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 .
DETAILED ACTION
Priority
This application repeats a substantial portion of prior Application No. 17/535,020, filed November 24, 2021, and adds disclosure not presented in the prior application. Because this application names the inventor or at least one joint inventor named in the prior application, it constitutes a continuation-in-part of the prior application.
Double Patenting
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claim 1 is provisionally rejected under 35 U.S.C. 101 as claiming the same invention as that of claim 1 of copending Application No. 17/535,020 (reference application). This is a provisional statutory double patenting rejection since the claims directed to the same invention have not in fact been patented.
Claim 1 in ‘020 recites,
“A lid assembly for a beverage container having vertical sidewalls and a generally horizontal lid comprising: a tab assembly positioned on said lid, said lid having a semi-circular score line defining a perimeter for a pour opening, said tab assembly forming said pour opening by way of lever action; a cap portion formed on one end of said tab assembly, said cap portion rotatable to a sealing position within said opening.”
Claim Rejections - 35 USC § 102
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 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bartz (6,722,518).
Bartz — a rotatable drink opening cover — discloses a lid assembly [Fig. 2] fora beverage container [17] having vertical sidewalls and a generally horizontal lid [18] comprising: a tab assembly [21] positioned on said lid, said lid having a semi-circular score line [20] defining a perimeter for a pour opening, said tab assembly forming said pour opening by way of lever action [Col. 3 Lines 4-5]; a cap portion [10] formed on one end of said tab assembly, said cap portion rotatable to a sealing position within said opening [Fig. 5, and Col. 3 Lines 18-21].
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 2 and 3 are rejected under 35 U.S.C. 103 as being unpatentable over Bartz as applied to Claim 1 above in view of Huffman et al. (2007/0062946) [Huffman].
Re Claim 2, Bartz does not expressly disclose said cap portion includes a flexible sealing portion; however, Huffman – a cap re-sealing mechanism – discloses the tab [Huffman, 412] has a flexible sealing portion [Huffman, 104, Paragraph 28 Lines 12-21]. The Applicant believes the claimed invention has an improvement over the prior art, when the prior art discloses the sealing mechanism has a flexible sealing portion. See MPEP 2143 (I)(C). One of ordinary skill would be able to modify the cap portion of Bartz to have a flexible sealing portion, before the effective filing date of the invention with predictable and obvious results, “thereby enabling it to be pushed through the opening of the can.” [Huffman, Paragraph 28 Lines 7-18]
Re Claim 3, Bartz in view of Huffman discloses the invention according to Claim 2 above; further, the combination discloses the flexible sealing portion has an annular sealing groove [Huffman, 124, Figs. 1B & 1G].
Claims 4 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Bartz as applied to Claim 1 above in view of Kaziev (2016/0059988).
Bartz does not expressly disclose that the tab assembly is made of a rigid material or aluminum. However, Kaziev – a can cover – discloses the tab portion [Kaziev, 120] is made of a rigid material or aluminum [Kaziev, Paragraph 43 Lines 4-10]. The Applicant believes the claimed invention has an improvement over the prior art, when the prior art discloses the tab is made of rigid materials or aluminum. See MPEP 2143 (I)(B) and (E). One of ordinary skill would be able to modify the tab material on the Bartz can to be a rigid material or aluminum, before the effective filing date of the invention with predictable and obvious results, to be able to break the seal on the container [Kaziev, Paragraph 22 Lines 8-11], 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. See MPEP 2144.07.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Bartz in view of Kaziev as applied to claim 5 above, and further in view of Huffman.
The Bartz and Kaziev combination does not expressly disclose that said cap portion includes a flexible sealing portion; however, Huffman discloses the tab [Huffman, 412] has a flexible sealing portion [Huffman, 104, Paragraph 28 Lines 12-21]. The Applicant believes the claimed invention has an improvement over the prior art, when the prior art discloses the sealing mechanism has a flexible sealing portion. See MPEP 2143 (I)(C). One of ordinary skill would be able to modify the cap portion of Bartz to have a flexible sealing portion, before the effective filing date of the invention with predictable and obvious results, “thereby enabling it to be pushed through the opening of the can.” [Huffman, Paragraph 28 Lines 7-18]
Claims 7 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Bartz as applied to Claim 1 above in view of Li et al. (2005/0051553) [Li].
Re Claim 7, Bartz does not expressly disclose that said tab assembly includes a reinforcing rim. However, Li – a reclosure device for a pop-top can – discloses the tab has a reinforcing rim [Li, Fig. 7, annotated]. The Applicant believes the claimed invention has an improvement over the prior art, when the prior art discloses the tab has a reinforcing rim. See MPEP 2143 (I)(C). One of ordinary skill would be able to modify the tab assembly in Bartz to have the reinforcing rim, before the effective filing date of the invention with predictable and obvious results, in order to easily pop the panel of the can.
PNG
media_image1.png
404
738
media_image1.png
Greyscale
Re Claim 8, Bartz in view of Li discloses the invention according to Claim 7 above; further, the combination discloses a groove is formed in said reinforcing rim [Li, Fig. 7].
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.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: see PTO-892 Notice of References Cited.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT J HICKS whose telephone number is (571)270-1893. The examiner can normally be reached Mon - Fri 8:30-5:00.
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, Gregory Pickett can be reached on 571-272-4560. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ROBERT J HICKS/Primary Examiner, Art Unit 3736