DETAILED ACTION
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 present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 21 November 2025 has been entered.
Drawings
The drawings are objected to because:
In figure 3 reference sign 416 has been used to designate a stacking shoulder but the specification refers to said stacking shoulder as reference sign 316 while referring to reference sign 416 as a primer layer.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because reference character “416” has been used to designate both a stacking shoulder in figure 3 and a primer layer in figure 4.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claim 1 is objected to because of the following informalities:
In claim 1, lines 4 and 5, the claim has been amended with the newly added limitation “, wherein the stacking lip has a height of 5.7 mm” which new text has not been underlined as required in MPEP § 714 II C.(B)
In claim 1, line 11, the term “proximate” has been struck through indicating a deletion. The term “proximate” was previously deleted in the claims submitted 11 June 2025.
A Notice of Non-Responsive amendment has not been issued at this time and appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1 – 10 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Amended claim 1 now recites “an inner edge of a stacking shoulder of the bottom surface has a diameter of 43.68 mm”. A careful review of applicant’s specification provided no support for the bottom surface of the single-use container to comprise a stacking shoulder. Therefore the new limitation “an inner edge of a stacking shoulder of the bottom surface has a diameter of 43.68 mm” constitutes an issue of new matter and as such must be deleted.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating
obviousness or nonobviousness.
Claims 1 – 3, 5 – 8, and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Gerbaulet et al. US 2019/0225411 in view of O’Brien et al. US 2014/0120218 in view of Norton et al. US 2017/0305653 in view of Schifferle US 2005/0150390 in view of Jahromi et al. US 2013/0129992.
Regarding claims 1 and 5, Gerbaulet discloses a single use container (container 2) (fig. 2) which comprises a multi-layer sheet (fig. 3) that has a rim with a flat top surface (flange 4), and a bottom surface; wherein the multi-layer sheet comprises, from outside to inside, a first lubricant layer, an ink layer (paragraph [0051] and [0058]), an aluminum layer (9), and a coating (inner film 10) (paragraph [0050]) and wherein the single-use container has a depth to diameter ratio of at least .5:1 (0.5), with depth measured from the flat top surface of the rim to the bottom surface along a central axis of the single-use container, and diameter measured across an exterior of the rim (paragraph [0049]).
Regarding the multilayer film being a “coextrusion coating”, the limitation “coextrusion” is a method limitation and does not determine the patentability of the product, unless the process produces unexpected results. The method of forming the product is not germane to the issue of patentability of the product itself, unless applicant presents evidence from which the examiner could reasonably conclude that the claimed product differs in kind from those of the prior art. See MPEP § 2113. Furthermore, there does not appear to be a difference between the prior art structure and the structure resulting from the claimed method because Gerbaulet discloses the multi-layer sheet as claimed.
Claim 1 differs from Gerbaulet in there being a stacking lip positioned below the rim and a stacking shoulder on the bottom surface of the stacking lip.
O’Brien discloses a single use container (10) comprising a rim with a flat top surface (protruding lip 18), a stacking lip positioned below the rim, an inward tapering sidewall with a draft angle (approach angle) of 2º to 10º positioned below the stacking lip (‘218, paragraph [0025], table) and a bottom surface (base 12) (‘218, paragraph [0016] and fig. 1).
Regarding the stacking lip having a height of 5.7 mm and a stacking shoulder of the bottom surface of the stacking lip having a diameter of 43.68 mm, once it was known to provide a stacking lip and a stacking shoulder of the bottom surface of the stacking lip it is not seen that patentability would be predicated on the particular diameter of said lip and said shoulder. Limitations relating to the height of the stacking lip or the diameter of the stacking shoulder are not sufficient to patentably distinguish over the prior art. The mere scaling up of a prior art stacking lip and stacking shoulder capable of being scaled up, if such were the case, would not establish patentability in a claim to an old stacking lip and stacking shoulder so scaled. Where the only difference between the prior art stacking lip and stacking shoulder and the claims is a recitation of relative dimensions of the claimed stacking lip and stacking shoulder of the bottom surface of the stacking lip and a single-use container having a stacking lip and stacking shoulder with claimed relative dimensions would not perform differently than the prior art stacking lip and stacking shoulder, the claimed said lip and said shoulder are not patentably distinct from the prior art continuous bottom cutout (MPEP § 2144.04 IV.A.).
Nevertheless regarding the stacking shoulder, O’Brien further discloses the inner edge of a stacking shoulder of the bottom surface of the stacking lip would have a diameter of 43.68 mm (radius R1 11.0 mm – 55.0 mm) (‘218, paragraph [0025]).
Regarding the stacking shoulder, this rejection is based on applicant’s specification that recites that the “inner edge of stacking shoulder 120 may have a diameter of about 43.68 mm” which stacking shoulder (120) is clearly disclosed to be located at the bottom surface of the stacking lip (116) on the side of the single-use container opposite the bottom thereof. Therefore it is believed this is the stacking shoulder that the claim is referring to and the claim has been treated as such.
In the event that claim 1 can be construed as differing from Gerbaulet and the stacking shoulder is to be located on the bottom surface of the single-use container Norton discloses it was well established and conventional in the art to provide a stacking shoulder (42) of, that is on, the bottom surface of the single-use container. The stacking shoulder provides an upward facing surface that prevents the single use containers from completely nesting together when stacked which can undesirably create a vacuum between the cups and/or sidewall-to-sidewall friction between stacked cups making the cups difficult to separate (‘653, paragraph [0023]) which is applicant’s reason for providing a stacking lip and a stacking shoulder of the bottom surface of the stacking lip as well.
To therefore modify Gerbaulet and provide a stacking lip and stacking shoulder as taught by O’Brien and/or Norton to prevent the single use containers from completely nesting together when stacked would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Claim 1 differs from Gerbaulet in view of O’Brien and/or in view of Norton in a bottom surface comprising a single continuous bottom cutout, wherein the bottom cutout comprises a concave region at a center of the bottom surface, wherein the single continuous bottom cutout has a diameter of 27 mm and radially extends proximate to an outer periphery of the bottom surface.
Schifferle discloses a single use container which comprises a rim with a flat top surface (6), a stacking lip (5) positioned below the rim and a bottom surface comprising a single continuous bottom cutout, wherein the bottom cutout comprises a concave region at a center of the bottom surface and radially extends proximate to an outer periphery of the bottom surface (fig. 1 and 2). Schifferle is providing a single use container with a bottom cutout with a concave region at a center of the bottom surface for the art recognized function of ensuring that neither at the beginning nor during the brewing operation a hydraulic pressure buildup would take place thereby reliably avoiding the formation of froth in a finished coffee beverage which is believed to be applicant’s reason for doing so as well. To therefore modify Gerbaulet in view of O’Brien and/or in view of Norton and provide the single use container with a bottom cutout as taught by Schifferle to reliably avoid the formation of froth in a finished coffee beverage would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Regarding the single continuous bottom cutout having a diameter of 27 mm and a height of 0.5 mm, once it was known to provide a continuous bottom cutout it is not seen that patentability would be predicated on the particular diameter and/or height of said cutout. Limitations relating to the diameter and/or height of the cutout are not sufficient to patentably distinguish over the prior art. The mere scaling up of a prior art cutout capable of being scaled up, if such were the case, would not establish patentability in a claim to an old cutout so scaled. Where the only difference between the prior art cutout and the claims is a recitation of relative dimensions of the claimed cutout and a single-use container having a cutout with claimed relative dimensions would not perform differently than the prior art cutout, the claimed cutout is not patentably distinct from the prior art continuous bottom cutout (MPEP § 2144.04 IV.A.).
Claim 1 further differs from Gerbaulet in view of O’Brien and/or in view of Norton in view of Schifferle in the printing ink layer has a polyvinyl butyral base.
Jahromi discloses it was common and well established in the art when dealing with surfaces that would be subjected to high heat, as would a single use container, to use polyvinyl butyral based inks because of their effective adhesion and heat stability (paragraph [0092]) making it obvious an obvious matter of choice and/or design to the ordinarily skilled artisan to have used an ink with a polyvinyl butyral base to apply the printing ink layer.
To therefore modify Gerbaulet in view of O’Brien and/or in view of Norton in view of Schifferle and use an ink with a polyvinyl butyral base to provide an ink that has both an effective adhesion and heat stability as taught by Jahromi would have been an obvious an obvious matter of choice and/or design to the ordinarily skilled artisan.
Regarding claims 2 and 3, Gerbaulet in view of O’Brien and/or in view of Norton in view of Schifferle in view of Jahromi discloses the coating comprises a tie layer (film 14) and a heat seal layer (polypropylene) (‘411, paragraph [0051]).
Regarding the multilayer film being a “coextrusion coating”, the limitation “coextrusion” is a method limitation and does not determine the patentability of the product, unless the process produces unexpected results. The method of forming the product is not germane to the issue of patentability of the product itself, unless applicant presents evidence from which the examiner could reasonably conclude that the claimed product differs in kind from those of the prior art. See MPEP § 2113.
Regarding claim 6, regarding the particular diameter of the single use container, limitations relating to the size of the single use container would not be sufficient to patentably distinguish over the prior art. The mere scaling up of a prior art single use container capable of being scaled up, if such were the case, would not establish patentability in a claim to an old single use container so scaled. Where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed single use container and a single use container having the claimed relative dimensions would not perform differently than the prior art single use container, the claimed single use container is not patentably distinct from the prior art single use container (MPEP § 2144.04 IV.A.). Nevertheless, Gerbaulet in view of O’Brien and/or in view of Norton in view of Schifferle in view of Jahromi discloses the single use container would have a diameter of at least 52mm (radius 10mm – 50mm) (‘218, paragraph [0025] table). It is also noted that the particular diameter would also be an obvious matter of choice and/or design based on the particular use the container would be designed for.
Regarding claim 7, Gerbaulet disclosed the single use container would have a lid (foil member 5) affixed to the flat top surface of the rim (‘411, paragraph [0047] and fig. 1). Regarding the particular volume the single use container would enclose, limitations relating to the size, in this case volume, of the single use container would not be sufficient to patentably distinguish over the prior art. The mere scaling up of the volume of a prior art single use container capable of being scaled up, if such were the case, would not establish patentability in a claim to an old single use container so scaled. Where the only difference between the prior art and the claims is a recitation of relative dimensions, i.e., the volume of the claimed single use container and a single use container having the claimed relative volume would not perform differently than the prior art single use container, the claimed single use container is not patentably distinct from the prior art single use container (MPEP § 2144.04 IV.A.).
Regarding claim 8, Gerbaulet in view of O’Brien and/or in view of Norton in view of Schifferle in view of Jahromi discloses the aluminium layer would have a thickness of between 82.8 µm and 97.2 µm (90.0 µm) (‘411, paragraph [0060]).
Regarding claim 10, Gerbaulet in view of O’Brien and/or in view of Norton in view of Schifferle in view of Jahromi discloses the single use container is lubricated and formed by deep drawing (‘411, paragraph [0058] – [0059]). Since deep drawing is a sheet metal forming process in which a lubricated flat blank is constrained by a blank holder while the central portion of the sheet is pushed into a die opening with a punch to draw the metal into a desired shape it is seen as obvious that both the outer surface as well as the interior surface of the multi-layer sheet would comprise a lubricant for the purpose of the allowing the single use container to be properly released from the die and punch.
Regarding the multilayer film being a “coextrusion coating”, the limitation “coextrusion” is a method limitation and does not determine the patentability of the product, unless the process produces unexpected results. The method of forming the product is not germane to the issue of patentability of the product itself, unless applicant presents evidence from which the examiner could reasonably conclude that the claimed product differs in kind from those of the prior art. See MPEP § 2113.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Gerbaulet et al. US 2019/0225411 in view of O’Brien et al. US 2014/0120218 in view of Norton et al. US 2017/0305653 in view of Schifferle US 2005/0150390 in view of Jahromi et al. US 2013/0129992 in view of Fields et al. US 2021/0129571.
Regarding claim 4, Gerbaulet in view of O’Brien and/or in view of Norton in view of Schifferle in view of Jahromi disclose the single-use container would have a first lubricant layer in order to facilitate the forming of said container (paragraph [0058] – [0059]).
Claim 4 differs from Gerbaulet in view of O’Brien and/or in view of Norton in view of Schifferle in view of Jahromi in the multi-layer sheet further comprises, between the first lubricant layer and the aluminum layer, a varnish layer, and a primer layer.
Fields discloses a single use container (aluminium beverage can) (‘571, paragraph [0028]) which would have been formed from a sheet. Fields further discloses that it was well established and conventional in the art to apply a primer (treatment304), printing ink (ink 306), and a varnish layer (308) (‘571, paragraph [0029] and fig. 3) to the sheet/container (aluminium) (‘571, paragraph [0025]) and that this is the typical manufacturing process employed (‘571, paragraph [0006]). Fields also discloses that the varnish layer is designed to protect the printed ink layer on the single use container (can) from abrasion and to enhance the appeal of said container (‘571, paragraph [0031]). Once it was known to apply a printing ink to the outer surface of a single use container and further protect said ink from damage by a varnish layer it would have been an obvious matter of choice and/or design to have substituted the known process of applying and protecting the printing ink of Gerbaulet in view of O’Brien and/or in view of Norton in view of Schifferle in view of Jahromi between the first lubricant layer and the aluminium layer with the known process of applying and protecting the printing ink as taught Fields. An express suggestion to substitute one equivalent process for another known process is not necessary to render such substitution obvious (MPEP § 2144.06 II.).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Gerbaulet et al. US 2019/0225411 in view of O’Brien et al. US 2014/0120218 in view of Norton et al. US 2017/0305653 in view of Schifferle US 2005/0150390 in view of Jahromi et al. US 20130129992 in view of Frank et al. US 2022/0348401.
Claim 9 differs from Gerbaulet in view of O’Brien, and/or in view of Norton in view of Schifferle in view of Jahromi in the aluminium layer comprising 95.5%-98.2% aluminum, ≤ 0.25% copper, ≤ 0.70% iron, 0.80%-1.3% magnesium, 1.0%-1.5% manganese, ≤ 0.3% silicon, and ≤ 0.25% zinc.
First it is noted that copper, iron, silicon, and zinc are required to be present in amounts equal to or less than those recited in the claim which is to say that copper, iron, silicon, and zinc need not be present at all.
Frank discloses that aluminium is widely used to manufacture beverage capsules and it is well known to do so. Frank further discloses that the utilization of recycled aluminum only requires 5% of the energy that would be required to produce primary aluminium, that such alloys would contain magnesium and manganese (paragraph [0003]), and that through the use of such alloys improvements can be made allowing the use of much more recycled aluminium thereby enabling a new balance of formability and strength properties through the use of much more recycled aluminium (paragraph [0006]). The alloy would comprise between 0.80% - 1.3% magnesium (1.3%) (‘401, paragraph [0037]) and between 1.0% - 1.5% manganese (1.5%) (‘401, paragraph [0036]). Since no other impurities, that is copper, iron, silicon, or zinc need be present the aluminium content would comprise between 95.5% - 98.2% (97.2%). Frank is using aluminium alloys to allow the use of much more recycled aluminium thereby enabling a new balance of formability and strength properties through the use of much more recycled aluminium which is believed to be applicant’s reason for doing so as well. To therefore modify Gerbaulet in view of O’Brien, and/or in view of Norton in view of Schifferle in view of Jahromi and use aluminium alloys containing magnesium and manganese in the single use container to improve the strength properties and provide a new balance of formability as taught by Frank would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Response to Arguments
Applicant's arguments filed 21 November 2025 have been fully and carefully considered but they are not found persuasive.
Applicant urges that neither Gerbaulet, O’Brien, Norton, Schifferle, Fields, Jahromi, or Frank teach “the single continuous bottom cutout has a diameter of 27 mm and radially extends to an outer periphery of the bottom surface, wherein the single continuous bottom cutout has a height of 0.5 mm, and wherein an inner edge of a stacking shoulder of the bottom surface has a diameter of 43.68 mm”.
It is seen that applicant urges each of the above references individually for what each does not teach when the rejections have been made over the combination of the references. These urgings are not deemed persuasive.
In response to applicant's urging against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Further, if claim 1 indeed intends to recite the stacking shoulder to be located on the bottom surface of the single-use container then claim 1 has raised the issue of new matter, which new matter must be deleted.
Regarding applicant’s urgings with respect to the specific diameter of the continuous bottom cutout, the diameter of the stacking shoulder of the bottom surface, and the height of the continuous bottom cutout these rejections have been fully and completely addressed as set forth in the rejections above.
Regarding the stacking shoulder of the bottom surface, if indeed this is to recite that the stacking shoulder would be located on the bottom surface of the single-use container, as set forth above in the rejections Norton clearly and unequivocally teaches it was well established in the art to provide a stacking shoulder on the bottom surface of a single-use container.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHAIM A SMITH whose telephone number is (571)270-7369. The examiner can normally be reached Monday-Thursday 09:00-18:00.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to please telephone the Examiner
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/C.S./
Chaim SmithExaminer, Art Unit 1791 27 November 2025
/VIREN A THAKUR/Primary Examiner, Art Unit 1792