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 .
Election/Restrictions
Applicant’s election without traverse of Species A (Figs. 5-11) in the reply filed on 1/21/2026 is acknowledged. Applicant’s cancellation of claims 2-11 is also acknowledged.
Information Disclosure Statement
The information disclosure statements (IDSs) submitted between 6/21/2024 and 1/23/2026 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
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 12 and 14-16 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,992,104 to Sullivan in view of US Published Application 2019/0344951 to Rogers.
Regarding claims 12, Sullivan discloses all of the elements except the opening being watertight. However, Rogers discloses that it is known to make the opening of a container watertight (para. 0005). It would have been obvious to one of ordinary skill to have made the opening watertight in Sullivan because it would protect the contents from moisture and would prevent moisture on the inside of the container from escaping through the opening.
Regarding claims 14-16, claim 1 of Sullivan discloses all of the claimed elements.
Claim 17 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 5 of Sullivan, in view of Rogers.
Regarding claim 17, claim 5 of Sullivan discloses the claimed elements.
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over claim 1 of Sullivan and Rogers, further in view of US Patent 6,678,923 to Goldberg.
Regarding claim 13, the combination from claim 12 fails to disclose the curved member having a concave cross-section. However, Goldberg discloses closure members that have a concave cross section (Fig. 5). It would have been obvious to one of ordinary skill to have used a concave cross section for the curved members in the combination because the modification only involves a simple substitution of one known, equivalent cross-sectional shape for another to obtain predictable results.
Claim 18 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of Sullivan in view of US Patent 1,982,845 to Wagman.
Regarding claim 18, the combination from claim 12 fails to disclose the first curved member sealed in a receiver. However, Wagman discloses wherein the first curved member is received in a first receiver on the front portion of the outer shell (Wagman Figs. 3-4), wherein the first curved member is sealed within the first receiver (Figs. 3-4 – seams 19, 28, 29 seal the curved member within the first receiver). It would have been obvious to one of ordinary skill to have sealed the curved members in receivers because it would securely retain the curved members.
Claims 19-21 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 17 of U.S. Patent No. 11,992,104 to Sullivan in view of US Patent 1,982,845 to Wagman.
Regarding claim 19, Sullivan discloses all of the elements except a majority of the first portion and a majority of the second portion being substantially parallel (Sullivan only discloses a portion being parallel). However, Wagman discloses that it is known to make a majority of the portions parallel (when the zippers are brought together, then the curved members assume a straight configuration (Wagman Figs. 1-2)). It would have been obvious to one of ordinary skill to have made a majority of the portions substantially parallel in the closed position because the modification only involves a simple substitution of one known, equivalent closed container configuration for another to obtain predictable results.
Regarding claim 20, the combination from claim 19 discloses wherein when the container is in the closed configuration, an upper edge of the first portion and an upper edge of the second portion are substantially aligned (curved members are straight and aligned when the opening is closed (Wagman Figs. 1-2)).
Regarding claim 21, the combination from claim 19 discloses wherein the stiffener exerts a spring force opposing a magnetic force exerted by the first magnetic strip and the second magnetic strip (Sullivan claim 17; Wagman Fig. 2; Col. 1, lines 4-7).
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) 12, 14-15 and 18-21 is/are rejected under 35 U.S.C. 103 as being unpatentable over US Published Application 2019/0344951 to Rogers in view of US Patent 1,982,845 to Wagman.
Regarding claim 12, Rogers discloses a container (Fig. 13A), comprising: an outer shell (outer shell in Fig. 13A) defining a sidewall (either sidewall of container – not shown in cross section of Fig. 13A) and a base (810), the outer shell having a front portion (804) and a back portion (806); an opening of the container (top opening in Fig. 13A) extending into a storage compartment within the outer shell, the opening having a front side (side of opening adjacent 804) and a back side (side of opening adjacent 806) and wherein the container has an open configuration (with top open) that allows access to the storage compartment and a closed configuration (with top closed) that prevents access to the storage compartment; and a closure mechanism, further comprising: a first magnetic strip (1320) coupled to the front side of the opening; a second magnetic strip (1322) coupled to the back side of the opening; and wherein the first magnetic strip is magnetically attracted to the second magnetic strip to resealably seal the opening (Figs. 13A-B), wherein when the opening is sealed, the opening is watertight (para. 0071). Rogers fails to disclose a curved member. However, Wagman discloses a bag including an opening having a first curved member (27, top in Fig. 1) and a second curved member (27, bottom in Fig. 1), wherein the first curved member has a first end, a second end, and a first curved member body extending between the first end and the second end (Fig. 5). It would have been obvious to one of ordinary skill to have included curved members in Rogers to automatically open the bag, as taught by Wagman (Col. 1, lines 4-7). In the combination, a magnetic force between the first magnetic strip and the second magnetic strip cause the first curved member to deform when the container is moved from the open configuration to the closed configuration (when the magnetic strips are brought together (similar to the zipper in Wagman), then the curved members assume a straight configuration (Wagman Figs. 1-2).
Regarding claim 14, the combination from claim 12 discloses an inner liner; and an insulating layer positioned between the outer shell and the inner liner, the insulating layer providing insulation for the storage compartment (Rogers para. 0221).
Regarding claim 15, the combination from claim 12 discloses wherein the closure mechanism further comprises: a second curved member (Wagman – 27, bottom in Fig. 1), wherein the second curved member has a first end, a second end, and a second curved member body extending between the first end and the second end (Fig. 5); and wherein the first curved member and the second curved member prevents the opening from closing when the container is in the open configuration (Fig. 1).
Regarding claim 18, the combination from claim 12 discloses wherein the first curved member is received in a first receiver on the front portion of the outer shell (Wagman Figs. 3-4), wherein the first curved member is sealed within the first receiver (Figs. 3-4 – seams 19, 28, 29 seal the curved member within the first receiver).
Regarding claim 19, Rogers in view of Wagman discloses a container (Rogers Fig. 13A), comprising: an outer shell (outer shell in Rogers Fig. 13A) defining a sidewall (either sidewall of container – not shown in cross section of Rogers Fig. 13A) and a base (810 – Rogers), the outer shell having a front portion (804 – Rogers) and a back portion (806 – Rogers); an opening of the container (top opening in Rogers Fig. 13A) extending into a storage compartment, the opening having a front side (side of opening adjacent 804 – Rogers) and a back side (side of opening adjacent 806 – Rogers) and wherein the container has an open configuration (with top open) that allows access to the storage compartment and a closed configuration (with top closed) that prevents access to the storage compartment; a closure mechanism, further comprising: a first magnetic strip (1320 – Rogers) coupled to the front side of the opening; a second magnetic strip (1322 – Rogers) coupled to the back side of the opening; a stiffener including a first portion (27, top in Wagman Fig. 1) and a second portion (27, bottom in Wagman Fig. 1), wherein the first portion is spaced apart from the first magnetic strip (stiffener would be below the closure mechanism, similar to the position of the stiffener below the zipper shown in Wagman Fig. 3) and has a first end, a second end, and a first portion body extending between the first end and the second end (Wagman Fig 5), and wherein the second portion is spaced apart from the second magnetic strip (stiffener would be below the closure mechanism, similar to the position of the stiffener below the zipper shown in Wagman Fig. 3) and has a first end, a second end, and a second portion body extending between the first end and the second end (Wagman Fig. 5); wherein the first magnetic strip is magnetically attracted to the second magnetic strip to resealably seal the opening (Rogers Figs. 13A-B), and the first portion and the second portion of the stiffener deform when the container moves from the open configuration to the closed configuration (when the magnetic strips are brought together (similar to the zipper in Wagman), then the curved members assume a straight configuration (Wagman Figs. 1-2)); and wherein a majority of the first portion and a majority of the second portion are substantially parallel when the container is in the closed configuration (curved members are straight and aligned when the opening is closed (Wagman Figs. 1-2)).
Regarding claim 20, the combination from claim 19 discloses wherein when the container is in the closed configuration, an upper edge of the first portion and an upper edge of the second portion are substantially aligned (curved members are straight and aligned when the opening is closed (Wagman Figs. 1-2)).
Regarding claim 21, the combination from claim 19 discloses wherein the stiffener exerts a spring force opposing a magnetic force exerted by the first magnetic strip and the second magnetic strip (Wagman Fig. 2; Col. 1, lines 4-7).
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Rogers and Wagman, further in view of US Patent 6,678,923 to Goldberg.
Regarding claim 13, the combination from claim 12 fails to disclose the curved member having a concave cross-section. However, Goldberg discloses closure members that have a concave cross section (Fig. 5). It would have been obvious to one of ordinary skill to have used a concave cross section for the curved members in the combination because the modification only involves a simple substitution of one known, equivalent cross-sectional shape for another to obtain predictable results.
Claim(s) 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Rogers and Wagman, further in view of US Patent 9,901,163 to Pactanac.
Regarding claim 17, the combination from claim 12 fails to disclose a non-metallic coating. However, Pactanac discloses a bag with a moving internal part that is coated with nylon (Col. 10, lines 17-21). It would have been obvious to one of ordinary skill to have coated the curved members with nylon to reduce friction with the pocket, as taught by Pactanac (Col. 10, lines 17-21).
Allowable Subject Matter
Claim 16 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims, and if the double patenting rejection is addressed.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The cited references disclose configurations similar to that disclosed by applicant.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SCOTT T MCNURLEN whose telephone number is (313)446-4898. The examiner can normally be reached M-F 8am-5pm.
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/SCOTT T MCNURLEN/Primary Examiner, Art Unit 3734