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 .
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the injection-moulding point on the closure part of claim 13 must be shown or the features canceled from the claims. No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The disclosure is objected to because of the following informalities: on page 13, line 26 references the pouring element with a reference character that does not appear in the drawings (“V”). Appropriate correction is required.
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.
Claims 1-8, and 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over Himmelsbach et al. (US 2013/0256336) in view of Chen (US 2011/0147414).
Regarding claim 1, Himmelsbach et al. substantially disclose the claimed pouring element including a main body (2) with a flange (5), a hollow cylindrical spout (7), which defines a central axis (15), and a closure part formed in the spout (16), which runs orthogonal to the central axis (Fig. 1), with a central region (thicker central portion of 16) and a weakening zone (17) running in a ring shape around the central region (Paragraph 0039), wherein a conical ring-shaped intermediate region is formed between the weakening zone and the central region (tapering region where 16 transitions to 17; see annotated Fig. 5 below), a hollow cylindrical cutting element (3; Figs. 1, 10-13) movably guided in the spout (Paragraph 0038) with at least one cutting tooth (14) for severing the weakening zone to open the spout and composite package, a reclosable screw cap (4), which serves to drive the cutting element when the composite package is opened for the first time (Paragraph 0038).
Himmelsbach et al. is silent regarding the cutting element and the closure part being designed such that at least one part of a projection of the cutting tooth lies parallel to the central axis on the intermediate region.
Chen teaches a cutting element (52) with a cutting tooth (527), and a closure part (44) with an intermediate region (442 has a thickness decreasing in the radial direction, thus forming a conical, ring-shaped region; Paragraph 0023; Figs. 6-8) connecting a thicker central region with a weakening zone (where separation occurs at the outer periphery, see Fig. 8 wherein 442 remains attached to the central region after separation) where at least one part of a projection of the cutting tooth (see annotated Fig. 7 below) along a central axis lies on the intermediate region. Chen teaches that this arrangement improves the cutting of the closure (“the tapering design of the peripheral area 442 guides the cutting action and facilitates the cutting,” Paragraph 0032).
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Annotated Fig. 5 of Himmelsbach et al.
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Annotated Fig. 7 of Chen
It would have been obvious to one having ordinary skill in the art before the effective filing date of the application to configure the cutting element and closure part of Himmelsbach et al. so that at least one part of the cutting tooth contacts the tapered intermediate region, as taught by Chen, in order to guide and facilitate the cutting of the closure. One having ordinary skill in the art would have recognized through the teaching of Chen that simply extending the intermediate region of Himmelsbach et al. a small amount would provide the improved cutting of the teaching, and that this modification could be implemented with predictable results.
Regarding claim 2, Himmelsbach et al. further disclose that the weakening zone has less than 50% of the height of the central region measured parallel to the central axis (apparent from annotated Fig. 5 above).
Regarding claims 3-4, Himmelsbach et al. further disclose that the weakening zone extends between an inner radius and an outer radius orthogonal to the central axis (see annotated Fig. 5 above). It is apparent from the annotated figure above that the difference between the inner radius and the outer radius may be at least twice as large, measured parallel to the central axis, as the height of the weakening zone.
Regarding claim 5, Himmelsbach et al. in view of Chen is silent regarding an inner radius of the hollow cylindrical cutting element comprising a maximum of 95% of the inner radius of the weakening zone. Instead, Chen teaches that the cutting element is guided by contact with the tapering intermediate region, as described above regarding claim 1. The Federal Circuit has held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. MPEP 2144.04(IV)(A) (discussing Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984)).
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Himmelsbach et al. in view of Chen by causing an inner radius of the hollow cylindrical cutting element to be 95% or less of the inner radius of the weakening zone. Applicant appears to have demonstrated no criticality of any particular dimension (see page 6, lines 25-27 of the Specification, which merely states “an improved effect” is enabled by the overlapping of the cutting element and intermediate region) and it appears that the device of Himmelsbach et al. in view of Chen would work appropriately if made within the claimed range of dimensions.
Regarding claim 6, Himmelsbach et al. further disclose that the weakening zone connects directly to the spout (Fig. 1).
Regarding claims 7-8, Himmelsbach et al. further disclose that an inside surface of the cutting tooth includes a ground section at an end facing the weakening zone (see 14 in Fig. 5) and that the ground section of the cutting tooth rotates about the central axis and continuously transitions from a chamfered inner surface into an inner surface parallel to the central axis (see chamfered edge in Fig. 5 and inner surface of 3 parallel to central axis in Figs. 1, 10-13).
Regarding claim 11, Himmelsbach et al. in view of Chen is silent regarding an amount of the surface of the intermediate region facing the cutting element being covered by a projection of the cutting element parallel to the central axis. Instead, Chen teaches that the benefit of the tapering intermediate region is that it guides the cutting element, as described above regarding claim 1, and thus there would be no apparent reason to extend the intermediate region a significant amount beyond the area of contact with the cutting element. The Federal Circuit has held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. MPEP 2144.04(IV)(A) (discussing Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984)).
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Himmelsbach et al. in view of Chen by causing at least 30% of a surface of the intermediate region facing the cutting element to be covered by a projection of the cutting element parallel to the central axis. Applicant appears to have demonstrated no criticality of any particular amount of coverage (see page 8, lines 20-21 of the Specification, which merely states that “such a coverage is useful in order to further intensify the effect of the invention”) and it appears that the device of Himmelsbach et al. in view of Chen would work appropriately if made within the claimed range of dimensions.
Regarding claim 12, Himmelsbach et al. further disclose that the cutting element has two cutting teeth (Figs. 10-13).
Regarding claim 13, Himmelsbach et al. further disclose that an injection-moulding point is located on the closure part on the central axis (main body and closure can be produced in one piece via injection molding, Paragraph 0010; see bump in center of closure in Fig. 1).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Himmelsbach et al. in view of Chen, and further in view of Barron (US 2014/0137717).
Himmelsbach et al. in view of Chen renders the pouring element according to claim 1 obvious, as described above. Himmelsbach et al. in view of Chen do not explicitly disclose that the cutting tooth extends at an end facing the weakening zone in a circumferential direction in a plane orthogonal to the central axis.
Barron teaches a rotatable cutting device for a package closure with a cutting tooth (101) that extends at an end (1011, 1012) facing the closure in a circumferential direction (Figs. 3-4) in a plane orthogonal to the central axis (Paragraph 0013). Barron teaches that this blunted tip design results in a stable tooth tip that achieves a smooth, clean cutting line (Paragraph 0013).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the application to provide the invention of Himmelsbach et al., modified by Chen as described above, with the tooth tip configuration taught by Barron in order to provide a stable tooth tip that produces a clean cut in the closure.
Claims 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over Hauser et al. (US 2019/0144158) in view of Himmelsbach et al. and further in view of Chen.
Hauser et al. disclose a composite package (P) for liquid foodstuffs having a pouring element (A) integrated into a gable region (1) of the composite package (Paragraphs 0034-0035, Fig. 1). Hauser et al. do not disclose a pouring element according to claim 1, or that the gable region has polyhedral gable surfaces, which are correspondingly connected to a polyhedral flange of the pouring element.
Himmelsbach et al. in view of Chen renders the pouring element according to claim 1 obvious, as described above. Himmelsbach et al. teaches that the disclosed pouring element is intended for use in packaging for liquid foods (see the Abstract), and teaches a configuration having a polyhedral flange (5’’, Figs. 3-4) for connecting to correspondingly configured packaging (6, Paragraphs 0041-0042). Himmelsbach et al. teach that the polyhedral flange design provides improved connection to the packaging (Paragraph 0041).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the application to provide the composite package of Hauser et al. with the modified pouring element taught by Himmelsbach et al. in view of Chen as a simple substitution for the pouring element disclosed by Hauser et al. One of ordinary skill in the art would have been capable of performing the substitution with predictable results. It would have further been obvious to one having ordinary skill in the art before the effective filing date of the application to provide the package with polyhedral gable surfaces correspondingly connected to the polyhedral flange of the alternative pouring element configuration taught by Himmelsbach et al., similarly modified in view of Chen, in order to provide an improved connection between the packaging and the flange.
Response to Arguments
Applicant's arguments filed 9/9/2025 have been fully considered but they are not persuasive. In response to applicant's argument that Examiner’s annotated Fig. 7 of Chen provided in the Office Action dated 6/9/2025 “misinterprets the weakening zone as the intermediate region” and that the intermediate zone is “located further inward than indicated in the annotated drawing” (Remarks, page 11, last full paragraph), a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. Examiner notes that Chen has clearly labeled region 442, both in intact form (Fig. 7) and still connected to the central region after separation occurs at the weakening zone (where the closure part meets the circular wall 43; Fig. 8). Though it is not clear from the illustrations of Chen, Chen describes 442 in this way: “The thinner portion 442 extends radially from thicker portion 441 to the inner circular wall 43. The thickness of the thinner portion 442 decreases in the radial direction.” (Paragraph 0023). Thus, Examiner maintains that Chen teaches a structure in 442 which meets the limitation “a conical ring-shaped intermediate region is formed between the weakening zone and the central region” as recited in claim 1. Further, Chen teaches that the tapered/conical nature of this structure improves cutting (Paragraph 0032), and one having ordinary skill in the art would recognize the similarity between this feature and the intermediate region of Himmelsbach et al., thus providing a motivation to modify the device of Himmelsbach et al. to arrive at the invention as claimed in claim 1.
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., that “Chen does not teach positioning the cutting element at least partially above the intermediate region in a direction parallel to the central axis” and that the “cutting tooth of Chen above the intermediate region is angled, not parallel, relative to the central axis”; Remarks page 12, first full paragraph) 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). Examiner is unsure what portion of the cutting tooth of Chen would not be parallel relative to the central axis, as it is apparent from the figures that the cutting tooth is formed from circular column 52, which is coaxial with the central axis. In any case, applicant has confirmed that the claim is properly interpreted to mean that a part of a projection of the cutting tooth along the central axis (see Remarks page 10, first paragraph), and not the cutting tooth itself, has a relationship with the intermediate region, and Examiner maintains that the claimed relationship can be satisfied by the device of Himmelsbach et al. in view of the teaching of Chen.
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 MICHAEL C PATTERSON whose telephone number is (571)270-5558. The examiner can normally be reached M-F 7:30-4:00 CST.
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/MICHAEL C PATTERSON/Examiner, Art Unit 3754
/PAUL R DURAND/Supervisory Patent Examiner, Art Unit 3754 October 31, 2025