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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on June 18, 2026 was filed after the mailing date of the Office Action mailed on May 28, 2026. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 1, 3-8, 10-11, and 13-15 are rejected under 35 U.S.C. 103 as being unpatentable over Doglioni Majer US 2015/0183575 in view of Orler US 2020/0253413, Chen et al. US 2019/0062998, and Appleford et al. US 2020/0231370.
Regarding Claim 1, Doglioni Majer discloses a container (capsule 1) comprising a storage portion (body 5) comprising a cavity with a sidewall (lateral wall 2), a flange portion (flange like rim 6), and a base (inlet wall 3), and a closing member (outlet wall 4) (‘575, FIG. 1) (‘575, Paragraphs [0049] and [0086]) wherein at least part of the storage portion if formed of biodegradable material (‘575, Paragraph [0017]). The storage portion (body 5) comprises a perforation region (portion 10 comprising inner lateral wall 11, external lateral wall 12, and perforating wall 13) arranged at the base (inlet wall 3) of the storage portion (body 5) (‘575, Paragraph [0053]) and stiffener portions (plurality of recessed portions 9) arranged to extend along the base (inlet wall 3) from a periphery of the base to contiguous the perforation region (portion 10 comprising inner lateral wall 11, external wall 12, and perforating wall 13) to stiffen the base (inlet wall 3) to resist displacement (‘575, Paragraph [0097]).
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Doglioni Majer discloses the container (capsule) being made of bioplastics (‘575, Paragraph [0017]). However, Doglioni Majer is silent regarding at least part of the storage portion being formed of wood pulp based material.
Orler discloses a container for use with a machine for preparing a beverage (‘413, Paragraph [0119]). The container (cartridge 112) includes a storage portion (cartridge body 200) comprising a cavity with a sidewall, a flange portion, and a base for containing a precursor material and a closing member (cover 204) to close the storage portion (cartridge body 200) (‘413, Paragraph [0044]) wherein at least a part of the storage portion (cartridge body 200) is formed of a wood pulp based material (‘413, Paragraph [0081]). Chen et al. discloses a container (coffee capsule) for use with a machine for preparing a beverage (‘998, Paragraph [0006]). The container (coffee capsule) includes a storage portion (capsule main body CMB) comprising a cavity with a sidewall, a flange portion, and a base for containing a precursor material (coffee) and a closing member (capsule lid CL) to close the storage portion (capsule main body CMB) (‘998, Paragraphs [0006]-[0007]) wherein at least a part of the storage portion (capsule main body CMB) is formed of a wood pulp (‘998, Paragraphs [0026] and [0034]).
Doglioni Majer, Orler, and Chen et al. are all directed towards the same field of endeavor of biodegradable beverage containers used with a machine for preparing a beverage. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the biodegradable capsule container of Doglioni Majer and construct the biodegradable capsule container out of a wood pulp based material as taught by Orler and Chen et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07.). Orler and Chen et al. teaches that there was known utility in the beverage container/capsule art to construct a beverage container/capsule out of biodegradable materials including wood pulp based materials.
Further regarding Claim 1, Chen discloses the coffee container (coffee capsule) (‘998, Paragraphs [0006]-[0007]) made from a paper based material possessing water resistance wherein the paper based material is cellulose fibers derived from wood plant pulp (‘998, Paragraph [0026]) wherein the cellulose fibers are microfibrillated cellulose (MFC) and nanofibrillated cellulose (NFC) processed to increase packing efficiency between the fibers such that gaps present in the pulp fiber network are improved, resulting in improved gas barrier properties in which shorter and smaller cellulosic fibers block the pores that naturally exist on the fiber surfaces as well as the gaps between the fibers and/or reduces the liquid permeability of the fiber sheet formed (‘998, Paragraph [0033]) and the pores existing in the preform filled by the MFCs and/or NFCs of various dimensions enhances the oxygen and water barrier properties of the MFC and/or NFC enhanced fiber preforms (‘998, Paragraph [0058]). Stefanoni discloses the container having a storage portion comprising a perforation region arranged at the base of the storage portion which is treated to facilitate comparatively easier perforation by a penetrator of the machine than a portion that is not treated (‘849, FIG. 2) (‘849, Paragraphs [0012] and [0037]). However, Doglioni Majer modified with Orler and Chen is silent regarding the perforation region of the storage portion being treated to facilitate comparatively easier perforation by a penetrator of the machine than a portion that is not treated wherein the perforation region has reduced water absorbency compared to the portion that is not treated.
Appleford et al. discloses a container (pulp fiber capsule) comprising a storage portion comprising a cavity with a sidewall, a flange portion, and a base wherein the storage portion comprises a perforation region (piercing area 3) arranged at the base of the storage portion which it treated to facilitate comparatively easier perforation by a penetrator of a machine than a portion that is not treated in which the perforation region is easier to pierce due to a thinner wall section and being an area with increased fiber compression (‘370, FIG. 2) (‘370, Paragraphs [0047] and [0078]) wherein the pulp fiber capsule to be pierced having sufficient compressive strength to resist deformation and wall thickness thin enough to be pierced wherein the fibers need to be resistant to absorbing moisture as this would reduce the compressive strength of the fiber allowing it to be more readily deformed and thereby allowing it to move away from the piercing heads (‘370, Paragraph [0077]). The container (capsule) is made of pulp fibers that are recyclable and compostable (‘370, Paragraph [0066]).
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Both modified Doglioni Majer and Appleford et al. are directed towards the same field of endeavor of biodegradable/compostable beverage containers used with machines for preparing a beverage. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage container of modified Doglioni Majer and construct the perforation region at the base of the storage portion and treat the perforation region with reduced thicknesses compared to the rest of the base that is not treated wherein the perforation region also has reduced water absorbency compared to the portion that is not treated as taught by Appleford et al. in order to facilitate comparatively easier perforation by a penetrator of a machine than a portion that is not treated with reduced thickness and/or reduced absorbency by virtue of areas of the base having a thinner wall section and increased fiber compression (‘370, Paragraph [0078]). Furthermore, Chen et al. discloses shorter and smaller cellulosic fibers blocking pores that naturally exist on fiber surfaces as well as the gaps between the fibers and reduced the gas/liquid permeability of the fiber sheet formed (‘998, Paragraph [0033) wherein the MFC and/or NFC fibers are produced with a very broad fiber diameter distribution to enhance the barrier properties (‘998, Paragraph [0058]). Appleford et al. discloses the pulp fiber having areas with increased fiber compression (‘370, Paragraph [0078]). The disclosure of using shorter and smaller cellulosic fiber blocking pores to impart barrier properties taught by Chen et al. means that the increased fiber compression to induce improved piercing of Appleford et al. indicates that the perforation region (piercing areas) has reduced water absorbency compared to the portion that is not treated.
Further regarding Claim 1, the limitations “for use with a machine for preparing a beverage and/or foodstuff or a precursor thereof,” “for containing a precursor material,” “to close the storage portion,” and “to stiffen the base to resist displacement when the base is perforated by a penetrator of the machine” are seen to be recitations regarding the intended use of the “container.” In this regard, applicant’s attention is invited to MPEP § 2114.I. and MPEP § 2114.II. which states features of an apparatus may be recited either structurally or functionally in view of In re Schreiber, 128 F.3d 1473, 1478, 44 USPQ2d 1429, 1432 (Fed. Cir. 1997). If an examiner concludes that a functional limitation is an inherent characteristic of the prior art, then to establish a prima facie case of anticipation or obviousness, the examiner should explain that the prior art structure inherently possess the functionally defined limitations of the claimed apparatus in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432. See also Bettcher Industries, Inc. v. Bunzl USA, Inc., 661 F.3d 629, 639-40,100 USPQ2d 1433, 1440 (Fed. Cir. 2011). The burden then shifts to applicant to establish that the prior art does not possess the characteristic relied on in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432; In re Swinehart, 439 F.2d 210, 213, 169 USPQ 226, 228 (CCPA 1971). Additionally, apparatus claims cover what a device is, not what a device does in view of Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claimed in view of Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). Furthermore, if the prior art structure is capable of performing the intended use, then it meets the claim. Nevertheless, Doglioni Majer explicitly teaches the beverage container being used with a machine (brewing machine) for preparing a coffee beverage wherein the storage portion contains a beverage precursor of coffee (‘575, Paragraph [0045]), the closing member (outlet wall 4) closing the storage portion (body 5) (‘575, Paragraph [0051]), and the stiffener portions (plurality of recessed portions 9) stiffening the base to resist displacement when the base is perforated by a penetrator (piercing means) of the machine (brewing device) (‘575, Paragraphs [0097]-[0098]).
Further regarding Claim 1, the limitations “stiffener portions which are arranged to stiffen the base to resist displacement when the base is perforated by a penetrator of the machine” recite properties of the container when used in the machine. Doglioni Majer modified with Orler, Chen et al., and Appleford et al. discloses the limitations of Claim 1 as enumerated above. Doglioni Majer teaches the stiffener portions of the plurality of recessed portions 9) (‘575, FIG. 1) (‘575, Paragraph [0089]). Orler discloses at least a part of the storage portion (cartridge body 200) is formed of a wood pulp based material (‘413, Paragraph [0081]). Chen et al. also discloses at least a part of the storage portion (capsule main body CMB) is formed of a wood pulp (‘998, Paragraphs [0026] and [0034]). Where the claimed and prior art products are identical or substantially identical in structure or composition, a prima facie case of either anticipation or obviousness has been established in view of In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (MPEP § 2112.01.I.). Products of identical chemical composition can not have mutually exclusive properties in view of In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) (MPEP § 2112.01.II.). Since the combination of Doglioni Majer modified with Orler, Chen et al., and Appleford et al. teaches the container comprising a storage portion including stiffener portions and at least a base region of the storage portion being formed of wood pulp based material and the perforation region being arranged at the base of the storage portion which is treated to facilitate comparatively easier perforation by a penetrator of a machine than a portion that is not treated wherein the perforation region has reduced water absorbency compared to the portion that is not treated as claimed, one of ordinary skill in the art would expect the beverage container of Doglioni Majer modified with Orler, Chen et al., and Appleford et al. to behave in the same manner as claimed, i.e. the stiffener portions are arranged to stiffen the base to resist displacement when the base is perforated by a penetrator of the machine. Furthermore, Appleford et al. explicitly discloses the capsule having improved ability to resist deformation during the piercing process wherein the capsule is pierced at the base (‘370, FIG. 2) (‘370, Paragraph [0078])
Further regarding Claim 1, it is noted that Claim 1 recites the limitation “wherein the storage portion comprises two or more of the a perforation region…stiffener portions…and a shoulder.” Since the prior art combination of Doglioni Majer modified with Orler, Chen et al., and Appleford et al. renders obvious two of the clauses pertaining to a perforation region and stiffener portions as enumerated in the rejections above, the limitations with respect to a shoulder are optional limitations that are not required to be taught by the prior art combination since the prior art combination teaches the two elements of a perforation region and stiffener portions.
Regarding Claim 3, Doglioni Majer discloses the storage portion (body 5) comprising the stiffener portion (plurality of recesses 9) wherein the stiffener portion (plurality of recesses 9) comprises discrete units that are circumferentially disposed about a circumference of the sidewall (lateral wall 2) of the container (capsule 1) (‘575, FIG. 1).
Regarding Claim 4, Doglioni Majer discloses the storage portion (body 5) comprising the stiffener portions (plurality of recesses 9) wherein the stiffener portions (plurality of recesses 9) protrude into an interior of the storage portion (body 5) and not outwardly from an exterior (‘575, FIG. 1) (‘575, Paragraph [0092]).
Regarding Claim 5, Doglioni Majer discloses the storage portion (body 5) comprising the stiffener portions (plurality of recesses 9) wherein the stiffener portions (plurality of recesses 9) are arranged as channels that bridge the base (inlet wall 3) and proximal region of the sidewall (lateral wall 2) (‘575, FIG. 1) (‘575, Paragraph [0093]).
Regarding Claims 6-8, Doglioni Majer discloses the storage portion (body 5) comprising the stiffener portions (plurality of recesses 9) (‘575, FIG. 1) (‘575, Paragraph [0092]). However, Doglioni Majer modified with Orler, Chen et al., and Appleford et al. is silent regarding the stiffener portions having a maximum depth of less than 10 mm and greater than 2mm, the stiffener portions being arranged to extend in a depth direction along the sidewall from a junction with the base to a distance of less than 40% of a total depth D between the storage portion and the base, and the stiffener portions being arranged to extend along the base from the periphery of the base to a radii of greater than 30% of the total diameter of the base. However, limitations relating to the size of the stiffener portions capable of being scaled up, if such were the case, would not establish patentability in a claim to an old process so scaled in view of In re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA 1976) (MPEP § 2144.04.IV.A.). Furthermore, the configuration of the claimed stiffener portions is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant in view of In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (MPEP § 2144.04.IV.B.). It is noted that the claims do not specify any particular sizes or dimensions of the overall container. One of ordinary skill in the art would adjust the stiffener portion (at least one recessed portion 9) that provides rigidity to the capsule (‘575, Paragraph [0089]) based upon the overall height of the container. The degree of rigidity provided to the capsule by the recessed portion 9 would depend on the overall height of the container.
Regarding Claim 10, Appleford et al. discloses the storage portion comprising the perforation region (piercing area 3) wherein the perforation region includes material properties compared to a portion that is not treated of reduced thickness (‘370, FIG. 2) (‘370, Paragraphs [0047] and [0078]).
Regarding Claim 11, Doglioni Majer discloses the storage portion (body 5) comprising the perforation region (portion 10 comprising inner lateral wall 11, external lateral wall 12, and perforating wall 13) wherein the perforation region (portion 10 comprising inner lateral wall 11, external lateral wall 12, and perforating wall 13) is arranged as an annular ring which is central about an axis of rotation of the container (capsule 1) (‘575, FIG. 1) (‘575, Paragraph [0053]). Appleford et al. also discloses the perforation region (piercing area 3) being arranged as an annular ring which is central about an axis of rotation of the container (‘370, FIG. 2).
Regarding Claim 13, the limitations “where the bridges are arranged to have a different angular pitch compared to an angular pitch of elements forming the penetrator of the machine” are intended use limitations and as such are rejected for the same reasons regarding intended use enumerated in the rejections of Claim 1 provided above. The comparative angular pitch of elements of the penetrator of the machine are limitations regarding structural features of the machine and not to the claimed container.
Regarding Claims 14-15, Doglioni Majer discloses the storage portion (body 5) comprising the perforation region (portion 10 comprising inner lateral wall 11, external lateral wall 12, and perforating wall 13) and the stiffener portions (plurality of recessed portions 9) (‘575, FIG. 1) (‘575, Paragraph [0053]).
Further regarding Claims 14-15, the limitations “wherein the perforation region is configured to be perforated by the penetrator element with a total area of 6-15 mm2 when subject to at least 1-10 Newtons” and “wherein the stiffener portions are arranged to prevent a perforation region of the base displacing by more than 0.5-2 mm in a depth direction when the perforation region is subject to a compressive force in the depth direction of 1-50 N which is applied by the penetrator” are intended use limitations and as such are rejected for the same reasons regarding intended use enumerated in the rejections of Claim 1 above. These limitations also recite properties of the claimed container when used in the claimed manner. Doglioni Majer teaches the stiffener portions of the plurality of recessed portions 9) (‘575, FIG. 1) (‘575, Paragraph [0089]). Orler discloses at least a part of the storage portion (cartridge body 200) is formed of a wood pulp based material (‘413, Paragraph [0081]). Chen et al. also discloses at least a part of the storage portion (capsule main body CMB) is formed of a wood pulp (‘998, Paragraphs [0026] and [0034]). Appleford et al. discloses the perforation region (piercing areas 3) having a reduced thickness relative to the remainder of the base to facilitate easier perforation (‘370, FIG. 2) (‘370, Paragraphs [0047] and [0078]). Where the claimed and prior art products are identical or substantially identical in structure or composition, a prima facie case of either anticipation or obviousness has been established in view of In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (MPEP § 2112.01.I.). Products of identical chemical composition can not have mutually exclusive properties in view of In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) (MPEP § 2112.01.II.). Since the combination of Doglioni Majer modified with Orler, Chen et al., and Appleford et al. teaches the container comprising a storage portion including stiffener portions and at least a base region of the storage portion being formed of wood pulp based material as claimed, one of ordinary skill in the art would expect the beverage container of Doglioni Majer modified with Orler, Chen et al., and Appleford et al. to behave in the same manner as claimed, i.e. the perforation region is configured to be perforated by the penetrator element with a total area of 6-15 mm2 when subject to at least 1-10 Newtons and the stiffener portions are arranged to prevent a perforation region of the base displacing by more than 0.5-2 mm in a depth direction when the perforation region is subject to a compressive force in the depth direction of 1-50 N which is applied by the penetrator.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Doglioni Majer US 2015/0183575 in view of Orler US 2020/0253413, Chen et al. US 2019/0062998, and Appleford et al. US 2020/0231370 as applied to claim 1 above in further view of Stefanoni US 2020/0346849.
Regarding Claim 12, Appleford et al. discloses the perforation region (piercing areas 3) being arranged as an annular ring central about an axis of rotation of the container (‘370, FIG. 2). However, Doglioni Majer modified with Orler, Chen et al., and Appleford et al. is silent regarding the annular ring being arranged as segments which are bounded by bridges that are not treated.
Stefanoni discloses a container comprising a storage portion (containment portion 111) comprising a cavity with a sidewall, a flange portion (flange radial 115), a base (bottom wall 102) (‘849, Paragraphs [0032]-[0033]), and a closing member (closing element 120) (‘849, FIG. 2) (‘849, Paragraph [0036]) wherein the storage portion (containment portion 111) comprises a perforation region (perforation regions 103) arranged at the base (bottom wall 102) which is treated via reduced thickness areas to facilitate comparatively easier perforation by a penetrator of a machine than a portion that is not treated (‘849, FIG. 2) (‘849, Paragraph [0037]) wherein the container (capsule) is recyclable and compostable (‘849, Paragraphs [0016] and [0045]).
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Both modified Doglioni Majer and Stefanoni are directed towards the same field of endeavor of biodegradable/compostable beverage containers used with machines for preparing a beverage. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage container of modified Doglioni Majer and construct the perforation region as an annular ring arranged as segments bounded by bridges that are not treated as taught by Stefanoni since the configuration of the claimed perforation region is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed perforation region was significant in view of In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (MPEP § 2144.04.IV.B.). Stefanoni teaches that there was known utility in the beverage container art to construct the perforation region in the claimed manner of segments in order to facilitate comparatively easier perforation by a penetrator of a machine than a portion that is not treated (‘849, Paragraph [0012]).
Claims 1-2 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Doglioni Majer US 2015/0183575 in view of Orler US 2020/0253413, Chen et al. US 2019/0062998, Appleford et al. US 2020/0231370, and Hansen US 2014/0037803 or Claims 1-2 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Doglioni Majer US 2015/0183575 in view of Orler US 2020/0253413, Chen et al. US 2019/0062998, Appleford et al. US 2020/0231370, and Hale US 2003/0222089.
Regarding Claim 1, Doglioni Majer modified with Orler, Chen et al., and Appleford et al. renders obvious the limitations of Claim 1 as enumerated above. Claim 1 recites the limitation “wherein the storage portion comprises two or more of the a perforation region…stiffener portions,…and a shoulder…” Since Doglioni Majer modified with Order, Chen et al., and Appleford et al. teaches two of the limitations with respect to a perforation region and stiffener portions, the limitations “a shoulder that extends outwardly from the flange portion to a rim of the sidewall proximal to the base to define a void defining region of the sidewall that is arranged between the shoulder and the base to increase the rigidity of the base wherein the shoulder adjoins the stiffener portions” are optional limitations. Nevertheless, Doglioni Majer modified with Orler, Chen et al., and Appleford et al. does not teach the optional limitations relating to a shoulder.
Hansen discloses a container (beverage delivery pod 10) including a storage portion comprising a cavity with a sidewall (outer member 12), a flange portion (peripheral flange 12) and a base (bottom portion 24) and a closing member (lid 14) to close the storage portion (‘803, Paragraph [0021]). At least a part of the storage portion is formed of biodegradable cellulose derivatives (‘803, Paragraph [0029]). Hansen further discloses stiffener portions (ribs 36) arranged to extend along the base (bottom portion 24) and a shoulder (lower step 32) that extends outwardly from the flange portion to a rim of the sidewall (outer member 12) proximal the base (bottom portion 24) to define a void defining region of the sidewall (outer member 12) that is arranged between the shoulder (lower step 32) and the base (bottom portion 24) wherein the shoulder (lower step 32) adjoins the stiffener portions (ribs 36) (‘803, FIGS. 1-5) (‘803, Paragraph [0024]).
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Both modified Doglioni Majer and Hansen are directed towards the same field of endeavor of beverage containers used with a machine for preparing a beverage and/or foodstuff or a precursor thereof. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage container of modified Doglioni Majer and incorporate a shoulder that extends outwardly from the flange to a rim of the sidewall proximal the base to define a void defining region of the sidewall that is arranged between the shoulder and the base wherein the shoulder adjoins the stiffener portions as taught by Hansen in order to increase the strength of the sidewall outer member to permit the thickness and therefore the amount of material used to form the sidewall outer member to be minimized and to facilitate location and support during filling operations (‘803, Paragraph [0022]).
Further regarding Claim 1, the limitations “to increase the rigidity of the base” are limitations with respect to the properties of the claimed shoulder. Where the claimed and prior art products are identical or substantially identical in structure or composition, a prima facie case of obviousness has been established in view of In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (MPEP § 2112.01.I.). Since Hansen teaches the claimed shoulder in the claimed configuration, one of ordinary skill in the art would expect the shoulder disclosed by Hansen to behave in the same manner as claimed, i.e. increases the rigidity of the base. It is noted that the claim does not specify any particular materials and/or properties of the claimed shoulder.
Alternatively with respect to the limitations regarding a shoulder, Hale discloses a beverage container (beverage cartridge 10) comprising a storage portion (container 12) comprising a cavity with a sidewall (sidewall 16), a flange portion (upper edge 52), and a base (bottom wall 18) for containing a precursor material and a closing member (cover 14) to close the storage portion wherein the storage portion comprises a shoulder (shoulder 32) that extends outwardly from the flange portion (upper edge 52) to a rim of the sidewall (sidewall 16) proximal to the base (bottom wall 18) to define a void defining region (sloped step 26) of the sidewall (sidewall 16) that is arranged between the shoulder (shoulder 32) and the base (bottom wall 18) (‘089, FIGS. 2-3) (‘089, Paragraph [0034]) wherein the base (bottom wall 18) has structural rigidity (‘089, Paragraph [0056]).
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Both modified Doglioni Majer and Hale are directed towards the same field of endeavor of beverage containers used with a machine for preparing a beverage. Both beverage containers of Doglioni Majer and Hale have a perforation region arranged at the base of the storage portion that is perorated by a penetrator of a machine. Doglioni Majer already teaches stiffener portions (plurality of recessed portions 9) arranged to extend along the base (inlet wall 3) from a periphery of the base to contiguous the perforation region (portion 10 comprising inner lateral wall 11, external wall 12, and perforating wall 13) to stiffen the base (inlet wall 3) to resist displacement (‘575, Paragraph [0097]). The disclosure of the shoulder portion of Hale being disposed on the sidewall adjacent to the base in which the stiffener portions of Doglioni Majer are already disposed indicates that the combination of Doglioni Majer modified with Hale would have the shoulder adjoining the stiffener portions. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage container of modified Doglioni Majer and construct the storage portion of the beverage container with a shoulder that extends outwardly from the flange portion to a rim of the sidewall proximal to the base to define a void defining region of the sidewall that is arranged between the shoulder and the base since Hale teaches that the incorporation of a shoulder (shoulder 32) creates a baffle to direct liquid away from the sidewall of the container towards the center of the cavity (brewing chamber 34) and the shoulder (shoulder 32) also facilitates an even distribution of the liquid throughout the cavity (brewing chamber 34), which enhances the extraction or dilution process and provides a brewed beverage of a higher quality and the shoulder (shoulder 32) further functions to increase the strength of the container so that the container is able to withstand internal and external pressures due to the extraction process and handling of the container (‘089, Paragraph [0047]).
Regarding Claim 2, Hansen discloses the storage portion comprising the shoulder (lower step 32) wherein the shoulder (lower step 32) is arranged to extend along a periphery of the sidewall (outer member 12) to a region contiguous the stiffener portions (ribs 36) (‘803, FIGS. 1-5) (‘803, Paragraph [0024]).
Alternatively regarding Claim 2, Hale discloses a beverage container (beverage cartridge 10) comprising the storage portion (container 12) comprising a cavity with a sidewall (sidewall 16), a flange portion (upper edge 52), and a base (bottom wall 18) for containing a precursor material and a closing member (cover 14) to close the storage portion wherein the storage portion comprises the shoulder (shoulder 32) that extends outwardly from the flange portion (upper edge 52) to a rim of the sidewall (sidewall 16) proximal to the base (bottom wall 18) to define a void defining region (sloped step 26) of the sidewall (sidewall 16) that is arranged between the shoulder (shoulder 32) and the base (bottom wall 18) (‘089, FIGS. 2-3) (‘089, Paragraph [0034]) wherein the base (bottom wall 18) has structural rigidity (‘089, Paragraph [0056]). The combination of Doglioni Majer modified with Orler, Chen et al., Appleford et al., and Hale discloses the shoulder being arranged to extend along a periphery of the sidewall to a region contiguous the stiffener portions (‘575, FIG. 1) (‘089, FIG. 2). FIG. 1 of Doglioni Majer shows the container having the stiffener portion being disposed at the junction where the sidewall/lateral wall meets the base of the container. FIG. 2 of Hale shows the container having the shoulder extending from the flange portion to a location disposed above the junction where the sidewall/lateral wall meets the base of the container. Therefore, the combination of Doglioni Majer modified with Orler, Chen et al., Appleford et al., and Hale discloses the shoulder being arranged to extend along the periphery of the sidewall to a region contiguous the stiffener portions.
Regarding Claim 9, Hansen discloses the storage portion comprising the shoulder (lower step 32) (‘803, FIGS. 1-5). Although Hansen does not explicitly teach the shoulder having a depth distance S between the flange portion and the rim of the sidewall which is comprised between 50 and 80% of a total depth D of the storage portion, limitations relating to the size of the shoulder as a function of the distance between the flange portion and the rim of the sidewall relative to a total depth of the storage portion is not sufficient to patentably distinguish over the prior art in view of In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) (MPEP § 2144.04.IV.A.). One of ordinary skill in the art at the time of the invention would modify the beverage container of modified Doglioni Majer and adjust the size of the shoulder based upon the desired amount of material used to form the sidewall outer member to be minimized (‘803, Paragraph [0022]).
Alternatively regarding Claim 9, Hale discloses the storage portion (container 12) comprising the shoulder (shoulder 32) (‘089, FIGS. 2-3) (‘089, Paragraph [0034]). Although Hale does not explicitly teach the shoulder having a depth distance S between the flange portion and the rim of the sidewall which is comprised between 50 and 80% of a total depth D of the storage portion, Hale teaches the shoulder (shoulder 32) creating a baffle to direct liquid away from the sidewall of the container towards the center of the brewing chamber and the shoulder (shoulder 32) facilitating an even distribution of the liquid throughout the brewing chamber to enhance the extraction or dilution process and the increase the strength of the container so the container is able to withstand internal and external pressures due to the extraction process and handling of the container (‘089, Paragraph [0047]). Limitations relating to the size of the shoulder as a function of the distance between the flange portion and the rim of the sidewall relative to a total depth of the storage portion is not sufficient to patentably distinguish over the prior art in view of In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) (MPEP § 2144.04.IV.A.). One of ordinary skill in the art would modify the beverage container of modified Doglioni Majer and adjust the size of the shoulder relative to the size of the storage portion based upon the desired strength ability to withstand internal and external pressures due to the extraction process as suggested by Hale (‘089, Paragraph [0056]).
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.
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Claims 1-15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 1-2 and 4-12 of copending Application No. 18/696,813 (reference application) in view of Appleford et al. US 2020/0231370. Although the claims at issue are not identical, they are not patentably distinct from each other because Claims 1-2 and 4-12 of the copending ‘813 application recite most of the same limitations of Claims 1-15 of the instant invention. However, Claims 1-2 and 4-12 of the copending ‘813 application is silent regarding a perforation region arranged at the base of the storage portion which is treated to facilitate comparatively easier perforation by a penetrator of a machine than a portion that is not treated wherein the perforation region has reduced water absorbency compared to the portion that is not treated. Appleford et al. discloses a container (pulp fiber capsule) comprising a storage portion comprising a cavity with a sidewall, a flange portion, and a base wherein the storage portion comprises a perforation region (piercing area 3) arranged at the base of the storage portion which it treated to facilitate comparatively easier perforation by a penetrator of a machine than a portion that is not treated in which the perforation region is easier to pierce due to a thinner wall section and being an area with increased fiber compression (‘370, FIG. 2) (‘370, Paragraphs [0047] and [0078]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the perforation region of the base of the storage portion of Claims 1-2 and 4-12 of the copending ‘813 application and construct the perforation region of the base of the storage portion to be treated to facilitate comparatively easier perforation by a penetrator of a machine than a portion that is not treated wherein the perforation region has reduced water absorbency compared to the portion that is not treated as taught by Appleford et al. in order to make it easier to perforate the base of the container.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 1-7 of copending Application No. 18/696,780 (reference application) in view of Doglioni Majer US 2015/0183575. Although the claims at issue are not identical, they are not patentably distinct from each other because Claims 1-7 of the copending ‘780 application recite most of the same limitations of Claims 1-15 of the instant invention. However, Claims 1-7 of the copending ‘780 application is silent regarding the storage portion comprising stiffener portions arranged to extend along the base from a periphery to contiguous the perforation region to stiffen the base to resist displacement when the base is perforated by a penetrator of the machine. Doglioni Majer discloses a container comprising a storage portion comprising a base and a perforation region wherein the storage portion further comprises stiffener portions arranged to extend along the base from a periphery to contiguous the perforation region to stiffen the base to resist displacement when the base is perforated by a penetrator of a machine (‘575, FIG. 1) (‘575, Paragraph [0089]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the storage portion of the container of Claims 1-7 of copending ‘780 application and incorporate stiffener portions extending along the base as taught by Doglioni Majer in order to provide the necessary rigidity to the capsule to allow effective perforation thereof (‘575, Paragraph [0089]).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 1-8 and 10-12 of copending Application No. 18/696,790 (reference application) in view of Doglioni Majer US 2015/0183575. Although the claims at issue are not identical, they are not patentably distinct from each other because Claims 1-2 of the copending ‘790 application recite most of the limitations of Claims 1-15 of the instant application. However, Claims 1-2 of the copending ‘790 application is silent regarding stiffener portions arranged to extend along the base from a periphery to contiguous the perforation region to stiffen the base to resist displacement when the base is perforated by a penetrator of the machine. Doglioni Majer discloses a container comprising a storage portion comprising a base and a perforation region wherein the storage portion further comprises stiffener portions arranged to extend along the base from a periphery to contiguous the perforation region to stiffen the base to resist displacement when the base is perforated by a penetrator of a machine (‘575, FIG. 1) (‘575, Paragraph [0089]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the storage portion of the container of Claims 1-12 of copending ‘790 application and incorporate stiffener portions extending along the base as taught by Doglioni Majer in order to provide the necessary rigidity to the capsule to allow effective perforation thereof (‘575, Paragraph [0089]).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Examiner notes that the Double Patenting rejections have been updated to reflect the cancellation of some claims of the copending applications from which the Double Patenting rejections depend.
Applicant’s arguments with respect to the previous obviousness rejections of Claim 1 under 35 USC 103(a) have been considered but are moot because the new ground of rejection does not rely on the combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Stefanoni is no longer being relied upon in the current rejection. The claims have been amended to incorporate new limitations regarding the perforation region having reduced water absorbency compared to the portion that is not treated. The secondary reference of Appleford et al. is currently being relied upon to teach the limitations regarding a perforation region arranged at the base of the storage portion which is treated to facilitate comparatively easier perforation by a penetrator of the machine than a portion that is not treated wherein the perforation region has reduced water absorbency compared to the portion that is not treated. Additionally, one set of rejections relies upon the secondary reference of Hansen to teach the new limitations regarding the shoulder adjoins the stiffener portions.
Applicant's arguments filed August 3, 2026 with respect to the obviousness rejections of Claims 1-2 and 9 under 35 USC 103(a) pertaining to the reliance on Hale have been fully considered but they are not persuasive.
Applicant argues on Pages 8-10 with respect to Claims 1-2 and 9 that Claim1 has been amended to recite that the shoulder adjoins the stiffener portions as shown in FIG. 8 of applicant’s drawings. Applicant contends that Hale does not teach or suggest that the shoulder adjoins stiffener portions of the container.
Examiner argues this particular rejection is based upon the combination of the primary reference of Doglioni Majer modified with the secondary references of Orler, Chen et al., Appleford et al., and Hale. Doglioni Majer already teaches stiffener portions (plurality of recessed portions 9) arranged to extend along the base (inlet wall 3) from a periphery of the base to contiguous the perforation region (portion 10 comprising inner lateral wall 11, external wall 12, and perforating wall 13) to stiffen the base (inlet wall 3) to resist displacement (‘575, Paragraph [0097]). The disclosure of the shoulder portion of Hale being disposed on the sidewall adjacent to the base in which the stiffener portions of Doglioni Majer are already disposed indicates that the combination of Doglioni Majer modified with Hale would have the shoulder adjoining the stiffener portions. 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). Therefore, this argument is not found persuasive.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Tsai US 2010/0051498 discloses a biodegradable capsule (container 1) (‘498, Paragraph [0021]) comprising stiffener portions (fins 32) arranged to extend along a base (lower portion 3) from a periphery of the base (lower portion 3) (‘498, Paragraph [0020]) wherein the biodegradable material is substantially extracted from the starch of a plant such as cornstarch (‘498, Paragraph [0018]).
Norton et al. US 2017/0305653 discloses a capsule comprising stiffener portions (transition wall portion 47) arranged to extend along a base (bottom wall 16) from a periphery of the base (bottom wall 16) and a shoulder (shoulder 42) that extends outwardly from the flange portion to a rim of the sidewall proximal the base (bottom wall 16) (‘653, Paragraph [0023]) wherein the shoulder (shoulder 42) adjoins the stiffener portions (transition wall portions 47) (‘653, FIGS. 5-6) (‘653, Paragraph [0024]).
Yitzchak et al. US 2016/0073656 discloses a drying agent having a reduced ability to absorb further moisture compared to fresh drying agent (‘656, Paragraph [0042]).
Van Blarcom et al. US 2016/0160156 discloses a solid or liquid treating composition (‘156, Paragraph [0003]) comprising one or more viscosity modifying agents.
Yoakim et al. US 2011/0041702 discloses a capsule comprising a biodegradable cellulose, starch based material or PLA (‘702, Paragraph [0039]).
Footz US 2014/0335236 discloses a biodegradable, compostable container comprising a cup, lid, and filter layers made from paper like substances formed from fibrous plant material such as recycled paper (‘236, Paragraph [0036]).
Taha et al. US 2022/0169430 discloses a capsule (vessel 210) made from one or more compostable or biodegradable materials (‘430, Paragraph [0081]) derived from renewable raw materials like such, cellulose, lactic acid, lignin, wood, bamboo, or other wood like fiber product or PLA (‘430, Paragraph [0077]) wherein the capsule (vessel) is coated with a PECVD coating made with compostable or biodegradable material with improved gas and/or water vapor barrier properties with an improved leachable profile from the compostable or biodegradable material (‘430, Paragraph [0002]).
Ota US 2020/0299879 discloses paper food containers formed from a laminate sheet composed of a hydrophobic oil absorbing paper containing cellulose fibers as a primary component, the hydrophobic oil absorbing paper forms an inside surface layer of the paper container (‘879, Paragraph [0003]).
Carlyle et al. US 2018/0282921 discloses a nonwoven cellulose fiber fabric (‘921, Paragraph [0001]) made using a lyocell spinning solution solvent in which wood pulp or other cellulose based feedstock is dissolved (‘921, Paragraph [0018]) used to make coffee filters (‘921, Paragraph [0086]) wherein the fabric comprises substantially endless continuous fibers in which the number of fiber ends is significantly smaller such that the number of gaps extending between different fibers or fiber ends is significantly smaller such that every gap causes a certain barrier for liquid travelling within the fabric in which the endless fibers contribute to a significant increase of the liquid surface spread and/or the wicking speed (‘921, Paragraph [0175]) wherein a coating of fibers located in different fiber network layers are formed with different average diameters to provide different functionalities such as different wicking behavior, anisotropic behavior, different oil absorbing capability, different water absorbing capability, and/or different roughness (‘921, Paragraph [0182]) wherein the liquid absorbing capability is based on the fact that the nonwoven fiber fabric or fiber web is considered as a structure comprising cavities or voids in between various neighboring fibers wherein the active fiber surface is adjusted as well as the volume of and spacing between gaps between adjacent fibers depending on the value or degree of the fiber diameter and/or the intra fiber and/or inter fiber diameter inhomogeneity and/or fabric density to adjust the active fiber surface as well as the volume of and spacing between gaps between adjacent fibers which impacts the capability of liquid to accumulate in the gaps under the influence of a capillary effect (‘921, Paragraphs [0065]-[0066]) wherein the nonwoven cellulose fiber fabric comprises a modifying substance of absorbency improving additives such as superabsorbent resins, ion exchange resins, carbon compounds (‘921, Paragraph [0149]) wherein the nonwoven cellulose fiber fabric is biodegradable and sourced from wood pulp and the like (‘921, Paragraph [0150]) wherein the fabric has anisotropic behavior with regard to the rate of liquid spread and or wicking speed (‘921, Paragraph [0025]) wherein the anisotropic behavior of the wicking speed is adjusted to have larger wicking speed associated with the longer side length such that the entire area of the fabric is exploited for a fast water absorption (‘921, Paragraph [0160]).
Carlyle et al. US 2018/0282923 discloses a method of manufacturing a nonwoven cellulose fiber fabric directly from lyocell spinning solution comprising extruding the lyocell spinning solution through a jet with orifices supported by a gas flow into a coagulation fluid to thereby form substantially endless fibers, colling the fibers on a fiber support unit to form the fabric, and adjusting process parameters so that the fabric is formed with a plurality of primary pores delimited between a first plurality of the fibers and having sizes within a first size range and a plurality of secondary pores delimited between a second plurality of the fibers and having sizes within a second size range wherein the first size range encompasses sizes being smaller than sizes encompassed by the second size range (‘923, Paragraph [0008]) wherein the nonwoven cellulose fiber fabric is biodegradable and made from wood pulp or the like and has advantages in terms of purity and absorbency and has an adjustable mechanical strength, stiffness, and softness (‘923, Paragraph [0130]) wherein moisture depending swelling and shrinking behavior of the fibers of the fabric are adjusted such that a liquid spreading velocity such as wicking speed of is influenced by a process control by mechanically fixing particles or an active agent within the fabric and that by adjusting an anisotropic alignment of pores between fibers it is possible to adjust anisotropic swelling behavior and/or anisotropic wicking speed of the fabric and/or add additives to one or more operating fluids such as lyocell spinning solution, a coagulation fluid during manufacture of the fibers to influence the swelling behavior or shrinkage behavior of the fibers in the presence or absence of moisture (‘923, Paragraph [0165]) wherein single layers of a laminate can be functionalized so that products with anisotropic properties are obtained such as wicking, oil accommodation, water accommodation (‘923, Paragraph [0182]).
Winkler et al. US 2012/0058226 discloses a capsule comprising a filter having areas with different permeability to help direct flow toward one or more areas of the filter to improve dissolution of materials in the medium into the liquid (‘226, Paragraph [0038]).
Anghileri US 2013/0136828 discloses a capsule (tubular support 2) made of paper (‘828, Paragraph [0026]) wherein the paper has an anisotropic behavior in terms of elongation (‘828, Paragraph [0130]).
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 ERICSON M LACHICA whose telephone number is (571)270-0278. The examiner can normally be reached M-F, 8:30am-5pm, EST.
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/ERICSON M LACHICA/Examiner, Art Unit 1792
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