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 .
Allowable Subject Matter
Claims 3-4, 6-8, 10-12, 14 and 16-18 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: the aforementioned claims set forth a series of physical structures/configurations that are well beyond that which is disclosed within the Favier reference (discussed in greater depth infra), which is the prior art closest to Applicant’s claimed invention as now amended, and there would be no obvious reason to modify Favier to the extent necessary to satisfy each of Applicant’s pertinent limitations.
Claims 3-4, 6, 10-11, 14 and 16 (and claims 7-8, 12 and 17-18 depending therefrom) call for specific sets of physical structures including: i) a multi-layer tamper evident label; and ii) pre-cut areas formed within a pull-tag. Although the provision of a multi-layer label or a pull-tag having cuts/apertures disposed therein is not exactly novel, the provision of such within the Favier assembly cited herein would be of no practical utility, and would actually require modifications of the reference that would potentially harm/destroy operation of the Favier assembly itself.
In view of the foregoing, the modifications necessary to satisfy each of Applicant’s claim limitations would be likely to render the Favier assembly incapable of continuing to operate/behave in the particular manner set forth within the reference itself (given the particularly sensitive nature of such Electronic Article Surveillance label assemblies), which would be strongly indicative of an application of improper hindsight reasoning.
Claims 12, 14 and 16-18 would be allowable if rewritten to overcome the rejections under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Claim Rejections - 35 USC § 112
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 12-18 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.
As indicated in the previously issued Office Action, claim 12 recites the limitations “the second layer” and “the printed message and/or QR code”. There is insufficient antecedent basis for these limitations in the claim. The Office acknowledges that Applicant’s amendment establishes a “printed message” within independent claim 9, but makes no mention of a “second layer” or “QR code”. Please review/revise/clarify.
Claims 15 and 17 recite the limitation "the flexible adhesive transparent label". There is insufficient antecedent basis for this limitation in the claim.
Claim 16 is rejected as depending from rejected claim 15.
The recitation of “EAS and/or RFID label” within newly presented claim 13 is unclear, as it is unknown exactly what this recitation is intended to refer to. The Office acknowledges and appreciates the clarifying claim language amendments made to independent claim 1 now plainly reciting “electronic article surveillance” and “radio frequency identification”, thereby more clearly establishing the exact nature of the recitations of “EAS” and “RFID” therein. However, newly added claim 13 lacks such guidance, and Applicant’s originally filed specification does not clearly and unambiguously establish the exact nature of a “EAS and/or RFID label” as now recited in newly added claim 13. Does claim 13 intend to pertain to the same “electronic article surveillance” and “radio frequency identification” technology now recited in amended claim 1, or alternatively, may newly added claim 13 simply be more broadly interpreted as being satisfied by a label having printed indicia reading “EAS” and/or “RFID” printed thereon? In the event that Applicant desires assistance in forming language to cure this deficiency within the newly presented claim, Applicants’ Representative is encouraged to telephone Examiner at any time.
Claims 14, 16 and 18 are rejected as depending (directly or indirectly) from rejected independent claim 13.
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.
Claims 1-2, 5, 9, 13 and 15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by CA 3165517 A1 to Favier (“Favier”).
Regarding claim 1, Favier anticipates a disposable (written abstract) security and tamper evident label (e.g. keeper 10, as shown in fig. 10 and discussed at para. 19; the Office notes that Applicant equates a “label” with a “keeper” in para. 16 of Applicants’ filed specification) comprising a flexible adhesive transparent (para. 5) layer (e.g. flexible adhesive support 14, as shown in fig2. 1-2 and discussed at para. 31), at least one electronic article surveillance (“EAS”) and/or radio frequency identification (“RFID”) label (e.g. security element 16, as shown in fig. 2 and discussed at para. 38) attached to (e.g. at least indirectly, as shown in fig. 2, or directly once adhesive support 14 is laid atop open window/area 36) the flexible adhesive transparent layer (14) and at least one tamper evident label (e.g. tape 40, as discussed at para. 37) attached to (e.g. at least indirectly, as shown in fig. 2, or directly once adhesive support 14 is laid atop open window/area 36) the EAS or RFID label (16), wherein the disposable security and tamper evident label (10) includes at least one printed message (e.g. pre-printed instructions and/or warning messages, as discussed at para. 6) and is not substantially transparent (per para. 6, an opaque area may be provided in association with the aforementioned instructions/warning messages).
Regarding claim 2, Favier anticipates the disposable security and tamper evident label of claim 1 wherein the at least one EAS and/or RFID label (16) comprises a printable layer (per para. 38, security element 16 may include an EAS label as desired; note that such a label will be at least minimally printable), a circuit (e.g. RFID element/antenna discussed at para. 38) and a double-sided adhesive (per para. 33, sidewall 28 receives security element 16 via an adhesive; note that this adhesive will have one side facing sidewall 28 and another side facing security element 16).
Regarding claim 5, Favier anticipates the disposable security and tamper evident label of claim 1 wherein the flexible adhesive transparent label (14; the Office notes that claim 1 recites a “flexible adhesive transparent layer”; the Office encourages Applicant to inspect all claims for any additional inadvertent recitations of “label” in lieu of “layer”) includes a positioning pull-tag (e.g. peel-off layer 42, as shown in fig. 2 and discussed at para. 40).
Regarding claim 9, Favier anticipates a disposable (written abstract) security and tamper evident label (e.g. keeper 10, as shown in fig. 10 and discussed at para. 19; the Office notes that Applicant equates a “label” with a “keeper” in para. 16 of Applicants’ filed specification) comprising a flexible adhesive transparent (para. 5) layer (e.g. flexible adhesive support 14, as shown in fig2. 1-2 and discussed at para. 31) and at least one tamper evident label (e.g. tape 40, as discussed at para. 37), wherein the disposable security and tamper evident label (10) includes at least one printed message (e.g. pre-printed instructions and/or warning messages, as discussed at para. 6) and is not substantially transparent (per para. 6, an opaque area may be provided in association with the aforementioned instructions/warning messages).
Regarding claim 13, Favier anticipates a disposable (written abstract) security and tamper evident label (e.g. keeper 10, as shown in fig. 10 and discussed at para. 19; the Office notes that Applicant equates a “label” with a “keeper” in para. 16 of Applicants’ filed specification) comprising a flexible adhesive transparent (para. 5) layer (e.g. flexible adhesive support 14, as shown in fig2. 1-2 and discussed at para. 31), at least one EAS and/or RFID label (e.g. security element 16, as shown in fig. 2 and discussed at para. 38) attached to (e.g. at least indirectly, as shown in fig. 2, or directly once adhesive support 14 is laid atop open window/area 36) the flexible adhesive transparent layer (14) and at least one tamper evident label (e.g. tape 40, as discussed at para. 37) attached to (e.g. at least indirectly, as shown in fig. 2, or directly once adhesive support 14 is laid atop open window/area 36) the EAS or RFID label (16), wherein the at least one EAS and/or RFID label (16) comprises a printable layer (per para. 38, security element 16 may include an EAS label as desired; note that such a label will be at least minimally printable), a circuit (e.g. RFID element/antenna discussed at para. 38) and a double-sided adhesive (per para. 33, sidewall 28 receives security element 16 via an adhesive; note that this adhesive will have one side facing sidewall 28 and another side facing security element 16).
Regarding claim 15, Favier anticipates the disposable security and tamper evident label of claim 13 wherein the flexible adhesive transparent label (14; the Office notes that claim 13 recites a “flexible adhesive transparent layer”) includes a positioning pull-tag (e.g. peel-off layer 42, as shown in fig. 2 and discussed at para. 40).
Response to Arguments
In view of Applicant’s amendment, a further search of the pertinent body of prior art was executed. Within said search, the aforementioned Favier reference (published on 29 July 2021) was identified. Accordingly, Applicant’s arguments 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.
Conclusion
Applicant's amendment necessitated the new grounds 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 JUSTIN V LEWIS whose telephone number is (571)270-5052. The examiner can normally be reached M-F 7:30AM-5:00PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Daniel J. Troy can be reached at (571) 270-3742. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JUSTIN V LEWIS/Primary Examiner, Art Unit 3637