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 .
Election/Restriction
REQUIREMENT FOR UNITY OF INVENTION
As provided in 37 CFR 1.475(a), a national stage application shall relate to one invention only or to a group of inventions so linked as to form a single general inventive concept (“requirement of unity of invention”). Where a group of inventions is claimed in a national stage application, the requirement of unity of invention shall be fulfilled only when there is a technical relationship among those inventions involving one or more of the same or corresponding special technical features. The expression “special technical features” shall mean those technical features that define a contribution which each of the claimed inventions, considered as a whole, makes over the prior art.
The determination whether a group of inventions is so linked as to form a single general inventive concept shall be made without regard to whether the inventions are claimed in separate claims or as alternatives within a single claim. See 37 CFR 1.475(e).
When Claims Are Directed to Multiple Categories of Inventions:
As provided in 37 CFR 1.475 (b), a national stage application containing claims to different categories of invention will be considered to have unity of invention if the claims are drawn only to one of the following combinations of categories:
(1) A product and a process specially adapted for the manufacture of said product; or
(2) A product and a process of use of said product; or
(3) A product, a process specially adapted for the manufacture of the said product, and a use of the said product; or
(4) A process and an apparatus or means specifically designed for carrying out the said process; or
(5) A product, a process specially adapted for the manufacture of the said product, and an apparatus or means specifically designed for carrying out the said process.
Otherwise, unity of invention might not be present. See 37 CFR 1.475 (c).
Restriction is required under 35 U.S.C. 121 and 372.
This application contains the following inventions or groups of inventions which are not so linked as to form a single general inventive concept under PCT Rule 13.1.
In accordance with 37 CFR 1.499, applicant is required, in reply to this action, to elect a single invention to which the claims must be restricted.
Group I, claim(s) 1-11, drawn to a package.
Group II, claim(s) 12-17, drawn to a method of making a hermetic package.
The groups of inventions listed above do not relate to a single general inventive concept under PCT Rule 13.1 because, under PCT Rule 13.2, they lack the same or corresponding special technical features for the following reasons:
Groups I and II lack unity of invention because even though the inventions of these groups require the technical feature of sealing fins, this technical feature is not a special technical feature as it does not make a contribution over the prior art in view of Leasure et al. (US 3,458,111). Leasure discloses three sealing fins used to open and close a package
During a telephone conversation with Robert Boyd on 2/3/2026 a provisional election was made without traverse to prosecute the invention of Group I, claims 1-11. Affirmation of this election must be made by applicant in replying to this Office action. Claims 12-17 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
The examiner has required restriction between product or apparatus claims and process claims. Where applicant elects claims directed to the product/apparatus, and all product/apparatus claims are subsequently found allowable, withdrawn process claims that include all the limitations of the allowable product/apparatus claims should be considered for rejoinder. All claims directed to a nonelected process invention must include all the limitations of an allowable product/apparatus claim for that process invention to be rejoined.
In the event of rejoinder, the requirement for restriction between the product/apparatus claims and the rejoined process claims will be withdrawn, and the rejoined process claims will be fully examined for patentability in accordance with 37 CFR 1.104. Thus, to be allowable, the rejoined claims must meet all criteria for patentability including the requirements of 35 U.S.C. 101, 102, 103 and 112. Until all claims to the elected product/apparatus are found allowable, an otherwise proper restriction requirement between product/apparatus claims and process claims may be maintained. Withdrawn process claims that are not commensurate in scope with an allowable product/apparatus claim will not be rejoined. See MPEP § 821.04. Additionally, in order for rejoinder to occur, applicant is advised that the process claims should be amended during prosecution to require the limitations of the product/apparatus claims. Failure to do so may result in no rejoinder. Further, note that the prohibition against double patenting rejections of 35 U.S.C. 121 does not apply where the restriction requirement is withdrawn by the examiner before the patent issues. See MPEP § 804.01.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-11 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. It is unclear how the package is “substantially” triangular. Applicant is advised to delete “substantially.”
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-11 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. In claim 1, it is unclear how the package is “substantially” triangular. Applicant is advised to delete “substantially.”
Claim Rejections - 35 USC § 103
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.
Claims 1-8, 10 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Leasure et al. (US 3,458,111) in view of Dingwall (US 781,192).
Regarding claim 1, Leasure discloses a hermetic package (Fig. 2) for a food product in liquid or pasty form consisting of a single sheet having longitudinal and transverse weakening lines, said sheet being folded along said weakening lines to form a container having a prismatic form, comprising: two opposite front walls (Fig. 1, at 10 front and back), parallel to each other; and a substantially rectangular base wall (Fig. 2, at 11) from whose two major opposite edges the two front walls depart, and from whose two minor opposite edges two lateral walls (walls comprising 14 and 16) depart; a first and second sealing (14, 16) formed by joining corresponding internal faces of at least one of said front and/or lateral walls, so as to create a first and a second sealing fin (14, 16), at least one of said first and second sealing fin are capable being of peelable or tearable type, said first and second sealing defining a cavity delimited by the front walls and by the lateral walls and a single opening (at 11) capable of accessing the cavity; said opening being made in correspondence of the base wall, so as to allow the filling of the cavity with the product poured by dropping it through the opening, wherein the opening is closed by a third sealing (11) formed by welding internal faces of two opposite end tails of the front walls between each other and internal faces of two couple of opposite end tails of the lateral walls between each other, so as to create on the base wall a single third base sealing fin (11) opposite to the other end. See Figs. 1-4. Leasure does not disclose the triangular nature of the package.
Dingwall, which is drawn to a package, discloses a triangular prismatic package with two opposite rectangular lateral slanting walls (3) converging towards a common vertex. See Fig. 1. Thus, it 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 to have the walls of Leasure slant and be shaped as disclosed by Dingwall in order to fit/carry specific items like sandwiches, cheese and butter.
Regarding claim 2, the first sealing defining the first fin is formed longitudinally on one of the front walls or on one of the lateral walls and the second sealing defining the second fin is formed transversely along the common vertex formed where the front walls and lateral walls meet each other. See Fig. 2.
Regarding claim 3, the first and second sealing defining the first and second fin respectively are formed longitudinally on each one of the two front walls or on each of the two lateral walls respectively. See Fig. 2.
Regarding claim 4, the third base fin is made centrally and folded over the base wall. See Fig. 2.
Regarding claim 5, the base wall comprises at least one protruding base tab (11 is a tab), capable of being configured to open the package.
Regarding claim 6, said base tab is formed on the third fin. See Fig. 2.
Regarding claim 7, at least one of the first and second sealing fins comprises a protruding lateral tab (16) configured to open the package. See Fig. 1.
Regarding claim 8, at least one of said first, second and third sealing fin is folded on a respective wall. See Fig. 1.
Regarding claim 10, the third sealing fin is formed by only two opposed layers of the single sheet and is formed on the base wall in a position such that an empty space without the product is not left in the container proximally to the base wall. See Fig. 1.
Regarding claim 11, as modified above, the third base sealing fin extends perpendicularly to the common vertex.
Allowable Subject Matter
Claim 9 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See attached Notice of References Cited.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEREK J BATTISTI whose telephone number is (571)270-5709. The examiner can normally be reached 9:00 am - 5:00 pm M-F.
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 Newhouse can be reached at 571-272-4544. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DEREK J BATTISTI/Primary Examiner, Art Unit 3734