DETAILED ACTION
Continued Examination Under 37 CFR 1.114
1. A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on June 18, 2026 has been entered.
Response to Arguments
2. Applicant's arguments filed June 18, 2026 have been fully considered but they are not persuasive.
Applicant argues that modification of Garbiso in view of DeMars to provide a single, centrally located raised formation, would raise the tab of Garbiso and render it unsuitable for its intended purpose of stacking.
Examiner notes Applicant’s argument is based on the position of the Garbiso tab (24) as seen in Figure 2 therein. However, the argument fails to consider alternate rotational positions of the tab. Examiner notes DeMars itself shows that such a rotational position exists in Figure 1 therein, noting that the 90-degree rotation of the tab allows it to lie flat against the upper surface (24), free of any interference with raised formation (48). It is the Examiner’s position that a person of ordinary skill in the art would understand that sufficient rotation of the Garbiso tab to avoid contacting the DeMars raised formation would still permit a Garbiso panel to stack.
Moreover, Examiner notes the question is not whether the prior art devices can be physically combined, but whether a person of ordinary skill in the art would have found it obvious to combine different features or elements of known devices in a predictable way. See Orthopedic Equip. Co. v. United States, 702 F.2d 1005, 1013 (Fed. Cir. 1983): "There is a distinction between trying to physically combine the two separate apparatus disclosed in two prior art references on the one hand, and on the other hand trying to learn enough from the disclosures of the two references to render obvious the claims in suit. ...Claims may be obvious in view of a combination of references, even if the features of one reference cannot be substituted physically into the structure of the other reference." See MPEP 2145(III). While the MPEP warns that such combination cannot render the base reference unsuitable for its intended purpose, Examiner again asserts that there is sufficient teaching in DeMars that rotation of the tab away from the raised formation still permits the tab to lie flat, which will ultimately still permit stacking.
Claim Rejections - 35 USC § 103
3. 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.
4. Claims 1, 2, 4-7, 9-14, and 16 are rejected under 35 U.S.C. 103 as being unpatentable over US 5,224,618 (Garbiso) in view of US 4,951,835 (DeMars).
Regarding claim 1, Garbiso teches a lid for a container, comprising:
a laterally extending lid body (18) having a proximally extending protrusion (34) and a distally extending well (unlabeled; see annotated Figures 3, 5, 7, and 10 below), wherein the protrusion and the well are radially aligned with one another (not taught); and
a tab (24) fixed to the lid body (at rivet 30), the tab comprising a nose (28), a handle (26), and a medial portion (31) that extends between the nose and the handle (see 31 between 26 and 28 in Figure 3), wherein:
the well is disposed radially outward of the protrusion (see annotated Figure 7 below showing well distance D2 greater than protrusion distance D1);
PNG
media_image1.png
266
716
media_image1.png
Greyscale
the tab is positionable such that the tab contacts the protrusion causing the handle to be lifted proximally away from the lid body relative to the handle (see col. 4, line 68 through col. 5, line 7);
the protrusion has a tapered profile in which a middle of the protrusion extends in a proximal direction a greater height than edges of the protrusion (not taught); and
the well has a tapered profile in which a middle of the well extends in a distal direction a greater height than edges of the well (see annotated Figures 5 and 6, noting the left and right well ends are ramped, resulting in a middle having a greater height than the ends)
PNG
media_image2.png
673
764
media_image2.png
Greyscale
Garbiso fails to teach the protrusion and the well are radially aligned with one another;
the protrusion has a tapered profile in which a middle of the protrusion extends in a proximal direction a greater height than edges of the protrusion.
DeMars, analogous to beverage cans with tabs which are raised by protrusions, teaches a protrusion (48) which is aligned on a diameter through the center of the rivet and bisecting the aperture (50), and which has a tapered profile having a proximal region with a greater height than edges of the protrusion (see curved profile of 48 in annotated Figure 3 below).
PNG
media_image3.png
445
874
media_image3.png
Greyscale
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the lid body of Garbiso, providing a protrusion like that of DeMars, motivated by the use of a suitable camming protrusion, having a predictable outcome absent a teaching of an unexpected result. See KSR International Co. v. Teleflex Inc. et al. No. 04-1350, 550 U.S. 2007 at 13, lines 22-25 which states, “When a work is available in one field of endeavor, design incentives ...can prompt variations of it, either in the same field or a different one. Furthermore, see id. at 13, lines 27-31 which states “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious”.
Examiner notes that the tab of Garisbo contains a solid widthwise section comprising the portion of (24) which radially surrounds (31) in Figure 3, e.g. the portion between (31) and the opening defined within handle section (26). This widthwise solid section is suitable for camming during tab rotation, and thus there is a likelihood of success of the modified device.
Regarding the physical combination, the question is not whether the prior art devices can be physically combined, but whether a person of ordinary skill in the art would have found it obvious to combine different features or elements of known devices in a predictable way. See Orthopedic Equip. Co. v. United States, 702 F.2d 1005, 1013 (Fed. Cir. 1983): "There is a distinction between trying to physically combine the two separate apparatus disclosed in two prior art references on the one hand, and on the other hand trying to learn enough from the disclosures of the two references to render obvious the claims in suit. ...Claims may be obvious in view of a combination of references, even if the features of one reference cannot be substituted physically into the structure of the other reference." See MPEP 2145(III).
Regarding claim 2, the lid body has a circular shape (see shape of 18 in Garisbo Figure 2).
Regarding claim 4, the lid body further defines an opening axially aligned with the protrusion and the well (see opening defined by weakened portion 20 in Garisbo Figure 3).
Regarding claim 5, the lid body further comprises an openable tear panel axially diametrically aligned with the protrusion and the well (see diametric alignment, e.g. left to right, of tear panel defined by weakened portion 20 with the well unlabeled in annotated Figure 3 above with regard to claim 1, and noting the modification of claim 1 replaces protrusions 34 with one protrusion on the diameter).
Regarding claim 6, the protrusion depresses the nose of the tab to the opening (col. 4, lines 50-60).
Regarding claim 7, Garbiso in view of DeMars fails to teach that the well has a well area and the protrusion has a protrusion area, and wherein the well area is within 20% of the protrusion area.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the lid body of Garbiso in view of DeMars, forming the well area is within 20% of the protrusion area, motivated by an obvious change in size of the prior art, having a predictable outcome absent a teaching of an unexpected result. A change in size, absent a teaching of an unexpected result, is within ordinary skill in the art. See MPEP 2144.04(IV)(A):
In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) (Claims directed to a lumber package “of appreciable size and weight requiring handling by a lift truck” where held unpatentable over prior art lumber packages which could be lifted by hand because limitations relating to the size of the package were not sufficient to patentably distinguish over the prior art.); In re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA 1976) (“mere scaling up of a prior art process capable of being scaled up, if such were the case, would not establish patentability in a claim to an old process so scaled.” 531 F.2d at 1053, 189 USPQ at 148.).
PNG
media_image4.png
18
19
media_image4.png
Greyscale
In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.
Regarding claim 9, the tab is rotatably fixed to the lid body (at Garisbo rivet 30); and
the tab has a first radial position in which the tab does not contact the protrusion (see DeMars tab handle 46 not contacting protrusion 48 in Figure 1 therein), and a second radial position in which the tab contacts the protrusion causing the handle to be lifted proximally away from the lid body relative to the handle in the first radial position (see rotation of the DeMars tab to contact the protrusion in Figure 2; Examiner notes the tab of Garisbo can perform in the same manner due to the rotational connection at the rivet 30 therein).
Regarding claim 10, Garbiso teaches a method of opening a lid of a container comprising:
rotating a tab (24) about a laterally extending lid body (18) of the lid from a first radial position (see Figures 1 and 2) to a second radial position (see Figures 3 and 4; see col. 2, lines 51-53), wherein:
the tab comprises a nose (28), a handle (26), and a medial portion (31) that extends between and couples the nose and the handle (see 31 between 26 and 28 in Figure 3);
the laterally extending lid body comprises a proximally extending protrusion (34) and a distally extending well (unlabeled; see annotated Figures 3, 5, 7, and 10 above with regard to claim 1) in axial alignment (not taught);
the well is disposed radially outward of the protrusion (see annotated Figure 7 above with regard to claim 1 showing well distance D2 greater than protrusion distance D1);
the protrusion has a tapered profile in which a middle of the protrusion extends in a proximal direction a greater height than edges of the protrusion (not taught);
the well has a tapered profile in which a middle of the well extends in a distal direction a greater height than edges of the well (see annotated Figures 5 and 6, noting the left and right well ends are ramped, resulting in a middle having a greater height than the ends); and
the tab contacts the protrusion causing the handle to be lifted proximally away from the lid body in the second radial position relative to the handle in the first radial position (col. 4, line 68 through col. 5, lines 7);
grasping the handle of the tab proximate the well; and
lifting the handle of the tab proximally to open the container (see finger grasping tab end 26 and lifting the end in Figures 4 and 7).
Garbiso fails to teach the protrusion and the well are radially aligned with one another;
the protrusion has a tapered profile in which a middle of the protrusion extends in a proximal direction a greater height than edges of the protrusion.
DeMars, analogous to beverage cans with tabs which are raised by protrusions, teaches a protrusion (48) which is aligned on a diameter through the center of the rivet and bisecting the aperture (50), and which has a tapered profile having a proximal region with a greater height than edges of the protrusion (see curved profile of 48 in annotated Figure 3 above with regard to claim 1).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the lid body of Garbiso, providing a protrusion like that of DeMars, motivated by the use of a suitable camming protrusion, having a predictable outcome absent a teaching of an unexpected result. See KSR International Co. v. Teleflex Inc. et al. No. 04-1350, 550 U.S. 2007 at 13, lines 22-25 which states, “When a work is available in one field of endeavor, design incentives ...can prompt variations of it, either in the same field or a different one. Furthermore, see id. at 13, lines 27-31 which states “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious”.
Examiner notes that the tab of Garisbo contains a solid widthwise section comprising the portion of (24) which radially surrounds (31) in Figure 3, e.g. the portion between (31) and the opening defined within handle section (26). This widthwise solid section is suitable for camming during tab rotation, and thus there is a likelihood of success of the modified device.
Regarding the physical combination, the question is not whether the prior art devices can be physically combined, but whether a person of ordinary skill in the art would have found it obvious to combine different features or elements of known devices in a predictable way. See Orthopedic Equip. Co. v. United States, 702 F.2d 1005, 1013 (Fed. Cir. 1983): "There is a distinction between trying to physically combine the two separate apparatus disclosed in two prior art references on the one hand, and on the other hand trying to learn enough from the disclosures of the two references to render obvious the claims in suit. ...Claims may be obvious in view of a combination of references, even if the features of one reference cannot be substituted physically into the structure of the other reference." See MPEP 2145(III).
Regarding claim 11, Garisbo in view of DeMars fails to teach that the first radial position is characterized by the tab being offset from the protrusion by greater than or about 30 degrees.
Examiner notes Garisbo does, however, teach the tab angularly offset from the protrusion in Figure 2.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the lid body of Garbiso in view of DeMars, locating the tab in the first radial position to be offset from the protrusion by greater than or about 30 degrees, motivated by an obvious change in the location of the parts of the prior art, having a predictable outcome absent a teaching of an unexpected result. A rearrangement of the parts of the prior art is obvious, absent a teaching of an unexpected result. See MPEP 2144.04(VI)(C). In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice).
Regarding claim 12, Garbiso in view of DeMars as applied above fails to explicitly teach grasping the handle of the tab comprises sliding one or more digits underneath the handle into the well.
Examiner notes Figure 7, showing a finger whereby the fingernail is in contact with the sloped portion of the well. The well provides sufficient space for a portion of the finger to enter, and is located below the handle end of the tab.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the lid body of Garbiso in view of DeMars, placing a finger in the well to grasp under the tab handle, motivated by the benefit of gaining leverage on the tab to facilitate opening, having a predictable outcome absent a teaching of an unexpected result.
Regarding claim 13, in the second radial position, the protrusion lifts the handle of the tab proximate the well (Examiner notes the tab is taught to be lifted in Garbiso Figure 6, and the same effect is achieved by the analgous protrusion 48 of DeMars as seen in Figure 2 therein).
Regarding claim 14, Garbiso teaches an easy-open (EZO) container, comprising:
a can body (12);
a laterally extending lid body (18) fixed to a proximal end of the can body (clearly shown in at least Figure 1), wherein the lid comprises a proximally extending protrusion (34) and a distally extending well, wherein the protrusion and well are radially aligned with one another;
a tab (24) fixed to the lid body, the tab comprising a nose (28), a handle (26), and a medial portion (31) that extends between and couples the nose and the handle (see 31 between 26 and 28 in Figure 3), and wherein:
the well is disposed radially outward of the protrusion (see annotated Figure 7 above with regard to claim 1 showing well distance D2 greater than protrusion distance D1);
the tab is positionable such that the tab contacts the protrusion causing the handle to be lifted proximally away from the lid body relative to the handle (see col. 4, line 68 through col. 5, line 7);
the protrusion has a tapered profile in which a middle of the protrusion extends in a proximal direction a greater height than edges of the protrusion (not taught); and
the well has a tapered profile in which a middle of the well extends in a distal direction a greater height than edges of the well (see annotated Figures 5 and 6, noting the left and right well ends are ramped, resulting in a middle having a greater height than the ends).
Garbiso fails to teach the protrusion and the well are radially aligned with one another;
the protrusion has a tapered profile in which a middle of the protrusion extends in a proximal direction a greater height than edges of the protrusion.
DeMars, analogous to beverage cans with tabs which are raised by protrusions, teaches a protrusion (48) which is aligned on a diameter through the center of the rivet and bisecting the aperture (50), and which has a tapered profile having a proximal region with a greater height than edges of the protrusion (see curved profile of 48 in annotated Figure 3 above with regard to claim 1).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the lid body of Garbiso, providing a protrusion like that of DeMars, motivated by the use of a suitable camming protrusion, having a predictable outcome absent a teaching of an unexpected result. See KSR International Co. v. Teleflex Inc. et al. No. 04-1350, 550 U.S. 2007 at 13, lines 22-25 which states, “When a work is available in one field of endeavor, design incentives ...can prompt variations of it, either in the same field or a different one. Furthermore, see id. at 13, lines 27-31 which states “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious”.
Examiner notes that the tab of Garisbo contains a solid widthwise section comprising the portion of (24) which radially surrounds (31) in Figure 3, e.g. the portion between (31) and the opening defined within handle section (26). This widthwise solid section is suitable for camming during tab rotation, and thus there is a likelihood of success of the modified device.
Regarding the physical combination, the question is not whether the prior art devices can be physically combined, but whether a person of ordinary skill in the art would have found it obvious to combine different features or elements of known devices in a predictable way. See Orthopedic Equip. Co. v. United States, 702 F.2d 1005, 1013 (Fed. Cir. 1983): "There is a distinction between trying to physically combine the two separate apparatus disclosed in two prior art references on the one hand, and on the other hand trying to learn enough from the disclosures of the two references to render obvious the claims in suit. ...Claims may be obvious in view of a combination of references, even if the features of one reference cannot be substituted physically into the structure of the other reference." See MPEP 2145(III).
Regarding claim 16, the tab is rotatably fixed to the lid body (at Garisbo rivet 30); and
the tab has a first radial position in which the tab does not contact the protrusion (see DeMars tab handle 46 not contacting protrusion 48 in Figure 1 therein), and a second radial position in which the tab contacts the protrusion causing the handle to be lifted proximally away from the lid body relative to the handle in the first radial position (see rotation of the DeMars tab to contact the protrusion in Figure 2; Examiner notes the tab of Garisbo can perform in the same manner due to the rotational connection at the rivet 30 therein).
Regarding claim 17, the medial portion defines a central opening (unlabeled; clearly seen in Garbiso Figure 2 containing raised formation 32); and
the tab is positionable such that the handle of the tab contacts the protrusion causing the handle to be lifted proximally away from the lid body relative to the handle (Garbiso teaches the claimed raising; modification in view of DeMars merely changes the location of the initial point of contact that results in the raising).
Regarding claim 18, the tab is positionable such that a radially inward portion of the handle of the tab contacts the protrusion causing the handle to be lifted proximally away from the lid body relative to the handle (Examiner asserts that the raised formation can be moved to contact any portion of the tab including the radially inward portion of the handle; a person of ordinary skill in the art can see from Garbiso alone that camming causes the tab to raise, and it is obvious within that level of ordinary skill to change the location of that camming, with a predictable outcome absent any teaching of an unexpected result).
A rearrangement of the parts of the prior art is obvious, absent a teaching of an unexpected result. See MPEP 2144.04(VI)(C). In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice).
5. Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over US 5,224,618 (Garbiso) in view of US 4,951,835 (DeMars) as applied above to claim 1, and further in view of US 5,655,678 (Kobayashi) and US 2004/0099665 (McEldowney).
Regarding claim 8, Garbiso in view of DeMars as applied above fails to teach that an outer perimeter of the lid body defines a tear panel for removing the lid from the container.
Kobayashi, analogous to cans with tabs, teaches the equivalence of an embodiment (Figure 3) where a pull tab (3) rupturing a tear panel (8), with one where lids which are removed entirely (see embodiment of Figure 4; col. 4, line 64 through col. 5, line 6).
McEldowney teaches such lids comprise a panel defined by an outer peripheral score line (26) for removing the lid (14) entirely from the container by lifting a tab (12).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the lid body of Garbiso in view of DeMars, forming it as a lid with a peripheral score line for removing the lid entirely, as taught by McEldowney, and as taught to be an obvious variant by Kobyashi, motivated by the use of the opening mechanism in providing a larger opening to dispense container contents, having a predictable outcome absent a teaching of an unexpected result. See KSR International Co. v. Teleflex Inc. et al. No. 04-1350, 550 U.S. 2007 at 13, lines 22-25 which states, “When a work is available in one field of endeavor, design incentives ...can prompt variations of it, either in the same field or a different one. Furthermore, see id. at 13, lines 27-31 which states “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious”.
6. Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over US 5,224,618 (Garbiso) in view of US 4,951,835 (DeMars) as applied above to claim 14, and further in view of US 7,938,290 (Bulso).
Regarding claim 15, Garisbo in view of DeMars as applied above teaches the lid comprises:
a center panel (Garisbo 18), but fails to teach:
a peripheral curl coupled with a rim of the can; and
a chuck wall disposed between the center panel and the peripheral curl; and
the chuck wall comprises a substantially horizontal portion.
Bulso, analgous to beverage containers, teaches a peripheral curl (22) coupled with a rim of the can (not shown but intended for seaming to a container; see col. 2, lines 45-51); and
a chuck wall (6) disposed between the center panel and the peripheral curl; and
the chuck wall comprises a substantially horizontal portion (horizontal portion of 40; see annotated Figure 4A below).
PNG
media_image5.png
454
625
media_image5.png
Greyscale
Bulso teaches the benefit is improved internal buckle strength while using less material (see Abstract).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the lid of Garisbo in view of DeMars, providing a chuck wall comprising a substantially horizontal portion as taught by Bulso, motivated by the benefit of increasing internal buckle strength while using less material, having a predictable outcome absent a teaching of an unexpected result. See KSR International Co. v. Teleflex Inc. et al. No. 04-1350, 550 U.S. 2007 at 13, lines 22-25 which states, “When a work is available in one field of endeavor, design incentives ...can prompt variations of it, either in the same field or a different one. Furthermore, see id. at 13, lines 27-31 which states “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious”.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES N SMALLEY whose telephone number is (571)272-4547. The examiner can normally be reached M-F 9:00 am to 6:00 pm.
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, 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.
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.
/JAMES N SMALLEY/Examiner, Art Unit 3733
Prosecution Insights