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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claim Rejections - 35 USC § 112
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 1-7,9,11-18 and 20-22 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.
Claim 1, lines 7-9; claim 20, lines 6-8; claim 21, lines 9-11; referring to “a surface of the stopper defining a storage space for the liquid and includes… a fluoropolymer layer” is vague and indefinite as it is not clear if is it the stopper and/or the liquid that “includes… a fluoropolymer layer”!
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1, 2, 5, 7,9,11-18 and 20-22 the best understood is/are rejected under 35 U.S.C. 103 as being unpatentable over Zingle et al. (U.S. Pat. No. 5,596,814).
Regarding claim 1: Zingle discloses a liquid-containing container containing a liquid, comprising:
a container body with an opening portion (Fig. 4; via top opening of container 32); and a stopper that closes the opening portion and has oxygen permeability (via stopper 10; paragraph 4; “The construction of the stopper 10…provides selective air flow therethrough”),
wherein the stopper includes a stopper body portion and a barrier layer provided on at least part of a surface of the stopper body portion (Fig. 4; via layer 19c), and
the barrier layer constitutes at least a surface of a portion of the stopper to be inserted into the container body and a surface of the stopper defining a storage space for the liquid (Fig. 4; via stopper 10, layer 19c cover the container on liquid 34; and “The stopper 10 of the present invention should include some means for venting of water vapor during the freeze-dry…without allowing solid or liquids to escape”).
Zingle does not disclose the exact claimed used material to “includes at least one selected from the group consisting of a p-xylylene layer, a diamond-like carbon layer, and a fluoropolymer layer”.
However, it would have been obvious to one having ordinary skill in the art, before the effective filing date of applicant’s claimed invention, to have substituted, Zingle’s used material, by another to include at least one selected from the group consisting of a p-xylylene layer, a diamond-like carbon layer, and a fluoropolymer layer, since it has been held to be withing the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Regarding claim 2: wherein the stopper body portion contains silicone (paragraph 15; “the rubber stopper is also coated with a lubricant such as avery light film of silicone”).
Regarding claim 5: Zingle does not suggest the barrier layer to be formed of the p-xylylene layer or the diamond-like carbon layer, nor the barrier layer has a thickness of 1000 nm or less.
However, it would have been obvious to one having ordinary skill in the art, before the effective filing date of applicant’s claimed invention, to have substituted, Zingle’s barrier layer to be formed of the p-xylylene layer or the diamond-like carbon layer and the barrier layer has a thickness of 1000 nm or less, since it has been held to be withing the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416. Further, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 7: Zingle does not disclose that the barrier layer to be formed of the fluoropolymer layer, and the barrier layer has a thickness of 50pmor less.
However, it would have been obvious to one having ordinary skill in the art, before the effective filing date of applicant’s claimed invention, to have substituted, Zingle’s barrier layer to be formed of fluoropolymer layer, and the barrier layer has a thickness of 50pmor less, since it has been held to be withing the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416. Further, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 9: the stopper body portion constitutes a surface of the stopper forming an outer surface of the liquid-containing container, see for example (Figs. 4-6; via the shown outer surface of stopper 10 or 20), and
the stopper body portion constitutes a surface of the stopper that comes into contact with an end portion of the opening portion of the container body (Figs. 4-6; via the shown inner portion of stoppers 10 & 20).
Regarding claim 11: the container body has an oxygen barrier property, (via stopper 10; paragraph 4; “The construction of the stopper 10…provides selective air flow therethrough”),
Regarding claim 12: wherein the stopper comes into contact with an end portion of the opening portion of the container body and closes the opening portion so as to seal the liquid (Figs. 4-6; via stoppers 10 & 20 in contact with the end portion of the container’s opening).
Regarding claim 13: Zingle does not suggest the stopper body portion with a thickness of 0.5 mm or more and 3 mm or less. However, it would have been obvious to one having ordinary skill in the art, before the effective filing date of applicant’s claimed invention, to have modified, Zingle’s stopper body thickness to be 0.5 mm or more and 3 mm or less, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 14: Zingle does not disclose suggest the container body and the stopper to have a total oxygen permeation amount of 0.9 (cm3/(day- atm)) or more. However, it would have been obvious to one having ordinary skill in the art, before the effective filing date of applicant’s claimed invention, to have modified, Zingle’s container body and the stopper to have a total oxygen permeation amount of 0.9 (cm3/(day- atm)) or more, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claims 15 & 16: Zingle does not suggest that the stopper has an oxygen permeation amount of 2 (cm /(day- atm)) or more nor a thickness of 0.5 mm or more and 3 mm or less. However, it would have been obvious to one having ordinary skill in the art, before the effective filing date of applicant’s claimed invention, to have modified, Zingle’s stopper to have an oxygen permeation amount of 2 (cm /(day- atm)) or more, and a thickness of 0.5 mm or more and 3 mm or less since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 17: a liquid container with a barrier container that stores the liquid-containing container and has an oxygen barrier property, see for example (Figs. 2 & 4-6; via the shown liquid container with the top barrier 10 or 20).
Regarding claim 18: Zingle’s container does not comprise a deoxidizer for absorbing oxygen in the barrier container. However, it would have been obvious to one having ordinary skill in the art, before the effective filing date of applicant’s claimed invention, to have modified, Zingle’s container to comprise a deoxidizer for absorbing oxygen in the barrier container, since it has been held to be withing the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Regarding claim 20: a stopper that closes an opening portion of a container body of a container for containing a liquid and has oxygen permeability, comprising:
a stopper body portion containing silicone and a barrier layer provided on at least part of a surface of the stopper body portion (Fig. 4; via stopper 10 and layer 19c),
wherein the barrier layer constitutes at least a surface of a portion of the stopper to be inserted into the container body and a surface of the stopper defining a storage space for the liquid (via stopper 10, layer 19c inserted into container 32).
Zingle does not disclose the exact claimed used material to “includes at least one selected from the group consisting of a p-xylylene layer, a diamond-like carbon layer, and a fluoropolymer layer”.
However, it would have been obvious to one having ordinary skill in the art, before the effective filing date of applicant’s claimed invention, to have substituted, Zingle’s used material, by another to include at least one selected from the group consisting of a p-xylylene layer, a diamond-like carbon layer, and a fluoropolymer layer, since it has been held to be withing the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Regarding claim 21: a method for producing a liquid-containing container, comprising:
a step of closing a barrier container that stores a container (Fig. 4; via the shown closed container 32 by stepper 10); and
wherein the container includes a container body that contains a liquid and has an opening portion and a stopper that closes the opening portion and has oxygen permeability, see for example (Fig. 4; via stopper 10 of container 32 and stored product 34; The stopper 10 of the present invention should include some means for venting of water vapor during the freeze-dry process without allowing solids or liquids to escape”),
the stopper includes a stopper body portion containing silicone and a barrier layer provided on at least part of a surface of the stopper body portion (via layer 19C),
the barrier layer constitutes at least a surface of a portion of the stopper to be inserted into the container body and a surface of the stopper defining a storage space for the liquid (via the shown portion of stopper 10 into container 32); a step of adjusting an amount of oxygen in the container, nor the step of adjusting the amount of oxygen, a concentration of oxygen in the container is reduced by permeation of oxygen contained in the container through the stopper (paragraphs 3-4; via “The stopper 10 of the present invention should include some means for venting of water vapor during the freeze-dry process without allowing solids or liquids to escape. One such means comprises providing one or more passageways 16 through the stopper, such as the one passageway 16 down the middle of the stopper 10 as shown. In the construction shown, the expanded PTFE membrane 14 covers one opening 18 to the passageway 16 to provide the necessary selectively permeable barrier. As so constructed, gases can enter and leave a container protected by the stopper of the present invention, while contaminants are excluded from the container. The construction of the stopper 10 of the present invention provides it with important unique properties. In the area of opening 18, the membrane comprises a porous material that provides selective air flow therethrough.”).
Zingle does not disclose the exact claimed used material to “includes at least one selected from the group consisting of a p-xylylene layer, a diamond-like carbon layer, and a fluoropolymer layer”. However, it would have been obvious to one having ordinary skill in the art, before the effective filing date of applicant’s claimed invention, to have substituted, Zingle’s used material, by another to include at least one selected from the group consisting of a p-xylylene layer, a diamond-like carbon layer, and a fluoropolymer layer, since it has been held to be withing the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Regarding claim 22: a container body with an opening portion; and the stopper according that closes the opening portion, see for example (Figs. 4-6; via the shown closed top portion of the containers with the stoppers 10 and/or 20).
Allowable Subject Matter
Claims 3, 4, and 6 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Regarding claims 3, 4,and 6: the prior art of record fails to disclose the combination of the claimed liquid-containing container meeting or satisfying the claimed specific type of formulas as suggested by claims 3, 4, and 6.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SAMEH TAWFIK whose telephone number is (571)272-4470. The examiner can normally be reached Mon-Fri. 8:00 AM - 4:00 PM.
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/SAMEH TAWFIK/Primary Examiner, Art Unit 3731
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