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 § 102
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 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) 1-2 and 5-7 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Key (US 2014/0076766).
Regarding claims 1 and 6, Key teaches a rolled raw material (para [0062], Fig. 10, the rolled raw material 300, also see Fig. 2, exemplary material 100) includes end portions (end portions 304, 404) of a heat-shrinkable film at an overlapping portion, and being cut into a size related to a container to be packaged (para [0062], Fig. 10, the raw material 300 is sized related to a container to be packaged, meeting the claimed limitations of claims 1 and 6),
- wherein the overlapping portion of the heat-shrinkable film includes an unsealed region where the heat-shrinkable film is not sealed (para [0049] see Fig. 2, regions/gaps between the dotted regions that are not seal, not bonded), and a sealed region where the heat-shrinkable film is sealed (para [0049] see Fig. 2, the dotted/sealed regions, of which Key teaches the suitable patterns include strips, rectangles, lines and the like), and
- the unsealed region communicates a tube interior with a tube exterior of the rolled raw material in the overlapping portion (para [0049], [0056]-[0062] see Fig. 10, the region/gaps between the dotted regions, when bonded at the overlapping edges, communicates a tube interior with a tube exterior of the rolled raw material in the overlapping portion, meeting the claimed limitations).
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It should be noted that the recitation “for obtaining a plurality of film packaging bodies by being formed into a tubular shape by overlapping end portions of a heat-shrinkable film at an overlapping portion” of claim 1 is considered as merely an intended use. Applicant’s attention is drawn to MPEP 2111.02 which states that intended use statements must be evaluated to determine whether the intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim. It is the examiner’s position that the structure of the rolled raw material of Key is capable of performing the intended use.
Regarding claim 2, Key teaches that the sealed region and the unsealed region are alternately arranged in a circumferential direction in a state with the film packaging body mounted onto an article (para [0062], [0064] the sealed region and the unsealed region, see Fig. 10, are alternately arranged in a circumferential direction, and that the film packaging body is mounted onto an article/container 1000, considered as meeting the claimed limitations).
Regarding claim 5, Claim 5 contains process limitations with regards to method of forming the seal, i.e., ultrasonically sealed. It is the examiner’s position that the recited process does not result in a patentably distinctive structural difference in the resultant sealed region. Product-by-process claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. See MPEP 2113. [E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process”, In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) . Further, “although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product”, In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir.1983). See MPEP 2113.
Regarding claim 7, Key teaches a container packaged with the film packaging body (container 1000, para [0063], Fig. 11), meeting the claimed limitations.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 3-4 are rejected under 35 U.S.C. 103 as being unpatentable over Key as applied to claim 1 above.
The limitations of claim 1 are taught by Key as discussed above.
Regarding claim 3, Key teaches the inclusion of a plurality of the sealed regions are formed in the overlapping portion ([0056]-[0061], see Fig. 2 and Fig. 10, the overlapping portion of the label includes a plurality of the sealed regions), the unsealed region is formed and connecting spacing between the plurality of the sealed regions ([0056]-[0061], see Fig. 2 and Fig. 10).
Key does not specifically teach unsealed region is formed in the specific pattern, i.e., substantially lattice shape, as instantly claimed.
However, it is noted Key teaches a variety of suitable seal/adhesive patterns include dots droplets, circles, lines and the like (para [0049]). Key teaches a variety of suitable seal/adhesive patterns that may be continuous or discontinuous (para [0046]).
Absent persuasive evidence that the particular pattern/configuration of the claimed unsealed region was significant, the pattern/configuration of the claimed unsealed region is considered as a mere variation of design choice. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the pattern/configuration of the claimed unsealed region of Key (i.e., substantially lattice shape) to meet the design needs for the intended rolled raw material, and such variations are predictable to one of ordinary skill in the art.
Regarding claim 4, Key teaches each of the plurality of the sealed regions is formed into the same shape as the other sealed region (para [0046], Fig. 2 and also para [0056]-[0061], Fig. 10).
Conclusion
The following prior art made of record and not relied upon are considered pertinent to applicant's disclosure. Takahashi (US 5,518,119) that teaches a heat-seal package for overwrap-packaging an article using a packaging material which is heat-sealable on both sides thereof and to a resulting package. Trinko et al. (US 10,486,890) that teaches a core-less roll supporting on its outer surface a shrink-wrap sleeve providing the walls of the package. Van Heck et al. (US 7,987,755) that teaches forming sleeve-like foil envelopes from a continuous flat strip of a sleeve-like foil material.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to YAN LAN whose telephone number is (571)270-3687. The examiner can normally be reached Monday - Friday 7AM-4PM.
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, Aaron Austin can be reached at 5712728935. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/YAN LAN/Primary Examiner, Art Unit 1782
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