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
Applicant's arguments filed 6/18/2026 in response to Office Action 3/24/2026 have been fully considered but they are not persuasive for at least the following reason:
Regarding claims 1 and 11, Applicant argues that neither prior art Antier or Ferrari teach the amendment declaring at least one millimeter of length stretched by the stretchable tab (pages 5-8). Examiner agrees; the prior art is silent. However, examiner points out the amendment necessitates a new grounds of rejection with a new prior art as detailed in the analysis below.
Claim Objections
Claim 1 is objected to because of the following informalities. Appropriate correction is required.
Regarding claim 1, “an order of a millimeter” has not one meaning or a broad meaning, but a finite number of meanings: either 1 mm, 10 mm, order of magnitude (not disclosed), 1-10 mm, about 1 mm, or at least 1 mm.
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, 6, 8 and 10-11 are rejected under 35 U.S.C. 103 as being unpatentable over US Pub 20110000928 by Antier et al. (hereinafter “Antier”) in view of US Pub 20220324619 by Ferrari et al. (hereinafter “Ferrari”) in view of US Pub 20070131641 by Higgins (hereinafter “Higgins”).
Regarding claim 1, Antier teaches a capsule (Fig 1, a capsule is device 1, [0032] the whole device/capsule 1 comprising “the lid 20, the strand 30, and the band 17 are advantageously obtained as a single part by molding a plastics material that may be identical”), for a tube (Fig 1, a tube is tube shape bottle 3), having a main axis (central axis) and comprising
a cap (Fig 1, a cap is lid 20) pivotally attached to a base by means of a hinge (Fig 2, [0028], a pivot hinge (means) is flexible hinged connection strip 172 attached to a base 10), the capsule being equipped with a tamper-evident device (Fig 3A, a tamper-evidence device comprises 25, 30, 40) comprising:
- a lug projecting radially with respect to the main axis (Figs 1 & 3, a lug is stud 40 shown radially projecting from the central axis) carried by a first associated element among the base or the cap (examiner chooses “the base” as “a first element”; Fig 1, 40 is in/carried by base 10);
- an orifice for housing the lug (Fig 1, 25) made in a second associated element among the base or the cap (examiner chooses the other option given Applicant’s disclosure, “the cap” as “a second element”; Fig 1, 25 is in cap 20), and a contour of which is closed in an axial direction by a tongue (Fig 5 is “analogous” to Fig 3, [0017], so in Fig 5A a tongue is strand 30’, which defines a contour of 25), a first end of the tongue being connected to the second associated element by a frangible bridge of material (Fig 5A, a frangible bridge connected to 20 on a first end of 30’ is 31’, shown frangible in Fig 5B) and a second end of the tongue being connected to the second associated element by a flexible bridge of material (Fig 5B, a flexible bridge connected to 20 on a second end of 30’ is 30’1),
so that when the cap is opened for a first time (Fig 5B, first opened), a retention face for retaining the lug hooks onto the tongue (Fig 3A, a hooking retention face 41 (Fig 3B) is shown retaining the lug by the engagement of the lug to the tongue (during opening “hooks onto” in between Figs 5A & 5B)) and causes breakage of the frangible bridge (Fig 5B, 31’ is broken) and the pivoting of the tongue about the flexible bridge (Fig 5B, and then 31’ pivots about 30’1); wherein
the retention face for retaining the lug extends radially (the retention face 41 of the lug 40 also extends radially along the radial lug) so that the tongue pivots about an axis oriented radially with respect to the main axis of the capsule (Fig 5B, the tongue 30’ pivots about a radial (out-of-the-page) axis).
But Antier does not explicitly teach a particular tab in the orifice.
Ferrari, however, teaches a tongue (see examiner annotated Ferrari Figures 1 & 6, hereinafter “EAFF16”; EAFF16, tongue, with flexible bridge) is connected to the second element (EAFF16, cap) by a stretchable tab which is oriented generally parallel to the main axis (EAFF16, a stretchable tab is a frangible bridge 29, in the orifice, oriented/extending generally parallel to the central axis); and wherein
the stretchable tab (EAFF16, stretchable tab) is designed to be stretched plastically under an effect of a tensile force produced by the pivoting of the tongue when the cap is opened for the first time, so as to impede return of the tongue to its original position (EAFF16, the tab, in being a frangible bridge, necessarily is capable of plastically stretching under tensile force, when the cap is being first opened, thereby also necessarily capable of impeding the tongue’s return to its cap-closed/original position).
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The purpose of a stretchable breakable tab/bridge is to reinforce the tongue. 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 tongue’s orifice of Antier with a stretchable breakable tab/bridge inside it as taught by Ferrari in order to advantageously reinforce the tongue versus inadvertent jostling opening and further dissuade tampering, and beneficially make the tamper evident visual cue more obvious from not being able to return to original position for more variety of users.
Examiner notes that the resultant combination yields the claimed invention via the stretchable tab of Ferrari being added into Antier’s plastic capsule, meaning the stretchable tab is at least plastic when it is stretched upon opening the cap, thereby certainly capable of being (designed to be) “stretched plastically” under claimed tensile force (e.g. necking) and also impeding the tongue's return to original position due to permanent plastic deformation of the tab.
But Antier/Ferrari does not explicitly teach that the stretchable tab when stretched plastically (Ferrari, Fig 1 & EAFF16, said stretchable tab is the “frangible bridge 29” shown having a visible length in Fig 1) can be stretched to a particular length/distance.
Higgins, however, discloses a frangible bridge as a stretchable tab stretched a particular distance (Fig 28 [0200], “a distance `D` (not shown) equaling the amount of stretch that occurs under stress during closure removal in the frangible bridges 50”).
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 stretchable tab of Ferrari to be able to stretch a visible distance as taught by the equivalent stretchable tab of Higgins (frangible bridge = frangible bridge) in order to advantageously reinforce the cap versus tampering by increasing the force/duration required to open the cap caused by stretching.
In addition, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to expect the stretchable tab stretched length proportion be on the order of a/one millimeter, having the teachings of Antier ([0032] “as a single part by molding a plastics material”) and Higgins ([0240] “(x) Closures made of… plastic materials”) before them (since Applicant is same material: “plastic” page 4 lines 1-2), since it has been held that selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination (i.e. the intended use of stretching to at least 1 mm applies to the length shown in Ferrari and the material disclosed matching that of the instant invention). MPEP 2144.07. Please note that in the instant application, the Applicant has not disclosed any criticality for the claimed limitation (page 11 lines 3-4, order of a millimetre, for example between 1 and 10 mm”, which are values an order of magnitude apart).
Examiner notes the resultant combination yields the claimed invention by at least having the stretchable tab of Ferrari be able to stretch plastically to one millimeter as suggested by the material of Antier and Higgins and unstretched length of Ferrari’s stretchable tab, thereby meeting the limitation “the stretchable tab is designed to be stretched plastically by a length of an order of a millimeter”, and preemptively meeting the range limitation in dependent claim 11 for involving “1 mm” as the base of the range.
Regarding claim 2, Antier further teaches the retention face for retaining the lug is inclined (Fig 3B, the face 41 is inclined) so as to be turned towards the flexible bridge when the cap is closed (Fig 3A, 41 faces towards the flexible bridge 30’1, Fig 5B) in order to promote the pivoting of the tongue when the cap is opened (Fig 3A, forces F2 show promotion of pivoting the tongue).
Regarding claim 4, Antier/Ferrari/Higgins further teaches the stretchable tab is interposed in the orifice (EAFF16, the stretchable tab is in the orifice). See details in the parent claim 1 rejection above, including the motivation for a person of ordinary skill in the art to modify.
But Antier/Ferrari does not explicitly teach that the tab is particularly in between the flexible bridge and the lug in the closed position of the cap (the combination has rendered obvious the placement of Ferrari’s stretchable tab to be between the flexible bridge and lug of Antier, since a POSITA would not place the tab at the frangible bridge 31’of Antier Fig 5A directly inhibiting its breaking).
However, it would have been an obvious matter of design choice to a person of ordinary skill in the art before the effective filing date to rearrange the stretchable tab of Ferrari within the orifice of Antier (Fig 5) to be closer to the hinge than the frangible bridge, therefore between the hinge (Fig 5B) and the lug (Fig 3A, 40) and not at the frangible bridge in a closed position (Figs 5A, 31’), because Applicant has not disclosed that the tab interposed in between the flexible bridge and the lug as claimed 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 flexible hinge still hinges, the frangible bridge still can break, and the lug can still cause the hinge to pivot/hinge. Therefore, it would have been an obvious matter of design choice to modify the stretchable tab position to obtain the invention as claimed. MPEP 2144.04 VI-C.
Regarding claim 6, Antier/Ferrari/Higgins further teaches the stretchable tab is capable of breaking after being stretched during the pivoting of the tongue (EAFF16, stretchable tab is broken after stretching). See details in the parent claim 1 rejection above, including the motivation for a person of ordinary skill in the art to modify.
Regarding claim 8, Antier further teaches the capsule is made in one-part from a plastic material ([0032] the whole device/capsule 1 comprising “the lid 20, the strand 30, and the band 17 are advantageously obtained as a single part by molding a plastics material that may be identical”).
Regarding claim 10, Antier further teaches the first element (Fig 1, base 10) is formed by an external skirt of the base (Fig 1, an external skirt of the base is body 11), while the second element (Fig 1, cap 20) is formed by a peripheral wall of the cap (Fig 1, a peripheral wall of the cap is body 21).
Regarding claim 11, Antier/Ferrari/Higgins further teaches the length (stretchable tab length that can be stretch to) is between 1 and 10 millimeters (see claim 1 combination). See details in the parent claim 1 rejection above, including the motivation for a person of ordinary skill in the art to modify.
Claims 7 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over US Pub 20110000928 by Antier et al. (hereinafter “Antier”) in view of US Pub 20220324619 by Ferrari et al. (hereinafter “Ferrari”) in view of US Pub 20070131641 by Higgins (hereinafter “Higgins”) in view of CH 716166 issued to Gauthey (hereinafter “Gauthey”).
Regarding claim 7, Antier/Ferrari/Higgins does not explicitly teach that the stretchable tab still connects the tongue to the second element when the cap is fully open.
Gauthey, however, teaches a stretchable tab still connects the tongue to the second element when the cap is fully open (Fig 3, a tab is strap 19 having a stretching section 45, stretched to a second plastically deformed length from a first length for a cap fully open, page 5, para last, lines 4-5;
examiner notes that the tab 19 is also capable of breaking, page 5, para last, lines 1-3, “plastic”… “detached from them [cap and base] by destroying them [ends of the tab/strap]”).
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 stretchable tab of Ferrari to be stretchable enough to allow the cap fully open and not break as taught by Gauthey in order to advantageously reinforce retention of the tongue versus tampering or jostling, and increase the fatigue life of the tongue by decreasing the load on its pivoting flexible bridge, which thereby beneficially better secures the tongue to not break off so that the tongue can be recycled together with the base and cap (Gauthey, page 3, para 3).
Regarding claim 9, Antier further teaches the capsule is made of polyethylene ([0032] 1 is of “polyethylene”).
But Antier/Ferrari/Higgins does not explicitly teach a particular polyethylene.
However, Gauthey teaches HDPE (page 5 para 4 last line, “HDPE” capsule), therefore it would have been obvious to a person of ordinary skill in the art at the time the application was filed, to choose HDPE, since it has been held that selection of a known plastic to make a device of a type made of plastics prior to the invention is obvious (selection of HDPE for plastic of Antier’s modified capsule) on the basis of its suitability for the intended use. In re Leshin, 125 USPQ 416. Please note that in the instant application, the Applicant has not disclosed any criticality for the claimed limitation.
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.
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nathan Jenness can be reached on 5712705055. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ERIC C BALDRIGHI/Examiner, Art Unit 3733
/NATHAN J JENNESS/Supervisory Patent Examiner, Art Unit 3733 7 August 2026
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