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 .
This office action is in response to the reply filed on 2/6/2026, wherein claims 1 and 12 were amended; and claim 13 was added. Claims 1-13 are pending.
Election/Restrictions
Newly submitted claim 13 directed to an invention that is independent or distinct from the invention originally claimed since the product as claimed can be used in a materially different process of using that product, such as storing medication (since the snus is not positively recited in claim 1). See MPEP § 806.05(h).
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claim 13 is withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03. Claim 13 will be considered for rejoinder upon allowance of claim 1.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-5, 10 and 12 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Marcus et al. (US 2009/0050495).
Regarding claim 1, Marcus discloses a container (at 10A in Figs. 3-4) capable of holding snus therein, the container comprising: a body (at 12A in Fig. 4) defining a first compartment (compartment at 30A is capable of storing unused snus portions therein); a first lid (at 14A in Fig. 4) pivotably coupled to the body to be able to pivot about a first pivot axis (at 18) to and from a closing position in which the first lid closes the first compartment the first lid defining a second compartment (compartment at 40A is capable of storing used snus portions therein) separated from the first compartment, and a second lid (at 16A in Fig. 3) pivotably coupled to the first lid to be able to pivot about a second pivot axis (at 20) to and from a closing position in which the second lid closes the second compartment (as shown in Fig. 4), wherein the snus container is a single continuous part, and wherein the body, the first lid and the second lid are inseparable from each other (as shown in Fig. 3).
Regarding claim 2, Marcus discloses the first pivot axis and the second pivot axis are parallel (as shown in Fig. 3).
Regarding claim 3, Marcus discloses the first lid is pivotably coupled to the body by means of a first pivot coupling (at 18), and the second lid is pivotably coupled to the first lid by means of a second pivot coupling (at 20), wherein the first and/or the second pivot coupling is/are located along an outwardly facing side edge of the first lid (as shown in Fig. 4).
Regarding claim 4, Marcus discloses the first and second pivot couplings are located on opposite sides of the outwardly facing side edge of the first lid (as shown in Fig. 4).
Regarding claim 5, Marcus discloses the first and/or second pivot coupling is a bendable strip ([0020]).
Regarding claim 10, Marcus discloses the snus container is made from a plastic material ([0020]).
Regarding claim 12, Marcus discloses a container (at 10A in Figs. 3-4) capable of holding snus therein, the container comprising: a body (at 12A in Fig. 4) defining a first compartment (compartment at 30A is capable of storing unused snus portions therein); a first lid (at 14A in Fig. 4) pivotably coupled to the body to be able to pivot about a first pivot axis (at 18) to and from a closing position in which the first lid closes the first compartment the first lid defining a second compartment (compartment at 40A is capable of storing used snus portions therein) separated from the first compartment, and a second lid (at 16A in Fig. 3) pivotably coupled to the first lid to be able to pivot about a second pivot axis (at 20) to and from a closing position in which the second lid closes the second compartment (as shown in Fig. 4), wherein the snus container is a single continuous part, and wherein the body, wherein both the first lid and the second lid remain attached to the snus container when opening the first compartment or the second compartment, respectively (shown in Fig. 3).
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.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Marcus et al. (US 2009/0050495) as applied to claim 1 above, in view of Berggren (US 2012/0168329). Marcus discloses the claimed invention except for the latching mechanism. However, Berggren teaches it is well known in the art for the lid (at 32) of a snus container to be provided with a latching mechanism (at 42/31) for the purpose of preventing the lid from opening unless a sufficient force is applied ([0044]). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided the first and/or second lid of Marcus with a latching mechanism as taught by Berggren in order to more securely hold the lid(s) closed.
Claims 7-9 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Marcus et al. (US 2009/0050495) as applied to claim 1 above, in view of Bjorkholm (US 2009/0014450).
Regarding claims 7 and 9, Marcus discloses the claimed invention except for the express disclosure of the specific manufacturing method. However, Bjorkholm teaches it is well known in the art for a snuff container to be manufactured by an injection moulding process including moulds for the lower portion, lower lid and cover lid ({(0009]). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have formed the device of Marcus from an injection moulding process as taught by Bjorkholm in order to ease the manufacturing process.
Regarding claim 8, Marcus discloses the snus container is formed as a single continuous part.
Regarding claim 11, Marcus discloses the snus container is made from a plastic material ([0020]).
Response to Arguments
Applicant's arguments filed 2/2/2026 have been fully considered but they are not persuasive.
Applicant argues that Applicant respectfully asserts that Marcus does not disclose a snus container having a first compartment for storing unused snus portions and a second compartment separated from the first compartment and for storing used snus portions, as required in claim 1.
Regarding Applicant’s argument, regarding the intended use of the claimed invention “a first compartment for storing unused snus portions” and “a second compartment…for storing used snus portions”, it has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. If the prior art structure is capable of performing the intended use, then it meets the claim. Ex parte Masham, 2 USPQ2d 1647 (1987). Since the snus portions (used or unused) are not positively recited in the claim, the prior art must only be capable of storing the snus portions in the manner recited in the claim. The first compartment (compartment at 30A) of Marcus is fully capable of storing unused snus portions therein and the second compartment (compartment at 40A) of Marcus is capable of storing used snus portions therein.
Applicant argues that Marcus is in the field of medication and liquid delivery systems. The stated purpose is to provide a user a water source when taking pills away from home (See Marcus at paragraphs [0005]-[0007]). The entire disclosure of Marcus is framed around providing a "single dose of pills and a single dose of water sufficient to wash down the pills" (Marcus at paragraph [0019]). The container in Marcus holds unused consumables (pills and water) for later administration. There is no concept, teaching, or suggestion in Marcus of using a compartment to store a used item or waste product. A pill is consumed; it does not become a "used pill" that requires subsequent storage. Moreover, pills are associated to be dry, not containing fluid that could leak out into the pocket of the user. Used snus portions are usually wet due to saliva absorbed when being consumed. The moisture that comes from used snus portions is not desirable to leak out into the pocket of the user.
Regarding Applicant’s argument, as described above, since the snus portions (used or unused) are not positively recited in the claim, the prior art must only be capable of storing the snus portions in the manner recited in the claim. The compartments of the container of Marcus are fully capable of storing unused/used snus portions therein.
Applicant argues that according to Marcus, there may be a second membrane 44 attached to the second rim 42. However, it is not clear how this may be helpful to make the opening more resistant to leakage. Further, this membrane is only intended to be used when the container is delivered prefilled, for safety reasons; thus, a user of snus would have to remove this to store the used snus and then a possible sealing by the membrane 44 is consequently removed. The container according to Marcus is described as small, pocket-sized and easy to use. The design according to the drawings of Marcus will result in a rather small opening of both the first chamber 30A and the second chamber 40A, since it is clear from the drawings that the container is deeper than it is wide, and is still to be pocket-sized. This is sufficient, and even favorable, when storing water for drinking or swallowing pills since it is a design that makes it easier to drink without spilling.
Regarding Applicant’s argument, as described above, even though the container of Marcus is disclosed as being used for storing different items, it does not take away from the fact that the compartments of the container of Marcus can be used to store snus portions therein, in the manner recited in the claims. Since the snus portions (used or unused) are not positively recited in the claim, the prior art must only be capable of storing the snus portions in the manner recited in the claim.
Applicant argues that Marcus does not disclose a snus container that is a single continuous part. Applicant respectfully asserts that the disclosure in Marcus reinforces a conclusion that the container of Marcus is not a single continuous part. The primary embodiment in Marcus (10A) consists of a "first housing 12A for water, a second housing 14A for pills, and a lid 16A" (Marcus at paragraph [0020]). The only explanation in Marcus of how the first housing 12A, the second housing 14A and the lid 16A are assembled is that they are attached to each other respectively. Marcus explicitly states the "second housing 14A is attached to the first housing 12A by a first hinge 18". The language "attached to" signifies the joining of two separate components, not a single continuous part. In paragraph [0020], Marcus discloses:"In its preferred form, the hinges 18 and 20 are molded as part of the lid 16A and second housing 14A, such as from plastic." Marcus is silent regarding if all parts are molded as one, and about the first housing 12A. Neither can the wording "attached' in Marcus be used to determine if the parts are molded as a continuous part, since this wording is also used in regard to the membranes 32, 44, which are clearly not continuous parts of the container. Nowhere does Marcus teach or suggest a container where the body, first lid, and second lid are formed as a single continuous part. The snus container of the present application provides significant advantages in manufacturing simplicity and structural integrity by being a one-piece item.
Contrary to Applicant’s argument, the phrase “the snus container is a single continuous part” is relatively broad since the term “continuous” is defined as “forming an unbroken whole; without interruption”. Figure 3 of Marcus clearly shows the container is formed from parts (30A/40A/16A along with hinged 18/20) that form an unbroken whole, without interruption. There are no gaps or spaces between the parts forming the container in Figure 3 of Marcus, thus the container can be considered a single continuous part. With respect to the art rejections, in accordance with MPEP 2111.01, during examination, the claims must be interpreted as broadly as their terms reasonably allow. In re American Academy of Science Tech Center, 367 F.3d 1359, 70 USPQ2D 1827, 1834 (Fed. Cir. 2004). Furthermore, Marcus describes the hinges 18 and 20 being molded as part of the lid 16A and housing 14A ([0020]), similar to that shown in Figure 3. Hinges being molded with the lid and housing would most certainly form a single continuous part.
Applicant argues that other embodiments in Marcus reinforce this multi-piece construction. For example, the embodiment of FIG. 5 discloses a second housing 14B that "snaps onto" the first housing 12B (Marcus at paragraph [0031]). The embodiment of FIG. 8 shows separate lids (16B, 16C) that "snap on" to the housing (Marcus at paragraph [0037]). Contrary to Applicant’s argument, the other embodiments (i.e. Figs. 5 and 8) of Marcus are not being relied on for the rejection as shown above.
Conclusion
THIS ACTION IS MADE FINAL. 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 STEVEN A REYNOLDS whose telephone number is (571)272-9959. The examiner can normally be reached M-F 9am-5pm.
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, Anthony Stashick can be reached at (571) 272-4561. 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.
/STEVEN A. REYNOLDS/Primary Examiner, Art Unit 3735