combination to seal the dispensing outlet 45C (dispensing opening).
The second sealing element for projecting into the dispensing opening is/are interpreted under 35 U.S.C. 112(f) as a plug, and equivalents thereof.
Claim 10: The combination discloses the dispenser cap 45 (closure) has a truncated cone shape (see fig. 6 and P. 0063).
Claim 11: The combination discloses wherein the dispenser cap 45 (closure) is free of an inner casing which that is formed between the tapered portion and tapered portion 45G (casing) and the first sealing element (see annotated fig. 7 above).
Claim(s) 12, 14, 15, 18, and 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Montgomery (US RE38399) further in view of Suffa (US 20040245204).
Claim 12: Montgomery discloses a bottle 2 (container) configured to receive some container closure comprising: a casing, an elliptical cover disc which abuts the upper end of the casing, a dispensing opening that is provided in the elliptical cover disc, a first sealing element that is formed on the inner side of the elliptical cover disc and is provided to project sealingly into the container opening 5, and a cap that closes or opens the dispensing opening, the casing defining only two latch openings diametrically opposite to one another in the casing configured to interact with a latch element of the bottle 2 (container), and the bottle 2 (container) comprising: a container opening 5, a container body, a neck portion 3 (container neck) that surrounds and thereby defines the container opening 5, and a container shoulder that connects the neck portion 3 (container neck) to the container body, and at least one bottle ring lug 10 (latch element) on the neck portion 3 (container neck) configured to be latched in the latch opening of the container closure (see annotated fig. 7 below and fig. 4).
Montgomery does not disclose the container being a blow-molded plastic container.
Suffa teaches a plastic bottle 1 (see P. 0077).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have made the bottle 2 (container) out of plastic, as taught by Suffa, due to plastics moldability, low weight, and low cost and since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
The first sealing element to project sealingly into the container opening is/are interpreted under 35 U.S.C. 112(f) as cone sealer, truncated cone, and equivalents thereof.
Blow-molded is a product-by-process limitation. “Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted).
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Claim 14: The combination discloses the at least one bottle ring lug 10 (latch element) being formed on the neck portion 3 (container neck) (see fig. 4 and 7).
Stretch-blow-molded is a product-by-process limitation. “Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted).
Claim 15: The combination discloses a ring 8 (support ring) on the neck portion 3 (container neck), on which ring 8 (support ring) the at least one bottle ring lug 10 (latch element) projects (see fig. 3, 4 and 7).
Claim 18: The combination discloses two bottle ring lugs 10 (latch elements) formed diametrically opposite one another on the container neck (see C. 3 L. 41-42).
Claim 23: The combination discloses wherein the bottle ring lug 10 (latch element) has a second latching edge capable of interacting with some first latching edge of some latch opening (see annotated fig. 7 above).
Claim(s) 12-14, 16-18, and 23-24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Matsuo (JP 5325847) further in view of Suffa (US 20040245204).
Claim 12: Matsuo discloses a container body 2 (container) configured to receive some container closure comprising: a casing, an elliptical cover disc which abuts the upper end of the casing, a dispensing opening that is provided in the elliptical cover disc, a first sealing element that is formed on the inner side of the elliptical cover disc and is provided to project sealingly into the container opening, and a cap that closes or opens the dispensing opening, the casing defining only two latch openings configured to interact with a latch element of the container body 2 (container), and the container body 2 (container) comprising: a container opening, a container body, an opening portion 3 (container neck) that surrounds and thereby defines the container opening, and a container shoulder 7 that connects the opening portion 3 (container neck) to the container body, and at least one locking portion 10 (latch element) on the container shoulder 7 configured to be latched in the latch opening of the container closure, wherein the at least one locking portion 10 (latch element) can engage some latch opening on some casing of some container closure whose length exceeds the bounds of the two locking portions 10 of one side of the container body 2 (container) (see annotated fig. 1 and 2b below).
Matsuo does not disclose the container being a blow-molded plastic container.
Suffa teaches a plastic bottle 1 (see P. 0077).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have made the container body 2 (container) out of plastic, as taught by Suffa, due to plastics moldability, low weight, and low cost and since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
The first sealing element to project sealingly into the container opening is/are interpreted under 35 U.S.C. 112(f) as cone sealer, truncated cone, and equivalents thereof.
Blow-molded is a product-by-process limitation. “Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted).
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Claim 13: The combination discloses wherein the at least one locking portion 10 (latch element) is formed on the container shoulder 7 (see fig. 1 and fig. 4d).
Extrusion-blow molded is a product-by-process limitation. “Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted).
Claim 17: The combination discloses a ledge, on which the open end of the casing can rest, is formed at a transition from the container shoulder 7 to the container body (see annotated fig. 1 and 2b above).
Claim 18: The combination discloses two locking portions 10 (latch elements) being located on one side and two locking portions 10 (latch elements) located on an opposite side of the container shoulder 7 (see fig. 1).
Matsuo further discloses a container body 2 having a locking portion 10’ formed at a center of the wide surface of the base portion of the container shoulder 7 (see fig. 4a).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the container body 2 (container) to have two locking portions 10 (latch elements) formed diametrically opposite one another on the container shoulder 7, as taught by Matsuo, in order to reduce materials and associated costs.
Claim 23: The combination discloses the locking portion 10 (latch element) having a second latching edge configured to interact with a first latching edge of the latch opening (see annotated fig. 2b above).
Claim 24: The combination discloses the locking portion 10 (latch element) being a step-shaped elevation on the container shoulder 7, wherein a front surface of the elevation is oriented obliquely relative to a longitudinal axis of the opening portion 3 (container neck) (see annotated fig. 1 and 2b above).
Claim 12: Under a second interpretation Matsuo discloses a container body 2 (container) configured to receive some container closure comprising: a casing, an elliptical cover disc which abuts the upper end of the casing, a dispensing opening that is provided in the elliptical cover disc, a first sealing element that is formed on the inner side of the elliptical cover disc and is provided to project sealingly into the container opening, and a cap that closes or opens the dispensing opening, the casing defining only two latch openings diametrically opposite to one another in the casing configured to interact with a latch element of the container body 2 (container), and the container body 2 (container) comprising: a container opening, a container body, container neck that surrounds and thereby defines the container opening, and a container shoulder that connects the container neck to the container body, and at least one locking portion 10 (latch element) on the container neck configured to be latched in the latch opening of the container closure, wherein the at least one locking portion 10 (latch element) can engage some latch opening on some casing of some container closure whose length exceeds the bounds of the two locking portions 10 of one side of the container body 2 (see annotated fig. 1 and 2b above and annotated fig. 2b below).
Matsuo does not disclose the container being a blow-molded plastic container.
Suffa teaches a plastic bottle 1 (see P. 0077).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have made the container body 2 (container) out of plastic, as taught by Suffa, due to plastics moldability, low weight, and low cost and since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
The first sealing element to project sealingly into the container opening is/are interpreted under 35 U.S.C. 112(f) as cone sealer, truncated cone, and equivalents thereof.
Blow-molded is a product-by-process limitation. “Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted).
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Claim 14: The second interpretation combination discloses the at least one locking portion 10 (latch element) being formed on the container neck (see second annotated fig. 2b above).
Stretch-blow-molded is a product-by-process limitation. “Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted).
Claim 16: The second interpretation combination discloses the container shoulder having a flat shape lying in a horizontal direction (see second annotated fig. 2b above).
Claim 18: The second interpretation combination discloses two locking portions 10 (latch elements) being located on one side and two locking portions 10 (latch elements) located on an opposite side of the container neck (see fig. 1).
Matsuo further discloses a container body 2 having a locking portion 10’ formed at a center of the wide surface of the base portion of the container shoulder 7 (see fig. 4a).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the container body 2 (container) to have only two locking portions 10 (latch elements) formed diametrically opposite one another on the container neck, as taught by Matsuo, in order to reduce materials and associated costs.
Claim(s) 19-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Matsuo (JP 5325847) and Suffa (US 20040245204) further in view of Suffa (US 6609637).
Claim 19: The combination discloses the container shoulder 7 having a substantially elliptical shape.
Suffa ‘637 teaches a bottle container 3 having an elliptical shoulder (see annotated fig. 19 below and fig. 18).
It would have been an obvious matter of design choice to one of ordinary skill in the art before the effective filing date to have made the container shoulder 7 be elliptical, as taught by Suffa, in order to strengthen the container body 2 (container) due to the removal of the corners of the substantially elliptical shape. Examiner notes that no criticality has been established for the elliptical shape.
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Claim 22: The combination discloses wherein the two locking portions 10 (latch elements) are formed on a secondary axis of the ellipse (see fig. 4a).
Claim 21: The combination discloses the ledge having a substantially elliptical shape.
Suffa ‘637 teaches a bottle container 3 having an elliptical ledge (see annotated fig. 19 above and fig. 18).
It would have been an obvious matter of design choice to one of ordinary skill in the art before the effective filing date to have made the ledge be elliptical, as taught by Suffa, in order to strengthen the container body 2 (container) due to the removal of the corners of the substantially elliptical shape. Examiner notes that no criticality has been established for the elliptical shape.
Claim 19: The second interpretation combination discloses the container shoulder having a substantially elliptical shape.
Suffa ‘637 teaches a bottle container 3 having an elliptical ledge leading into an elliptical shoulder (see annotated fig. 19 below and fig. 18).
It would have been an obvious matter of design choice to one of ordinary skill in the art before the effective filing date to have made the container shoulder be elliptical, as taught by Suffa, in order to strengthen the container body 2 (container) due to the removal of the corners of the substantially elliptical shape. Examiner notes that no criticality has been established for the elliptical shape.
Claim 20: The second interpretation combination discloses the shoulder having an elliptical cross-section, also has a flat shape lying in the horizontal direction having an elliptical shape (see second annotated fig. 2b above and annotated fig. 19 above).
Claim(s) 25 and 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Newberry (US 20090101647) further in view of Novakoski (US 5810188) and Matsuo (JP 5325847).
Claim 25: Newberry discloses a spice container package 10 (closure system) comprising; a serving lid closure 14 (container closure), comprising: an outer skirt 78 (casing), a platform 42 (cover disc) which abuts an upper end of the outer skirt 78 (casing), a dispensing opening that is provided in the platform 42 (cover disc), an inner rectangular skirt 74 (first sealing element) that is formed on an inner side of the platform 42 (cover disc) and is provided to project sealingly into the container opening, and a flap 62 (cap) that closes or opens the dispensing opening, the outer skirt 78 (casing) defining a plurality of locking slots 70 (latch openings) positioned opposite to one another in the outer skirt 78 (casing) configured to interact with a locking tab 66 (latch element) of the container 18, and a container 18 comprising: a container opening, a container body, a container neck that surrounds and thereby defines the container opening, and a container shoulder that connects the neck to the container body, and at least one locking tab 66 (latch element) on the container neck configured to be latched in the locking slot (latch opening) of the serving lid closure 14 (container closure), wherein the serving lid closure 14 (container closure) latches with the container 18 while being pressed thereon, and wherein a cam surface 82 (front surface) of the at least one locking tab 66 (latch element), which penetrates the locking slot (latch opening), is flush with an outer face of the outer skirt 78 (casing), at least at the lowermost extent of the cam surface 82 (front surface), wherein inventive features may be employed in non-rectangular package designs and/or in other closures (see annotated fig. 1b above, annotated fig. 2 below, and fig. 1a).
Newberry does not disclose an elliptical cover disc or the casing defining only two latch openings diametrically opposite to one another.
Newberry discloses a prior art closure system having all the recited structure, but which differs from the claimed device in that it is generally rectangular and may be used in non-rectangular package designs and/or in other closures but does not explicitly disclose an elliptical shape or elliptical cover disc. Novakoski discloses a prior art hinged closure 1 and container 16 having a substantially rectangular, square, or elliptical cross-section (see C. 28-36: Examiner notes that line 35 appears to be a typo and appears to have been intended to read “also elliptical” as the passage makes clear that the shape of the lid and ring match that of the container and as the major axis of the ellipse would not be present on a rectangle but only on an ellipse). The substitution of one known element (elliptical shape as shown in Novakoski) for another (rectangular shape as shown in Newberry) would have been obvious to one or ordinary skill in the art at the time of the invention since the substitution of the elliptical shape in Novakoski would have yielded predictable results, namely, containment and dispensing in Newberry to permit contents to be held and dispensed.
Matsuo teaches a container body 2 and a lid 1 which are generally elliptical, wherein the lid 1 can have two engagement portions 16 per major side which engage two locking portions 10 per major side of the container body 2 (see fig. 1, 2b, 3a, and 3b) or the lid 1 can have only two protrusions 16’ diametrically opposite to one another which engage only two substantially W-shaped protruding pieces 10’’’ diametrically opposite to one another on the container body 2 (see fig. 4c).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the spice container package 10 (closure system) to have only two locking tabs 66 (latch elements) formed diametrically opposite one another and only two locking slots 70 (latch openings) formed diametrically opposite one another, as taught by Matsuo, in order to reduce materials and associated costs.
The first sealing element to project sealingly into the container opening is/are interpreted under 35 U.S.C. 112(f) as cone sealer, truncated cone, and equivalents thereof.
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Claim 26: The combination discloses wherein an outer surface of the outer skirt 78 (casing) is flush with an outer surface of the container body (see annotated fig. 1b above and fig. 1a).
Response to Arguments
The drawing objections in paragraphs 3 and 6-7 of office action dated 27 September 2024 are withdrawn in light of the amended disclosure filed 12 August 2026.
The 35 U.S.C. § 112 rejections in paragraphs 11-18 and 21-23 of office action dated 27 September 2024 are withdrawn in light of the amended claims filed 12 August 2026.
Applicant’s arguments, see page 12 lines 9-11 and 13-18, filed 12 August 2026, with respect to the rejection(s) of claim(s) 1 under 102 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Chen (US 20160332788) and further in view of Maelstaf (FR 2939413).
Applicant’s arguments, see page 12 lines 9-18, filed 12 August 2026, with respect to the rejection(s) of claim(s) 25 under 102 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Newberry (US 20090101647) further in view of Novakoski (US 5810188) and Matsuo (JP 5325847).
In response to applicant’s argument that both Newberry and Chen actively teach away from a simple two-point latching system as two-point systems were considered insecure for tamper-resistant applications, the Examiner replies that nothing the disclosure of Chen or Newberry criticizes, discredits, or otherwise discourages the solution as is required for a teaching away.
In response to applicant’s argument that Newberry and Chen actively teach away from a single two-point latching system as two-point systems were considered insecure for tamper-resistant applications, the Examiner responds that arguments by applicant cannot take the place of evidence in the record MPEP 716.01(c) II. Applicant provides no factual evidence to support this assertion. Chen provides factual evidence at P. 0065 that “[d]ispenser cap body 45A may define one or more latch ports 36” which makes clear that Chen does not require four latch ports 36.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., easily manipulated by hand) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
In response to applicant’s argument that by restricting the casing to exactly two diametrically opposite latch openings, the present invention achieves an unexpected, toolless “squeeze-to-release” function where a user can easily press opposing outer surfaces of the casing that are not penetrated by the latch openings to elastically deform the casing and release the latch openings from the container’s latch which allows the closure to be easily removed by hand for refilling, the Examiner responds that arguments by applicant cannot take the place of evidence in the record MPEP 716.01(c) II. No evidence of unexpected results have been established. MPEP 716.02(c).
In response to applicant’s argument that restricting the casing to exactly two diametrically opposite latch openings saves substantial material costs compared to Newberry and Chen (no tear strips, no special tools, and no inner casing needed), the Examiner responds that the claims use the transitional phrase of “comprising” which is inclusive or open-ended and does not exclude additional, unrecited elements or method steps. See MPEP 2111.03.
In response to applicant’s argument that the rejection of independent claim 12 has been amended to recite in part “the casing defining only two latch openings diametrically opposite to one another in the casing configured to interact with a latch element of the container” which is not disclosed by Newberry who merely discloses a rectangular spice container cap and does not disclose a container closure with only two diametrically opposite latch openings such that amended independent claim 12 is not anticipated by Newberry, the Examiner replies that independent claim 12 is directed to the subcombination of the container only. No container closure is positively recited in claim 12. All references to the container closure in claim 12 are functional. As the at least one locking tab 66 (latch element) can engage some latch opening on some casing of some container closure whose length exceeds the bounds of the two locking tab 66 of one side of the container 18 the functional limitations regarding the container closure are met.
In response to applicant’s argument that Adams, Maelstaf, Montgomery, Suffa, and Matsuo fails to overcome the deficiencies of Newberry and Chen with respect to independent claim 12 and therefore none of Chen, Newberry, Adams, Maelstaf, Montgomery, Suffa, and Matsuo alone or in combination, teach, disclosure or make obvious independent claim 12 and therefore do not provide proper support for the rejections under section 103, the Examiner responds that multiple 103 rejections were set forth which did not rely on Newberry or Chen in any regard. Applicant must discuss the references applied against the claims, explaining how the claims avoid the references or distinguish from them. Applicant has failed to do so at least for the rejection of claim 12 in view of Montgomery (US RE38399) further in view of Suffa (US 20040245204) and the rejection of claim 12 in view of Matsuo (JP 5325847) further in view of Suffa (US 20040245204)
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 ALLAN D STEVENS whose telephone number is (571)270-7798. The examiner can normally be reached Monday-Friday 12-8 ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Orlando E. Aviles can be reached at (571)270-5531. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALLAN D STEVENS/Primary Examiner, Art Unit 3736
