DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Arguments
All objections and 35 USC 112 rejections have been overcome.
Applicant's arguments filed 9/10/2025 in response to Office Action 4/10/2025 have been fully considered but they are not persuasive for at least the following reason:
Examiner notes a new grounds is necessitated by the amendments narrowing the scope.
Regarding claims 1 and 20, Applicant argues that since the optimization rationale cites a range for the tether-forming frangible line, it cannot be used for the tether itself and therefore is improperly rejected using the range of the line and not the tether (page 8, para last). Applicant also points to primary prior art Benoit-Gonin [0038] having a tether range of “approximately 60 degrees”. Examiner points out first that since the tether-forming line forms the tether, it also defines an extent of the tether, so the cited range is appropriate. Examiner also points out that approximately 60 degrees is within the cited 40 to 70 degrees, thereby not change the analysis, therefore either way the prior art reads onto the claim.
Applicant argues the retaining strip range is non-obvious because it’s for stable holding open of the cap (page 9, para 1). Examiner points out being held stably open is not an unexpected result to a POSITA as there are a preponderance of references that comprise holding this kind of cap stably open, and the prior art herein overlaps the claimed range, and the Applicant’s specification does not disclose that the range has criticality alone.
Applicant argues that primary prior art Benoit-Gonin does not teach stably holding the cap open (page 9, para 2). Examiner points out [0075] “The tether permits the cap to be… held stably open” and Figure 6 showing the cap held stably open.
Applicant argues the claimed structure and function are not in Benoit-Gonin (page 9, para 3). Examiner points out the structure is properly cited, and that no stably held open function is claimed as argued, so no discussion of that can be had.
Regarding claim 2, Applicant argues that the first connection range has criticality so cannot be optimized because of “robustness” and “resistance”, and that the angle range is not in the prior art (page 9). Examiner points out the prior art range exists (OA page 10), and that “robustness” and “resistance” are not in the specification, therefore cannot be argued.
Regarding claim 3, Applicant argues that the first connection cross-section area range has criticality so cannot be optimized because of enhancing structural integrity (page 9). Examiner points out that “enhancing” and “structural integrity” are not in the specification, therefore cannot be argued. However, there is criticality at [0009], but since the claim scope is narrowed, a new grounds of rejection can be found in the detailed analysis below.
Regarding claim 4, Applicant argues that the second connection range has criticality so cannot be optimized because of reliable anchoring and minimizing failure (page 10). However, “reliable anchoring” and “failure” are not in the specification, therefore cannot be argued.
Regarding all other claims with similar criticality arguments as above, examiner points out the argument is moot since the argued terms are not in the specification, therefore cannot be argued (claim 5 “controlled breaking”, claim 18 “reliability”, claim 19 “standardizes failure mechanics”).
Regarding claims 6, 7 and 10, Applicant argues undisclosed advantages of the claimed structure (i.e. “intuitive use and effective resealing”, “usability”, “minimizing spatial footprint”), therefore cannot be responded to. Examiner points out that the claimed structure is properly read onto by the prior art.
Regarding claim 12, Applicant argues there is criticality to the retaining strip cross-section area, but examiner points out that the cited range happens to be the epitome of obviousness, and since the argued terms are not in the specification, they cannot be argued.
Regarding claim 13, Applicant argues the retaining strip projecting as claimed has criticality by promoting torsional stiffness [0018]. However, the projecting occurs “more or less beyond” which is vague, and does not produce an unexpected result. A POSITA would expect an increased thickness/cross-section area to increase/promote stiffness of an element.
Regarding claim 14, Applicant argues mere intended use using terms not in the specification.
Regarding claim 15, Applicant argues undisclosed design intent of the element’s quantity being “optimized”, however there is nothing in the specification that supports this argument. Specifically, no explicit testing or use of the word “optimize”. Examiner acknowledges that inventions are made intentionally; however, to be non-obvious, detailed evidence is required in the specification.
Regarding claim 16, Applicant argues a POSITA expected result of governed tearing (page 12).
Regarding claim 21, Applicant argues the groove option in the “or” statement (page 12). Examiner points out that option needed no analysis because it was not selected by the examiner at the time, thereby has and needs no citation.
Regarding claim 8, Applicant argues a limitation involving “latched” which is not in claim 8, but perhaps 9 or 21? Regardless, Applicant argues that the claim is not taught so the stopping resting contact cited is not capable of the claimed capability of fixing the cap to a tamper-proof ring stop edge (page 13). Since there are no further details argued on claim 8, examiner simply points out claim 8 is properly read on. Examiner also points out that Krautkramer is not used for claims 9 or 21, and claim 21 is not evaluated with the groove because it is optional (though if the groove were chosen, claim 21 would likely be rejected like claim 9 is since claim 9 has the groove herein discussed).
Regarding claim 9, Applicant argues that the groove of Kwon does not interact with the container’s support ring to “latch” (page 14). However, neither the term or function argued is claimed so the argument is moot. For the sake of the argument’s intent, examiner points out that Kwon’s cited groove K1 is shown to interact by latching with the container’s support ring 15 in a cap open state (Fig 26). Also examiner notes that a different reason for combining prior arts than Applicant’s intent of invention is sufficient for a proper obviousness analysis.
Regarding claim 11, Applicant argues secondary prior art Schmitz cannot be used because it’s not the same kind of invention (page 15). Examiner disagrees, but all that is moot because the argued limitation has been canceled by the Applicant.
Regarding claim 17, Applicant argues that because the word “advantageously” is in the specification, that there is criticality to the claim of greater tear strength of the breaking elements, therefore the rejection using KSR rationales is improper (page 16, para 3). Applicant then adds critical reasons not disclosed in the specification (“prevents premature tearing”, “key problem”, “unintentional release”). Examiner points out that the word “advantageously” alone does not define a specific advantage thereby is not evidence against the teaching and rationales. For example, if “Advantageously, the range is from 5.5 to 6.5” is in the specification alone, that does not make the range critical. Applicant also argues that the breaking sequence (best seen in [0039]) of their retaining strip 19 is only first from the cap 15 (threaded part first and third elements) then from the ring 17 (because second elements preferably have higher strength). Examiner points out that the specified sequence is not critical, not only because the sequence is an expected result of greater tear strength (Applicant must show unexpected results), but also because the argued embodiment is only a “preferabl[e]” embodiment [0039], and “the retaining strip 19 therefore remains on the threaded part 15 or on the tamper proof ring 17” twice [0039]. Since the options of breaking sequence disclosed are mutually exclusive (option of 15 or 17), there is no criticality to which elements have the greater tear strength to dictate the order of the breaking sequence. Further, as Applicant states, the primary function of the strip and unscrewing is when the threaded part (cap) is lifted far enough to be held in the open position by the strip (i.e. Figures 8-10). Therefore a POSITA can see that all the elements (first, second, third) must break in order to hold the cap open with the strip, thereby reinforcing the fact that the breaking sequence is not critical since to achieve the primary function all elements must break anyway.
Applicant argues secondary prior art Orth does not teach relative strength proportions (page 17, para 1), but that is a piecemeal argument. Applicant argues a longstanding problem of strip’s breaking elements between ring and cap (page 17, para 2), but it is not in the specification so cannot be argued.
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 is incorrect, any correction of the statutory basis 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.
Claims 1-2, 4-7, 10-16 and 18-21 are rejected under 35 U.S.C. 103 as being unpatentable over US Pub 20210039840 by Benoit-Gonin et al. (hereinafter “Benoit-Gonin”).
Regarding claim 1, Benoit-Gonin teaches a closure cap (see examiner annotated Benoit-Gonin Figure 5, hereinafter “EAFB5”; EAFB5, cap) for closing the pour opening (EAFB5, pour opening, of the neck) of a container (EAFB5, container), comprising;
a cylindrical threaded part (EAFB5, cap is cylindrical) with a lateral surface (EAFB5, lateral face) having an open edge (EAFB5, open/free edge), a head plate (EAFB5, head plate) connecting to the lateral surface, and an internal thread (EAFB5, internal thread) which is formed on the inside of the lateral surface and configured to interact with an external thread of a container neck of the container (EAFB5, interacts with external thread);
a tamper-proof ring (EAFB5, tamper-proof ring) configured to be held on a protrusion formed on the container neck (EAFB5, protrusion, holds the ring);
a retaining strip (EAFB5, strip) having a first and a second end and a first and a second edge (EAFB5, first end, second end, first edge, second edge), wherein the first end is fixedly connected to the open edge of the threaded part (EAFB5, first end shown fixedly connected to open/free edge) via a first connection (EAFB5, Fig 6, an integral protruding joint portion is shown in the first end), the second end is fixedly connected to the tamper-proof ring (EAFB5, second end shown fixedly connected to tamper-proof ring) via a second connection (EAFB5, Fig 6, an integral protruding joint portion is shown in the second end), the first edge is releasably connected to the open edge of the threaded part by at least one predetermined breaking element (EAFB5, first edge shown releasably connected to open/free edge by first bridge), and the second edge is releasably connected to the tamper-proof ring by at least one second predetermined breaking element (EAFB5, second edge shown releasably connected to tamper-proof ring by second bridge);
the retaining strip that when in an unopened state is arranged between the threaded part and the tamper-proof ring and along a circumference of the tamper-proof ring and extends in an arc (see examiner annotated Benoit-Gonin Figure 4, hereinafter “EAFB4”; EAFB4, unopened state is shown, wherein the strip is between the thread and the ring, extending along a circumferential arc) with a first angle ranging degrees ([0013] “40 degrees to 70 degrees”); and
third predetermined breaking elements arranged in the open edge such that the open edge of the threaded part is spaced directly above the tamper-proof ring with the intervening third predetermined breaking elements disposed therebetween (EAFB4, third bridges are in the open edge portion, and in/intervening between the open edge and threaded part, because the threaded part is shown spaced directly above the ring (i.e. the third bridges are in said space)).
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But Benoit-Gonin does not explicitly teach a particular range of arc.
However, it would have been obvious to one having ordinary skill in the art at the time the invention was made to optimize and arrive at 30 to 50 degrees, recognizing that a decrease in degrees arc is directly correlated to an increase in stability of stably holding open the cap from a shorter tighter tether and to decreased time to open due to less slack in the tether meaning less travel and/or breaking of breakable elements, which is a desirable characteristic, since it has been held that where the general conditions of a claim are disclosed in the prior art ([0013] “40 degrees to 70 degrees”), discovering the optimum or workable ranges of a result effective variable involves only routine skill in the art. In re Aller, 105 USPQ 233. Please note that in the instant application, the Applicant has not disclosed any criticality for the claimed limitation.
Regarding claim 2, Benoit-Gonin further teaches the first connection between the retaining strip and the threaded part is made along the open edge (EAFB, open/free edge) of the lateral surface (EAFB5, Fig 6, the integral protruding joint portion shown in the first end) and the first connection extends over an arc with a second angle (Fig 6, first connection joint is shown extending over an arc angle).
But does not explicitly teach a particular arc angle range.
However, it would have been obvious to one having ordinary skill in the art at the time the invention was made to optimize and arrive at 10 to 25 degrees, recognizing that a larger degrees arc is directly correlated to an increase in ease of manipulation to rotate the cap due to increased surface area to grip and stiffness with which to push through breakable elements, which is a desirable characteristic, since it has been held that where the general conditions of a claim are disclosed in the prior art ([0013] tether is “40 degrees to 70 degrees”, and a height “0.7 mm” is given [0040], wherein the height is a portion of the arc angle), discovering the optimum or workable ranges of a result effective variable involves only routine skill in the art. In re Aller, 105 USPQ 233. Please note that in the instant application, the Applicant has not disclosed any criticality for the claimed limitation.
Regarding claim 4, Benoit-Gonin further teaches the second connection between the retaining strip and the tamper-proof ring is made along the tamper-proof ring (EAFB5, Fig 6, the integral protruding joint portion shown in the second end), and extends over an arc with a third angle (Fig 6, second connection joint is shown extending over an arc angle).
But does not explicitly teach a particular arc angle range.
However, it would have been obvious to one having ordinary skill in the art at the time the invention was made to optimize and arrive at 6 to 10 degrees, recognizing that a larger degrees arc is directly correlated to an increase in ease of manipulation to rotate the cap due to increased surface area to grip and stiffness with which to push through breakable elements, which is a desirable characteristic, since it has been held that where the general conditions of a claim are disclosed in the prior art ([0013] tether is “40 degrees to 70 degrees”, and a height “0.7 mm” is given [0040], wherein the height is a portion of the arc angle), discovering the optimum or workable ranges of a result effective variable involves only routine skill in the art. In re Aller, 105 USPQ 233. Please note that in the instant application, the Applicant has not disclosed any criticality for the claimed limitation.
Regarding claim 5, Benoit-Gonin further teaches the second connection between the retaining strip and the threaded part (EAFB5, Fig 6, the integral protruding joint portion shown in the second end) in cross section along an imaginary sectional plane (examiner nots that even though the term “imaginary” is subjective, it is not a 35 USC 112b since “imaginary sectional plane” is limited to the three-dimensional space occupied by the first connection, therefore just very broad) is 3 mm2 to 5 mm2 ([0039] tether cross section area “3 mm2”, or else when the second joint overlaps itself in Figure 6, “2 mm2” doubled (from overlap) is 4 mm2.).
In addition, and in the alternative, it would have been obvious to one having ordinary skill in the art at the time the invention was made to optimize and arrive at 3 mm2 to 5 mm2, recognizing that an increase in the second connection joint cross section is directly correlated to an increase in stably holding open the cap from a stiffer engagement section due to increased cross-sectional area, which is a desirable characteristic, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges of a result effective variable involves only routine skill in the art. In re Aller, 105 USPQ 233. Please note that in the instant application, the Applicant has not disclosed any criticality for the claimed limitation.
Regarding claim 6, Benoit-Gonin further teaches the first end of the retaining strip (EAFB5, first end) is connected to the open edge (EAFB5, open/free edge) of the threaded part and the second end (EAFB5, second end) is connected to the tamper-proof ring (EAFB5, tamper-proof ring) by a first and a second film hinge, respectively (EAFB5, first film hinge, second film hinge).
Regarding claim 7, Benoit-Gonin further teaches the tamper-proof ring (EAFB5, tamper-proof ring) has a circumferential stop edge on a side facing the threaded part (EAFB5, stop, is circumferentially located on a side facing the threaded part).
Regarding claim 10, Benoit-Gonin further teaches an unopened state of the closure cap (EAFB4, unopened state), the retaining strip is accommodated in a recess of the tamper-proof ring (EAFB5, strip shown in a recess).
Regarding claim 11, Benoit-Gonin further teaches the at least one first predetermined breaking element (EAFB5, first bridge) and the at least second predetermined breaking element (EAFB5, second bridge)
have different tensile or tear strengths, wherein
the third predetermined breaking elements have identical tensile or tear strengths to the at least one first predetermined breaking element (Fig 4, EAFB4, [0061], first bridge is of “bridges 126” and so are third bridges, so they are all the same 126, meaning identical).
Regarding claim 12, Benoit-Gonin further teaches the retaining strip (EAFB5, strip) has a cross section between 1.5 mm2 and 2.5 mm2 ([0039] “2 mm2”).
Regarding claim 13, Benoit-Gonin further teaches the retaining strip (EAFB5, strip) projects beyond the tamper-proof ring and the lateral surface (Fig 6 shows, from the protruding integral joints (the first and second connections) and viewpoint, that the strip extends outward radially beyond the tamper-proof ring outermost surface).
Regarding claim 14, Benoit-Gonin further teaches the first predetermined breaking element is a first predetermined breaking web (EAFB5, EAFB4, first bridge is shown having width, making it a web-like structure (e.g. similar to a mini weakened line/score line, but still a bridge)) and, the second predetermined breaking element is a second predetermined breaking web (EAFB5, EAFB4, second bridge is shown having width, making it a web-like structure), and that the third predetermined breaking elements are third predetermined breaking webs (EAFB5, EAFB4, third bridges are shown having width, making them web-like structures).
Regarding claim 15, Benoit-Gonin further teaches one to three (examiner interprets “one to three” as “the one alone, or with one or two more”) first predetermined breaking webs are arranged between the open edge of the threaded part and the first edge of the retaining strip (EAFB5, one or two or three first bridge(s) are shown).
Regarding claim 16, Benoit-Gonin further teaches one to three (examiner interprets as “the one alone, or with one or two more”) second predetermined breaking webs are arranged between the tamper-proof ring and the second edge of the retaining strip (EAFB5, one or two second bridge(s) are shown).
Regarding claim 18, Benoit-Gonin further teaches the first predetermined breaking element is increased to two or three predetermined breaking elements and the second predetermined breaking element is increased to two or three predetermined breaking elements (EAFB5, at least two of first bridge along first edge, at least two of second bridge along second edge), and wherein the two or three first predetermined breaking elements and the two or three second predetermined breaking elements are arranged at uniform distances along the first and the second edge, respectively (EAFB5, EAFB4, the bridges are shown at (meaning “near” under broadest reasonable interpretation) uniform distances – relative to each other – along the entire length of the strip. In other words “uniform distances” is broad not narrow, because “uniform” is modified by “at”.).
In addition, and in the alternative, if an argument may be made that Benoit-Gonin does not expressly disclose uniform distances claimed, then it would have been an obvious matter of design choice to a person of ordinary skill in the art at the time the application was filed to rearrange the at least two first and second bridges of Benoit-Gonin to be in uniform locations/distances relative to each other because Applicant has not disclosed that uniformity provides a specific advantage, is used for a particular purpose, or solves an explicit problem (e.g. Applicant discloses one first and one second bridge is sufficient). One of ordinary skill in the art, furthermore, would have expected Applicant's invention to perform equally well with the rearrangement because cap frangibility from the ring is unchanged. Therefore, it would have been an obvious matter of design choice to modify the arrangement of bridges to obtain the invention as claimed. MPEP 2144.04 VI-C.
Regarding claim 19, Benoit-Gonin does not explicitly teach a particular spacing of third bridges.
However, it would have been an obvious matter of design choice to a person of ordinary skill in the art at the time the application was filed to rearrange the bridges of Benoit-Gonin to be in uniform locations/distances relative to each other because Applicant has not disclosed that uniformity provides a specific advantage, is used for a particular purpose, or solves an explicit problem. One of ordinary skill in the art, furthermore, would have expected Applicant' s invention to perform equally well with the rearrangement because cap frangibility from the ring is unchanged. Therefore, it would have been an obvious matter of design choice to modify the arrangement of bridges to obtain the invention as claimed. MPEP 2144.04 VI-C.
Regarding claim 20, Benoit-Gonin teaches a container (EAFB5, container) comprising:
a container body (EAFB5, container, body);
a container neck adjoining the container body (EAFB5, neck);
an external thread formed on the container neck (EAFB5, external thread);
a support ring formed at the transition from the container neck to the container body (EAFB5, support ring);
a closure cap (EAFB5, cap) for closing a pour opening defined by the container neck (EAFB5, pour opening of neck) comprising:
a cylindrical threaded part (EAFB5, cap is cylindrical) having an open edge (EAFB5, open/free edge) and an internal thread (EAFB5, internal thread) that interacts with the external thread of the container neck (EAFB5, threads interact), a tamper-proof ring held on a protrusion formed on the container neck (EAFB5, tamper-proof ring); and
a retaining strip (EAFB5, strip) having a first and second end and a first and a second edge (EAFB5, first end, second end, first edge, second edge), wherein the first end is fixedly connected to the open edge of the threaded part (EAFB5, first end shown fixedly connected to open/free edge), the second end is fixedly connected to the tamper-proof ring (EAFB5, second end shown fixedly connected to tamper-proof ring), the first edge releasably connected to the open edge of the threaded part by at least one first predetermined breaking element (EAFB5, first edge shown releasably connected to open/free edge by first bridge), and the second edge releasably connected to the tamper-proof ring by at least one second predetermined breaking element (EAFB5, second edge shown releasably connected to tamper-proof ring by second bridge); wherein
the closure cap further comprising the retaining strip that when in an unopened state is arranged between the threaded part and the tamper-proof ring and along a circumference of the tamper-proof ring and extends in an arc (EAFB4, unopened state shown, wherein the strip is between the thread and the ring, extending along a circumferential arc) with a first angle ranging degrees ([0013] “40 degrees to 70 degrees”); and wherein
third predetermined breaking elements are disposed between the open edge of the threaded part and the tamper-proof ring (EAFB4, third bridges are in the open edge portion, and in/intervening between the open edge and threaded part, because the threaded part is shown spaced directly above the ring (i.e. the third bridges are in said space)).
But Benoit-Gonin does not explicitly teach a particular range of arc.
However, it would have been obvious to one having ordinary skill in the art at the time the invention was made to optimize and arrive at 30 to 50 degrees, recognizing that an increase/decrease in degrees arc is directly correlated to an increase in stability of the object holding stable opening from a shorter tighter tether and decreased time to open due to less slack in the tether, which is a desirable characteristic, since it has been held that where the general conditions of a claim are disclosed in the prior art ([0013] “40 degrees to 70 degrees”), discovering the optimum or workable ranges of a result effective variable involves only routine skill in the art. In re Aller, 105 USPQ 233. Please note that in the instant application, the Applicant has not disclosed any criticality for the claimed limitation.
Regarding claim 21, Benoit-Gonin further teaches the open edge (EAFB5, open edge) of the threaded part (examiner chooses “open edge”) or a groove is configured to be latched (Fig 6, [0061], shows open edge latched (i.e. engaged at fully extended strip length) to “fit” under support ring) to the support ring (EAFB5, support ring).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over US Pub 20210039840 by Benoit-Gonin et al. (hereinafter “Benoit-Gonin”) in view of WO 2021014290 by Bassi et al. (hereinafter “Bassi”).
Regarding claim 3, Benoit-Gonin further teaches the first connection between the retaining strip and threaded part (EAFB5, Fig 6, the integral protruding joint portion shown in the first end) in cross section along an imaginary sectional plane (examiner nots that even though the term “imaginary” is subjective, it is not a 35 USC 112b since “imaginary sectional plane” is limited to the three-dimensional space occupied by the first connection, therefore just very broad) is a range ([0039], when the first joint of tether cross section thickness overlaps the open/free edge radial thickness in Figure 6, “2 mm2” or “3 mm2” area).
But Benoit-Gonin does not explicitly teach a particular area range.
Bassi, however, teaches a similar tethered cap comprising:
a first connection cross sectional area from 4 mm2 to 6 mm2 (Bassi discloses an encompassing range with a minimum of 0.35 mm2 and a maximum of 9.9 mm2 (simple multiplication) due to the ranges of thickness S (min 0.35 mm, max 1.8 mm) and height H1 (min 1 mm, max 5.5 mm) disclosed for the connecting bands 306, 307. A first connection is a width/section of 306 shown equal to the width of joining portion 305. Examiner includes evidence:
(page 24, lines 24-25) "The height H1 of the connecting bands 306, 307 may be greater than, or equal to, 1 mm and less than, or equal to, 5.5 mm";
(page 17, lines 3-6) "in Figure 17, each connecting band 306, 307 may have a radial thickness S, that is to say, a thickness measured in a radial direction relative to the axis Z, greater than, or equal to, 0.35 mm. This thickness may be less than, or equal to, 1.8 mm";
(page 18, lines 15-25) "it has been experimentally demonstrated that for the cap 1 of Figures 1 , 1 A, 1 B, 14 and 15, the inclination of the closing element 302 in the open condition, and therefore the stability in the locking of the same on the neck 201 , is also determined by a ratio between the height H1 of the connecting bands 306, 307 and the radial thickness S of the connecting bands 306, 307, as described in more detail below, which can deform to guarantee the optimum connection between the neck 201 and the joining portion 305 (and if necessary between the neck 201 and the connecting bands 306, 307) in such a way as to maintain the closing element 201 in the open position in a reliable and secure fashion").
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 modified the size/proportion of the first connection of Benoit-Gonin to be from 4 mm2 to 6 mm2 as taught by Bassi, since it has been held that 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, and 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. MPEP 2144.04 IV-A.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over US Pub 20210039840 by Benoit-Gonin et al. (hereinafter “Benoit-Gonin”) in view of WO 2020099199 by Krautkramer (hereinafter “Krautkramer”).
Regarding claim 8, Benoit-Gonin does not explicitly teach that the closure cap (EAFB5, cap) is configured to be fixed to the stop edge (EAFB5, stop of the tamper-proof ring) in the opened state (Fig 6 shows open state).
Krautkramer, however, teaches a similar tethered cap for stable holding open comprising:
a closure cap (Fig 4B, cap 10) is configured to be fixed to a stop edge in the opened state (Fig 4B, cap is held stably open by an edge of the tamper-proof ring stopping movement by being fixed in place, Fig 2, page 6, para last, line 3, wherein an open/free cap edge 11 stops/rests against by contact an edge of a portion 12 of the tamper-proof ring band 3).
The purpose of fixing the cap to the stop edge is to accentuate elastic tension in the tether. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the stable open position of the cap of Benoit-Gonin to contact the ring edge as taught by Krautkramer in order to advantageously reduce production cost by making a shorter tether than otherwise needed for holding stable open over contacting the container neck support ring, and beneficially further simplify and quicken grasping strategies for users to reach the stable open position versus fumbling with a longer tether.
In addition, it would have been an obvious matter of design choice to a person of ordinary skill in the art at the time the application was filed to rearrange the stable open position to contact the tamper-proof ring stop edge from the neck support ring because Applicant has not disclosed that the particular contact provides a specific advantage, is used for a particular purpose, or solves an explicit problem. One of ordinary skill in the art, furthermore, would have expected Applicant's invention to perform equally well with the rearrangement because the primary function of stable held open cap is still achieved. Therefore, it would have been an obvious matter of design choice to modify the arrangement of the cap to obtain the invention as claimed. MPEP 2144.04 VI-C. A person of ordinary skill in the art is also a person of ordinary creativity, not an automaton. MPEP 2141.03 I.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over US Pub 20210039840 by Benoit-Gonin et al. (hereinafter “Benoit-Gonin”) in view of US 20120024815 by Kwon (hereinafter “Kwon”).
Regarding claim 9, Benoit-Gonin does not explicitly teach a cap wall groove.
Kwon, however, teaches a similar tethered cap comprising:
a groove extending in a circumferential direction is provided on an outer side of the lateral surface (Fig 26, a projection K1 extends in a circumferential direction, and forms a groove with a cap wall outer lateral surface).
The purpose of a cap groove is to improve cap securement while open. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the cap lateral outer surface of Benoit-Gonin with a groove as taught by Kwon in order to advantageously further prevent idle rotation of the cap (Kwon, [0077]).
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over US Pub 20210039840 by Benoit-Gonin et al. (hereinafter “Benoit-Gonin”) and evidenced by US Pub 20040069738 by Orth et al. (hereinafter “Orth”).
Regarding claim 17, Benoit-Gonin does not explicitly teach a particular relative strength proportion of webs to each other.
However, it would have been obvious to a person of ordinary skill in the art having the teachings of Benoit-Gonin and Orth before them at the time the application was filed, to make the second element greater size (i.e. greater tear strength) than the first element and the third element, since it has been held that mere scaling up of a prior art capable of being scaled up would not establish patentability (as evidenced by Benoit-Gonin, Figure 4, the second bridge 136 is shown larger than first bridge 126 to a POSITA). MPEP 2144.04 IV-A. Also it has been held that the changing the shape (i.e. to be larger) of the claimed element was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant (as evidenced by Orth [0027], bridges can be uniform thickness, taper, or be a trapezoid, for various known advantages). MPEP 2144.04 IV-B. Please note that in the instant application, the Applicant has not disclosed any criticality for the claimed limitation ([0021] [0038] are the only mentions of “greater” strength and do not have specific advantages; [0039] the difference of strengths causes the first and third webs to break before the second web. Examiner notes that the primary function is releasing the cap, which can be done in any order of web breaking since opening can only occur after breaking of all.).
Conclusion
Applicant's amendment necessitated the new ground(s) 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.
The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure. See attached PTO-892.
WO 2019207153 – thicker first and second connections (Figs 9 & 26)
WO 2020046849 – thicker first and second connections (Fig 2)
WO 2020093062 – projecting retaining strip (Fig 1)
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERIC C BALDRIGHI whose telephone number is (571)272-4948. The examiner can normally be reached M-F 7:30-5:00 EST.
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/ERIC C BALDRIGHI/Examiner, Art Unit 3733
/DON M ANDERSON/Primary Examiner, Art Unit 3733
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