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 § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 2 and 22 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. The limitation “the plurality of projections is solid” was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art the meaning of being solid. For the purpose of examination, solid is treated as firm and stable/keeping in shape.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1-3 and 5-7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kelly et al. (Kelly US 10,000,321) in view of Dominguez et al. (Dominguez US 2015/0151869) and further in view of Overholt (US 6,530,476).
1: Kelly teaches a system for palletizing containers (system shown in Figure 2, with the tray embodiment of Figures 15-17), comprising: a pallet (see pallet in Figure 2);
at least two layers (layers first and second, see Figure 14 below) of containers disposed on top of the pallet, each layer including a plurality of containers having a spout (containers shown in Figure 2, where the spouts are located at the top of the containers, at the top of Figure 2, top of containers B3); and a tier sheet disposed between the layers of containers (tier sheet shown in Figure 2, with the embodiment of Figure 15-17, disposed between the two layers); wherein the tier sheet includes a top portion (see top portion in Figure 17 below) and a plurality of projections (see projections shown in Figure 17 below, where in only two of many projections are shown) that extend downwardly from the top portion of the tier sheet (see Figure 17 below); the projections of the plurality of projections are configured to straddle the spouts of the plurality of containers in a layer below the tier sheet (see the projection straddling container/bottles shown in Figure 2 and 7); and a space or gap is provided between an uppermost portion of the spouts and the top portion of the tier sheet provided above the spouts (gap at the top area of the projections, wherein the gap faces the bottles); each of the plurality of projection is connected only at the top portion (see the projections connected at the top portion, Figure 17) and has a distal end that is unattached and spaced apart from adjacent projections (see the bottom of projections spaced from adjacent projections in Figure 17) except that the containers are plastic and the tier sheet is made of polymer.
Dominguez that molded containers are made from a plastic material (col. 1, ll. 11-27).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Kelly such that the teaching of containers being made from plastic were applied since such a material is a commonly used material in the art for liquid containers and provide resistant to abrasion, scuffing and further resistant to drops and impact. Furthermore, 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. In re Leshin, 125 USPQ 416.
Kelly-Dominguez teaches the claimed invention as discussed above except that the tier sheet is made of a polymer material.
Overholt teaches that HDPE as the material of choice for stacking member 10.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Kelly-Dominguez such that the material of choice for stacking member/tier sheets are made from a polymer material such as HDPE were applied since such a material is a commonly used material in the art for tier sheets/stacking members and provide resistant to abrasion, scuffing and further resistant to drops and impact. Furthermore, 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. In re Leshin, 125 USPQ 416.
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2: Kelly-Dominguez-Overholt teaches the claimed invention as discussed above for Claim 1 and Kelly further teaches that the plurality of projections are solid (interpreted as firm and stable/keeping in shape, where the projections are capable of keeping in shape and are firm, made from HDPE) the top portion (as measured in the drawings) is approximately 1.5mm and the thickness of the top portion of the projection, proximate the top portion (as measured in the drawings) is approximately 3 mm, except for the explicit teaching of in cross section, a thickness of the top portion is one-half or less than a thickness of each of the plurality of projections.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Kelly-Dominguez-Overholt such that the teaching of a thickness of the top portion is one-half or less than a thickness of each of the plurality of projections were applied in order to hold the containers being mounted are held in place and limit shifting of the containers during transport and furthermore, the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233, MPEP 2144.05.
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3: Kelly-Dominguez-Overholt teaches the claimed invention as discussed above for Claim 1 and Kelly further teaches that the top portion and the plurality of projections are integrally formed as a single or unitary component (see Figures 15-17 where the projections are integrally formed).
5: Kelly-Dominguez-Overholt teaches the claimed invention as discussed above for Claim 1 and Kelly further teaches that the projections extend along the tier sheet in separated rows and/or columns (each projections are separate individual elements, either in rows or columns, see Figures 15-17).
6-7: Kelly-Dominguez-Overholt teaches the claimed invention as discussed above for Claim 1 except for the explicit teaching in the embodiment of Figures 13-15 that more than one layer of a plurality of containers and tier sheet in between each layer is provided.
However, Kelly teaches a three-tier system shown in Figures 1-2 with tier sheets in between each tier.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Kelly-Dominguez-Overholt such that an additional tier(s) and corresponding tier sheet were provided for since the system of Kelly is capable of being stacked with additional layers, (col. 4, ll. 56 – col. 5, ll. 11).
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kelly et al. (Kelly US 10,000,321) in view of Dominguez et al. (Dominguez US 2015/0151869), Overholt (US 6,530,476) and further in view of Lidster (US 2020/0140143).
4: : Kelly-Dominguez-Overholt teaches the claimed invention as discussed above for Claim 1 except the tier sheet is in position with palletized spouted containers, all portions of the tier sheet are a minimum distance of 0.25 inches (6.35 mm) from the spout.
Lidster teaches air gap 250, Figure 9 having a spacing of 1/4 to 1 inch (paragraph 0049).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Kelly-Dominguez-Overholt such that the tier sheet is in position with palletized spouted containers, all portions of the tier sheet are a minimum distance of 0.25 inches from the spout in order to improve air flow or circulation to avoid moisture build up (paragraph 0049), and to avoid applying load to the spout of containers/bottles.
Claim(s) 8-9, 11-16, 18-20, and 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kelly et al. (Kelly US 10,000,321) in view of Overholt (US 6,530,476).
8-9: Kelly teaches a tier sheet for dividing tiers of containers (tier sheet shown in Figure 2, with the embodiment of Figure 15-17, disposed between the two layers of unclaimed containers), comprising: a top portion (see Figure 17 above); and a plurality of projections (see Figure 17 above) that extend downwardly from the top portion; and each of the plurality of projections is connected only at the top portion (see the projections connected at the top portion, Figure 17) and has a distal end that is unattached and spaced apart from adjacent projections (see the bottom of projections spaced from adjacent projections in Figure 17) except for the explicit teaching that the tier sheet is comprised of a polymer, such as high-density polyethylene (HDPE), polycarbonate (PC), or acrylonitrile butadiene styrene (ABS).
Overholt teaches that HDPE as the material of choice for stacking member 10.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Kelly such that the material of choice for stacking member/tier sheets are made from a polymer material such as HDPE were applied since such a material is a commonly used material in the art for tier sheets/stacking members and provide resistant to abrasion, scuffing and further resistant to drops and impact. Furthermore, 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. In re Leshin, 125 USPQ 416.
11: Kelly-Overholt teaches the claimed invention as discussed above for Claim 8 and Kelly further teaches that the top portion is substantially flat (top portion is substantially flat, see Figure 15).
12: Kelly-Overholt teaches the claimed invention as discussed above for Claim 8 and Kelly further teaches that the top portion and the plurality of projections are integrally formed as a single or unitary component (see Figure 15 where the projections are integrally formed).
13: Kelly-Overholt teaches the claimed invention as discussed above for Claim 8 and Kelly further teaches that the top portion and the plurality of projections are two separate assembled or connected components (the top portion and projection are connected components, see Figures 15-17).
14: Kelly-Overholt teaches the claimed invention as discussed above for Claim 8 and Kelly further teaches that the projections extend along the tier sheet in separated rows and/or columns (each projections are separate individual elements, either in rows or columns, see Figures 15-17).
15: Kelly-Overholt teaches the claimed invention as discussed above for Claim 8 and Kelly further teaches that the projections include substantially vertical sides (see Figure 15, where the sides of the projection are substantially vertical but not completely vertical).
16: Kelly-Overholt teaches the claimed invention as discussed above for Claim 8 and Kelly further teaches that one or more projections include at least one tapered side (see tapered sides in Figure 17 where the top of the protrusion is thicker than the bottom of the protrusion).
18: Kelly-Overholt teaches the claimed invention as discussed above for Claim 8 and Kelly further teaches that a plurality of non-end projections each have two tapered sides (see two taper sides on opposing ends of 1227, Figure 16).
19: Kelly-Overholt teaches the claimed invention as discussed above for Claim 8 and Kelly further teaches that an end projection and a non-end projection have different end widths (see tapered sides in Figure 17 where the top of the protrusion is thicker than the bottom of the protrusion, the widths of the projections are different).
20: Kelly-Overholt teaches the claimed invention as discussed above for Claim 8 and Kelly further teaches that one or more projections include end portions having a radius (end portion at Figure 16 has a radius, at 1220).
22: Kelly teaches a tier sheet for dividing tiers of containers (tier sheet shown in Figure 2, with the embodiment of Figure 15-17, disposed between the two layers of unclaimed containers), comprising: a top portion (see Figure 17 above); and a plurality of projections that extend downwardly from the top portion (see Figure 17 above); wherein each of the plurality of projections is connected only at the top portion (see the projections connected at the top portion, Figure 17) and has a distal end that is unattached and spaced apart from adjacent projections (see the bottom of projections spaced from adjacent projections in Figure 17); the plurality of projections are configured to straddle upper portions of said containers and to provide a space or gap between an uppermost portion of said containers (gap at the top area of the projections, wherein the gap faces the unclaimed bottles) and the top portion of the tier sheet disposed above the uppermost portion of said containers; the top portion has a thickness (top portion has a thickness, see Figure 17 above); each of the plurality of projections is solid (solid, interpreted as firm and stable/keeping in shape, where the projections are capable of keeping in shape and are firm) and has a thickness (thickness along 1226, Figure 17); except that the tier sheet is made of a polymer material.
Overholt teaches that HDPE as the material of choice for stacking member 10.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Kelly such that the material of choice for stacking member/tier sheets are made from a polymer material such as HDPE were applied since such a material is a commonly used material in the art for tier sheets/stacking members and provide resistant to abrasion, scuffing and further resistant to drops and impact. Furthermore, 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. In re Leshin, 125 USPQ 416.
Kelly-Overholt teaches the claimed invention as discussed above and Kelly further teaches that the plurality of projections are solid (interpreted as firm and stable/keeping in shape, where the projections are capable of keeping in shape and are firm, made from HDPE) the top portion (as measured in the drawings) is approximately 1.5mm and the thickness of the top portion of the projection, proximate the top portion (as measured in the drawings) is approximately 3 mm, except for the explicit teaching of in cross section, a thickness of the top portion is one-half or less than a thickness of each of the plurality of projections.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Kelly-Dominguez-Overholt such that the teaching of a thickness of the top portion is one-half or less than a thickness of each of the plurality of projections were applied in order to hold the containers being mounted are held in place and limit shifting of the containers during transport and furthermore, the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233, MPEP 2144.05.
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kelly et al. (Kelly US 10,000,321) in view of Overholt (US 6,530,476) and further in view of Frenkel et al. (Frenkel US 5,226,372).
10: Kelly-Overholt teaches the claimed invention as discussed above for Claim 8 except that the top portion has a thickness of about 0.0625 inches.
Frenkel teaches that the slip pallet has a thickness of between about 0.040 and 0.125 inches, col. 1, ll. 45-51.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Kelly-Overholt such that the teaching of a thickness of the top portion is about 0.0625 inches were applied since the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233, MPEP 2144.05.
Claim(s) 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kelly et al. (Kelly US 10,000,321) in view of Overholt (US 6,530,476) and further in view of Ohanesian (US 6,446,563).
17: Kelly-Overholt teaches the claimed invention as discussed above for Claim 8 except that the at least one tapered side has a taper of 10 degrees or less.
Ohanesian teaches that the angle of taper of legs 108 are approximately 8 degrees from vertical (col. 9, ll. 24-49).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Kelly-Overholt such that the teaching of a taper of the projection is 10 degrees or less, such as 8 degrees were applied in order to permit the legs or protrusion element to provide sufficient area to accommodate elements being inserted into an area formed by the legs or protrusions.
Claim(s) 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kelly et al. (Kelly US 10,000,321) in view of Overholt (US 6,530,476) and further in view of Frenkel et al. (Frenkel US 5,226,372).
21: Kelly-Dominguez-Overholt teaches the claimed invention as discussed above for Claim 8 except that the tier sheet a thickness of about 0.0625 inches.
Frenkel teaches that the slip pallet has a thickness of between about 0.040 and 0.125 inches, col. 1, ll. 45-51.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Kelly-Dominguez-Overholt such that the teaching of a thickness of the top portion is about 0.0625 inches were applied since the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233, MPEP 2144.05.
Response to Arguments
Applicant's arguments filed 11/20/2025 have been fully considered and they have been addressed above in the rejections of the Claims and the arguments are addressed below.
Applicant’s arguments with respect to claim(s) 1-20 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
In reference to Applicant’s arguments that a tier sheet is fundamentally distinct from a pallet or stacking tray based on structure, function, and thickness characteristics and Kelly does not teach a thickness or does not discuss a tier sheet and more in the nature as something to avoid or overcome. The Examiner respectfully disagree.
In reference to the pallet/stacking tray and tier sheets, an inventor considering a separation element to container or permit stacking of containers would naturally look to references employing other “pallet type containers, means for stacking, trays, sheets, etc.…” which in that case came from areas such as “pallets, containers, receptacles, trays etc.…” In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1380 (Fed. Cir. 2007) (citing In re Paulsen, 30 F. 3d 1475, 1481 (Fed. Cir. 1994). As cited above in the references, thickness can range from approximately 0.040 and 0.125 inches, as taught by Frenkel and discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233, MPEP 2144.05.
Applicant further argues with respect to Ohanesian that the thickness taught in that reference is necessary to provide sufficient rigidity to the structure for load bearing purposes. The Ohanesian was relied upon to teach that taper degree of the projection as claimed and was not relied upon for its teaching of the thickness.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, the references themselves came from areas such as receptacles, containers, and stacking features and the teachings, suggestion, or motivation to combine are taught above in the rejections of the Claims.
In reference to the remaining claims, Applicant argued that the applied references for those remaining claims failed to teach their respective claimed features by referring back to the now addressed claim(s) (see above). Applicant did not specifically and particularly point out the specifics of the applied reference(s) that failed to meet the remaining claims.
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 KING M CHU whose telephone number is (571)270-7428. The examiner can normally be reached Monday - Friday 10AM - 6PM EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anthony Stashick can be reached at (571) 272 - 4561. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/King M Chu/Primary Examiner, Art Unit 3735