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 .
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.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
Transport device in claim 1, disclosed as a conveyor belt 101 in Fig. 1;
Labeling unit in claim 1, disclosed as a label dispenser 105 in Fig 1 and ¶ 34-35.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-5, 7 10-14 and 16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Heide et al. (DE 102005010466).
As to claim 1, Heide discloses an apparatus for labeling packs filled with a product. Heide discloses that the apparatus comprises of: a transport device 7 with a holder 10 that has a depression placing an object/pack, wherein the holder has boundary surfaces on at least two sides of the depression, and a labeling unit/dispenser 17 capable of placing a label upon an object in said depression (Fig. 2 below).
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Expressions relating the apparatus to contents thereof during an intended operation are of no significance in determining patentability of the apparatus claim. Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969).
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 claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). Here, the apparatus of Heide contains all of the structural limitations of claim 1.
As to claim 2, the apparatus of claim 1 is taught as seen above. Heide discloses that the boundary surfaces are arranged in a transverse direction relative to the direction of transport of the transport device (Id).
As to claim 3, the apparatus of claim 1 is taught as seen above. Heide discloses that the labeling unit 17 is capable of moving in a transport direction as the label is applied to the pack, moving from a down position back to an up position as the label is taken by the object (Id; ¶23, 31).
As to claim 4, the apparatus of claim 1 is taught as seen above. Heide discloses that the transport device comprises of a plurality of holders, said holders having respective depressions and boundary surfaces (Fig. 2).
As to claim 5, the apparatus of claim 4 is taught as seen above. Heide discloses that adjacent depressions are separated by boundary surfaces.
As to claim 7, the apparatus of claim 1 is taught as seen above. Heide discloses that the transport device comprises a conveyor belt, and wherein the boundary surfaces are arranged on the conveyor belt and the depression is defined at least in part by the boundary surfaces and the conveyor belt (Fig. 2).
As to claim 10, Heide discloses a method for labeling packs filled with a product (product enclosed in casing) using a labeling device, the labeling device comprising a transport device 7 for transporting packs along a direction of transport and a labeling unit 17 for applying labels onto the packs, the transport device comprising a holder 10 with a depression, for receiving a pack with a product, and boundary surfaces on at least two sides of the depression, wherein the depression and the boundary surfaces are arranged such that the pack with the product can be arranged in the depression and a pack component of the pack on at least one of the boundary surfaces, and wherein the method comprises applying a label onto the pack while the product is arranged in the depression (Fig. 1).
Claims 11-14 and 16 are rejected for the same reasons as claims 2-5 and 7 above.
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.
Claim(s) 8 and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Heide et al. (DE 102005010466) in view of House et al. (US 6073423).
As to claim 8, the apparatus of claim 1 is taught as seen above. Heide fails to specifically teach or disclose that the boundary surfaces/holders are connected in a detachable manner to the conveyor belt. House discloses that it is known and conventional in the art of conveying to use transport holders which are detachable from a conveyor (C3,L20-23). House further discloses that transport holders may also be not attachable from a conveyor (C6, L60-67). A person of ordinary skill in the art, upon reading House, would have recognized that detachable holders is one of a finite number of holders known to be useful for use with a conveyor. Therefore, it would have been obvious to a person of ordinary skill in the art at the time of the invention to try a detachable holder, as is known in the art as evidenced by House, in the apparatus of Heide because a person with ordinary skill has good reason to pursue the known option within his or her technical grasp. “A person of ordinary skill has good reason to pursue the known option within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but or ordinary skill and common sense." KSR Int’l Co. v. Teleflex Inc., 127 S.Ct. 1727, 82 USPQ2d 1385 (2007).
As to claim 17, the method of claim 10 is taught as seen above. Claim 17 is rejected for the same reasons as claim 8 above.
Claim(s) 9 and 18 is/are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Heide et al. (DE 102005010466).
As to claim 9, the apparatus of claim 1 is taught as seen above. Heidi appears to show that the individual holders 10 have a depression that is longer in the cross-direction relative to the machine/transport direction (Fig. 3 below). In the alternative, it would have been obvious to size and shape the depression of the holders as needed because claim limitations related to size and/or shape are obvious to one of ordinary skill in the art at the time of filing. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955). In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
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As to claim 18, the method of claim 10 is taught as seen above. Claim 18 is rejected for the same reasons as claim 9 above.
Allowable Subject Matter
Claims 6 and 15 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.
The following is a statement of reasons for the indication of allowable subject matter:
As to claims 6 and 10, the closest prior art of Heide et al. (DE 102005010466) fails to teach or disclose that the apparatus/method may include a pressing member for pressing a pack of product upstream of the labeling station in the labeling apparatus/method and it would not be obvious to modify the apparatus/method of Heide to include such a pressing member/step as recited in claims 6 and 10.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Capitani (US 10435186) discloses a device/method for packaging materials with labels and Young (US 3491504) discloses a device/method for vacuum skin packaging.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTOPHER C CAILLOUET whose telephone number is (571)270-3968. The examiner can normally be reached M-F 9AM-5PM EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, PHILLIP TUCKER can be reached at (571)272-1095. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHRISTOPHER C CAILLOUET/Examiner, Art Unit 1745
/GEORGE R KOCH/Primary Examiner, Art Unit 1745