DETAILED ACTION
Continued Examination Under 37 CFR 1.114
1. 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 March 2, 2026 has been entered.
Response to Arguments
2. Applicant’s arguments with respect to claims 1, 2, 4-6, 10-11, 20, 25, 29-33, 41-42, 45, 49-50 and 55 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.
Claim Rejections - 35 USC § 102
3. 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.
4. Claims 1, 2, 11, 25, 29, 33, and 50 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 5,603,421 (Opresco).
Regarding claim 1, Opresco teaches a container comprising:
a base comprising:
a closed bottom end (not shown; inherently disclosed in containers); and
an open top end (see opening at the top of 16 in Figure 1),
wherein a base upper portion (16) has a reduced cross-sectional dimension relative to an adjacent base lower portion (18), such that the base upper portion cross-sectional dimension is less than the cross-sectional dimension of the adjacent base lower portion (see differing diameters of 16 and 18 in Figure 1), and
wherein the base upper portion and the adjacent base lower portion are substantially similar in shape (see Figure 1 showing 16 and 18 to both be cylindrical); and
a cap (10),
wherein the cap and base comprise one or more releasable engagement elements on opposing container sides (see cap releasable engagement elements 22 which are rotationally blocked by the vertical sides of recess 38), and
wherein the base includes recessed shoulder portions (the bottom floors of notches 38) located between the base upper portion and the base lower portion for receiving the cap (receives detents 32; Examiner notes the instant recesses 915A and 915B only receive a portion of the cap as well).
Regarding claim 2, the container is child-resistant (see col. 1, lines 39-41).
Regarding claim 11, the cap engaged with the base circumscribes at least a 50 percent portion of the base upper portion outward surface area (the cap surrounds 100 percent of the base upper portion as seen in Figure 7).
Regarding claim 25, the cap comprises the one or more releasable engagement elements on a total of two cap sides (the releasable engagement elements 22 are diametrically opposed and thus only on two sides of the cap, as seen in Figure 3).
Regarding claim 29, the base comprises the one or more releasable engagement elements on a total of two base sides (the releasable engagement elements – the sides of notches 38 – are diametrically opposed and thus only on two sides of the base, as seen in Figure 1).
Regarding claim 33, a user applying pressure on opposing cap sides disengages the cap from the base (see col. 2, lines 37-54).
Regarding claim 50, Opresco teaches a container comprising:
a base that comprises:
a closed bottom end (not shown; inherently disclosed in containers); and
an open top end (see opening at the top of 16 in Figure 1),
wherein a base upper portion (16) has a reduced cross-sectional dimension relative to an adjacent base lower portion (18), such that the base upper portion cross-sectional dimension is less than the cross-sectional dimension of the adjacent base lower portion (see differing diameters of 16 and 18 in Figure 1),
wherein the base upper portion and the adjacent base lower portion are substantially similar in shape (see Figure 1 showing 16 and 18 to both be cylindrical), and
wherein the base comprises on opposing base sides one or more elements for releasable engagement with a cap component (10; see cap releasable engagement elements 22 which are rotationally blocked by the vertical sides of recess 38), and
wherein the base upper portion includes recessed shoulder portions located between the base upper portion and the base lower portion for receiving the cap (receives detents 32; Examiner notes the instant recesses 915A and 915B only receive a portion of the cap as well).
Claim Rejections - 35 USC § 103
5. 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.
6. Claims 4-6, 10, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over US 5,603,421 (Opresco) as applied above under 35 U.S.C. 102(a)(1) to claim 1.
Regarding claim 4, Opresco as applied above fails to teach that the base upper portion cross sectional dimension is at least 3 percent less than the cross-sectional dimension of an adjacent base lower portion.
Examiner notes the general structural condition is disclosed, wherein the upper section (16; Figure 1) has a lesser diameter than the adjacent base lower portion (18; Figure 1).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the base upper portion cross sectional dimension of Opresco, forming it to at least 3 percent less than the cross-sectional dimension of an adjacent base lower portion, motivated by an obvious change in size of the prior art having a predictable outcome absent a teaching of an unexpected result. A change in size, absent a teaching of an unexpected result, is within ordinary skill in the art. See MPEP 2144.04(IV)(A):
In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) (Claims directed to a lumber package “of appreciable size and weight requiring handling by a lift truck” where held unpatentable over prior art lumber packages which could be lifted by hand because limitations relating to the size of the package were not sufficient to patentably distinguish over the prior art.); In re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA 1976) (“mere scaling up of a prior art process capable of being scaled up, if such were the case, would not establish patentability in a claim to an old process so scaled.” 531 F.2d at 1053, 189 USPQ at 148.).
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In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.
Regarding claim 5, Opresco as applied above fails to teach that the base upper portion cross sectional dimension is at least 10 percent less than the cross-sectional dimension of an adjacent base lower portion.
Examiner notes the general structural condition is disclosed, wherein the upper section (16; Figure 1) has a lesser diameter than the adjacent base lower portion (18; Figure 1).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the base upper portion cross sectional dimension of Julian or Kerman, forming it to at least 10 percent less than the cross-sectional dimension of an adjacent base lower portion, motivated by an obvious change in size of the prior art having a predictable outcome absent a teaching of an unexpected result. A change in size, absent a teaching of an unexpected result, is within ordinary skill in the art. See MPEP 2144.04(IV)(A).
Regarding claim 6, Opresco as applied above fails to teach that the base upper portion cross sectional dimension is at least 20 percent less than the cross-sectional dimension of an adjacent base lower portion.
Examiner notes the general structural condition is disclosed, wherein the upper section (16; Figure 1) has a lesser diameter than the adjacent base lower portion (18; Figure 1).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the base upper portion cross sectional dimension of Julian or Kerman, forming it to at least 20 percent less than the cross-sectional dimension of an adjacent base lower portion, motivated by an obvious change in size of the prior art having a predictable outcome absent a teaching of an unexpected result. A change in size, absent a teaching of an unexpected result, is within ordinary skill in the art. See MPEP 2144.04(IV)(A).
Regarding claim 10, Opresco as applied above fails to teach that the base upper portion cross sectional dimension is at least 50 percent less than the cross-sectional dimension of an adjacent base lower portion.
Examiner notes the general structural condition is disclosed, wherein the upper section (16; Figure 1) has a lesser diameter than the adjacent base lower portion (18; Figure 1).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the base upper portion cross sectional dimension of Julian or Kerman, forming it to at least 50 percent less than the cross-sectional dimension of an adjacent base lower portion, motivated by an obvious change in size of the prior art having a predictable outcome absent a teaching of an unexpected result. A change in size, absent a teaching of an unexpected result, is within ordinary skill in the art. See MPEP 2144.04(IV)(A).
Regarding claim 20, Opresco as applied above fails to teach that the container vertical height is at least about 4 cm.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to form the container of Opresco to a height of at least 4 cm, motivated by an obvious change in size of the prior art, having a predictable outcome absent a teaching of an unexpected result. A change in size, absent a teaching of an unexpected result, is within ordinary skill in the art. See MPEP 2144.04(IV)(A).
7. Claims 30-32 are rejected under 35 U.S.C. 103 as being unpatentable over US 5,603,421 (Opresco) as applied above under 35 U.S.C. 102(a)(1) to claim 1, in view of US 3,949,893 (Uhlig).
Regarding claim 30, Opreseco fails to teach the base comprises glass.
Uhlig, analogous to threaded child safety containers, teaches forming a container (30) of glass as a suitable rigid material (col. 8, lines 55-58).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to form the container of Opresco of glass as taught by Uhlig, motivated by the use of a suitable rigid material, having a predictable outcome absent a teaching of an unexpected result. See KSR International Co. v. Teleflex Inc. et al. No. 04-1350, 550 U.S. 2007 at 13, lines 22-25 which states, “When a work is available in one field of endeavor, design incentives ...can prompt variations of it, either in the same field or a different one. Furthermore, see id. at 13, lines 27-31 which states “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious”.
Regarding claim 31, Opresco fails to teach the base is a glass structure.
Uhlig, analogous to threaded child safety containers, teaches forming a container (30) of glass as a suitable rigid material (col. 8, lines 55-58).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to form the container of Opresco of glass as taught by Uhlig, motivated by the use of a suitable rigid material, having a predictable outcome absent a teaching of an unexpected result. See KSR International Co. v. Teleflex Inc. et al. No. 04-1350, 550 U.S. 2007 at 13, lines 22-25 which states, “When a work is available in one field of endeavor, design incentives ...can prompt variations of it, either in the same field or a different one. Furthermore, see id. at 13, lines 27-31 which states “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious”.
Regarding claim 32, the cap comprises a polymer (see Opresco Figure 7 showing the closure cross-hatched for synthetic resin, or polymer; see MPEP 608.02).
8. Claims 41, 42, and 45 are rejected under 35 U.S.C. 103 as being unpatentable over US 5,603,421 (Opresco) as applied above under 35 U.S.C. 102(a)(1) to claim 1, in view of US 2017/0001763 (Hu).
Regarding claim 41, Opreseco as applied above fails to teach that the container base cross-sectional shape is substantially square.
Hu, analogous to containers with rotationally-secured closures, teaches it is known to form such containers with square cross-sections, as long as the rotational interface remains cylindrical.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the container of Opresco, forming the cap and base to be square in cross-section as taught by Hu, motivated by the benefit of a square aesthetic. See KSR International Co. v. Teleflex Inc. et al. No. 04-1350, 550 U.S. 2007 at 13, lines 22-25 which states, “When a work is available in one field of endeavor, design incentives ...can prompt variations of it, either in the same field or a different one. Furthermore, see id. at 13, lines 27-31 which states “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious”.
Regarding claim 42, Opreseco as applied above fails to teach that the container base has corners.
Hu, analogous to containers with rotationally-secured closures, teaches it is known to form such containers with square cross-sections, as long as the rotational interface remains cylindrical.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the container of Opresco, forming the cap and base to be square in cross-section as taught by Hu, motivated by the benefit of a square aesthetic. See KSR International Co. v. Teleflex Inc. et al. No. 04-1350, 550 U.S. 2007 at 13, lines 22-25 which states, “When a work is available in one field of endeavor, design incentives ...can prompt variations of it, either in the same field or a different one. Furthermore, see id. at 13, lines 27-31 which states “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious”.
Regarding claim 45, Opresco as applied above fails to teach that the container cap cross-sectional shape is substantially square.
Hu, analogous to containers with rotationally-secured closures, teaches it is known to form such containers with square cross-sections, as long as the rotational interface remains cylindrical.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the container of Opresco, forming the cap and base to be square in cross-section as taught by Hu, motivated by the benefit of a square aesthetic. See KSR International Co. v. Teleflex Inc. et al. No. 04-1350, 550 U.S. 2007 at 13, lines 22-25 which states, “When a work is available in one field of endeavor, design incentives ...can prompt variations of it, either in the same field or a different one. Furthermore, see id. at 13, lines 27-31 which states “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious”.
9. Claims 49 and 55 are rejected under 35 U.S.C. 103 as being unpatentable over US 5,603,421 (Opresco) in view of US 3,949,893 (Uhlig) and in view of US 2017/0001763 (Hu).
Regarding claim 49, Opresco teaches a child-resistant container comprising:
a glass (not taught) container base comprising:
a closed bottom end (not shown; inherently disclosed in containers) having a substantially square cross-sectional shape (not taught); and
an open top end (see opening at the top of 16 in Figure 1),
wherein a base upper portion (16) has a reduced cross-sectional dimension relative to an adjacent base lower portion (18), such that the base upper portion cross-sectional dimension is less than the cross-sectional dimension of the adjacent base lower portion (see differing diameters of 16 and 18 in Figure 1), and
wherein the base upper portion and the adjacent base lower portion are substantially similar in shape (see Figure 1 showing 16 and 18 to both be cylindrical); and
a cap (10),
wherein the cap and base comprise one or more releasable engagement elements on opposing container sides (see cap releasable engagement elements 22 which are rotationally blocked by the vertical sides of recess 38), and
wherein the base upper portion includes recessed shoulder portions located between the base upper portion and the base lower portion for receiving the cap (receives detents 32; Examiner notes the instant recesses 915A and 915B only receive a portion of the cap as well).
Uhlig, analogous to threaded child safety containers, teaches forming a container (30) of glass as a suitable rigid material (col. 8, lines 55-58).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to form the container of Opresco of glass as taught by Uhlig, motivated by the use of a suitable rigid material, having a predictable outcome absent a teaching of an unexpected result. See KSR International Co. v. Teleflex Inc. et al. No. 04-1350, 550 U.S. 2007 at 13, lines 22-25 which states, “When a work is available in one field of endeavor, design incentives ...can prompt variations of it, either in the same field or a different one. Furthermore, see id. at 13, lines 27-31 which states “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious”.
Hu, analogous to containers with rotationally-secured closures, teaches it is known to form such containers with square cross-sections, as long as the rotational interface remains cylindrical.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the container of Opresco, forming the cap and base to be square in cross-section as taught by Hu, motivated by the benefit of a square aesthetic. See KSR International Co. v. Teleflex Inc. et al. No. 04-1350, 550 U.S. 2007 at 13, lines 22-25 which states, “When a work is available in one field of endeavor, design incentives ...can prompt variations of it, either in the same field or a different one. Furthermore, see id. at 13, lines 27-31 which states “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious”.
Regarding claim 55, the recessed shoulder portions are perpendicular to or upward sloping from the base lower portion (the recessed shoulder portion read as the horizontal floor of notch 38 is perpendicular to the verticaly oriented base lower portion side wall).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES N SMALLEY whose telephone number is (571)272-4547. The examiner can normally be reached M-F 9:00 am to 6:00 pm.
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/JAMES N SMALLEY/Examiner, Art Unit 3733
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