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 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 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) 1, 2, 4, 10, 11, 13, 19, 20 and 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Abraham (US-9845181-B2) in view of Fisch (US-10351320-B2).
Abraham discloses a laminate/vented sealing member for sealing to a rim of a container (Fig. 13), the vented sealing member comprising: a support member (68) having at least one layer, the support member defining a vent opening (32b) extending from a lower surface to an upper surface through the support member; a sealant layer (64) positioned on the lower surface of the support member for securing the vented sealing member to the rim of the container; an upper laminate (64, the claims do not define what it is upper to) partially coupled to the support member and defining a tab (72), and a vent layer (70) that is a partial layer positioned over the vent opening and coupled to the upper surface of the support member about the vent opening (Fig. 13; col. 13, lines 6-13), wherein the vented sealing member does not include vent layer positioned on the lower surface of the support member (col. 13, lines 6-7, the location of the lower vent layer can be changed), wherein the vent layer is welded to the upper surface of the support member (col. 12, lines 9-13; col. 13, lines 6-13), wherein the support member is a laminate comprising a plurality of layers (col. 13, lines 8-10).
Abraham fails to teach wherein he vent opening has a diameter of about 0.005 to 0.060 inches, and wherein the vent opening has an exposed surface area of about 0.0070 to about 0.0282 in^2.
Fisch teaches that it is known in the art to manufacture a support member (12) with vent openings (34) that can have diameters of about 0.005 to 0.060 inches (col. 3. Ll. 61 – col. 4, ll. 19).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to have manufacture the vent openings with the claimed sizes, in order to adjust what could pass through the opening, and since such a modification would be using known vent opening size on a support member. A change in size is generally recognized as being within the level of ordinary skill in the art. The method claimed is present in the modified structure taught by Abraham. It would have been obvious to one of ordinary skill in the art before the effective filing date to have changed the thickness of the sealing member, such that wherein the vent opening has an exposed surface area of about 0.0070 to about 0.0282 in^2, in order to adjust the strength of the sealing element and since Abraham discloses that the thickness can be adjusted through routine experimentation (col. 9, lines 5-9).
Claim(s) 5, 7, 8, 14-17 and 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Abraham (US-9845181-B2) and Fisch (US-10351320-B2) in view of Bourgeois (US-20180186122-A1).
The modified structure of Abraham teaches all the claimed limitations as shown above but fails to teach the support member comprises at least one of a polymer film, a polymer foam, a metal foil, a pulp material, paper, and combinations thereof, and wherein the vent opening is positioned below the tab or not below the tab.
Bourgeois teaches that it is known in the art to manufacture a support member as a laminate comprising a plurality of layers (Abstract), wherein the support member comprises at least one of a polymer film, a polymer foam, a metal foil, a pulp material, paper, and combinations thereof (pars. 0025-0027), and further comprising an upper laminate partially coupled to the support member and defining a tab (par. 0145), wherein tab only covers apportion of the support member (Fig. 7).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to have manufactured the support member as a laminate with the claimed materials, in order to adjust the properties of the member and 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.
It would have been obvious to one of ordinary skill in the art at the time the invention was made to have manufactured the sealing member with a tab, in order to make it easier to remove the sealing member. It would have been obvious to one of ordinary skill in the art at the time the invention was made to have located the vent opening beneath or not beneath, in order to adjust how long the vent path was and since it has been held that rearranging parts of an invention involves only routine skill in the art.
Response to Arguments
Applicant's arguments filed 5/22/2026 have been fully considered. The arguments in relation to the size of a single vent opening are persuasive, but the claims do not require a single vent opening. 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). Furthermore, the transitional term "comprising", which is synonymous with "including," "containing," or "characterized by," is inclusive or open-ended and does not exclude additional, unrecited elements or method steps.
If the claims were amended to recite how there is only a single vent opening in the sealing member the claims could read over the current rejection.
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). The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
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 JEFFREY R ALLEN whose telephone number is (571)270-7426. The examiner can normally be reached 9:00 am - 5:00 pm, Monday-Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nathan Jenness can be reached at (571)270-5055. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JEFFREY R ALLEN/Primary Examiner, Art Unit 3733
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