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 .
This office action is in response to the reply filed on 7/14/2025, wherein claims 4, 7-11 and 16 were amended. Claims 17-20 remain withdrawn from consideration. Applicant is reminded that a proper claim set should contain the claim limitations for each claim, even those that were withdrawn.
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.
Claim 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.
Claim 16 is rendered indefinite by the limitation “the back layer includes transparent polyethylene” since it is unclear how the back layer can be opaque (as defined in claim 1) and also transparent (as defined in claim 16). For examination purposes, Examiner interprets the back layer as being opaque as previously defined in claim 1.
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 1-4, 7-8 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Schneider et al. (US 3,224,640) in view of Burton (US 9,538,827) and Alzner (US 6,866,149).
Regarding claim 1, Schneider discloses a resealable package (See Figs. 1-3) capable of holding crystalline cannabinoids, comprising: a back layer (at 12), a front layer (at 14) and a top portion (above 25 in Fig. 2) with a dispensing slot (at 20 in Fig. 2); the back layer being of a metallic foil having an inner coating of synthetic resin made from ethylene (See column 3, lines 19-21), the back layer and the front layer each have a periphery that bonds the back layer and the front layer together (at 15 in Figs. 1-3); two generally triangular bonding corners (at the top-left and top-right in Fig. 1) formed on the top portion, the two binding corners provide rigidity to the top portion, define a funnel there between (See Fig. 1), and define portions of the dispensing slot; and the two bonding corners are sufficiently rigid to form a flap that selectively folds upon the resealable package to reseal after use (as shown in Fig. 3). Schneider discloses the claimed invention except for the express disclosure of the back layer being opaque for blocking light and the front layer being at least partially transparent to enable viewing of crystalline cannabinoids in the resealable package.
However, Burton teaches a package comprising front and back layers, wherein the front panel is transparent for the purpose of allowing the contents to be visible to users (column 7, lines 45-46). 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 front layer of Schneider to be transparent as taught by Burton in order to allow for the contents of the package to be visible to the user.
Furthermore, Alzner teaches a package comprising a front layer (at 12) and a back layer (at 14), wherein the front layer is transparent and the back layer is opaque for the purpose of providing increased light blocking properties (See column 2, lines 19-28 and column 3, lines 13-19). 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 rear layer of Schneider-Burton to be opaque as taught by Alzner in order to have light blocking properties to better protect the contents of the package.
Regarding claim 2, Schneider-Burton-Alzner discloses the metallic foil is manufactured from aluminum (See column 3, line 19 of Schneider) to enable plastic deformation.
Regarding claim 3, Schneider-Burton-Alzner discloses the claimed invention except for the express disclosure of the specific thickness of the metallic foil. However, 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 metallic foil of Schneider-Burton-Alzner to have a thickness between 0.1mm and 1mm in order to have the desired strength. Furthermore, to modify the thickness of the material would entail a mere change in size of the components and yield only predictable results. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
Regarding claim 4, Schneider-Burton-Alzner discloses the two bonding corners are triangular in shape to define the funnel (See Fig. 1 of Schneider).
Regarding claim 7, the resealable package of Schneider-Burton-Alzner is capable of enclosing crystalline cannabinoids and the front layer is transparent (as taught by Burton and Alzner) to reveal the crystalline cannabinoids, when enclosed therein.
Regarding claim 8, the resealable package of Schneider-Burton-Alzner is capable of enclosing crystalline cannabinoids and the front layer is translucent (as taught by Alzner) to reveal the crystalline cannabinoids, when enclosed therein.
Regarding claim 16, the resealable package of Schneider-Burton-Alzner is capable of enclosing crystallized cannabinoids and the back layer includes transparent (as taught by Burton) polyethylene and the metallic coating to enable the metallic coating to reflect light within the resealable packaging to highlight the crystallized cannabinoids in the packaging, when enclosed therein.
Claims 5-6 are rejected under 35 U.S.C. 103 as being unpatentable over Schneider et al. (US 3,224,640) in view of Burton (US 9,538,827) and Alzner (US 6,866,149) as applied to claim 4 above, and further in view of Kuo et al. (US 2008/0083348). As described above, Schneider-Burton-Alzner discloses the claimed invention except for the notches. However, Kuo teaches a package (See Fig. 1) comprising a top portion (at 28), wherein the package includes notches (at 26/26 in Fig. 1) on opposing ends of a tear line for the purpose of allowing the user to initiate tearing off the top portion. 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 provided the end portions of the tear line (23) of Schneider-Burton-Alzner with notches as taught by Kuo in order to allow for easier initiation of tearing the tear line.
Further regarding claim 6, Schneider-Burton-Alzner discloses the top flap folds along a folding line (at 25 in Fig. 2 of Schneider) to reseal the resealable package (as shown in Fig. 3 of Schneider).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Schneider et al. (US 3,224,640) in view of Burton (US 9,538,827) and Alzner (US 6,866,149) as applied to claim 1 above, and further in view of Berry (US 7,032,792). As described above, Schneider-Burton-Alzner discloses the claimed invention except for the front layer being translucent and tinted. However, Berry teaches it is well known in the art for portions of a package to be formed from translucent tinted materials for the purpose of applying color coding to the package (column 2, lines 36-45). 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 front layer of Schneider-Burton-Alzner to be translucent and tinted as taught by Berry in order to applying color coding to the package.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Schneider et al. (US 3,224,640) in view of Burton (US 9,538,827) and Alzner (US 6,866,149) as applied to claim 1 above, and further in view of Rasmussen (US 2007/0199453). As described above, Schneider-Burton-Alzner discloses the claimed invention except for the front layer being coated with a UV filter. However, Rasmussen teaches it is well known in the art for portions of a package to be formed from material having a UV filter for the purpose of protecting the contents. 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 front layer of Schneider-Burton-Alzner to have a UV filter as taught by Rasmussen in order to better protect the contents.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Schneider et al. (US 3,224,640) in view of Burton (US 9,538,827) and Alzner (US 6,866,149) as applied to claim 4 above, and further in view of Becker (US 6,443,309). As described above, Schneider-Burton-Alzner discloses the claimed invention except for the back layer being reflective. However, Becker teaches it is well known in the art for portions of a package to be formed from material being reflective for the purpose of enhancing thermal insulating properties of the package. 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 back layer of Schneider-Burton-Alzner to be reflective as taught by Becker in order to enhance thermal insulating properties of the package.
Claims 12-13 are rejected under 35 U.S.C. 103 as being unpatentable over Schneider et al. (US 3,224,640) in view of Burton (US 9,538,827) and Alzner (US 6,866,149) as applied to claims 4 and 1 above, and further in view of Castro (US 2015/0049961). As described above, Schneider-Burton-Alzner discloses the claimed invention except for the specifics of the inner coating. However, Castro teaches it is well known in the art to form packages from material such as LLDPE or HDPE for the purpose of being lightweight, flexible and strong ([0017]). 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 inner coating of Schneider-Burton-Alzner to be formed from LLDPE or HDPE as taught by Castro in order for the package to be lightweight, flexible and strong. Furthermore, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Claims 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over Schneider et al. (US 3,224,640) in view of Burton (US 9,538,827) and Alzner (US 6,866,149) as applied to claim 1 above, and further in view of Schnabel et al. (US 2017/0225862). As described above, Schneider-Burton-Alzner discloses the claimed invention except for the specifics of the front layer. However, Schnabel teaches it is well known in the art for packages to be formed from a PET material for the purpose of providing good toughness, chemical resistance and optical properties ([0058]). 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 front layer of Schneider-Burton-Alzner to be formed from PET as taught by Schnabel in order to have good toughness, chemical resistance and optical properties. Furthermore, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Further regarding claim 15, Schneider-Burton-Alzner-Schnabel discloses the front layer is transparent capable of revealing crystallized cannabinoids within the resealable packaging, when disposed therein.
Response to Arguments
Applicant's arguments filed 7/14/2025 have been fully considered but they are not persuasive.
Applicant argues that Schneider discloses a package for dispensing flowable materials such as sugar or salt (Schneider, Col. 1, lines 15-20), but does not contemplate packaging crystalline cannabinoids, which have unique properties (e.g., sensitivity to light degradation, regulatory considerations, and specific granularity for controlled dispensing, as described in the Applicant’s specification, [007], [008], [010]).
Regarding Applicant’s argument, and regarding the intended use of the claimed invention “for crystalline cannabinoids”, it has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. If the prior art structure is capable of performing the intended use, then it meets the claim. Ex parte Masham, 2 USPQ2d 1647 (1987). Since the crystalline cannabinoids are not positively recited in the claims, the resealable package of the prior art must only be capable of containing crystalline cannabinoids. The resealable package of Schneider is fully capable of holding at least a small amount of crystalline cannabinoids. In response to Applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., sensitivity to light degradation, regulatory considerations, and specific granularity for controlled dispensing) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Applicant argues that Burton teaches a single-use sunscreen container (Burton, Abstract), and Alzner teaches a barrier envelope for reusable photo-stimulable phosphor imaging plates (Alzner, Abstract). Neither Burton nor Alzner addresses packaging for crystalline materials, let alone crystalline cannabinoids, which require specific considerations such as light protection to prevent degradation (Applicant’s specification, [0112]) and a dispensing slot designed for precise flow control of granular material (Applicant’s specification, [0117]).
Regarding Applicant’s argument that Burton and Alzner do not address packaging for crystalline cannabinoids, it has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. If the prior art structure is capable of performing the intended use, then it meets the claim. Ex parte Masham, 2 USPQ2d 1647 (1987). Furthermore, in response to Applicant's arguments 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 in response to Applicant's argument that there is no suggestion to combine the references, the examiner recognizes that obviousness can only be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988); In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992). In this case, the Burton reference clearly provided the suggestion and motivation to modify Schneider, i.e., the advantage of a front layer of a packaging being transparent for the purpose of allowing the contents to be visible to users (column 7, lines 45-46). The Alzner reference clearly provided the suggestion and motivation to modify Schneider, i.e., the advantage of back layer of a packaging being opaque for the purpose of providing increased light blocking properties (See column 2, lines 19-28 and column 3, lines 13-19).
Applicant argues that the Examiner’s proposed combination relies on hindsight, as there is no teaching or suggestion in the cited references to adapt Schneider’s package for crystalline cannabinoids, which have distinct chemical and regulatory properties compared to sugar, salt, sunscreen, or imaging plates.
In response to Applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). Furthermore, since the crystalline cannabinoids are not positively recited in the claims, the resealable package of the prior art must only be capable of containing crystalline cannabinoids.
Applicant argues that Schneider’s package is designed to be resealable with a foldable flap (Schneider, Fig. 3), allowing multiple uses. In contrast, Burton’s container is explicitly a single-use container with a removable section that, once detached, exposes an applicator spout for dispensing lotion (Burton, Col. 8, lines 5-20). Modifying Schneider’s resealable package to incorporate Burton’s transparent front layer, which is part of a single-use design, would undermine Schneider’s resealability feature, as Burton’s design does not contemplate resealing after the removable section is detached. The Examiner has not provided a reasoned explanation for how Burton’s single-use transparent layer could be integrated into Schneider’s resealable structure without destroying its intended function. Thus, the combination is improper and would not result in the claimed resealable package.
Regarding Applicant’s argument, as described above, the Burton reference was merely used for its teaching of providing a package with a transparent front panel for the purpose of allowing the contents to be visible to users (column 7, lines 45-46). Combining the resealable package of Schneider with the teaching of Burton would result in the resealable package structure of Schneider having a transparent front panel for allowing the contents to be visible to users.
Applicant argues that Alzner’s opaque back layer is designed to protect photo-stimulable phosphor imaging plates from light exposure in a dental context (Alzner, Col. 2, lines 19-28). While the Examiner suggests that this opacity could be applied to Schneider to protect package contents, Alzner’s light-blocking purpose is specific to imaging plates, which are highly sensitive to light due to their photo-stimulable properties. There is no teaching in Schneider or Alzner to suggest that an opaque back layer would be necessary or beneficial for crystalline cannabinoids, especially since Schneider’s package is intended for common granular materials like sugar, which do not require such protection. The Applicant’s specification highlights that crystalline cannabinoids, particularly in acid form, are prone to degradation by light (Applicant’s specification, [0112]), a concern not addressed by Schneider’s design. The combination of Alzner’s opaque layer with Schneider’s package lacks a rational basis absent the Applicant’s disclosure.
Regarding Applicant’s argument, as described above, the Alzner reference was merely used for its teaching of providing a package with an opaque back layer for the purpose of providing increased light blocking properties (See column 2, lines 19-28 and column 3, lines 13-19). Combining the resealable package of Schneider with the teaching of Alzner would result in the resealable package structure of Schneider having an opaque back panel for increased light blocking properties. The concept of the light blocking properties of the opaque pane of Alzner can be applied to any type of packaging to better protect the contents.
Applicant argues that Claim 1 requires “two generally triangular bonding corners formed on the top portion, the two binding corners provide rigidity to the top portion, define a funnel there between, and define portions of the dispensing slot.” Schneider’s package includes triangular bonding areas (Schneider, Fig. 1), but these are not described as forming a funnel specifically designed for precise dispensing of crystalline materials. The Applicant’s specification emphasizes that the triangular bonding corners create a “pinch point” at the dispensing slot to regulate the flow of granular crystalline cannabinoids (Applicant’s specification, [0118]). Schneider’s design, intended for sugar or salt, does not address the need for precise flow control of crystalline cannabinoids, which have a specific granular size (0.2 to 0.5 mm, Applicant’s specification, [0035]). The Examiner’s combination does not account for this functional distinction, and neither Burton nor Alzner teaches a funnel-shaped dispensing slot defined by triangular bonding corners.
Regarding Applicant’s argument, as shown in Fig. 1 of Schneider, the two generally triangular bonding corners (see top-right and top-left of Fig. 1) formed on the top portion, the two bonding corners provide rigidity to the top portion (due to the bonding of the layers) and define a funnel (See funnel shape above line 25 in Fig. 2) there between, and define portions of the dispensing slot. The funnel shaped dispensing opening above 25 in Fig. 1 of Schneider is fully capable of being used to dispense crystalline cannabinoid materials, if crystalline cannabinoid materials were contained within the package. In response to Applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., the triangular bonding corners create a “pinch point” at the dispensing slot to regulate the flow of granular crystalline cannabinoids) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Applicant argues that The Examiner has not articulated a reason why a person of ordinary skill in the art would combine these references to achieve the claimed invention without relying on the Applicant’s disclosure.
Regarding Applicant’s argument, the Examiner recognizes that obviousness can only be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988); In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992). In this case, the Burton reference clearly provided the suggestion and motivation to modify Schneider, i.e., the advantage of a front layer of a packaging being transparent for the purpose of allowing the contents to be visible to users (column 7, lines 45-46). The Alzner reference clearly provided the suggestion and motivation to modify Schneider, i.e., the advantage of back layer of a packaging being opaque for the purpose of providing increased light blocking properties (See column 2, lines 19-28 and column 3, lines 13-19).
Applicant argues that regarding Claims 5-6 Kuo does not remedy these deficiencies, as it teaches a package for food or other products (Kuo, [0002]) and does not address crystalline cannabinoids or the specific funnel-shaped dispensing slot defined by triangular bonding corners. The addition of notches, while facilitating tearing, does not address the core issue that Schneider’s package is not designed for the precise dispensing of crystalline cannabinoids, and Burton’s single-use design is incompatible with Schneider’s resealability. Thus, Claims 5-6 are not obvious over the cited combination.
Regarding Applicant’s argument, see response to claim 1 described above on pages 8-10.
Applicant argues that regarding claim 9, Berry’s teaching of a tinted translucent layer for color coding (Berry, Col. 2, lines 36-45) is unrelated to the purpose of highlighting crystalline cannabinoids with an aesthetically desirable tint (Applicant’s specification, [0037]). Berry’s package is for packaging articles (Berry, Abstract), not crystalline materials, and does not suggest the specific tinting for aesthetic enhancement of crystalline cannabinoids. The combination remains improper due to the deficiencies in Schneider, Burton, and Alzner, and Berry does not address the specific needs of crystalline cannabinoid packaging.
Regarding Applicant’s argument, as described above, since the crystalline cannabinoids are not positively recited in the claims, the resealable package of the prior art must only be capable of containing crystalline cannabinoids. The resealable package of Schneider-Burton-Alzner-Berry is fully capable of containing crystalline cannabinoids to reveal crystalline cannabinoids with an aesthetically desirable tint.
Applicant argues that regarding claim 10, Rasmussen’s UV filter is designed for food packaging (Rasmussen, [0002]), not crystalline cannabinoids, which require specific UV protection to prevent degradation (Applicant’s specification, [0038]). The combination of Schneider, Burton, and Alzner does not suggest the need for UV protection for crystalline cannabinoids, and Rasmussen’s teaching does not bridge this gap. The rejection relies on hindsight, as none of the references address the unique properties of crystalline cannabinoids.
Regarding Applicant’s argument, as described above, since the crystalline cannabinoids are not positively recited in the claims, the resealable package of the prior art must only be capable of containing crystalline cannabinoids. The resealable package of Schneider-Burton-Alzner-Rasmussen is fully capable of containing crystalline cannabinoids to reveal crystalline cannabinoids with an aesthetically desirable tint.
Applicant argues that regarding claim 11, Becker’s reflective layer is for thermal insulation in food packaging (Becker, Abstract), not for highlighting crystalline cannabinoids through reflection (Applicant’s specification, [0039]). The Applicant’s specification emphasizes that the reflective back layer enhances visibility of crystalline cannabinoids by reflecting light through the transparent front layer (Applicant’s specification, [0114]), a feature not contemplated by Becker or the other references. The combination is improper and driven by hindsight.
Regarding Applicant’s argument, as described above, since the crystalline cannabinoids are not positively recited in the claims, the resealable package of the prior art must only be capable of containing crystalline cannabinoids. The resealable package of Schneider-Burton-Alzner-Becker is fully capable of containing crystalline cannabinoids to inhibit entry of light into the resealable package from the back side.
Applicant argues that regarding claims 12-13, Castro’s teaching of LLDPE or HDPE (Castro, [0017]) is for general packaging and does not address the specific requirements of crystalline cannabinoid packaging, such as chemical inertness to prevent interaction with cannabinoids (Applicant’s specification, [0040]). The combination does not teach or suggest the specific use of these materials in a resealable package designed for crystalline cannabinoids, and the rejection relies on hindsight.
Regarding Applicant’s argument, as described above, since the crystalline cannabinoids are not positively recited in the claims, the resealable package of the prior art must only be capable of containing crystalline cannabinoids.
Applicant argues that regarding claims 14-15, Schnabel’s PET material (Schnabel, [0058]) is for general packaging and does not address the specific need for chemical resistance to crystalline cannabinoids (Applicant’s specification, [0041]). The combination does not suggest the use of PET in a resealable package tailored for crystalline cannabinoids, and the rejection relies on hindsight.
Regarding Applicant’s argument, as described above, since the crystalline cannabinoids are not positively recited in the claims, the resealable package of the prior art must only be capable of containing crystalline cannabinoids.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
With respect to the art rejections, in accordance with MPEP 2111.01, during examination, the claims must be interpreted as broadly as their terms reasonably allow. In re American Academy of Science Tech Center, 367 F.3d 1359, 70 USPQ2D 1827, 1834 (Fed. Cir. 2004).
Conclusion
THIS ACTION IS MADE FINAL. 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 STEVEN A REYNOLDS whose telephone number is (571)272-9959. The examiner can normally be reached M-F 9am-5pm.
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/STEVEN A. REYNOLDS/Primary Examiner, Art Unit 3735