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 § 103
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) 2-5, 12-14, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Smith (U.S Patent No. 6,415,688) in view of Gross (US Publication No. 20090151513).
Regarding claim 3 Smith teaches (Figures 4, 6, 8, and 9) a portable lifting apparatus capable of removing a protective seal from a medical vial (Figure 9; Col. 10, lines 10-20) comprising a gripping portion (20 and 22) and a lifting portion (16) secured to the gripping portion. The lifting portion extends along a longitudinal directing between forward and rearward ends of the lifting portion. The lifting portion includes a wedge portion (Figure 8) having a pair of arms (26) spaced about the longitudinal axis of the lifting portion and extending apart at an acute angle with an arm spacing (24) between. The arm spacing increases towards the forward end of the lifting portion and each arm member has an inward face facing the inner space and an upwardly directing arm prying surface (38; Figure 4). The lifting portion further includes a backing portion (portion of 16 above 40 in Figure 4) defining a downwardly directed support surface (surface supporting 40 in Figure 4) extending over each of the pair of arm prying surfaces and spaced from the surfaces by a clearance distance (distance of recess 34).
Regarding claim 2, Smith teaches (Figure 8) the first and second arms (26) are linear.
Regarding claim 5, Smith teaches (Figures 4 and 6) all clearance distances between the surface supporting 40 and the prying surfaces are the same.
Regarding claim 12, Smith teaches (Figures 4 and 6) each of the prying surfaces is smooth and planar.
Regarding claim 13, Smith teaches (Figures 4 and 6) the support surface (surface supporting 40) is smooth and planar.
Regarding claim 14, Smith teaches (Figure 8) the rearward ends of the arm members (26) are joined by a curved elbow portion (27). The curved elbow portion has an inward face facing the inner space and an upwardly directed elbow prying surface (Figure 9) coplanar with the arm prying surfaces. The downwardly directed support surface (surface supporting 40) extends over and is spaced from the upwardly directed elbow prying surface.
Regarding claim 21, Smith teaches (Figure 8) the arm members (26) are in a fixed position relative to one another.
Regarding claims 3 and 4, while Smith teaches the pair of arms are formed at an acute angle relative to each other, Smith fails to disclose the angle being less the 40 degrees (Claim 3), and more specifically 30 degrees (claim 4).
Gross teaches (Figures 1 and 5) a lid opening device composed of two arms (21A and 21B) extending at acute angles relative to each other. Gross further teaches it is known to modify the acute angle between the two arms based on the size of the lid/cap to be removed (paragraphs 24, 26, 31).
Based on the teachings of Gross it would have been an obvious matter of design choice to a person of ordinary skill in the art to make the acute angle between the two arms any degree, including less than 40 degrees and more specifically 30 degrees, because discovering an optimal angle between the arms would have been a mere design consideration based on the size of the lid/cap the device was intended to be utilized for. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges only involves routine skill in the art.
Claims 6 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over the modified device of Smith, as applied to claim 5, in view of Lundgren (U.S Patent No. 4,296,653), Westerbeck (U.S Patent No. 913,336), Radovich (U.S Patent No. 2,811,061), and Smith (U.S Patent No. 4,681,358), hereinafter Smith’358.
The modified device of Smith teaches all of the elements of the current invention as stated above except the clearance distance being between 0.15 and 0.2 inches (Claim 6), more specifically 0.17 inches (claim 7).
Lundgren (Figure 1) teaches is known to make a clearance distance (generally 4) large enough to fit a cork. Westerbeck (Figures 2 and 4) teaches it is known to make a clearance distance (distance above ledge 3b) to fit a screw top. Radovich teaches (Figures 3 and 4) it is known to make a clearance distance to fit a film cartridge lid. Smith ‘358 teaches (Figure 2; Col. 3, lines 24-42; Col. 4, lines 65-68) it is known to make the clearance distance between arms and an upper body surface as small as 3/32 inches, .09375 inches, to restrain and open a press tab on a container.
Based on the teachings of Smith, Lundgren, Westerbeck, Radovich, and Smith ‘358 it would have been an obvious matter of design choice to a person of ordinary skill in the art to make the clearance distance any size, including between 0.15 and 0.2 inches and more specifically 0.17 inches, because discovering a optimal clearance distance would have been a mere design consideration based on the type and size of the lid/cap the device was intended to be utilized for. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges only involves routine skill in the art.
Claims 8 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over the modified device of Smith, as applied to claim 2, in view of Lebherz (U.S Patent No. 2,031,420).
Regarding claim 8, Smith teaches the grip portion is attached on top of the lifting portion and have parallel longitudinal axes. Therefore, the modified device of Smith teaches all of the elements of the current invention as stated above except, the gripping portion having a forward end that is secured to the rearward end of the lifting portion and the longitudinal axis of the gripping portion (claim 8), and the gripping portion being an elongated lever handle extending along the longitudinal axis of the gripper (claim 9).
Lebherz teaches (Figures 1, 2, and 4) it is old and well known to have jar and cap opening devices to have the gripping portion be a longitudinally extending handle (8) that extends from a rearward end of a lifting portion (1) wherein both the handle and lifting portion have longitudinal axes that extend parallel to each other.
Because Lebherz teaches an alternative equivalent method of constructing a handle/gripping portion relative to a lifting portion in a lid/cap opening device it would have been obvious to one of ordinary skill in the art to try a handle that extended longitudinally from the lifting portion instead of a ball grip as set forth in Smith in an attempt to improve the portable lifting apparatus by reducing the overall force need to remove a lid/cap by increasing the lever arm length (i.e. adjusting the size and location of the handle/grip).
Claims 10 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over the modified device of Smith, as applied to claims 2 and 14, in view of Perkins (U.S Patent No. 2,503,683), Brix-Hansen (U.S Patent No. 6,378,398), and Grote (U.S Patent No. 3,186,263).
Regarding claims 10 and 15, the modified device of Smith teaches all of the elements of the current invention as stated above except the inward faces of the arms (claim 10) and the elbow (claim 15) being beveled to form an inwardly directed upward surface edge extending more into the inner space than an inwardly directed lower surface edge.
Perkins teaches (Figure 2; Col. 1, lines 33-37) it is known to provide an opening device (10 and 12) with an edge designed to interact and face a screw cap with a face that bevels from an edge that is near the screw cap and an upper surface the cap rests on in use to and edge that is farther from the screw cap. Brix-Hansen teaches (Figure 1) it is known to have a ledge (3) that creates a prying surface to have a beveled surface wherein the beveled inner face surface has an upper edge that is farther within an inner space than a lower edge. Grote teaches (Figures 2 and 3) it is known to provide beveled edges that extend from an upper edge of a top surface closer to the inner space to a lower edge farther away from the inner space (see bevel of members 34 designed to help the radiator cap enter into the cap remover).
Because Perkins, Brix-Hansen, and Grote teach that it is known in lid/cap removal arts to provide a beveled edge on a face designed to interact with a lid/cap it would have been obvious to one of ordinary skill in the art to try a beveled face, with corresponding upper and lower edges wherein the upper edge extends farther into the inner space, on the two arms and elbow of the modified device of Smith in an attempt to allow the modified device of Smith to more easily guide a lid/cap into the device and/or help remove the lid/cap.
Claim(s) 11 is rejected under 35 U.S.C. 103 as being unpatentable over the modified device of Smith, as applied to claim 2, in view of Smith ‘358.
Smith teaches all of the elements of the current invention as stated above except the gripping portion including an aperture extending therethrough.
Smith ‘358 teaches (Figure 2; Col. 3, lines 52-55) teaches it is known to provide an aperture in a gripping portion of an opener to receive a key chain to allow for easier carrying of the device.
It would have been obvious to one of ordinary skill to modify the modified device of Smith to incorporate the teachings of Smith’358 to include an aperture in the gripping portion, and/or modify the gripping portion to make it a longitudinal handle and include the aperture, to allow for easier carrying of the device and/or increase the lever arm length to reduce the force needed by a suer and make the lifting apparatus easier to carry.
Claims 16, 18, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Smith in view of Osborne (U.S Patent No. 6,604,903).
Regarding claim, 16 Smith teaches a method of removing a protective seal (44) from a medicine vial (46; Figure 9; Col. 1, lines 10-21) comprising:
Inserting the seal (44) into an open space (24) between a pair of linear arms (26) of a lifting portion (16) of a portable lifting apparatus. Each of the pair of linear arms have an inward face facing the open space (24) and including an upwardly extending arm prying surface (38) forming a boundary of the open space;
positioning the protective seal within the open space on each pair of the upwardly directed arm prying surfaces (Figure 9); and
lifting, by raising or lowering the gripping portion (Col. 3, lines 59-67 and Col. 4, lines 1-9) which raises or lowers a first end of the lifting portion (16) of the apparatus relative to the vial to pry the protective seal off.
Regarding claim 16, Smith fails to teach the protective seal being secured to a cap of the medicine vial.
Osborne teaches (Figures 1, 5, 6, 9, 9a; Col. 2, lines 1-66) it is old and well known for some medicants to be provided in containers wherein the container (20) has a cap that includes a membrane (30) and a safety seal (50) to make the medicant container tamper proof prior to the use of the contents therein. Further, it is known to remove the safety seal (50) manually prior to use by “popping off” the safety cap.
Because Smith already teaches the use of the device on the caps of medical containers and because Osborne teaches known medical containers can include tamper proof safety seals on top of membrane caps it would have been obvious to one of ordinary skill in the art to try and utilize the device of Smith to “pop off” (examiner considers this synonymous to prying) the cap prior to breaking the membrane seal of a container so a user does not have to complete the task with his or her fingers.
Regarding claim 18, Smith teaches the linear arms (26) are spaced about the longitudinal axis of the lifting portion and extend apart at an acute angle with an arm spacing (24) therebetween. The arm spacing increases towards the forward end of the lifting portion and lesser at the rearward end of the lifting portion. Smith further teaches (Figure 9) positioning of the protective seal (44) within the open space on each of the upwardly directed prying surfaces includes advancing the lifting portion along the longitudinal axis while the protective seal is within the open space (i.e. the container and lid must be moved laterally to sit on the ledge of the elbow).
Regarding claim 20, Smith teaches the lifting portion further includes a backing portion (portion of 16 above 40 in Figure 4) defining a downwardly directed support surface (surface supporting 40 in Figure 4) extending over each of the pair of arm prying surfaces and spaced from the surfaces by a clearance distance (distance of recess 34).
Regarding claim 20, Smith fails to teach leaving the protective seal in the device after removing it from the container and then dumping the cap into a disposal container.
It would have been an obvious matter of design choice to a person of ordinary skill in the art to complete the step of throwing away the seal after removal from the medical container because the seal cannot be replaced and is considered trash once it is removed (as evidenced by Osborne). Further, examiner takes official notice that it is known in the cap removing arts to have either hold a lid/cap remover in a specific orientation, add a receptacle to the lid/cap remover, and/or magnetize the lid/cap remover to ensure the lid/cap can be easily disposed of without potentially falling to the ground and being lost and would have been an obvious matter of design choice to do so.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over the modified method of Smith, as applied to claim 16, in view of Lebherz.
Smith teaches all of the elements of the current invention as stated above except the first gripping portion being an elongated lever handle secured to a rearward end of the lifting portion.
Lebherz teaches (Figures 1, 2, and 4) it is old and well known to have jar and cap opening devices to have the gripping portion be a longitudinally extending handle (8) that extends from a rearward end of a lifting portion (1) wherein both the handle and lifting portion have longitudinal axes that extend parallel to each other.
Because Lebherz teaches an alternative equivalent method of constructing a handle/gripping portion relative to a lifting portion in a lid/cap opening device it would have been obvious to one of ordinary skill in the art to try a handle that extending longitudinally from the lifting portion instead of a ball grip as set forth in Smith in an attempt to improve the portable lifting apparatus by reducing the overall force need to remove a lid/cap by increasing the lever arm length (i.e. adjusting the size and location of the handle/grip). The combination would in turn meet the limitation of lifting the forward end of the lifting portion by lowering the handle due to Smith already teaching the tilting method step to remove the seal.
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over the modified method of Smith, as applied to claim 18, in view of Gross.
The modified device of Smith teaches the pair of arms are formed at an acute angle relative to each other but fails to disclose the angle being less the 40 degrees.
Gross teaches (Figures 1 and 5) a lid opening device composed of two arms (21A and 21B) extending at acute angles relative to each other. Gross further teaches it is known to modify the acute angle between the two arms based on the size of the lid/cap to be removed (paragraphs 24, 26, 31).
Based on the teachings of Gross it would have been an obvious matter of design choice to a person of ordinary skill in the art to make the acute angle between the two arms any degree, including less than 40 degrees, because discovering an optimal angle between the arms would have been a mere design consideration based on the size of the lid/cap the device was intended to be utilized for. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges only involves routine skill in the art.
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over the modified method of Smith, as applied to claim 16, in view of Perkins, Brix-Hansen, and Grote.
Regarding claim 22, the modified method of Smith already teaches removing a flush mounted protective seal (see Figure 1 of Osborne, which is identical to Figure 1 of the instant application; i.e. the term flush mounted need not mean have the same diameter but instead just mean “directly abutting or immediately adjacent”). Further, Smith teaches (Figures 4, 6, and 8) each arm (26) having upper and lower edges that diverge from one another along a longitudinal axis of the open space. Lastly, the combination of Smith and Osborne in the rejection of claim 16 necessarily teaches “inserting the protective seal into the open space includes inserting the protective seal along the longitudinal axis and simultaneously sliding the upper edges of the arms between the protective seal and the cap of the medicine vial because as can be seen below in modified Figure 5 the interaction would occur between the seal and at least a portion of the cap.
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Therefore, the modified device of Smith teaches all of the elements of the current invention as stated above except the inward face of each arm member being a beveled face with an arm inwardly directed surface upper edge extending further into the inner space than an arm inwardly directed surface lower edge.
Perkins teaches (Figure 2; Col. 1, lines 33-37) it is known to provide an opening device (10 and 12) with an edge designed to interact and face a screw cap with a face that bevels from an edge that is near the screw cap and an upper surface the cap rests on in use to and edge that is farther from the screw cap. Brix-Hansen teaches (Figure 1) it is known to have a ledge (3) that creates a prying surface to have a beveled surface wherein the beveled inner face surface has an upper edge that is farther within an inner space than a lower edge. Grote teaches (Figures 2 and 3) it is known to provide beveled edges that extend from an upper edge of a top surface closer to the inner space to a lower edge farther away from the inner space (see bevel of members 34 designed to help the radiator cap enter into the cap remover).
Because Perkins, Brix-Hansen, and Grote teach that it is known in lid/cap removal arts to provide a beveled edge on a face designed to interact with a lid/cap it would have been obvious to one of ordinary skill in the art to try a beveled face, with corresponding upper and lower edges wherein the upper edge extends farther into the inner space, on the two arms and elbow of the device of Smith in an attempt to allow the device of Smith to more easily guide a lid/cap into the device and/or help remove the lid/cap.
Response to Arguments
Applicant's arguments filed 12/18/2025 have been fully considered but they are not persuasive.
Regarding applicant’s argument that examiner’s statement of obviousness is conclusory examiner turns to Gross, paragraphs 24, 26, 31 specifically, that in combination clearly establish the acute angle formed/found between the arms of the wedge on a lid opening device is a result effective variable, i.e. it is based on the diameter of the lid that the device is intended to be used to open wherein a smaller diameter lid requires the arms to be formed of a smaller acute angle. Further, Gross would inform one of ordinary skill of a range of angles that would be obvious to try. Additionally, applicant has presented no argument, or evidence, that the acute angle would not be recognized as “result effective” and as such the rejection stands.
Regarding the arguments directed to lifting vs. gripping vs. twisting, both gripping and twisting require the engagement/interaction of a tool’s arms with an outer portion of the lid, whether it is the bottom surface of the outer diameter or the outer circumferential surface, and as such each of these types of tools and how they are configured are relevant to each other.
Regarding claim 21, and the “fixed” language. Examiner never in the rejection discusses making the arms adjustable relative to each other. Instead, examiner is highlighting that it is known to construct a device having arms of any acute angle, including those claimed.
Regarding claim 16, and the difference between a “lid” and a “seal”, examiner considers any lid on a medical container to be a seal as a seal in its broadest reasonable definition need only be “something that secures” which a lid does. Regarding examiner’s statement that the seal is a “light, disposable material” this is not disclosed in the specification as a special definition but appears to be instead exemplary of what a seal could be. Further, nearly any lid could be considered both light and disposable as these are relative and more based on the decisions of a user.
Regarding the combination of Smith and Osborne, Osborne sets forth clearly that there is a need to help users remove safety caps from medical containers as prior to the device of Osborne these caps were popped off by hand (end of column 2). If this was commonly done by hand and Osborne identifies that it can be completed in a manner other than via the use of a person’s fingers this appears to be enough for one or ordinary skill to at least try the device of Smith on the lid as identified in Osborne in an attempt to reduce fatigue since Smith has identified it is known to use this type of seal/lid/cap removal device on medical containers.
Regarding arguments directed to claim 22, the claim as written is broader than it is believed that applicant intended. However, because there is no Figure of what applicant has considered flush mounted, and because the instant application utilizes figures that point to an identical seal construction as Osborne which has an overhang (see how 50 is used throughout Osborne and how the connections between 50 and 40 in both the instant application and Osborne show the connections in 50 being closer to a central axis than those same connection markings found in 40) it would appear to be inappropriate, and potentially new matter, for examiner to utilize any other definition as paragraph 69 is not specific enough in its description of the method to indicate the beveled edge can or is inserted between 40 and 50 if 50 had the same diameter as 40.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Ives (U.S Patent No. 864,378), Thompson (U.S Patent No. 987,268), Haase (U.S Patent No. 1,707,804), Eames (U.S Patent No. 1,837,257), Lepkowski (U.S Patent No. 2,564,536), Webb et al (US Design Patent No. D512,288), Flint (U.S Design Patent No. D627,614), and Hamlin (US Design Patent No. D927,281) teach elements of the current invention.
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 EDWARD F LANDRUM whose telephone number is (571)272-5567. The examiner can normally be reached M-F 8-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Marivelisse Santiago-Cordero can be reached at 571-272-7839. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/EDWARD F LANDRUM/ Supervisory Patent Examiner, Art Unit 3761