DETAILED ACTION
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 .
Examiner’s Note
Examiner notes that the independent claims are all written without a transitional word or phrase, such as ‘comprising’, and as such the claims lack a formal delineation between the claim preamble and claim body. See MPEP § 2111.02 and 2111.03. The independent claims are therefore each interpreted as containing one long run-on preamble without any claim body. Examiner notes that the claim limitations may not be given any patentable weight. For purposes of expediency, a detailed rejection is provided below.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 15-18 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claims 15 and 20 recites, “this at least one sealing variable”. The term “the” should be used if this is intended to provide antecedent basis to the earlier use of “at least one sealing variable”.
Claims 16 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. The claim recites, “the determined sealing variables”. There is no antecedent basis for this term in the plural.
Claims 8-10 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claims 8, 9 and 10 recite, “the characteristic closure rotational variable”. There is no antecedent basis for this term.
Claim 18 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. The claim recites, “at least one attachment variable” and later “an attachment variable that is characteristic”. It is unclear whether the claims are attempting to refer to the sealing variable in the parent claims, and if so, this is not appropriate antecedent basis. Also, the second usage of the term does not contain the term “the” to properly designate antecedent basis and does not contain the phrase “at least one”. Finally, it is not clear what is meant by “attachment variable” in the claims and what the metes and bounds of this usage are unclear.
Claim 18 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. The claim recites, “the expected region and/or the at least one expected variable is determined depending on a predefined and/or predefinable measurement inaccuracy of the closure rotational angle variable”. It is not clear what is meant by “predefinable” here and further it is not clear what is meant by “predefined and/or predefinable measurement inaccuracy of the closure rotational angle variable”. There may be grammatical or other clarifying amendments that can be made but as the claims currently stand the metes and bounds of this language are unclear.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim 1-20 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims of copending Application No. 18/685,134 (reference applications). Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claim 1, 18/685,134 discloses a method for inspecting containers provided with closures for checking a sealing function between the closure and a container provided therewith, wherein the closure is arranged by performing a screwing-on operation on a mouth region of the container and thereby arranging it in a closing direction on a mouth region of the container, wherein the containers are transported along a predefined transport path by a transport device, and during this transport the containers provided with the closures are illuminated by a lighting device, at least in regions, and at least one image recording device records at least one spatially resolved image of the container to be inspected that is provided with the closure, (claim 1)
wherein to check the sealing function, the at least one spatially resolved image is recorded by the at least one image recording device in such a way that, viewed in the closure direction, a relative position of the closure with respect to the container provided therewith is depicted, and an image evaluation device determines, on the basis of the relative position depicted in the at least one spatially resolved image for checking the sealing function, at least one closure rotation angle variable characteristic of a closure rotation angle by which the closure was rotated in the context of the performed screwing-on operation. (claim 1)
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) 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.
Claim(s) 1-12, 15-17 and 19-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cochran (US PGPub 2014/0311256).
Regarding claim 1, Cochran discloses a method for inspecting containers provided with closures for checking a sealing function between the closure and a container provided therewith, wherein the closure is arranged by performing a screwing-on operation on a mouth region of the container and thereby arranging it in a closing direction on a mouth region of the container, wherein the containers are transported along a predefined transport path by a transport device, and during this transport the containers provided with the closures are illuminated by a lighting device, at least in regions, and at least one image recording device records at least one spatially resolved image of the container to be inspected that is provided with the closure, (Cochran teaches a system for sealing inspection of a screw cap on a plastic bottle. ¶ 0051 and 0063-0067 teaches using the texture features called on bottle caps and bottle support rings termed fiducials, marks or orientation patterns which are oriented with respect to thread elements of the cap and bottle or neck portion. ¶ 0058 teaches the lighting system.)
wherein to check the sealing function, the at least one spatially resolved image is recorded by the at least one image recording device in such a way that, viewed in the closure direction, a relative position of the closure with respect to the container provided therewith is depicted, and an image evaluation device determines, on the basis of the relative position depicted in the at least one spatially resolved image for checking the sealing function, at least one closure rotation angle variable characteristic of a closure rotation angle by which the closure was rotated in the context of the performed screwing-on operation. (Cochran’s fiducials/markings are taught at ¶ 0051 and 0063-0067. ¶ 0080 teaches detecting a fiducial on both the bottle’s flange ring and a fiducial on the cap/closure to determine a relative rotation angle between the two marks. See Figs. 5a-5c.)
Cochran does not expressly disclose that all of its above-cited teachings of bottle cap closure inspection are expressly disclosed as occurring in the same embodiment. That is, despite the reference being clear that these functions are disclosed, there is no express disclosure that the details are all found in the same embodiment. Instead, the reference presents some of the individual detailed disclosures as ‘according to some embodiments.’ It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the various teachings to provide a single system capable of the variety of tasks which are disclosed. In view of these teachings, this cannot be considered a non-obvious improvement over the prior art. Using known engineering design, no “fundamental” operating principle of the teachings are changed; they continue to perform the same functions as originally taught prior to being combined.
Regarding claim 2, the above combination discloses the method according to claim 1 wherein at least one expected variable characteristic of an expected region on the container and/or on the closure is determined depending on the determined closure rotation angle variable, in which a marking element is arranged on the container and/or the closure that is configured for an identification of a rotational position of the container and/or closure. (As above, Cochran’s fiducials/markings are taught at ¶ 0051 and 0063-0067. ¶ 0080 teaches detecting a fiducial on both the bottle’s flange ring and a fiducial on the cap/closure to determine a relative rotation angle between the two marks. See Figs. 5a-5c.)
Regarding claim 3, the above combination discloses the method according to claim 2, wherein at least one evaluation region is selected from at least one spatially resolved image recorded by an image evaluation device depending on the at least one expected variable characteristic of an expected region on the container and/or on the closure, and wherein exclusively the image data of the evaluation region is evaluated to determine a marking element. (As above, Cochran’s fiducials/markings are taught at ¶ 0051 and 0063-0067. ¶ 0080 teaches detecting a fiducial on both the bottle’s flange ring and a fiducial on the cap/closure. The fiducials are search for within the expected region of the image, see Fig. 5c numeral 1262.)
Regarding claim 4, the above combination discloses the method according to claim 2, wherein the expected region and/or the at least one expected variable is determined depending on a predefined and/or predefinable measurement inaccuracy of the closure rotational angle variable. (¶ 0073 teaches predefining the arc segment predefined variable for the expected region.)
Regarding claim 5, the above combination discloses the method according to claim 2, wherein the expected region is a region which extends over a predetermined circumferential angle with respect to the longitudinal axis and/or to the closing direction. (¶ 0073 teaches predefining the arc segment angle range for the expected region.)
Regarding claim 6, the above combination discloses the method according to claim 5, wherein the circumferential angle is small. (¶ 0073, “Only a small arc segment of the support ring need be imaged, e.g. an arc segment where the mark is most likely located.” The prior art does not expressly disclose that this “small” angle is less than 90°. However, examiner notes that both the concept and advantage of selecting an angle less than 90 degrees for a ‘small’ angle here would have been obvious to incorporate with predictable result and without undue experimentation. The intention as explained by Corchran is to greatly narrow the area that must be searched so that other marks which are not the correct mark will not be falsely identified. Official Notice is therefore applied here. One of ordinary skill in the art could have combined the elements in the manner explained above using known engineering design without changing a “fundamental” operating principle of the above combination.)
Regarding claim 7, the above combination discloses the method according to claim 1, wherein the closure and the container each have at least one marking element configured for identifying a rotational position of the container and/or closure, and these two marking elements are used to check the closure rotational angle variable and/or sealing variable determined on the basis of the relative position depicted in the at least one spatially resolved image. (As above, ¶ 0080 teaches detecting a fiducial on both the bottle’s flange ring and a fiducial on the cap/closure. The relative positions are used to check the rotational angle.)
Regarding claim 8, the above combination discloses the method according to claim 1, wherein the closure and the container each have at least one marking element configured for identifying a rotational position of the container and/or closure, wherein the position of one of the two marking elements is determined, and a rotational position of the other marking element is determined on the basis of the determined position of one of the two marking elements and on the basis of the characteristic closure rotational variable. (As above, ¶ 0080 teaches detecting a fiducial on both the bottle’s flange ring and a fiducial on the cap/closure to determine a relative rotation angle between the two marks by finding the marks and determining their angular distance. See Figs. 5a-5c.)
Regarding claim 9, the above combination discloses the method according to claim 8, wherein the position of the marking element on the closure is determined and, on the basis thereof, a relative rotational position of the marking element on the container with respect to the marking element on the closure is determined on the basis of the determined characteristic closure rotational variable. (As above, ¶ 0080 teaches detecting a fiducial on both the bottle’s flange ring and a fiducial on the cap/closure to determine a relative rotation angle between the two marks by finding the marks and determining their angular distance. See Figs. 5a-5c.)
Regarding claim 10, the above combination discloses the method according to claim 7, wherein the position of the marking element on the container is determined and, on the basis thereof, a relative rotational position of the marking element on the closure with respect to the marking element on the container is determined on the basis of the determined characteristic closure rotational variable. (As above, ¶ 0080 teaches detecting a fiducial on both the bottle’s flange ring and a fiducial on the cap/closure to determine a relative rotation angle between the two marks by finding the marks and determining their angular distance. See Figs. 5a-5c.)
Regarding claim 11, the above combination discloses the method according to claim 9, wherein at least one sealing variable characteristic of a fulfillment of the sealing function is determined from the determined relative rotational position of the marking element on the closure with respect to the marking element on the container. (As above, ¶ 0080 teaches detecting a fiducial on both the bottle’s flange ring and a fiducial on the cap/closure to determine a relative rotation angle between the two marks by finding the marks and determining their angular distance. The binary sealing variable of acceptable/not acceptable is determined therefrom. See Figs. 5a-5c.)
Regarding claim 12, the above combination discloses the method according to claim 11, wherein a first sealing variable characteristic of a fulfillment of the sealing function and/or the closure rotation angle variable is determined without using a position of marking elements, and on the basis of the first sealing variable and/or closure rotation angle variable, a fine determination of a sealing variable and/or a fine determination of a relative rotational position of the closure with respect to the container is made using a position of marking elements on the closure and the container. (¶ 0080 teaches an initial sealing variable characteristic of determining whether the bottom and cap are present and able to be centered in the image. Fiducial/marking elements are then used in a second process.)
Regarding claim 15, the above combination discloses a method for operating a closure apparatus for closing containers with closures, wherein the containers are transported along a predefined transport path by a transport device, wherein the closure apparatus detects at least one sealing variable which will be and/or is determined depending on the closure rotation angle variable determined according to claim 1, and a control and/or regulation of the closing process is carried out depending on this at least one sealing variable. (See Fig. 1 and ¶ 0080. Cochran ¶ 0048 teaches using the sealing status to communicate with the capper closure apparatus via sending a transmission signal to close the feedback loop.)
Regarding claim 16, the above combination discloses the method according to claim 15, wherein the closure apparatus has a plurality of closure units, wherein each closure unit is able to independently carry out a closure process and herein apply a closure to a container, wherein the determined sealing variables are associated with those closure units which have carried out the corresponding closure process, wherein a control and/or regulation of the closure process of the plurality of closure units takes place in each case depending on the at least one sealing variable associated with the corresponding closure unit. (Cochran ¶ 0012, 0048-0050 and 0082.)
Regarding claim 17, the above combination discloses the method according to claim 15, wherein a current state and a target state of the closure apparatus and/or one of the plurality of closure units is detected, and a target variable that is characteristic of a failure probability and/or a maintenance requirement is determined depending on a comparison of the current state to the target state. (Cochran ¶ 0048 teaches using the sealing status to communicate with the capper closure apparatus via sending a transmission signal to close the feedback loop based on the current and target state of the rotational angle.)
Claim 19 is the inspection apparatus corresponding to the method of claim 1. Cochran teaches an apparatus, Abstract. Remaining limitations are rejected similarly. See detailed analysis above.
Claim 20 is the closure apparatus corresponding to the method of claim 1. Cochran teaches control of the closing process and a transport path, see Fig. 1 and ¶ 0048 and 0080. Remaining limitations are rejected similarly. See detailed analysis above.
Claim(s) 13, 14 and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cochran (US PGPub 2014/0311256) in view of Niedermeier (DE 102020121088 A1)
Regarding claim 13, the above combination discloses the method according to claim 1, but not the remaining limitations.
In the field of bottle cap sealing inspection Niedermeier teaches at least one image recording device records the containers from a direction which forms an angle of at most 60° with a horizontal plane perpendicular to the longitudinal direction of the container and/or with a horizontal plane perpendicular to the closure direction. (See Figs. 2 and 3 with imaging on the horizontal plane perpendicular to the longitudinal direction.)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the above combination’s bottle cap sealing inspection with Niedermeier’s bottle cap sealing inspection. Cochran measures bottle cap sealing by measuring the rotational angle of the bottle cap relative to the bottle. There is no express disclosure of imaging on the horizontal plane. Niedermeier likewise teaches bottle cap sealing by measuring the rotational angle of the bottle cap with imaging on the horizontal plane. Simply imaging horizontally cannot be considered a non-obvious improvement in view of the relevant prior art here. Using known engineering design, no “fundamental” operating principle of the teachings are changed; they continue to perform the same functions as originally taught prior to being combined.
Regarding claim 14, the above combination discloses the method according to claim 13, wherein for a plurality of containers provided with closures, wherein the closure and the container each have at least one marking element, at least one spatially resolved image is recorded in such a way that a relative position of the closure with respect to the container provided therewith, viewed in the closing direction, is thereby depicted, and in each case at least one closing rotation angle variable is determined, and wherein on the basis of the plurality of at least one spatially resolved images or variables derived therefrom and on the basis of the determined closure rotation angle variables, a relationship is generated and/or determined between a relative position of the closure viewed in the closure direction with respect to the container provided therewith and the closure rotation angle variable. (As above, ¶ 0080 teaches detecting a fiducial on both the bottle’s flange ring and a fiducial on the cap/closure to determine a relative rotation angle between the two marks by finding the marks and determining their angular distance. The binary sealing variable of acceptable/not acceptable is determined therefrom. See Figs. 5a-5c.)
Regarding claim 18, the above combination discloses the method according to claim 15, wherein a control and/or regulation and/or maintenance of the closure apparatus is performed depending on a machine learning container closure model, which comprises a set of parameters which are set to values which have been learned as a result of a training process, wherein the training process is carried out on the basis of a set of training data, wherein the training data comprises at least one attachment variable that is characteristic of a relative position of the closure relative to the container provided therewith in relation to the closure direction, as well as an attachment variable that is characteristic of the corresponding closure process. (Niedermeier pg. 4, ¶ 4 teaches “the position of the structures could be detected and the angular position thus calculated using a deep neural network, for example CNN. This can be trained, for example, with a large number of annotated camera images (i.e. enriched with angular position information) so that it can determine the position angle from the position and appearance of the marking in the images at runtime.”)
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Raphael Schwartz whose telephone number is (571)270-3822. The examiner can normally be reached Monday to Friday 9am-5pm CT.
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/RAPHAEL SCHWARTZ/Examiner, Art Unit 2671