Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the first wall and the second wall being arranged to intersect to form a peak on the exterior surface of the sidewall and a valley on the interior surface of the sidewall of claims 1, 10, and 16, an alignment ridge located at a radially outermost portion of the peak of claims 1, 10, and 16, the alignment ridge projecting outwardly from a remainder of the peak of the associated alignment structure of claims 1, 10, and 16, the alignment ridge projecting outwardly from a remainder of the peak of the associated alignment structure from at least one of an angle, radius, and curvature that is different than that of the remainder of the peak of claims 1, 10, and 16, the remainder of the peak of claims 1, 10, and 16, must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
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.
PNG
media_image1.png
207
267
media_image1.png
Greyscale
Specification
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: first wall corner, first wall radius, second wall corner, second wall radius, alignment ridge radius.
Claim Objections
Claim 18 is objected to because of the following informalities: “plurality of alignment structure” should be corrected to “plurality of alignment structures”. 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 1-2, 4-12, and 14-19 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 enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
The limitation of claim 1 of “an alignment ridge located at a radially outermost portion of the peak and positioned along the exterior surface of the sidewall” while claim 1 further requires that “the first wall and the second wall are arranged to intersect to form a peak on the exterior surface of the sidewall and a valley on the interior surface of the sidewall” and “the interior surface radially and axially conforming to the exterior surface” fails to comply with the enablement requirement. If the interior surface radially and axially conforms to the exterior surface the radially outermost portion of the peak cannot have an additional structure, alignment ridge, projecting therefrom. How can an alignment ridge be located at a radially outermost portion of the peak which is located at the intersection of a first and second wall while the interior surface radially and axially conforms to the exterior surface? Claims 10 and 16 are similarly deficient. The Wands factors of MPEP 2164.01(a) have been considered. Based upon the state of the prior art presented in the attached PTO-892, the level of ordinary skill in the art presented in those references, the level of predictability (strong in the mechanical arts), and the amount of direction provided (as presented above), the quantity of experimentation needed to make the claimed invention commensurate in scope with the claims is undue.
Claims 1-2, 4-12, and 14-19 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.
The limitation of claim 1 of “the alignment ridge extending between the top end and the bottom end of an associated alignment structure of the plurality of alignment structures and projecting outwardly from a remainder of the peak of the associated alignment structure from at least one of an angle, radius, and curvature that is different than that of the remainder of the peak” fails to comply with the written description requirement. From the original disclosure “The alignment ridges may project outwardly from a remainder of the peak of the alignment structure at an angle, radius, or curvature that is different than that of the remainder of the peak.” The original disclosure provides support for the angle, radius, and curvature in the alternative only while the limitation claims combinations of these options. Claims 10 and 16 are similarly deficient.
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 1-2, 4-12, and 14-19 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.
The limitation of claim 1 that “an alignment ridge located at a radially outermost portion of the peak and positioned along the exterior surface of the sidewall” while claim 1 further requires that “the first wall and the second wall are arranged to intersect to form a peak on the exterior surface of the sidewall and a valley on the interior surface of the sidewall” and “the interior surface radially and axially conforming to the exterior surface” are indefinite when taken together. It is unclear if the intersection and peak are virtual or physical. As best can be understood from the original disclosure virtual continuations of the first wall and the second wall are arranged to intersect to form a virtual peak and virtual valley where that virtual intersection would exist. The peak on the exterior surface and valley on the interior surface appear to be defined by the alignment ridge which is located along the virtual intersection. In light of the original disclosure and in order to apply art Claims 1, 10, and 16 will be interpreted as such.
Claim 1 and its dependents are indefinite because it is not clear whether claim 1 is drawn to the sub-combination of a container only, for use with some second identical container, or whether the claim is drawn to the combination of a container and a second identical container. This is because while some portion of the claim indicate that what is claimed is the sub-combination (note claim 1 line 1, for example), other portions of the claim indicate that what is claimed is the combination (note the structural limitation on lines 30-31, requiring the container rotate to align with the second identical container due to the circumferential offset of the top end and the bottom end). It is noted further in connection with this limitation that it is by now well settled that features not claimed may not be relied upon in support of patentability. In this office action, the second identical container is presumed not to be claimed in order for the examiner to give the claim its broadest reasonable interpretation. Accordingly, all references in the claim to the second identical container are considered to be merely functional. On the other hand, clarification of the scope of claim 1 is required. Claims 10 and 16 are similarly deficient.
The limitation of claim 1 of “and, when the container is nested within the second identical container, engagement between the plurality of alignment structures and the alignment ridges of the container and an interior surface of the second identical container” is led to be indefinite. It is unclear what the engagement does or results in when the container is nested. From the remarks it appears that applicant intended for this limitation to cause rotation of the containers. Possible correction includes “and when the container is nested within the second identical container such that engagement exists between the plurality of alignment structures and the alignment ridges of the container and an interior surface of the second identical container”.
Claim 1 is led to be indefinite as the metes and bounds of “a first wall having a first corner with a first wall radius on the interior surface”, “a second wall having a second corner with a second wall radius on the interior surface”, and “the alignment ridge has a ridge corner on the interior surface with an alignment ridge radius” are unclear. Merriam-Webster dictionary defines corner as the point where converging lines, edges, or sides meet. From the original disclosure “the illustrated embodiment where one wall 272 has a corner 280, and one wall 272 does not. The alignment ridge may also have a non-uniform curvature or a corner 280”. Not only does the original disclosure explicitly state that one of the two walls does not have a corner, but the structures indicated by reference character 280 appear to be arcs and not a point where converging lines, edges, or sides meet. For the purposes of applying art the claim will be interpreted as if a first wall has a first wall radius on the interior surface, a second wall has a second wall radius on the interior surface and the alignment ridge has an alignment ridge radius on the interior surface.
The limitation of claim 2 that “each alignment ridge projects outwardly from the respective alignment structure” is led to be indefinite as the alignment ridges are part of the alignment structures and it is unclear how a structure could project outwardly from itself.
Claim 2 is led to be indefinite as it is unclear if “a radius” of line 2 is a newly recited structure or refers back to “an alignment ridge radius”. For the purposes of applying art the claim will be interpreted as the latter.
The limitation of claim 5 that “the valleys of the interior surface of the sidewall of the second identical container are configured for receiving the peaks on the exterior surface of the sidewall of the container” is led to be indefinite. It is unclear if these peaks and valleys exist in the container and if they do what their metes and bounds are. While claim 1 recites that “the first wall and the second wall are arranged to intersect to form a peak on the exterior surface of the sidewall and a valley on the interior surface of the sidewall”, these peaks and valleys are not shown. Further, claim 1 recites “an alignment ridge located at a radially outermost portion of the peak and positioned along the exterior surface of the sidewall”, “the alignment ridge … projecting outwardly from a remainder of the peak of the associated alignment structure”, and “wherein the alignment ridge has a ridge corner on the interior surface with an alignment ridge radius”. From the original figures there appear to be valleys of the interior surface of the first wall, second wall, and alignment ridge which are configured to receive peaks on the exterior surface respectively of the first wall, second wall, and alignment ridge. For the purposes of applying art claim 5 will be interpreted as if the peaks and valleys are defined by the alignment ridge and not by an intersection of the first and second wall.
The limitation of claim 18 that “alignment ridges have a parabolic shape extending radially outward from the plurality of alignment structure” is led to be indefinite as the alignment ridges are part of the alignment structures and it is unclear how a structure could project outwardly from itself.
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 pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
This application currently names joint inventors. In considering patentability of the claims under pre-AIA 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of pre-AIA 35 U.S.C. 103(c) and potential pre-AIA 35 U.S.C. 102(e), (f) or (g) prior art under pre-AIA 35 U.S.C. 103(a).
Claims 1, 2, 4-7, 10-12, and 14-19 rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Vovan (US D570650) further in view of Greweling (DE 9316073).
Claim 1: Vovan discloses a container comprising: an upwardly-extending frustoconical sidewall, the sidewall including an exterior surface and an interior surface, the interior surface radially and axially conforming to the exterior surface: a plurality of alignment structures circumferentially spaced around the sidewall, each alignment structure comprising: a top end circumferentially offset from a bottom end, wherein each alignment structure of the plurality of alignment structures extends between the top end and the bottom end thereof, a first wall having a first wall corner with a first wall radius on the interior surface, a second wall having a first wall corner with a first wall radius on the interior surface, the second wall oriented at an angle relative to the first wall such that the first wall and the second wall are arranged to intersect to form a peak on the exterior surface of the sidewall and a valley on the interior surface of the sidewall (see annotated fig. 1 below and fig. 3).
Vovan does not disclose wherein each alignment structure further includes an alignment ridge located at a radially outermost portion of the peak and positioned along the exterior surface of the sidewall, the alignment ridge extending between the top end and the bottom end of an associated alignment structure of the plurality of alignment structures and projecting outwardly from a remainder of the peak of the associated alignment structure from at least one of an angle, radius, and curvature that is different than that of the remainder of the peak, and wherein the alignment ridge has a ridge corner on the interior surface with an alignment ridge radius that is different from the first wall radius and second wall radius, or when the container is nested within a second identical container, engagement between the plurality of alignment structures and the alignment ridges of the container and an interior surface of the second identical container.
Greweling teaches a container 1 comprising: a container wall 2, the container wall 2 including a plurality of alignment structures circumferentially spaced around the container wall 2, each alignment structure extending at least a portion of a height of the container wall 2 and comprising a first wall having a first corner with a first wall radius on the interior surface, a second wall having a second wall corner with a second wall radius on the interior surface, the second wall oriented at an angle relative to the first wall such that the first wall and the second wall are arranged to intersect to form a peak on the exterior surface of the container wall 2 and a valley on the interior surface of the container wall 2, and an alignment ridge located at a radially outermost portion of the peak and positioned along the exterior surface of the container wall 2 in as much as the claimed invention does, the alignment ridge extending between top and bottom ends of the associated alignment structure and projecting outwardly from a remainder of the peak of the associated alignment structure from at least one of a radius and curvature that is different than that of the remainder of the peak in as much as the claimed invention does (see fig. 5 and annotated fig. 6 below).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the alignment structures of Vovan to each include an alignment ridge located at a radially outermost portion of the peak and projecting outwardly from a remainder of the peak from at least one of a radius and curvature that is different than that of the remainder of the peak, as taught by Greweling, in order to enhance interlocking between nested containers, to further prevent nested containers from rotating in relation to one another when in a fully nested position in the nesting direction, and to provide additional rigidity to the sidewall.
The container of the combination inherently or in the alternative obviously is capable of being fully nested within a second identical container as the prior art combination discloses a structurally identical container to the inventions claimed container. If there is any difference, the difference must be minor and obvious. The burden is shifted to applicants to show the container cannot be fully nested within a second identical container. Otherwise a prima facie case of anticipation, or in the alternative, of obviousness has been established.
The circumferential offset of the top end and bottom end of the container of the combination inherently or in the alternative obviously allows the container to rotate to align with the second identical container as the prior art combination discloses a structurally identical container to the inventions claimed container. If there is any difference, the difference must be minor and obvious. The burden is shifted to applicants to show the circumferential offset of the top end and bottom end of the container cannot allow the container to rotate to align with the second identical container. Otherwise a prima facie case of anticipation, or in the alternative, of obviousness has been established.
Engagement between the plurality of alignment structures and alignment ridges of the container and an interior surface of the second identical container, when the container of the combination is nested within the second identical container, inherently or in the alternative obviously is capable of causing the container to rotate to align with the second identical container as the prior art combination discloses a structurally identical container to the inventions claimed container. If there is any difference, the difference must be minor and obvious. The burden is shifted to applicants to show that engagement between the plurality of alignment structures and the alignment ridges of the container and an interior surface of the second identical container does not cause the container to rotate to align with the second identical container. Otherwise a prima facie case of anticipation, or in the alternative, of obviousness has been established.
PNG
media_image2.png
576
436
media_image2.png
Greyscale
PNG
media_image3.png
550
581
media_image3.png
Greyscale
Claim 2: The combination discloses wherein each alignment ridge projects outwardly from the respective alignment structure such that the alignment ridge is defined by a radius that is different from a radius defining an apex at which the first wall and the second wall would otherwise intersect (see annotated fig. 3 and 6 above).
Claim 4: The combination discloses wherein the plurality of alignment structures each include a parabolic lower end configured to reduce a likelihood of binding as the container is nested within the second identical container (see annotated fig. 1 above). Examiner notes that the BRI of parabolic is part of a parabola. As the lower end of each alignment structure has a curve it meets the BRI of parabolic.
The parabolic lower end of the combination inherently or in the alternative obviously reduces a likelihood of binding as the container is nested within the second identical container. If there is any difference, the difference must be minor and obvious. The burden is shifted to applicants to show that the parabolic lower end cannot reduce a likelihood of binding as the container is nested within the second identical container. Otherwise a prima facie case of anticipation, or in the alternative, of obviousness has been established.
Claim 5: The combination discloses wherein the valleys of the interior surface of the sidewall of the second identical container are configured for receiving the peaks on the exterior surface of the sidewall of the container when the container is nested within the second identical container in as much as the claimed invention does (see fig. 3).
Claim 6: The combination discloses wherein the bottom ends of each alignment structure of the container rests on a stacking shoulder of the second identical container when the container is nested within the second identical container (see annotated fig. 1 above).
Claim 7: The combination discloses wherein the plurality of alignment structures are located below and are spaced apart from a lip of the container (see annotated fig. 1 above).
Claim 10: Vovan discloses a container comprising: a plurality of alignment structures forming a frustoconical sidewall having an interior surface that conforms to an exterior surface, each alignment structure of the plurality of alignment structures comprising: a top end circumferentially offset from a bottom end, wherein each alignment structure of the plurality of alignment structures extends between the top end and the bottom end thereof, a first wall having a first wall corner with a first wall radius on the interior surface, a second wall having a first wall corner with a first wall radius on the interior surface, the second wall oriented at an angle relative to the first wall such that the first wall and the second wall are arranged to intersect to form a peak on the exterior surface of the sidewall and a valley on the interior surface of the sidewall, wherein each alignment structure is circumferentially curved (see annotated fig. 1 above and fig. 3).
Vovan does not disclose wherein each alignment structure further includes an alignment ridge located at a radially outermost portion of the peak and positioned along the exterior surface of the sidewall, the alignment ridge extending between the top end and the bottom end of an associated alignment structure of the plurality of alignment structures and projecting outwardly from a remainder of the peak of the associated alignment structure from at least one of an angle, radius, and curvature that is different than that of the remainder of the peak, wherein the alignment ridge has a ridge corner on the interior surface with an alignment ridge radius that is different from the first wall radius and second wall radius, or when the container is nested within a second identical container, engagement between the plurality of alignment structures and the alignment ridges of the container and an interior surface of the second identical container.
Greweling teaches a container 1 comprising: a container wall 2, the container wall 2 including a plurality of alignment structures circumferentially spaced around the container wall 2, each alignment structure extending at least a portion of a height of the container wall 2 and comprising a first wall having a first corner with a first wall radius on the interior surface, a second wall having a second wall corner with a second wall radius on the interior surface, the second wall oriented at an angle relative to the first wall such that the first wall and the second wall are arranged to intersect to form a peak on the exterior surface of the container wall 2 and a valley on the interior surface of the container wall 2, and an alignment ridge located at a radially outermost portion of the peak and positioned along the exterior surface of the container wall 2 in as much as the claimed invention does, the alignment ridge extending between top and bottom ends of the associated alignment structure and projecting outwardly from a remainder of the peak of the associated alignment structure from at least one of a radius and curvature that is different than that of the remainder of the peak in as much as the claimed invention does (see fig. 5 and annotated fig. 6 below).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the alignment structures of Vovan to each include an alignment ridge located at a radially outermost portion of the peak and projecting outwardly from a remainder of the peak from at least one of a radius and curvature that is different than that of the remainder of the peak, as taught by Greweling, in order to enhance interlocking between nested containers, to further prevent nested containers from rotating in relation to one another when in a fully nested position in the nesting direction, and to provide additional rigidity to the sidewall.
The circumferential offset of the top end and bottom end of the container of the combination inherently or in the alternative obviously allows the container to rotate to align with a second identical container as the prior art combination discloses a structurally identical container to the inventions claimed container. If there is any difference, the difference must be minor and obvious. The burden is shifted to applicants to show the circumferential offset of the top end and bottom end of the container cannot allow the container to rotate to align with the second identical container. Otherwise a prima facie case of anticipation, or in the alternative, of obviousness has been established.
The container of the combination inherently or in the alternative obviously is capable of being fully nested within the second identical container as the prior art combination discloses a structurally identical container to the inventions claimed container. If there is any difference, the difference must be minor and obvious. The burden is shifted to applicants to show the container cannot be fully nested within a second identical container. Otherwise a prima facie case of anticipation, or in the alternative, of obviousness has been established.
Engagement between the plurality of alignment structures and the alignment ridges of the container and an interior surface of the second identical container, when the container of the combination is nested within the second identical container, inherently or in the alternative obviously is capable of causing the container to rotate to align with to the second identical container as the prior art combination discloses a structurally identical container to the inventions claimed container. If there is any difference, the difference must be minor and obvious. The burden is shifted to applicants to show that engagement between the plurality of alignment structures and the alignment ridges of the container and an interior surface of the second identical container does not cause the container to rotate to align with the second identical container. Otherwise a prima facie case of anticipation, or in the alternative, of obviousness has been established.
Claim 11: The combination discloses wherein the alignment structures are connected together at intersections adjacent the plurality of alignment structures to form valleys on the exterior surface of the sidewall (see annotated fig. 1 above).
Claim 12: The combination discloses wherein the plurality of alignment structures are located below and are spaced apart from a lip of the container (see annotated fig. 1 above).
Claim 14: The combination discloses wherein each alignment structure has a spiral orientation (see annotated fig. 1 above).
Claim 15: The combination discloses wherein the bottom end of each alignment structure has a curved shape (see annotated fig. 1 above).
Claim 16: Vovan discloses a container comprising: an upwardly-extending frustoconical sidewall comprising a plurality of alignment structures oriented relative to one another, the sidewall having an exterior surface and an interior surface that radially and axially conforms to the exterior surface, wherein each alignment structure of the plurality of alignment structures comprises: a top end circumferentially offset from a bottom end, wherein each alignment structure of the plurality of alignment structures extends between the top end and the bottom end thereof, a first wall having a first wall corner with a first wall radius on the interior surface, a second wall having a first wall corner with a first wall radius on the interior surface, the second wall oriented at an angle relative to the first wall such that the first wall and the second wall are arranged to intersect at an apex forming a peak on the exterior surface of the sidewall and a valley on the interior surface of the sidewall (see annotated fig. 1 above and fig. 3).
Vovan does not disclose wherein each alignment structure further includes an alignment ridge located at a radially outermost portion of the peak and positioned along the exterior surface of the sidewall, the alignment ridge extending between the top end and the bottom end of an associated alignment structure of the plurality of alignment structures and projecting outwardly from a remainder of the peak of the associated alignment structure from at least one of an angle, radius, and curvature that is different than that of the remainder of the peak, and wherein the alignment ridge has a ridge corner on the interior surface with an alignment ridge radius that is different from the first wall radius and second wall radius, or when the container is nested within a second identical container, engagement between the plurality of alignment structures and the alignment ridges of the container and an interior surface of the second identical container.
Greweling teaches a container 1 comprising: a container wall 2, the container wall 2 including a plurality of alignment structures circumferentially spaced around the container wall 2, each alignment structure extending at least a portion of a height of the container wall 2 and comprising a first wall having a first corner with a first wall radius on the interior surface, a second wall having a second wall corner with a second wall radius on the interior surface, the second wall oriented at an angle relative to the first wall such that the first wall and the second wall are arranged to intersect to form a peak on the exterior surface of the container wall 2 and a valley on the interior surface of the container wall 2, and an alignment ridge located at a radially outermost portion of the peak and positioned along the exterior surface of the container wall 2 in as much as the claimed invention does, the alignment ridge extending between top and bottom ends of the associated alignment structure and projecting outwardly from a remainder of the peak of the associated alignment structure from at least one of a radius and curvature that is different than that of the remainder of the peak in as much as the claimed invention does (see fig. 5 and annotated fig. 6 below).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the alignment structures of Vovan to each include an alignment ridge located at a radially outermost portion of the peak and projecting outwardly from a remainder of the peak from at least one of a radius and curvature that is different than that of the remainder of the peak, as taught by Greweling, in order to enhance interlocking between nested containers, to further prevent nested containers from rotating in relation to one another when in a fully nested position in the nesting direction, and to provide additional rigidity to the sidewall.
The circumferential offset of the top end and bottom end of the container of the combination inherently or in the alternative obviously allows the container to rotate to align with a second identical container as the prior art combination discloses a structurally identical container to the inventions claimed container. If there is any difference, the difference must be minor and obvious. The burden is shifted to applicants to show the circumferential offset of the top end and bottom end of the container cannot allow the container to rotate to align with the second identical container. Otherwise a prima facie case of anticipation, or in the alternative, of obviousness has been established.
The container of the combination inherently or in the alternative obviously is capable of being fully nested within the second identical container as the prior art combination discloses a structurally identical container to the inventions claimed container. If there is any difference, the difference must be minor and obvious. The burden is shifted to applicants to show the container cannot be fully nested within a second identical container. Otherwise a prima facie case of anticipation, or in the alternative, of obviousness has been established.
Engagement between the plurality of alignment structures and the alignment ridges of the container and an interior surface of the second identical container, when the container of the combination is nested within the second identical container, inherently or in the alternative obviously is capable of causing the container to rotate to align with to the second identical container as the prior art combination discloses a structurally identical container to the inventions claimed container. If there is any difference, the difference must be minor and obvious. The burden is shifted to applicants to show that engagement between the plurality of alignment structures and the alignment ridges of the container and an interior surface of the second identical container does not cause the container to rotate to align with the second identical container. Otherwise a prima facie case of anticipation, or in the alternative, of obviousness has been established.
Claim 17: The combination discloses wherein the plurality of alignment structures are arranged circumferentially around the container and adjacent alignment structures intersect one another to fully enclose the sidewall (see annotated fig. 1 above).
Claim 18: The combination discloses wherein the alignment ridges have a parabolic shape extending radially outward from the plurality of alignment structure (see annotated fig. 6 above).
Claim 19: Each alignment ridge of the combination inherently or in the alternative obviously is configured to reduce a likelihood of the container binding on the second identical container during nesting as the prior art combination discloses a structurally identical container to the inventions claimed container. If there is any difference, the difference must be minor and obvious. The burden is shifted to applicants to show the alignment ridges do not reduce the likelihood of the container binding on the second identical container during nesting. Otherwise a prima facie case of anticipation, or in the alternative, of obviousness has been established.
Response to Arguments
The specification objections in paragraph 3 of office action dated 29 April 2026 are withdrawn in light of the amended disclosure filed 28 July 2026.
The 35 U.S.C. § 112 rejections in paragraphs 4-11 of office action dated 29 April 2026 are withdrawn in light of the amended claims filed 28 July 2026.
Applicant's arguments filed 28 July 2026 have been fully considered but they are not persuasive.
In response to applicant’s argument that Vovan is a US Design Patent directed only to the ornamental appearance of a wave pattern food container and does not contain any disclosure or clear description of the structural or functional features recited in the claims, that Vovan provides no teaching, suggestion, or motivation regarding any structural limitation recited in the amended claim, that a person of ordinary skill in the art would have no reason to look to an ornamental design for guidance on how to achieve the structural and functional features claimed herein, that Vovan is a design patent with no structural or functional disclosure, and that Vovan provides no structural teaching to modify, the Examiner replies that drawings and pictures can anticipate claims if they clearly show the structure which is claimed. In re Mraz, 455 F.2d 1069, 173 USPQ 25 (CCPA 1972). The origin of the drawing is immaterial. For instance, drawings in a design patent can anticipate or make obvious the claimed invention as can drawings in utility patents. When the reference is a utility patent, it does not matter that the feature shown is unintended or unexplained in the specification. The drawings must be evaluated for what they reasonably disclose and suggest to one of ordinary skill in the art. In re Aslanian, 590 F.2d 911, 200 USPQ 500 (CCPA 1979).
In response to applicant’s argument that Greweling does not teach or suggest anything related to rotational alignment of nested containers, the Examiner responds that this argument is not commensurate in scope with the rejection at hand which does not rely on Greweling for teaching rotational alignment.
In response to applicant’s argument that Greweling’s design is intended to prevent rotation and a person of ordinary skill in the art looking to Greweling would therefore be taught away from the rotational alignment recited in the amended claims and that Greweling’s entire design philosophy is to prevent rotation between nested containers so that the containers maintain fixed positions for the dual stacking/nesting configurations and that Greweling’s “alignment ridges” are designed to prevent the very rotation that independent claims 1, 10, and 16 require, the Examiner responds that arguments by applicant cannot take the place of evidence in the record MPEP 716.01(c) II. In response to applicant’s argument that Greweling teaches away, the Examiner replies that nothing the disclosure of Greweling criticizes, discredits, or otherwise discourages the solution as is required for a teaching away.
In response to applicant’s argument that neither Vovan nor Greweling, alone or in combination, discloses, teaches or suggests the cooperative alignment mechanism or the distinct outward projection of the alignment ridge to the remainder of the peak, and that the proposed combination would not produce the claimed invention, the Examiner responds that arguments by applicant cannot take the place of evidence in the record MPEP 716.01(c) II. The Examiner has established a prior art combination which appears to be substantially identical and has presented evidence and reasoning to show inherency which has shifted the burden of production to the applicant. The applicant has not proven that the prior art combination does not necessarily or inherently possess the disputed functional characteristics of the claimed invention.
In response to applicant’s argument that the Examiner’s stated motivation to combine (namely, to “enhance interlocking between nested containers and to further prevent nested containers from rotating in relation to one another when in a fully nested position”) is inconsistent with independent claims 1, 10, and 16 as amended which require the container to rotate to align with a second identical container, the Examiner initially responds that the motivation of “to provide additional rigidity to the sidewall” was not challenged and stands. Further, enhancing interlocking between nested containers is not inconsistent with independent claims 1, 10, and 16. Enhanced interlocking assists in rotation of nested containers. Additionally, preventing fully nested containers from additional rotation in the non-removal direction is not inconsistent with claims 1, 10, and 16. This does not prevent or preclude rotation during nesting, but rather assists to prevent continued rotation after the fully nested position is reached such that fully nested containers do not become misaligned.
In response to applicant’s argument that a person of ordinary skill in the art would have no reason to modify Vovan to add an “alignment ridge” from Greweling, the examiner recognizes that obviousness may 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. See 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), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, it would have been obvious to have modified the alignment structures of Vovan to each include an alignment ridge located at a radially outermost portion of the peak and projecting outwardly from a remainder of the peak from at least one of a radius and curvature that is different than that of the remainder of the peak, as taught by Greweling, in order to enhance interlocking between nested containers, to further prevent nested containers from rotating in relation to one another when in a fully nested position in the nesting direction, and to provide additional rigidity to the sidewall. Examiner notes that “[T]he rationale to modify or combine the prior art does not have to be expressly stated in the prior art; the rationale may be expressly or impliedly contained in the prior art or it can be reasoned from knowledge generally available to one of ordinary skill in the art, established scientific principles, or legal precedent established by prior case law”. MPEP 2144 I. Additionally, the reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant. See, e.g., In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006). MPEP 2144 IV.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 ALLAN D STEVENS whose telephone number is (571)270-7798. The examiner can normally be reached Monday-Friday 12-8 ET.
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 use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Orlando E. Aviles can be reached at (571)270-5531. 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.
/ALLAN D STEVENS/Primary Examiner, Art Unit 3736
