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 § 102
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.
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.
Claims 1-3, 5, 10-19, 21-25 and 27-36 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Seymour (US 2,580,132):
Regarding claim 1, Seymour discloses a pod comprising: an aluminum (see col. 2, lines 44-46) can comprising a domed end (13) and a cylindrical sidewall (11) integrally formed with the domed end, the cylindrical sidewall extending away from the domed end along a longitudinal axis of the cylindrical sidewall (see Fig. 4), at least a portion of the domed end having a concave shape (14) that is domed towards an interior of the pod (see Fig. 4), at least a portion of the domed end defining a first opening (the opening in 13 in which 15 is located) of the pod, the first opening being located at a center of the domed end (see Figs. 1 and 4) and extending through an end wall of the domed end (see Fig. 4); and an aluminum base (12) attached to an end of the cylindrical sidewall opposite of the domed end, the aluminum base spanning diametrically across the end of the cylindrical sidewall, the aluminum base and the aluminum can defining the interior of the pod, at least a portion of the aluminum base being configured to be opened (for example by puncturing) to define a second opening of the pod, wherein the interior of the pod is configured to receive ingredients.
Regarding claim 2, an outer diameter of the aluminum can at the domed end (at 17) is greater than an outer diameter of the aluminum can at the end of the cylindrical sidewall opposite of the domed end.
Regarding claim 3, at least a portion of the cylindrical sidewall of the aluminum can has an outer diameter that varies along the longitudinal axis of the cylindrical sidewall (see Fig. 4).
Regarding claim 5, a first part (15, 19, 20, 21, 22 or a subset thereof) is disposed within the first opening, the first part configured to open and close a fluid path through the first opening.
Regarding claim 10, the first part comprises a keyed receptacle (that of 15).
Regarding claim 11, the first part (20,21) is movable between (i) a first position substantially closing the fluid path through the first opening and (ii) a second position substantially opening the fluid path through the first opening.
Regarding claim 12, paddle (35) is disposed within the pod.
Regarding claim 13, rotational coupling (15) passes through the first opening.
Regarding claim 14, Seymour discloses a pod comprising an aluminum (see col. 2, lines 44-46) body comprising a domed end (13) and a sidewall integrally (11) formed with the domed end, the sidewall extending away from the domed end, at least a portion of the domed end being domed towards an interior of the pod (see Fig. 4), at least a portion of the domed end defining a first opening (the opening in 13 in which 15 is located) of the pod, the first opening being located at a center of the domed end (see Figs. 1 and 4) and extending through the domed end (see Fig. 4); and an aluminum base (12) attached to an end of the sidewall opposite of the domed end, the aluminum base spanning diametrically across the end of the sidewall, the aluminum base and the aluminum body defining the interior of the pod, at least a portion of the aluminum base being configured to be opened (for example by puncturing) to define a second opening of the pod.
Regarding claim 15, a wall thickness of an end wall of the domed end of the aluminum body is substantially the same as a wall thickness of the sidewall of the aluminum body (see Fig. 4).
Regarding claim 16, the first opening of the pod extends through the end wall of the domed end of the aluminum body (see Fig. 4).
Regarding claim 17, the aluminum body is a cylindrical can (see Fig. 1).
Regarding claim 18, the sidewall of the cylindrical aluminum can extends along a longitudinal direction of the cylindrical aluminum can and the first opening extends substantially in the longitudinal direction (see Fig. 4). The second opening is not a required element of the claimed structure, but intended to be made during an intended operation.
Regarding claim 19, the second opening is not a required element of the claimed structure, but intended to be made during an intended operation.
Regarding claim 21, "Expressions relating the apparatus to contents thereof during an intended operation are of no significance in determining patentability of the apparatus claim." Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969). "Inclusion of material or article worked upon by a structure being claimed does not impart patentability to the claims." In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963).
Regarding claim 22, paddle (35) is disposed within the pod.
Regarding claim 23, rotational coupling (15) passes through the first opening.
Regarding claim 24, an outer diameter of the aluminum body at the domed end (at 17) is greater than an outer diameter of the aluminum body at the end of the sidewall opposite of the domed end.
Regarding claim 25 at least a portion of the sidewall of the aluminum body has an outer diameter that varies along a longitudinal axis of the sidewall (see Fig. 4).
Regarding claim 27, Seymour discloses an aluminum (see col. 2, lines 44-46) can comprising a domed end (13), at least a portion of the domed end being domed towards an interior of the aluminum can (see Fig. 4), at least a portion of the domed end having a hole (the opening in 13 in which 15 is located) that extends through the domed end; a sidewall (11) integrally formed with the domed end, the sidewall extending away from the domed end in a longitudinal direction; and a second end integrally formed with the sidewall, the second end defining an opening (the opening that is closed by base 12) for receiving an aluminum base extending diametrically across the second end.
Regarding claim 28, the second end is configured to be seamed to the aluminum base (see Fig. 4).
Regarding claim 29, a wall thickness of an end wall of the domed end of the aluminum can is substantially the same as a wall thickness of the sidewall of the aluminum can (see Fig. 4).
Regarding claim 30, the hole extends through the end wall of the domed end of the aluminum can (see Fig. 4).
Regarding claim 31, the aluminum can is a cylindrical can (see Fig. 1).
Regarding claim 32, the cylindrical aluminum can is made of an aluminum alloy (see col. 2, lines 44-46).
Regarding claim 33, a first part (15) is attached to the domed end of the aluminum can.
Regarding claim 34, the first part surrounds the hole on the domed end, extends radially outward of the hole, and extends axially from the domed end (see Fig. 4).
Regarding claim 35, an outer diameter of the aluminum can at the domed end (at 17) is greater than an outer diameter of the aluminum can at the second end of the aluminum can.
Regarding claim 36, at least a portion of the sidewall of the aluminum can has an outer diameter that varies along the longitudinal direction (see Fig. 4).
Claims 1-3, 5, 8-10, 14-21, 24, 25 and 27-36 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Young (US 4,094,300):
Regarding claim 1, Young discloses a pod comprising an aluminum (see col. 1, line 64) can comprising a domed end (13 or 32) and a cylindrical sidewall (11 or 11e) integrally formed with the domed end, the cylindrical sidewall extending away from the domed end along a longitudinal axis of the cylindrical sidewall, at least a portion of the domed end having a concave shape that is domed towards an interior of the pod (see Fig. 2), at least a portion of the domed end defining a first opening (the opening through which 33 or 34 passes) of the pod, the first opening being located at a center of the domed end and extending through an end wall of the domed end; and an aluminum base (14 or 14d) attached to an end of the cylindrical sidewall opposite of the domed end, the aluminum base spanning diametrically across the end of the cylindrical sidewall, the aluminum base and the aluminum can defining the interior of the pod, at least a portion of the aluminum base being configured to be opened to define a second opening (15 or 15d) of the pod, wherein the interior of the pod is configured to receive ingredients.
Regarding claim 2, an outer diameter of the aluminum can at the domed end (13) is greater than an outer diameter of the aluminum can at the end of the cylindrical sidewall opposite of the domed end (see the small ends fitting into the larger ends in Fig. 2).
Regarding claim 3, at least a portion of the cylindrical sidewall of the aluminum can has an outer diameter that varies along the longitudinal axis of the cylindrical sidewall (see Fig. 2).
Regarding claim 5, first part (33 or 34) is disclosed.
Regarding claim 8, the first part is removably attached to the domed end of the aluminum can at the first opening (see col. 3, lines 3-19).
Regarding claim 9, the first part comprises one or more threads configured such that a rotation of the first part about the longitudinal axis relative to the domed end causes a longitudinal translation of the first part relative to the domed end (see col. 3, lines 3-19 and Fig. 2).
Regarding claim 10, the first part comprises a keyed receptacle (interior of 33 or 34) capable of receiving a shaft.
Regarding claim 14, Young discloses a pod comprising an aluminum (see col. 1, line 64) body comprising a domed end (13 or 32) and a sidewall (11 or 11e) integrally formed with the domed end, the sidewall extending away from the domed end, at least a portion of the domed end being domed towards an interior of the pod (see Fig. 2), at least a portion of the domed end defining a first opening (the opening through which 33 or 34 passes) of the pod, the first opening being located at a center of the domed end and extending through the domed end; and an aluminum base (14 or 14d) attached to an end of the sidewall opposite of the domed end, the aluminum base spanning diametrically across the end of the sidewall, the aluminum base and the aluminum body defining the interior of the pod, at least a portion of the aluminum base being configured to be opened to define a second opening (15 or 15d) of the pod.
Regarding claim 15, a wall thickness of an end wall of the domed end of the aluminum body is substantially the same as a wall thickness of the sidewall of the aluminum body (see Fig. 2).
Regarding claim 16, the first opening of the pod extends through the end wall of the domed end of the aluminum body (see Fig. 2).
Regarding claim 17, the aluminum body is a cylindrical can (see Fig. 2).
Regarding claim 18, the sidewall of the cylindrical aluminum can extends along a longitudinal direction of the cylindrical aluminum can, the first opening and the second opening extending substantially in the longitudinal direction (see Fig. 2).
Regarding claim 19, the second opening of the pod is radially offset from a center of the aluminum base (see Fig. 2).
Regarding claim 20, the aluminum base comprises a scored region surrounding a protrusion, the protrusion configured to be torn from a remainder of the aluminum base at the scored region to define the second opening of the pod (see col. 2, lines 1-4).
Regarding claim 21, "Expressions relating the apparatus to contents thereof during an intended operation are of no significance in determining patentability of the apparatus claim." Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969). "Inclusion of material or article worked upon by a structure being claimed does not impart patentability to the claims." In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963).
Regarding claim 24, an outer diameter of the aluminum can at the domed end (13) is greater than an outer diameter of the aluminum can at the end of the cylindrical sidewall opposite of the domed end (see the small ends fitting into the larger ends in Fig. 2).
Regarding claim 25, at least a portion of the cylindrical sidewall of the aluminum can has an outer diameter that varies along the longitudinal axis of the cylindrical sidewall (see Fig. 2).
Regarding claim 27, Young discloses an aluminum (see col. 1, line 64) can comprising a domed end, at least a portion of the domed end (13 or 32) being domed towards an interior of the aluminum can (see Fig. 2), at least a portion of the domed end having a hole (the hole through which 33 or 34 passes) that extends through the domed end; a sidewall (11 or 11e) integrally formed with the domed end, the sidewall extending away from the domed end in a longitudinal direction (see Fig. 2); and a second end integrally formed with the sidewall, the second end defining an opening for receiving an aluminum base extending diametrically across the second end (see Fig. 2).
Regarding claim 28, the second end is configured to be seamed to the aluminum base.
Regarding claim 29 ,a wall thickness of an end wall of the domed end of the aluminum can is substantially the same as a wall thickness of the sidewall of the aluminum can (see Fig. 2).
Regarding claim 30, the hole extends through the end wall of the domed end of the aluminum can (see Fig. 2).
Regarding claim 31, the aluminum can is a cylindrical can (see Fig. 2).
Regarding claim 32, the cylindrical aluminum can is made of an aluminum alloy (see col. 1, line 64).
Regarding claim 33, a first part (33 or 34) is attached to the domed end of the aluminum can.
Regarding claim 34, the first part surrounds the hole on the domed end, extends radially outward of the hole, and extends axially from the domed end (see Fig. 2).
Regarding claim 35, an outer diameter of the aluminum can at the domed end is greater than an outer diameter of the aluminum can at the second end of the aluminum can (see the small ends fitting into the larger ends in Fig. 2).
Regarding claim 36, at least a portion of the sidewall of the aluminum can has an outer diameter that varies along the longitudinal direction (see Fig. 2).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 6 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Seymour (US 2,580,132). The pod of Seymour was discussed above:
Regarding claim 6, a numerical pressure value is not disclosed. However, the phrase “superatmospheric pressure” (col. 5, lines 23-24) would have directed one of ordinary skill in the art before the effective filing date to have discovered an optimal or workable pressure value.
Regarding claim 7, a numerical pressure value is not disclosed. However, the phrase “superatmospheric pressure” (col. 5, lines 23-24) would have directed one of ordinary skill in the art before the effective filing date to have discovered an optimal or workable pressure value.
Claims 6 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Young (US 4,094,300). The pod of Young was discussed above:
Regarding claim 6, a numerical pressure value is not disclosed. However, the disclosure of the pod being part of a pumped fluid circuit downstream of pump (41) would have directed one of ordinary skill in the art before the effective filing date to have discovered an optimal or workable pressure value.
Regarding claim 7, a numerical pressure value is not disclosed. However, the disclosure of the pod being part of a pumped fluid circuit downstream of pump (41) would have directed one of ordinary skill in the art before the effective filing date to have discovered an optimal or workable pressure value.
Claims 4 and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Seymour (US 2,580,132) in view of Hanneman (US 5,197,536). The pod of Seymour was discussed above:
Regarding claim 4, different aluminum alloys are not disclosed. Hanneman explains that is it known in the can art to utilize a variety of aluminum alloys (see col. 1, lines 13-27 and col. 4, lines 48-57). It would have been obvious for one of ordinary skill in the art to have utilized plural aluminum alloys because, as evidence by Hanneman, utilizing a variety of aluminum alloys for cans is known, as well as selection based upon wear properties.
Regarding claim 26, different aluminum alloys are not disclosed. Hanneman explains that is it known in the can art to utilize a variety of aluminum alloys (see col. 1, lines 13-27 and col. 4, lines 48-57). It would have been obvious for one of ordinary skill in the art to have utilized plural aluminum alloys because, as evidence by Hanneman, utilizing a variety of aluminum alloys for cans is known, as well as selection based upon wear properties.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-36 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-40 of U.S. Patent No. 11,230,429. Although the claims at issue are not identical, they are not patentably distinct from each other because all the limitations of the instant claims are recite or suggested by the issued claims.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID L SORKIN whose telephone number is (571)272-1148. The examiner can normally be reached 7am-3:30pm.
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, Claire X Wang can be reached at (571) 270-1051. 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.
DAVID L. SORKIN
Examiner
Art Unit 1774
/DAVID L SORKIN/Primary Examiner, Art Unit 1774
