DETAILED ACTION
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim Rejections - 35 USC § 112
Claims 1, 3-15 and 20-21 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.
Claim 1 appears to be self-contradictory. The stopper is recited to be made “entirely” of a thermoplastic elastomeric polymer, yet the body of the claim recites a dispersion of carbon particles and solid plastic particles, both of which are not “thermoplastic elastomeric polymer” (plastic is not necessarily thermoplastic-elastomeric polymer). Thus, claim 1 is indefinite. This rejection can be obviated by changing “entirely” to “substantially entirely”, or by incorporating the limitation of claim 21 into claim 1.
In addition, the phrase “made entirely” immediately following “a container”; therefore, it could mean that the material is for the container, and not for the stopper. Claims should be amended to reflect that the stopper, not the container, is made of thermoplastic elastomeric polymer.
In claim 20, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Other claims are deemed indefinite in view of their dependence on claim 1.
Claim Rejections - 35 USC § 103
Note: For the reasons stated in the rejection under 35 USC 112 above, the claims as currently written do not require that the stopper is made entirely a thermoplastic elastomeric polymer. The rejection below is based on that understanding.
Claims 1, 3-15 and 20 are rejected under 35 U.S.C. 103 as being unpatentable
over Thometschek-872 (US-2019/0134872) in view of JPH-08217125 ("JPH-125").
Claim 1: Thometschek teaches a stopper for a container comprising two
particulate materials, one of which being a plastic material comprising biodegradable
thermoplastic polymer (Thometschek, para. 0034-0035) and the other being cork
material. Thometschek does not teach activated carbon particles as part of the stopper
composition, but Thometschek teaches the use of fillers including inorganic fillers
(Thometschek, para. 0349). In the same field of endeavor, JPH-125 teaches a cork
stopper comprising cork material and carbonaceous material which is an activated
carbon (JPH-125, para. 0006-0010). In light of JPH-125 teaching, the POSITA would
have found it obvious to incorporate the activated carbon material taught by JPH-125 as
the filler in the stopper composition of Thometschek in order to improve the taste of the
drink in the container (JPH-125, para. 0020-0022).
Claims 3-5: Thometschek teaches the thermoplastic elastomeric polymer
including vulcanized rubber, ethyl-vinyl-acetate copolymer, styrene-butadiene-styrene
copolymer, thermoplastic urethane, polyesters, polyester-ether copolymer, and bio-
based polyesters (Thometschek, para. 0102) and being biodegradable (Thometschek,
para. 0034-0035 and 0099).
Claim 6: Because the thermoplastic material is biodegradable as discussed in
claims 3-5 above, it can be inherently decomposed at a rate of 90% by weight in 6 months by nature of a "biodegradable plastic".
Claims 7-9: Thometschek teaches the thermoplastic elastomeric polymer
comprising a biodegradable bioplastic originating from plants or
fermentation. including polylactic acid and latex (Thometschek, para. 0106).
Claim 10: Thometschek teaches the density of the plastic material being from 25
kg/m³ to 800 kg/m³ which is equivalent to 0.025 g/cm³ to 0.8 g/cm³ and thus overlaps the claimed range of 0.5 to 5 g/cm³.
Claim 11: Thometschek teach the filler be present up to 10 wt% (para. 0385),
and thus the activated carbon, being an additive or filler, is present up to 10 wt%.
Claim 12: JPH-125 teaches the activated carbon can be cut into "appropriate
shape and size" (para. 0017, 0025-0027), it would have encompassed powder as well
as granular form depending on the type of the stopper.
Claims 13-14: As JPH-125 teaches that the activated carbon can be cut into
"appropriate size" (para. 0017) depending on the use of the stopper, the size range as
claimed would have been obvious as matter of choice or through routine experimentation.
Claim 15: The presence of the activated carbon in the stopper would necessarily
lower the color brightness value of the stopper compared to the stopper without the
activated carbon because activated carbon is known to be black in color.
Claim 20: Thometschek teaches that the plastic shell of the coated particles and the plastic matrix of the stopper are obtained from thermoplastic polymers including polyethylene, polystyrene, polyesters which encompass polyethylene terephthalate, polypropylene (PP), and poly(methyl methacrylate) (para. 0102).
Response to Arguments
Applicant argues that the stopper taught by Thometschek is not made entirely of a thermoplastic polymer. Although Applicant is correct, the instant claims in their current form do not require that the stopper is made entirely of a thermoplastic elastomeric polymer for the reasons stated in the rejection under 35 USC 112 above. Therefore, this argument is deemed moot, and thus is not found persuasive.
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.
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HOA (Holly) LE/Primary Examiner, Art Unit 1788
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