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 .
Claim Objections
Claims 24-25, 27-28, 39, and 40 are objected to because of the following informalities: polyethylene terephthalate is misspelled. Appropriate correction is required.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 21-28, 31-33, and 38 is/are rejected under 35 U.S.C. 102a1 as being anticipated by Farha (U.S. Patent Application Publication 2006/0099363). Regarding Claim 1 Farha shows a container (0020) comprising: a top section comprising a first wall having a single layer (Figure 9); and a bottom section connected with the top, the bottom section including a second wall comprising an outer layer, an intermediate layer and an inner layer, the intermediate layer comprising an oxygen scavenger (Figure 9, claim 47).
Regarding Claim 22, Farha shows the container of claim 21 above, including one wherein the intermediate layer consists of the oxygen scavenger (claim 47).
Regarding Claim 23, Farha shows the container of claim 21 above, including one wherein the single layer of the top section, the outer layer and the inner layer of the bottom section are made from a first material, the first material being free of the oxygen scavenger (Figure 9; 0039; claim 47).
Regarding Claim 24, Farha shows the container of claim 23 above, including one wherein the first material comprises polyethylene terephthalate (00039; claim 48).
Regarding Claim 25, Farha shows the container of claim 23 above, including one wherein the first material consists of polyethylene terephthalate (0039; claim 48).
Regarding Claim 26, Farha shows the container of claim 21 above, including one wherein the single layer of the top section, the outer layer and the inner layer of the bottom section are made from a first material, the intermediate layer consisting of the first material and the oxygen scavenger (Figure 9; claim 47).
Regarding Claim 27, Farha shows the container of claim 26 above, including one wherein the first material comprises polyethylene terephthalate (claim 48).
Regarding Claim 28, Farha shows the container of claim 26 above, including one wherein the first material consists of polyethylene terephthalate (claim 48).
Regarding Claim 31, Farha shows the container of claim 21 above, including one wherein the oxygen scavenger is an active oxygen scavenger (claim 47).
Regarding Claim 32, Farha shows the container of claim 21 above, including one wherein the container is a blow molded container (0005).
Regarding Claim 33, Farha shows the container of claim 21 above, including one wherein the container is a finished blow molded container (0005).
Regarding Claim 38, Farha shows the container of claim 21 above, including one wherein the container is free of colorants (0009: transparent indicates free of color).
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.
Claim(s) 30, and 34-37 is/are rejected under 35 U.S.C. 103 as being unpatentable over Farha.
Regarding Claim 30, Farha shows the container of claim 21 above, but he does not show more than one oxygen scavenger. It would have been obvious to use an additional oxygen scavenger because duplication is held to obvious unless a new and unexpected result is produced (MPEP 2144.04 (VI)(B)).
Regarding Claims 34-37, Farha shows the container of claim 21 above, including the disclosure that thicknesses are variable and selected to meet particular requirements of the end container (0045, 0047), but he does not show the claimed thicknesses. It would have been obvious to use any appropriate layer thickness, such as those claimed, because where the general conditions are disclosed by the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation (MPEP 2144.05 (II)(A)).
Claim(s) 39-40 is/are rejected under 35 U.S.C. 103 as being unpatentable over Farha, in view of Ota et al. (U.S. Patent Application Publication 2004/0065984). Farha shows a container (0020) comprising: a top section comprising a first wall having a single layer (Figure 9); and a bottom section connected with the top, the bottom section including a second wall comprising an outer layer, an intermediate layer and an inner layer, the intermediate layer comprising an oxygen scavenger (Figure 9, claim 47), wherein the first material consists of polyethylene terephthalate (claim 48). Farha does not show a container wherein the single layer of the top section, the outer layer and the inner layer of the bottom section are made entirely from a first material. Ota et al., hereafter “Ota,” show that it is known to have a container wherein the single layer of the top section, the outer layer and the inner layer of the bottom section are made entirely from a first material (Figure 1a, 2a). It would have been obvious to one of ordinary skill in the art to use Ota’s layer arrangements in Farha’s container in order to satisfy specific physical and chemical aspects of the container.
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.
Claims 21-29 and 31-36 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 7, 11, 12, 14-15, and 17 of U.S. Patent No. 12,472,674. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims are merely broader versions of the patented claims and therefore not patentably distinct therefrom, as they are effectively anticipated by the patented claims.
Claims 21-29, and 31 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5 of U.S. Patent No. 11,207,817. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims are merely broader versions of the patented claims and therefore not patentably distinct therefrom, as they are effectively anticipated by the patented claims.
Claims 21-29, and 31-33 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 22, 33, and 41 of copending Application No. 19/530608 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims are merely broader versions of the patented claims and therefore not patentably distinct therefrom, as they are effectively anticipated by the ‘608 claims.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
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MONICA ANNE HUSON
Primary Examiner
Art Unit 1742
/MONICA A HUSON/Primary Examiner, Art Unit 1742
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