DETAILED ACTION
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 06/30/2026 has been entered.
Response to Arguments
Applicant's arguments filed 06/30/2026 have been fully considered but they are not persuasive.
3. Applicant should submit an argument under the heading “Remarks” pointing out disagreements with the examiner’s contentions. Applicant must also discuss the references applied against the claims, explaining how the claims avoid the references or distinguish from them. While Applicant’s amendment overcomes the claim rejections involving Maeda, they do not overcome the claim rejections involving Maeda in view of Thompson as previously recited in the Action (05/01/2026). Applicant presented arguments for what Examiner believes was the 102 rejection using Maeda, however, Applicant provided no arguments to the 103 rejection involving Madea in view of Thompson.
For the reasons stated above, the claims stand rejected.
Double Patenting
4. 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.
5. Claims 1-3, 9, 11, 16, 17 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 5 and 6 of U.S. Patent No. 11,877,702. Although the claims at issue are not identical, they are not patentably distinct from each other because they include the same subject matter as obvious to one of ordinary skill in the art.
18/538,616
11,877,702
1. An article advancing assembly comprising: a container defining an interior chamber and a dispensing opening for providing access to the interior chamber; and an article advancer positioned in the interior chamber configured to bias contents of the container towards the dispensing opening, the article advancer having an arcuate body with a plurality of first endmost side legs extending from a first side of the body and a plurality of second endmost side legs extending from a second side of the body opposite the first side, the article advancer movable between a compressed configuration and a fully dispensed configuration, in the compressed configuration, a plane extending tangent to an uppermost portion of the arcuate body is positioned a first distance from a distal end of each of the plurality of first endmost side legs and the plurality of second endmost side legs, in the fully dispensed configuration, the plane extending tangent to the uppermost portion of the arcuate body is positioned a second distance from the distal end of each of the plurality of first and second endmost side legs, the second distance being greater than the first distance, wherein each of the first endmost side legs form a portion of one of first and second opposite peripheral side edges of the article advancer, the first endmost side legs having a first inner sidewall extending therebetween and forming a first single uninterrupted U-shaped arch, wherein the plurality of first endmost side legs and the plurality of second endmost side legs move relative to the container as the article advancer moves between the compressed configuration and the fully dispensed configuration, and wherein each of the second endmost side legs form a portion of the first and second opposite peripheral side edges of the article advancer, the second endmost side legs having a second inner sidewall extending therebetween and forming a second single uninterrupted U-shaped arch, at least one of the arcuate body, the plurality of first endmost side legs, and the plurality of second endmost side legs providing a biasing force from the compressed configuration to the fully dispensed configuration; the first opposite peripheral side edge of the article advancer extending from a respective first endmost side leg to a respective second endmost side leg, the entire first opposite peripheral side edge being in a first plane and the second opposite peripheral side edge extending from another first endmost side leg to a another second endmost side leg, the entire second opposite peripheral side edge being in a second plane.
2. The article advancing assembly of claim 1 further comprising two first side legs and two second side legs.
3. The article advancing assembly of claim 1 wherein the arcuate body, the plurality of first endmost side legs, and the plurality of second endmost side legs are integral.
9. The article advancing assembly of claim 1 wherein the plurality of first endmost side legs and the plurality of second endmost side legs are generally planar.
11. The method of claim 16 wherein the arcuate body comprises two first side legs extending to the first distal end portion and two second side legs extending to the second distal end portion.
16. A method comprising the steps of: providing a container defining an interior chamber and a dispensing opening for providing access to the interior chamber; positioning the article advancer of claim 1 in the interior chamber; compressing the article advancer to the compressed configuration by placing a plurality of articles in the interior chamber on the article advancer, wherein the plurality of first endmost side legs and the plurality of second endmost side legs move relative to the container as the article advancer moves between the compressed configuration and the fully dispensed configuration.
17. The method of claim 16 further comprising the step of removing at least one of the plurality of articles to permit the article advancer to move towards the fully dispensed configuration.
5. A method of advancing an article in a container, the method comprising the steps of: providing a container defining an interior chamber and a dispensing opening for providing access to the interior chamber; providing an article advancer positioned in the interior chamber configured to bias contents of the container towards the dispensing opening, the article advancer having an arcuate body, a first distal end portion, and a second distal end portion opposite the first distal end portion, the first and second distal end portions each cooperating with the arcuate body to form opposite peripheral side edges of the article advancer, the opposite peripheral side edges parallel to each other along the first distal end portion, the second distal end portion, and the arcuate body, the first distal end portion including a first pair of laterally-endmost legs that form first linear portions of the opposite peripheral side edges of the article advancer and having first inner sidewall portions that define a first uninterrupted end gap therebetween, the first inner sidewall portions parallel proximate the first pair of laterally-endmost legs and converging to form a first central semi-circular u-shaped portion of the arcuate body, the second distal end portion including a second pair of laterally-endmost legs that form second linear portions of the opposite peripheral side edges of the article advancer and having second inner sidewall portions that define a second uninterrupted end gap therebetween, the second inner sidewall portions parallel proximate the second pair of laterally-endmost legs and converging to form a second central semi-circular u-shaped portion of the arcuate body opposite the first central u-shaped portion, wherein the first and second linear portions of the opposite peripheral side edges are linked together by and extend in a generally linear manner from curved portions of the opposite peripheral side edges such that the first distal end portion and the second distal end portion are generally planar when the article advancer is in the fully dispensed configuration, the curved portions of the opposite peripheral side edges being formed in the arcuate body, in the compressed configuration, a plane extending tangent to an uppermost portion of the arcuate body is positioned a first distance from the first and second distal end portions, in the fully dispensed configuration, the plane extending tangent to the uppermost portion of the arcuate body is positioned a second distance from the first and second distal end portions, the second distance being greater than the first distance; and compressing the article advancer to the compressed configuration by placing a plurality of articles in the interior chamber on the article advancer, wherein compressing the article advancer causes the first and second distal end portions to slide relative to the container.
6. The method of claim 5 further comprising the step of removing at least one of the plurality of articles to permit the article advancer to move towards the fully dispensed configuration.
Claim Rejections - 35 USC § 103
6. 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.
7. Claim(s) 1-4, 6-9, 11, 12, and 14-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Minoru Maeda (JP 2011-020706 A – hereinafter Maeda) in view of Craig D. Thompson (US 2003/0168468 A1 – hereinafter Thompson).
Re Claims 1, 4, and 12:
Maeda discloses an article advancing assembly comprising: a container (10) defining an interior chamber (15) and a dispensing opening (21) for providing access to the interior chamber (15) (see Figs. 1-2B); and an article advancer (40) positioned in the interior chamber (15) configured to bias contents (100) of the container (10) towards the dispensing opening (21) (see Fig. 1), the article advancer (40) having an arcuate body (see Fig. 1) with a plurality of first endmost side legs (41, 42) extending from a first side of the body and a plurality of second endmost side legs (opposite pair of 41, 42) extending from a second side of the body opposite the first side (see Fig. 2B), the article advancer (40) movable between a compressed configuration (see Fig. 4A) and a fully dispensed configuration (see Figs. 5A-5B), in the compressed configuration (see Fig. 4A), a plane extending tangent to an uppermost portion of the arcuate body is positioned a first distance from a distal end of each of the plurality of first endmost side legs (41, 42) and the plurality of second endmost side legs (opposite pair of 41, 42) (see Figs. 4A-4B), in the fully dispensed configuration (see Figs. 5A-5B), the plane extending tangent to the uppermost portion of the arcuate body is positioned a second distance from the distal end of each of the plurality of first (41, 42) and second (opposite pair of 41, 42) endmost side legs (see Figs. 5A-5B), the second distance being greater than the first distance (see Figs. 4A-5B), wherein each of the first endmost side legs (41, 42) form a portion of one of first and second opposite peripheral side edges of the article advancer (40) (see Fig. 2B), the first endmost side legs (41, 42) having a first inner sidewall extending therebetween and forming a first single uninterrupted U-shaped arch (see Figs. 2B and 4C), wherein the plurality of first endmost side legs (41, 42) and the plurality of second endmost side legs (opposite pair of 41, 42) move relative to the container (10) as the article advancer (40) moves between the compressed configuration (see Fig. 4A) and the fully dispensed configuration (see Figs. 5A-5B) (see Fig. 2B), and wherein each of the second endmost side legs (opposite pair of 41, 42) form a portion of the first and second opposite peripheral side edges of the article advancer (40), the second endmost side legs (opposite pair of 41, 42) having a second inner sidewall extending therebetween and forming a second single uninterrupted U-shaped arch (see Figs. 2B and 4C), at least one of the arcuate body (see Fig. 1), the plurality of first endmost side legs (41, 42), and the plurality of second endmost side legs (opposite pair of 41, 42) providing a biasing force from the compressed configuration (see Fig. 4A) to the fully dispensed configuration (see Figs. 5A-5B) (see Figs. 4A-5B); the first opposite peripheral side edge (peripheral side edge is the portions extending from 41A to 41 to near 13A – see Fig. 5C, see likewise Figures) of the article advancer extending from a respective first endmost side leg (41, 42) to a respective second endmost side leg (opposite pair of 41, 42), the first opposite peripheral side edge being in a first plane (as shown by 13 – portions 41A and near 13A are both within the plane of 13/13A – see Fig. 5C – see likewise Figures – Examiner notes that the inner wall connecting the two end legs on one peripheral side is also in a plane of its own) and the second opposite peripheral side edge (peripheral side edge is the portions extending from 42A to 42 to near 14A – see Fig. 5C, see likewise Figures) extending from another first endmost side leg (41, 42) to another second endmost side leg (opposite pair of 41, 42), the second opposite peripheral side edge being in a second plane (as shown by 14 – portions 42A and near 14A are both within the plane of 14/14A – see Fig. 5C – see likewise Figures) (see Figs. 1-6), but fails to teach the entire first opposite peripheral side edge being in a first plane and the entire second opposite peripheral side edge being in a second plane.
Thompson teaches a first opposite peripheral side edge (at 178) of an article advancer extending from a respective first endmost side leg (170, 174) to a respective second endmost side leg (opposite pair of 170, 174), the entire first opposite peripheral side edge (at 178) being in a first plane and the second opposite peripheral side edge (opposite side edge of 178) extending from another first endmost side) leg (170 ,174) to another second endmost side leg (opposite pair of 170, 174), the entire second opposite peripheral side edge (opposite side edge of 178) being in a second plane (see Figs. 8-9, see Figs. 4 and 5). Re Claims 4 and 12: Thompson teaches wherein at least a portion of an article advancer (30) comprises acrylonitrile butadiene styrene, polyoxymethylene, nylon, polypropylene, polyethylene terephthalate, or combinations thereof (see paragraph [0025]). Therefore, it would have been obvious, before the effective filing date of the invention, to have been motivated to combine the teachings of Maeda with that of Thompson, to increase or change the contact area or width of the device, while providing alternative constructions of the device as known within the art and suggested by Thompson (paragraph 0026]).
Further Re Claims 2 and 11:
Maeda discloses two first side legs (41, 42) and two second side legs (41, 42) (see Figs. 1-6).
Further Re Claim 3:
Maeda discloses wherein the arcuate body (see Fig. 1), the plurality of first endmost side legs (41, 42), and the plurality of second endmost side legs (opposite pair of 41, 42) are integral (see Figs. 1-6).
Further Re Claim 6:
Maeda discloses wherein the distal ends of each of the plurality of first endmost side legs (41, 42) and the plurality of second endmost side legs (opposite pair of 41, 42) includes a foot portion (41a, 42a) (see Figs. 5C and 6).
Further Re Claims 7 and 14:
Maeda discloses a platform (40A) positioned between the article advancer (40) and the dispensing opening (21), the platform (40A) configured to support the contents of the container above the article advancer (40) (see Figs. 1-6).
Further Re Claims 8 and 15:
Maeda discloses wherein the container (10) is a box, a bag, or combinations thereof (see Figs. 1-6).
Further Re Claim 9:
Maeda discloses wherein the plurality of first endmost side legs (41, 42) and the plurality of second endmost side legs (opposite pair of 41, 42) are generally planar (see Fig. 4B).
Further Re Claim 16:
Maeda discloses a method comprising the steps of: providing a container (10) defining an interior chamber and a dispensing opening (21) for providing access to the interior chamber; positioning the article advancer (40) of claim 1 in the interior chamber; compressing the article advancer (40) to the compressed configuration by placing a plurality of articles (100) in the interior chamber on the article advancer (40), wherein the plurality of first endmost side legs (41, 42) and the plurality of second endmost side legs (opposite pair of 41, 42) move relative to the container (10) as the article advancer (40) moves between the compressed configuration (see Fig. 4A) and the fully dispensed configuration (see Figs. 5A-5B) (see Figs. 1-6).
Further Re Claim 17:
Maeda discloses further comprising the step of removing at least one of the plurality of articles (100) to permit the article advancer (40) to move towards the fully dispensed configuration (see Figs. 5A-5B).
8. Claim(s) 7 and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Maeda in view of Thompson and further in view of Silvia Alarid Aguilar (US 2016/0288985 – hereinafter Aguilar).
Re Claims 7 and 14:
Maeda in view of Thompson discloses the device of claim 1, but fails to teach a platform positioned between the article advancer and the dispensing opening, the platform configured to support the contents of the container above the article advancer.
Aguilar further in view teaches a platform (442) positioned between an article advancer (341) and a dispensing opening; the platform (442) configured to support the contents of the container above the article advancer (341) (see Figs. 3-5). Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the invention, to have been motivated to combine the teachings of Maeda in view of Thompson to include a platform structure as suggested by Aguilar, to allow for increased surface area stability of a stack being biased.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KELVIN L RANDALL, JR. whose telephone number is (571)270-5373. The examiner can normally be reached M-F: 9:00 am-5 pm est.
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/K.L.R/Examiner, Art Unit 3651
/GENE O CRAWFORD/Supervisory Patent Examiner, Art Unit 3651
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