DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 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 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, to create a first sealing fin and a second sealing fin (14, 16), at least one of said first and second sealing fins are capable being of peelable or tearable configuration, 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 the product 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 pairs of opposite end tails of the lateral walls between each other, 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 sealing fin is formed longitudinally on one of the front walls or on one of the lateral walls and the second sealing defining the second sealing 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 sealing fins 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 base sealing 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 chose from said first sealing fin, said second sealing fin and said third base sealing fin is folded on a respective wall. See Fig. 1.
Regarding claim 10, the third base 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.
Response to Arguments
Applicant's arguments filed 5/19/2026 have been fully considered but they are not persuasive. Applicant first argues that element (11) of Leasure cannot be the “third sealing” as claimed - the Office respectfully disagrees. Element (11) of Leasure is a sealing, and thus can be considered a “third sealing.” Moreover, an “opening” is created before the element (11) is closed, and product is capable of being placed through said opening. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
In response to applicant's argument that that Dingwall is nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, Dingwall and Leasure are in the field of the inventor’s endeavor (packaging). Additionally, Dingwall is reasonably pertinent to the particular problem with which the inventor was concerned which is to have a particularly shaped package to fit certain items.
As to applicant’s citation of In re Ratti, the primary reference in that case required rigidity, whereas as the claimed invention required resiliency. In applicant’s case, there is no such contradiction. Leasure comprising walls shaped as disclosed by Dingwall there is certainly no substantial reconstruction and redesign of the elements shown in Leasure as well as a change in the basic principle under which Leasure is constructed and designed to operate.
Conclusion
THIS ACTION IS MADE FINAL. 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 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.
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.
/DEREK J BATTISTI/Primary Examiner, Art Unit 3734
Prosecution Insights