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 .
The previous Office action is hereby withdrawn in favor of the current Office action in view of the filing of the Appeal by the applicant.
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) 1-9 and 11-41 is/are rejected under 35 U.S.C. 103 as being unpatentable over Vernizeau et al. (9,371,082 cited by the applicant) in view of Hoffman (4,181,555) and further in view of Hamburger (1,430,643).
Vernizeau discloses most of the features of the claims (and Vernizeau does so apparently utilizing the same or similar nomenclature as used in the subject application claims). Thus, for example, Vernizeau discloses an injection device (injection device 1 in Vernizeau) comprising a container body (container 2 in Vernizeau or the body of container 2) configured to contain a pharmaceutical material (the Vernizeau container body can contain some pharmaceutical) and a film (heat-shrinkable film 9 in Vernizeau that can comprise writing W, such as a brand name, as disclosed in column 4 lines 13-16 and Fig 5) disposed over the container body, as recited in claim 1.
Vernizeau may not disclose that the film has a beveled corner as also required in claim 1. However, the claimed film is a label (see the instant application specification at [0006], for example), as can be the film of Vernizeau in at least the embodiment pointed to above (refer again to column 4 lines 13-16 and Fig. 5 which discloses an embodiment in which the film can have writing W thereon that can include a brand name). Thus, Hoffmann is applied to show that shaped labels for application to containers can have beveled corners. Note Hoffman at Fig. 7 and column 4 lines 14-18, as well as the background knowledge in the art, as disclosed in column 1 lines 5-19 of Hoffman, for example only. Therefore, it would have been obvious in view of Hoffmann to provide for the film of Vernizeau to have a beveled corner, as required in claim 1, in order to make the label and the container to which the label is attached more attractive to a potential user/purchaser of the label and/or the container to which the label is attached, and/or in order to save materials in providing the Vernizeau labels, thereby making the Vernizeau injection device more economical to produce.
However, Vernizeau and Hoffman as applied above do not meet the asymmetric limitation added to claim 1 from claim 10. However, Hamburger is applied to show that in a label having beveled corners (see 16 and 17 in Hamburger Fig. 1), the label can have only two beveled corners and the bevels can extend in directions that are not parallel with one another. at as set forth in the previous rejections one having ordinary skill in the art has the skill to provide a rectangular or other shaped label having beveled corners with less than four beveled corners (for example with two beveled corners 16, 17) with the bevels extending at different angles (see Hamburger in the second column on the first page of text at lines 62-67 thereof). Therefore, it would have been further obvious in view of Hamburger to provide the modified label of Vernizeau having beveled corners, to have only two beveled corners with the bevels running non-parallel to each other, in order to make the label and the container to which the label is attached even more attractive in particular applications.
The features of the claims not disclosed in Vernizeau modified as above appear from the prior art of record to be well within the level of skill of one of ordinary skill in the relevant art to provide. So for example, the claimed specific lengths or angles of extent of the bevel are well within the level of skill of one having ordinary skill in the relevant art to provide given the sizes and uses of the labels under consideration herein (Vernizeau the base reference is directed to the same type of apparatus the claims are directed to). Thus, it would have been obvious to provide the modified label of Verniseau with the missing features for the purpose of making the label more economical to produce and/or better adapting the label to wrap specific sizes and/or configurations of containers.
Regarding the feature recited in claim 14, for example, the examiner notes that the modified Vernizeau label (the heat sealed label having one or more beveled or chamfered corners) inherently meets this claimed function even though the reference may not specifically mention it.
Regarding features as recited in claim 15, for example, the examiner further notes that since it is conventional to enclose a syringe in a shell (as shown by the references to Duinat et al. cited by the applicant and Kemp et al. and Fago et al. cited by the examiner), it would have been obvious to enclose the syringe of Vernizeau in a shell, for the purpose of protecting the syringe during storage or transportation, and/or better protecting the syringe contents during storage or transportation. At least one or more of the noted references and others of record also indicate that features such as those recited in claims 17-18 are conventional. Therefore, it would have been obvious to provide them to a Vernizeau system for the purpose of conveniently allowing access to a syringe enclosed therein.
Method claims 29-32 recite obvious steps to use the apparatus of Vernizeau modified as indicated above.
Regarding new independent claim 33, the examiner reiterates the finding that one of ordinary skill in the relevant art has the skill to provide a beveled corner of a label, such as one or both of the beveled corners of the Verniseau label (modified in view of Hoffman and hamburger) in the claimed length range for the reasons indicated above. Therefore, it would also have been obvious in view of Hoffman to provide the modified label of Vernizeau with a beveled corner in the claimed length range, for the purpose of making the label more attractive or saving materials in the construction of the label. The label of Vernizeau modified as above is asymmetric as claimed.
Claim(s) 1-9 and 11-41 is/are rejected under 35 U.S.C. 103 as being unpatentable over Vernizeau in view of Osborne (5,379,538) alone, or further in view of Matsubara et al. (2012/0139229). Vernizeau is applied as it was in the rejection above. Thus, it is missing beveled or chamfered corners. Osborne is cited to show (looking at column 7 lines 22+) that labels can have beveled or chamfered corners so that the unintended folding over of the otherwise sharp corners (for example square corners) with the attendant lack of adhesion of these corners and its additional problems can be avoided. Thus, it would have been obvious in view of Osborne to provide the label of Vernizeau with chamfered corners to make it less likely that the label will not adhere to the container body at the corners thereof, thereby avoiding further unintended peeling of the label and also avoiding reduction in the aesthetic of the labelled container. Furthermore, given the way the label is overlapped in Vernizeau, it would have been obvious in view of Osborne to chamfer only one or two corners of the Vernizeau label (the corners on the outside of the label wrapped around the container), to make the label easier and/or more economical to produce (since the corners of the label on the bottom are covered by the overlapping parts of the label and do not need the same level of protection as the outer corners. Only one corner can be chamfered where, for example, during handling of the label wrapped container, that corner is much more susceptible to delamination than the other one). The label of Vernizeau modified as above is asymmetric as claimed.
However, Matsubara is applied for emphasis to show that one having ordinary skill in the relevant art has the skill to construct labels to have two or less chamfers and other shapes that are asymmetric. See Figs 1A and 1B. It would have been especially obvious to provide the label of Vernizeau modified in view of Osborne with one or two beveled or chamfered corners, for the reasons already indicated in the paragraph immediately above.
Features of the claims not disclosed in Vernizeau modified as above would have been obvious to provide to the Vernizeau apparatus for the reasons indicated above.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kessler et al. (7,141,286). Note Fig 8. The asymmetric label for wrapping a container body configured to contain a pharmaceutical material comprises a film having a beveled corner at 33.
Claim(s) 2-9, 11-27 and 28-41 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kessler et al. (7,141,286). Any features of the claims not disclosed in Kessler are considered from the references of record to be either conventional or well within the level of skill of one of ordinary skill in the relevant art to provide for the reasons already indicated. See also the commentary above with regard to features not disclosed in the applied references. Therefore, it would have been obvious in view of Kessler to provide the apparatus therein with the missing features, for the purpose of providing a more attractive or more economical apparatus.
Applicant's arguments filed on 7/15/26 have been fully considered but they are not persuasive as to the outstanding rejection rejection of Vernizeau et al. (9,371,082) in view of Hoffman (4,181,555) and further in view of Hamburger (1,430,643).
Applicant argues that it is readily apparent that the examiner is relying on improper hindsight even without the arguments proferred in the Brief. These argumenst are rejected as being clearly without merit.
Applicant then argues that the examiner is conflating “design expediency” with “design choice” in an apparent attempt to create another basis of argument. This argument is also rejected as being clearly without merit. The examiner does not conflate anything. What the applicant is clearly doing is trying to pick apart the examiner’s words piecemeal in order to try to show hindsight when in fact there is none. How can this be convincing to an examiner? In any event, to clarify the examiner’s position even more (for the third time now), the term design expediency has been removed altogether from the rejection. Thus, the words of the rejection hopefully make clear what the examiner has been saying all along. That is, one having ordinary skill in the relevant art would have found it obvious to modify the Vernizeau label to provide it with one or more beveled corners for the purpose of making the label/labelled container more attractive to a potential consumer/purchaser as discussed more fully below. This has nothing to do with “design choice” that the applicant has chosen to argue about.
In connection with the commentary above the examiner now addresses applicant’s “ornamentation only with no mechanical function” argument. This argument simply does not apply since the modification to Vernizeau in view of Hoffman/Hamburger is not “ornamentation only with no mechanical function”. One only has to look at the plethora of labelled containers around one’s own home or in any store to appreciate the significance of providing packaging that is attractive to a potential consumer/purchaser of the packaging. However, for purposes of the rejection the person in question is not just anybody. We are talking about one of ordinary skill in the relevant art and what that person would know about making package labelling and labelled packages attractive. Even the applicant in the subject application refers to how curling up of the label film reduces the aesthetic of the product causing the medical container to be rejected and/or discarded creating waste. See the specification of the instant application at paragraph [0003]. This is not just merely ornamentation when clearly the packager wants acceptance of the package by the consumer not rejection thereof. Of course, as indicated above the applicant did not have to mention this for one having ordinary skill in the relevant art to know about it. However, the applicant did mention it. So the question is how applicant can convincingly now make the argument that the modification to Vernizeau amounts to ornamentation only, has nothing in common with what the applicant is doing and therefore is hindsight.
Applicant’s other argument is that the process in Hoffman produces more waste and potentially creates additional processing steps making the label more expensive. The flaws in this argument are immediately apparent. First of all, the process in Hoffman has nothing to do with the rejection. Hoffman is merely used to show that it is conventional to provide a label having beveled corners regardless of how the label is produced. Second, applicant’s hypothesis that the cut label material is wasted and that this together with additional processing steps make the label more expensive is just that, conjecture on the part of the applicant. This cannot obviate a finding of obviousness based on the fact that less material is used to make a label with beveled corners. One having ordinary skill in the relevant art has the skill to recycle the cut parts of a paper label.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JACOB K ACKUN whose telephone number is (571)272-4418. The examiner can normally be reached Monday-Thursday 11am-7pm.
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, 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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/JACOB K ACKUN/Primary Examiner, Art Unit 3736
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