DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under pre-AIA 35 U.S.C. 103(a) are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-7 and 10-14 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Smernoff (US 5,377,876) in view of Decottignies et al. (Decottignies US 6,510,965).
1: Smernoff teaches a container (container shown in Figure 1), comprising: a skeleton shell defining a container body of the container (shell 11, Figure 8, defining a container body, body generally formed by 60, 65,61, 50, 44), the skeleton shell having a first portion and a second portion (first portion 65 and second portion 64) and being formed from a recycled and/or biodegradable pulp material (corrugated cardboard col. 5, ll. 27-38); a bag or liner (bag/liner 12) removably disposed within the skeleton shell, a first area at the first portion (first area at the exterior surface of the first portion).
Smernoff teaches the claimed invention as discussed above except a first gripping area at of the first portion and the second portion, the first gripping area having a first depression; the first gripping area having a first depression, wherein the first portion including the first gripping area has a continuous exterior surface.
Decottignies teaches an exterior container shell having gripping areas (areas where depressions are present on the exterior container shell) along the exterior surface of the shell having multiple depressions shown in Figures 1-4.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Smernoff such that the teaching of a gripping area, the first gripping area having a first depression, wherein the first portion including the first gripping area has a continuous exterior surface of Decottignies were applied to the container surfaces of Smernoff in order to provide a gripping surface and permit easier handling of the container.
2: Smernoff-Decottignies teaches the claimed invention as discussed above for Claim 1 and Smernoff-Decottignies further teaches that the first gripping area is configured to minimize strain on a user’s muscles and tendons during handling of the container (the modified gripping area provides a gripping surface for a user, wherein the surface is capable of relieving strain on a user).
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3: Smernoff-Decottignies teaches the claimed invention as discussed above for Claim 1 and Smernoff further teaches a second gripping area arranged at the other of the first portion and the second portion (second gripping area shown above in Figure 4 above).
4: Smernoff-Decottignies teaches the claimed invention as discussed above for Claim 1 and Smernoff further teaches that the first gripping area includes one or more ridges (see ridges in Figure 4, wherein two ridges are located at each depression).
5: Smernoff-Decottignies teaches the claimed invention as discussed above for Claim 1 and Smernoff further teaches that the one or more ridges includes two ridges, the two ridges being arranged at a same side of the first depression (see Figure 4 above, wherein two ridges are located on the corner of the depressions, where the ridges are located on the exterior facing side of each gripping area).
6: Smernoff-Decottignies teaches the claimed invention as discussed above for Claim 4 and Smernoff further teaches that the first gripping area includes a plurality of depression (see multiple depressions located on the first gripping area, see Figure 4 above).
7: Smernoff-Decottignies teaches the claimed invention as discussed above for Claim 1 and Smernoff further teaches that the first gripping area includes a plurality depressions (see multiple depressions located on the first gripping area, see Figure 4 above).
10: Smernoff-Decottignies teaches the claimed invention as discussed above for Claim 1 and Smernoff further teaches that the first portion and the second portion have the same volume (the first and second portions forms the same volume of 11, see Figure 8).
11: Smernoff-Decottignies teaches the claimed invention as discussed above for Claim 1 and Smernoff further teaches that the bag or liner is a liquid-holding bag or liner (12 is capable of holding liquid).
12: Smernoff-Decottignies teaches the claimed invention as discussed above for Claim 1 and Smernoff further teaches that the bag or liner is rolled within the skeleton (12 is rolled/in contact with the skeleton and in addition, mounted to the skeleton via 14, see Figure 6).
13: Smernoff-Decottignies teaches the claimed invention as discussed above for Claim 1 and Smernoff further teaches that the bag or liner comprises a fitment, wherein the fitment extends above the skeleton (comprising spout 14 which extends exterior to the skeleton 11, Figures 3 and 6).
14: Smernoff-Decottignies teaches the claimed invention as discussed above for Claim 1 and Smernoff further teaches that the fitment includes a resealable closure (closure 15).
Claim 19 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Smernoff (US 5,377,876) in view of Decottignies et al. (Decottignies US 6,510,965) and further in view of Barthel (US 2008/0210584).
19: Smernoff- Decottignies teaches the claimed invention as discussed above for Claim 1 except that the pulp material comprises fiber that is derived from wood pulp, plant pulp, agriculture waste by-product pulp, paper pulp, or a combination of a fiber based pulp.
Barthel teaches a biodegradable pulp material and/or recycled material as the material of choice for packaging (paragraph 0020).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to modify Smernoff and apply the teaching of Smernoff such that the material of choice was made from a biodegradable pulp material and/or recycled material since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use. In re Leshin, 125 USPQ 416.
Claim 20 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Smernoff (US 5,377,876) in view of Decottignies et al. (Decottignies US 6,510,965) and further in view of Campbell (US 2002/0175094).
20: Smernoff-Decottignies teaches the claimed invention as discussed above for Claim 1 except that the bag or liner is formed of a biodegradable material.
Campbell teaches that the bags have been known in the art to use biodegradable material (paragraph 0013).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to modify Smernoff and apply the teaching of Campbell such that the bag or line is made from a biodegradable material since such a material is known in the art to be used for environmentally friendly reasons and it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use. In re Leshin, 125 USPQ 416.
Claims 1-7 and 9-14 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Ichikawa et al. (Ichikawa US 5,474,212) in view of Decottignies et al. (Decottignies US 6,510,965).
1: Ichikawa teaches a container (container shown in Figures 1-5, embodiment of Figures 4-5), comprising: a skeleton shell (shell generally indicated as 11) defining a container body of the container (container body formed by 12 and 12'), the skeleton shell having a first portion and a second portion (first portion 65 and second portion 64) and being formed from a recycled and/or biodegradable pulp material (corrugated cardboard col. 5, ll. 27-38); a bag or liner (bag/liner 12) removably disposed within the skeleton shell; and a first area (first area formed by the outer surfaces of the first and second portion) at the first portion.
Ichikawa teaches the claimed invention as discussed above except a first gripping area at of the first portion and the second portion, the first gripping area having a first depression; the first gripping area having a first depression, wherein the first portion including the first gripping area has a continuous exterior surface.
Decottignies teaches an exterior container shell having gripping areas (areas where depressions are present on the exterior container shell) along the exterior surface of the shell having multiple depressions shown in Figures 1-4.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ichikawa such that the teaching of a gripping area, the first gripping area having a first depression, wherein the first portion including the first gripping area has a continuous exterior surface of Decottignies were applied to the container surfaces of Smernoff in order to provide a gripping surface and permit easier handling of the container.
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2: Ichikawa-Decottignies teaches the claimed invention as discussed above for Claim 1 and Decottignies further teaches that the first gripping area is configured to minimize strain on a user’s muscles and tendons during handling of the container (the modified gripping area provides a gripping surface for a user, wherein the surface is capable of relieving strain on a user).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ichikawa-Decottignies such that the teaching of the first gripping area is configured to minimize strain on a user’s muscles and tendons during handling of the container of Decottignies were applied in order to provide a gripping surface and permit easier handling of the container.
3: Ichikawa-Decottignies teaches the claimed invention as discussed above for Claim 1 and Decottignies further teaches a second gripping area arranged at the other of the first portion and the second portion (second gripping area shown above in Figure 4 above).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ichikawa-Decottignies such that the teaching of a second gripping area arranged at the other of the first portion and the second portion of Decottignies were applied in order to provide a gripping surface and permit easier handling of the container.
4: Ichikawa-Decottignies teaches the claimed invention as discussed above for Claim 1 and Decottignies further teaches that the first gripping area includes one or more ridges (see ridges in Figure 4, wherein two ridges are located at each depression).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ichikawa-Decottignies such the first gripping area includes one or more ridges of Decottignies were applied in order to provide a gripping surface and permit easier handling of the container.
5: Ichikawa-Decottignies teaches the claimed invention as discussed above for Claim 4 and Decottignies further teaches that the one or more ridges includes two ridges, the two ridges being arranged at a same side of the first depression (see Figure 4 above, wherein two ridges are located on the corner of the depressions, where the ridges are located on the exterior facing side of each gripping area).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ichikawa-Decottignies such the one or more ridges includes two ridges; the two ridges being arranged at a same side of the first depression of Decottignies were applied in order to provide a gripping surface and permit easier handling of the container.
6: Ichikawa-Decottignies teaches the claimed invention as discussed above for Claim 4 and Decottignies further teaches that the first gripping area includes a plurality of depressions (see multiple depressions located on the first gripping area, see Figure 4 above).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ichikawa-Decottignies such the first gripping area includes one or more depressions of Decottignies were applied in order to provide a gripping surface and permit easier handling of the container.
7: Ichikawa-Decottignies teaches the claimed invention as discussed above for Claim 1 and Decottignies further teaches that the first gripping area includes a plurality of depressions (see multiple depressions located on the first gripping area, see Figure 4 above).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ichikawa such the first gripping area includes one or more depressions of Decottignies were applied in order to provide a gripping surface and permit easier handling of the container.
9: Ichikawa-Decottignies teaches the claimed invention as discussed above for Claim 1 and Ichikawa further teaches that the first portion and the second portion have the same volume (see Figure 5 of Ichikawa).
10: Ichikawa-Decottignies teaches the claimed invention as discussed above for Claim 1 and Ichikawa further teaches that the first portion and the second portion have the same volume (see Figure 5 of Ichikawa).
11: Ichikawa-Decottignies teaches the claimed invention as discussed above for Claim 1 and Ichikawa further teaches that the bag or liner is a liquid-holding bag or liner (the bag 7 is capable of holding liquid).
12: Ichikawa-Decottignies teaches the claimed invention as discussed above for Claim 1 and Ichikawa further teaches that the bag or liner is rolled within the skeleton (via portion 5 and 6).
13: Ichikawa-Decottignies teaches the claimed invention as discussed above for Claim 1 and Ichikawa further teaches that the bag or liner comprises a fitment (fitment 6), wherein the fitment extends above the skeleton (6 extends above 12, Figure 3).
14: Ichikawa-Decottignies teaches the claimed invention as discussed above for Claim 1 and Ichikawa further teaches that the fitment includes a resealable closure (closure 8).
Claim 8 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Ichikawa et al. (Ichikawa US 5,474,212) in view of Decottignies et al. (Decottignies US 6,510,965) and further in view of Beaver et al. (Beaver US D439,511).
8: Ichikawa-Decottignies teaches the claimed invention as discussed above for Claim 1 except that the first portion and the second portion have different volume.
Beaver teaches in Figures 1-7 that the container having two connecting portions/halves with a shape/volume that is different from one another.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ichikawa-Decottignies such that the container of Ichikawa is made to apply the teaching of Beaver having different shape/volume for two different containers in order to accommodate different amount of liquid and such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
Claim 19 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Ichikawa et al. (Ichikawa US 5,474,212) in view of Decottignies et al. (Decottignies US 6,510,965) and further in view of Beaver et al. (Beaver US D439,511).
19: Ichikawa-Decottignies teaches the claimed invention as discussed above for Claim 1 except that the pulp material comprises fiber that is derived from wood pulp, plant pulp, agriculture waste by-product pulp, paper pulp, or a combination of a fiber based pulp.
Barthel teaches a biodegradable pulp material and/or recycled material as the material of choice for packaging (paragraph 0020).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to modify Ichikawa and apply the teaching of Smernoff such that the material of choice was made from a biodegradable pulp material and/or recycled material since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use. In re Leshin, 125 USPQ 416.
Claim 20 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Ichikawa et al. (Ichikawa US 5,474,212) in view of Decottignies et al. (Decottignies US 6,510,965) and further in view of Beaver et al. (Beaver US D439,511).
20: Ichikawa-Decottignies teaches the claimed invention as discussed above for Claim 1 except that the bag or liner is formed of a biodegradable material.
Campbell teaches that the bags have been known in the art to use biodegradable material (paragraph 0013).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to modify Ichikawa-Decottignies and apply the teaching of Campbell such that the bag or line is made from a biodegradable material since such a material is known in the art to be used for environmentally friendly reasons and it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use. In re Leshin, 125 USPQ 416.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-14 and 19-21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,071,293. Although the claims at issue are not identical, they are not patentably distinct from each other because both inventions are directed to a container, comprising: a skeleton shell defining a container body of the container, the skeleton shell having at least one seam and being formed from a recycled and/or biodegradable pulp material; a bag or liner removably disposed within the skeleton shell; and wherein the skeleton shell comprises at least one separation feature that facilitates separation of the skeleton shell from the bag or liner except for the wherein the at least one separation feature is offset from the at least one seam.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the above Patent such that the wherein the at least one separation feature is offset from the at least one seam is omitted since omission of an element and its function is obvious if the function of the element is not desired, In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975).
Allowable Subject Matter
Claim 21 would be allowable if and when the outstanding Double Patenting rejection(s) above is/are addressed to overcome the rejection(s) and include all of the limitations of the base claim and any intervening claims.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-14 and 19-20 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant argued against claim 1 that their respective prior art references do not teach the amended limitation of Claim 1. The Examiner has updated the rejections above to address the amended limitations.
In reference to the remaining claims, Applicant argued that the applied references for those remaining claims failed to teach their respective claimed features by referring back to the now addressed claim(s) (see above). Applicant did not specifically and particularly point out the specifics of the applied reference(s) that failed to meet the remaining claims.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 KING M CHU whose telephone number is (571)270-7428. The examiner can normally be reached Monday - Friday 10AM - 6PM EST.
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, Anthony Stashick can be reached at (571) 272 - 4561. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/King M Chu/Primary Examiner, Art Unit 3735
Prosecution Insights