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.
Claim 17 is rejected under 35 U.S.C. 112(a) as failing to comply with the written description requirement thereof since the alteration of moisture levels as claimed is not supported by the original disclosure. The original disclosure does not reasonably convey to a designer of ordinary skill in the art that the inventor was in possession of the design now claimed at the time the application was filed. See In re Daniels, 144 F.3d 1452, 46 USPQ2d 1788 (Fed. Cir. 1998); In re Rasmussen, 650 F.2d 1212, 211 USPQ 323 (CCPA 1981).
Specifically, there is no support in the original disclosure which requires the induction seal liner to effectuate an increase in moisture levels, but it is unclear from the claims and specification how this is achieved. The specification details the use of desiccants to reduce moisture levels, but does not appear to detail the means by which moisture would be increased. It is unclear if this increase in moisture is due to release of material from the device, a result of absorption of material from the device, or merely an indication of a good seal.
To overcome this rejection, applicant may attempt to demonstrate (by means of argument or evidence) that the original disclosure establishes that the inventor had possession of the amended claim or clarify the means by which moisture levels are affected.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 18-20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 18 requires that “the induction seal liner is positioned opposite to the closure device” which is unclear, rendering the claim indefinite. Fig. 9 below shows the instant induction seal liner (12) and closure device (3), but is unclear what relationship is being claimed by being positioned “opposite” one another. It is unclear how element 12 and element 3 are “opposite” one another, since element 3 extends in two different planes, while element 12 extends in only one plane. The deficiency in claim 18 is imputed to its dependent claims 19 and 20.
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Instant Fig. 9
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 1-4, 6-14, and 18-20 (as best understood by the Examiner) are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 20170305613 A1 (Giraud et al.).
Regarding claims 1-4, 6, and 7, Giraud teaches an induction seal for a container (10), the induction seal comprising:
a mounting sheet (24) configured to seal an opening (28) of the container until a user accesses material housed in the container (sealing against 42 as seen in Figs. 3 and 3A) such that the mounting sheet is a sacrificial panel of material (surface 48 being bonded to 31 [0032] and therefore being sacrificed upon separation [0046]); and
an induction seal liner (32) attached to a headspace-facing surface of the mounting sheet (being affixed to at least a portion of 24 [0039], Fig. 3A), the induction seal liner comprising an active polymer component [0039] including a multiphase polymer composition [0043],
wherein a mounting portion (48) is located or exposed between an outer edge of the induction seal liner and an outer edge of the mounting sheet (Fig. 3A);
a backing panel (20); and
a semipermanent mount (22) connected in between the backing panel and the mounting sheet (Fig. 3);
wherein the semipermanent mount is a layer of wax, which can be considered an adhesive [0031].);
wherein the induction seal liner has a thickness in the range of 0.1 mm to 1.0 mm [0033] (24 being a component of 32 [0039]);
wherein the active polymer component includes a desiccant [0039].
Regarding claim 8, Giraud teaches a system for controlling the chemical composition of a headspace of a container, the system comprising:
a container (10) (Figs. 1 and 2);
an induction seal (from 20 to 32) (Fig. 3);
an induction seal liner (32) comprising an active polymer component [0039] including a multiphase polymer composition [0043];
a closure device (17) moveable between an open position (removed from the container as seen in Fig. 3A) and a closed position with respect to the container (fully seated against the container as seen in Fig. 3);
the induction seal comprising a mounting sheet (24), a backing panel (20), and a semipermanent mount (22);
the closure device comprising a lid body (outer cap 16) and a container receptacle (the interior portion which is open to engage with 13 of the container body as seen in Fig. 3);
the induction seal liner being attached onto a headspace-facing surface of the mounting sheet (Fig. 3 and [0039]);
a mounting portion (48) being positioned in between the induction seal liner and an edge of the mounting sheet (seen in Fig. 3A);
the semipermanent mount being connected in between the backing panel and the mounting sheet (see Fig. 3A);
the container receptacle extending into the lid body (see Fig. 3);
the backing panel being mounted onto a container-facing surface of the closure device (see Fig. 3);
an opening of the container being delineated by a rim (31) of the container;
the container being inserted into the container receptacle (see Fig. 3);
the mounting portion being coupled to the rim (see Fig. 3); and
the induction seal liner being positioned over the opening (see Fig. 3A).
Regarding claim 9, Giraud further teaches the induction seal liner (32) is in fluid communication with an interior compartment of the container (the inside of 10) through the opening (the opening inside rim 31 being in fluid communication with the inside of container 10 as seen in Fig. 3).
Regarding claims 10 and 11, Giraud further teaches a lid fastening mechanism (threads 13 and 15) connected in between the closure device (17) and the container (10), the lid fastening mechanism comprising a male threading (13) and a female threading (15), the male threading being laterally connected around the container, the female threading being laterally connected around the receptacle, the male threading being engaged into the female threading (Fig. 3).
Regarding claim 12, Giraud discloses that the semipermanent mount (22) is destroyed when the induction seal liner (32) is coupled to the rim (31) (wax being an example of material which can be destroyed in said process, per instant Specification [0088]).
Regarding claim 13, Giraud further teaches the induction seal liner (32) is secured to the rim (31) of the container (10) by induction sealing [0048].
Regarding claim 14, Applicant’s recitation drawn to “when disposed and secured over the opening of the container (10) with an oxygen sensitive object in the container” is a statement of intended use that does not further limit the claimed invention. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997) [MPEP 2114]. Since the structure of the prior art teaches all structural limitations of the claim, the same is considered capable of meeting the intended use limitations.
Nonetheless, Giraud teaches that when disposed and secured over the opening of the container (10) with an oxygen sensitive object in the container, the induction seal liner (32) effectuates a reduction in oxygen concentration in the container as compared to the oxygen concentration in the container of the same type for the same period of time and under the same storage conditions without the induction seal liner ([0039] teaching the inclusion of oxygen scavengers).
Regarding claim 18, Giraud teaches a device (Fig. 1) wherein use constitutes a method for controlling the chemical composition of compounds within a headspace of a container, the method comprising:
providing a container (10), a closure device (17), an induction seal (from 20 to 32) (Fig. 3), and an induction sealing device (such as an induction coil [0005]), the induction seal including an induction seal liner (32) superimposed onto a mounting sheet (24), the induction seal liner comprising an active polymer component [0039] including a multiphase polymer composition [0043];
inserting the induction seal into the closure device (seen in Fig. 3A), wherein the induction seal liner is positioned opposite to the closure device (positioned as seen in Fig. 3A);
mounting the closure device over an opening (28) of the container, wherein the induction seal liner is in fluid communication with an interior compartment of the container through the opening (seen in Fig. 3);
coupling the mounting sheet to a rim (31) of the container with the induction sealing device [0046, 0047]; and
modifying the chemical composition within the interior compartment with the induction seal liner [0039];
wherein the chemical composition of compounds within the interior compartment is enabled to achieve homeostasis after the induction seal is removed (being considered enabled to achieve homeostasis if the system is capable of the claimed state); and
wherein the mounting sheet is configured to seal the opening of the container (sealing against 42 as seen in Figs. 3 and 3A) such that the mounting sheet is a sacrificial panel of material (surface 48 being bonded to 31 [0032] and therefore being sacrificed upon separation [0046]).
a mounting sheet (24) configured to seal an opening (28) of the container until a user accesses material housed in the container; and
wherein the container is a pharmaceutical bottle [0002];
wherein the closure device is a screw cap [0028].
Claim Rejections - 35 USC § 103
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 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.
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Giraud in view of WO 2020257313 A1 (Perko et al.).
Regarding claim 5, Giraud fails to teach an extended-release coating is superimposed onto the induction seal liner.
Perko teaches a composition comprising an extended-release coating is superimposed onto the induction seal liner in order to preserve active agents (a controlled release and/or a desired release profile can be achieved by applying a coating to the active agent [0088]).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the seal liner of Giraud with the extended-release coating of Perko to control exposure of active ingredients, as taught by Perko [Perko 0089].
Regarding claim 15, Giraud fails to teach that when disposed and secured over the opening of the container with an object inside, the induction seal liner effectuates a reduction in antimicrobial count on the object as compared to the same object stored in a container of the same type for the same period of time and under the same storage conditions without the induction seal liner.
Perko teaches an extended-release composition comprising use of anti-microbial agents [00105].
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the liner of Giraud to incorporate the anti-microbial agents of Perko to improve preservation of the container contents, as taught by Perko [Perko 00105].
As such, the apparatus as suggested by Giraud and Perko reasonably teaches that the induction seal liner as disclosed by Perko in the container disclosed by Giraud effectuates a reduction in antimicrobial count on the object as compared to the same object stored in a container of the same type for the same period of time and under the same storage conditions without the induction seal liner.
Regarding claim 16, Applicant’s recitation drawn to “with an object in the container” is a statement of intended use that does not further limit the claimed invention. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997) [MPEP 2114]. Since the structure of the prior art teaches all structural limitations of the claim, the same is considered capable of meeting the intended use limitations.
Nonetheless, Giraud further teaches a desiccant (Claim 8) [0039, 0040] and is therefore considered to teach when disposed and secured over the opening of the container with an object in the container, the induction seal liner (32) effectuates a reduction in moisture level in the container as compared to the moisture level in the container of the same type for the same period of time and under the same storage conditions without the induction seal liner.
Regarding claim 17, Applicant’s recitation of “with an object in the container” is a statement of intended use that does not further limit the claimed invention. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997) [MPEP 2114]. Since the structure of the prior art teaches all structural limitations of the claim, the same is considered capable of meeting the intended use limitations.
Nonetheless, Giraud further teaches the induction seal liner (32) may include a releasing material and/or activation material comprising release of fragrance/aromas or nutrients [0039] and is therefore considered to teach that when disposed and secured over the opening of the container with an object in the container, the induction seal liner (32) effectuates an increase in moisture level in the container as compared to the moisture level in the container of the same type for the same period of time and under the same storage conditions without the induction seal liner.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HANS KALIHER whose telephone number is (303)297-4453. The examiner can normally be reached Monday-Friday 08:00-05:00 MT.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sarah Al-Hashimi can be reached at (571) 272-7159. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/HANS KALIHER/Examiner, Art Unit 3781
/LESLIE R DEAK/Primary Examiner, Art Unit 3799 18 November 2025