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 .
This Office Action acknowledges the applicant’s preliminary amendment filed on 9/26/2024 and 12/8/2025. Claims 1-11 and 14-20 are pending in the application. Claims 12-13 are cancelled.
Applicant's election with traverse of Species I claims 1-11 and 14-20 in the reply filed on 12/8/2025 is acknowledged. The traversal is on the ground(s) that “none of the claims require the carton to include a "handle." Furthermore, the Examiner has not demonstrated any serious burden to search and/or examine the claims in the alleged two species.”. This is not found persuasive because although, at the present time, the claims may not specifically recite the handle, a divider/partition wall that is integral to and formed from a portion of the handle, is presently claimed and required to form the carton in Species I and is not required to form the carton of Species II.
The requirement is still deemed proper and is therefore made FINAL.
Upon further review, it appears, claim 10 is withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected species, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 12/8/2025.
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 1-9, 11 and 15-20 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 and 2 recites the limitation “the bottom opening is vertically aligned with the window and is configured to receive a tool therethrough that provides upward movement of an article that is disposed: (i) in the portion of at least one of the article-receiving spaces that is exposed to view by the window and (ii) above the bottom opening, to enable orientation of that article”. It is unclear how to interpret this limitation because it is not clear if the article is being positively claimed or not. For examination purposes, it will be assumed the article is not being claimed.
Claim 2 recites the limitation “at least a portion of an interior of the tubular structure configured to hold at least one article” and later “and is configured to receive a tool therethrough that provides upward movement of an article that is disposed”. It is unclear of the claim is reference the same article or another article. Claims 3-9, 11 and 15-20 are rejected due to their dependency on claims 1 and 2.
Claim 15 recites the limitation "the second flap" in the first line of the claim. There is insufficient antecedent basis for this limitation in the claim. A second flap was not recited in the previous claim (claim 1) from which it depends.
Claim 16 recites the limitation " the bevelled portion" in the first line of the claim and “the securing portion” in the second line of the claim. There is insufficient antecedent basis for this limitation in the claim. A bevelled portion or securing portion was not recited in the previous claim (claim 1) from which it depends.
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1 and 15 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zacherle US 2017/0327266 A1.
With regards to claim 1, Zacherle (Figs. 1-8) discloses a carton 90 comprising: a plurality of panels, comprising: at least one bottom panel, wherein a bottom opening (A6) is defined in the at least one bottom panel 30b/34b (Para. 0046); a front panel 16; a back panel 20; and at least two end panels 14/18; a partition wall 24 dividing the interior of the carton into a front portion and a back portion; and at least one lateral divider 52/56 hingedly connected to the partition wall and extending to one of the front and back panels and spaced apart from the at least two end panels to divide one of the front and back portions into at least two article-receiving spaces; and a window A1/A2 defined at least partially in one of the front and back panels, wherein the window is configured to expose to view a portion of at least one of the article-receiving spaces (shown in Figure 2), wherein the bottom opening is vertically aligned with the window and is configured to receive a tool therethrough (Para. 0048) that is capable of providing upward movement of an article that is disposed: (i) in the portion of at least one of the article-receiving spaces that is exposed to view by the window and (ii) above the bottom opening, to enable orientation of that article, depending on the article to be held.
As stated above the bottom opening (A6) of Zacherle is capable receiving a tool to provide upward movement of an article that is disposed: (i) in the portion of at least one of the article-receiving spaces that is exposed to view by the window and (ii) above the bottom opening, to enable orientation of that article, depending on the article to be held. Since such a limitation is considered intended use.
With regards to claim 15, Zacherle (Figs. 1-8) discloses the second flap 40a/40b is hingedly connected to one of the front and back panels and extends towards the partition wall.
Claim(s) 2, 4, 7-9, 17 and 20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zacherle US 2017/0327266 A1.
With regards to claim 2, Zacherle (Figs. 1-8) discloses a carton 90 comprising: a plurality of panels forming walls of a tubular structure and a bottom wall 30b/34b (Para. 0046) for closing the lower end of the tubular structure, the tubular structure including: a first end wall 14; a first side wall 16; a second end wall 18; and a second side wall 20; a display window A1/A2 defined at least partially in the first side wall to expose to view at least a portion of an interior of the tubular structure configured to hold at least one article; and a bottom opening (A6), separated from the display window, defined at least partially in the bottom wall; wherein the bottom opening is vertically aligned with the display window and is configured to receive a tool therethrough (Para. 0048) that is capable of providing upward movement of an article that is disposed: (i) in the portion of the interior of the tubular structure that is exposed to view by the display window and (ii) above the bottom opening, to enable orientation of that article, depending on the article to be held.
As stated above the bottom opening (A6) of Zacherle is capable receiving a tool to provide upward movement of an article that is disposed: (i) in the portion of at least one of the article-receiving spaces that is exposed to view by the window and (ii) above the bottom opening, to enable orientation of that article, depending on the article to be held. Since such a limitation is considered intended use.
With regards to claim 4, Zacherle (Figs. 1-8) discloses the tubular structure comprises an open upper end (Figure 2) defined by an upper edge of at least one of the first end wall 14 and the second end wall 18 and by an upper edge of at least one of the first side wall 16 and the second side wall 20.
With regards to claim 7, the carton of Zacherle (Figs. 1-8) is capable of holding the article comprising a top end, and the partition wall 24 comprising an upper end disposed at an elevation above the open upper end and above the top end of the at least one article, depending on the article to be held.
With regards to claim 8, the carton of Zacherle (Figs. 1-8) is capable of holding each of the at least one article comprises a top closure defining the top end of the article, depending on the article to be held.
With regards to claim 9, Zacherle (Figs. 1-8) discloses the carton is a crate-style carrier. (Para. 0196)
With regards to claim 17, Zacherle (Figs. 1-8) discloses the display window (A1/A2) is arranged such that none of an upper portion of the at least one article configured to be held in the carton protrudes through the display window.
With regards to claim 20, Zacherle (Figs. 1-8) discloses the portion of the interior of the tubular structure configured to hold at least one article is accessible through the bottom opening (A6) to enable the article to be raised and lowered with respect to the bottom wall and through an upper end of the carton, depending on the article to be held.
Claim(s) 14 and 18 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zacherle US 2017/0327266 A1.
With regards to claim 14, Zacherle (Figs. 1-8) discloses a blank 10 for forming a carton, the blank comprising: a plurality of panels for forming walls of a tubular structure; and a bottom panel 30b/34b (Para. 0046) for closing the lower end of the tubular structure, wherein the plurality of panels includes: a first end wall pane 14l, a first side wall panel 16, a second end wall panel 18, and a second side wall panel 20, wherein the blank further comprises: a display window (A1/A2) defined at least in the first side wall panel to enable at least a portion of an interior of the tubular structure to be exposed to view for display of an article to be held by the formed carton, and a bottom opening (A6) defined at least partially in the bottom panel, wherein the bottom opening is vertically aligned with the display window and is configured to receive a tool therethrough (Para. 0048) that provides upward movement of the article that is to be held above the bottom opening, to enable orientation of the article, depending on the article to be held.
With regards to claim 18, Zacherle (Figs. 1-8) discloses the display window (A1/A2) is arranged such that, in the formed carton, none of an upper portion of the at least one article configured to be held in the carton protrudes through the display window, depending on the article to be held.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 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.
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zacherle US 2017/0327266 A1.
With regards to claim 3, Zacherle (Figs. 1-8) discloses the claimed inventions (bottom opening A6) as stated above but it does not specifically disclose the bottom opening is vertically aligned substantially with a central portion of the display window.
Zacherle recites in para. 0048, that the openings are used to align and tighten the first and second base panel together. Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention was made to have the bottom opening vertically aligned substantially with a central portion of the display window since it was known in the art that doing so would allow the folding and tightening of the carton to be even and centered.
Claim(s) 5-6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zacherle US 2017/0327266 A1 in view of Kulig US 4,406,365.
With regards to claim 5, Zacherle (Figs. 1-8) discloses the claimed inventions as stated above but it does not specifically disclose the carton is a basket-style carrier.
However, Kulig teaches that it was known in the art to have a carton be a basket-style carrier. (Abstract and Col 3:30-34)
Zacherle recites in para. 0197, that the size and shape of the panels of the carton may be changed to accommodate various sizes and shapes of articles. Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention was made to have modified the carton in Zacherle to be a basket-style carrier as taught by Kulig for the purposes of providing an alternative type of shape and size to the carrier to accommodate various articles.
With regards to claim 6, Zacherle (Figs. 1-8) discloses the carton 90 comprises a partition wall 24 dividing the interior of the carton into a front portion and a back portion but it does not specifically disclose the partition wall extending through the open upper end.
However, Kulig (Fig. 15) teaches that it was known in the art to have a carton the partition wall extending through the open upper end. (Col 7:12-24)
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention was made to have modified the carton in Zacherle to have the partition wall extending through the open upper end as taught by Kulig for the purposes of providing an alternative arrangement of the carton.
Claim(s) 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zacherle US 2017/0327266 A1 in view of Holley, Jr. 9,415,914 B2.
With regards to claim 16, Zacherle (Figs. 1-8) discloses the claimed invention as stated above but it does not specifically disclose the bevelled portion being hingedly connected to the partition wall and being disposed obliquely to the securing portion and to the partition wall.
However, Holley, Jr. teaches that it was known in the art to have a carton with the bevelled portion 50a, 54a, 52a, 56a being hingedly connected to the partition wall 41 and being disposed obliquely to the securing portion and to the partition wall. (Col 6:7-25)
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention was made to have modified the carton in Zacherle to have bevelled portion 50a, 54a, 52a, 56a being hingedly connected to the partition wall 41 and being disposed obliquely to the securing portion and to the partition wall as taught by Holley, Jr. for the purposes of providing receiving space for the articles.
Allowable Subject Matter
Claims 11 and 19 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
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENINE SPICER whose telephone number is (313)446-4924. The examiner can normally be reached 9:00am-5:00pm, Monday-Thursday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Orlando E. Avilés can be reached at (571) 270-5531. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JENINE SPICER/Examiner, Art Unit 3736
/ORLANDO E AVILES/Supervisory Patent Examiner, Art Unit 3736