DETAILED ACTION
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Specification
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: the written description does not discuss a solid platform as introduced in claim 15.
Claim Rejections - 35 USC § 112
Claim 4 is 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.
Regarding claim 4, claim 1 recites the humidity pack in terms of the intended use of the humidity pack cutout: “configured to hold a humidity pack.” Because the humidity pack is not positively claimed but the cutout is only intended (configured) to hold a humidity pack, claim 4 is indefinite since there is no know shape or dimensions of a humidity pack. How can the shape and size of the humidity cutout be determined?
Claim Rejections - 35 USC § 102
(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) 1-14 are rejected under 35 U.S.C. 35 U.S.C. 102(a)(1) as being anticipated by CigarBros +Humidor https://halfwheel.com/cigarbros-boveda-humidor-debuting-at-pca-2023/423974/, 31 May 2023, Charlie Minato.
Regarding claims 1-14, in an article from 31 May 2023, editor Minato disclosed a device by a company called CigarBros. The article discloses applicant’s invention as claimed in claims 1-13. There is no assignee in the instant application or any apparent connection between the inventor of the instant application and the CigarBros company. Although the disclosure is identical to claims 1- 13 of the instant application, there is no correlation of record between applicant and the CigarBros company. A 35 U.S.C. 102 (b)(1) exception may apply.
Applicant’s statement provided in the Remarks, page 8 of 17, last paragraph is not sufficient to overcome the rejection at hand. Any prior public disclosure could have been made in the originally filed application See MPEP 608.01(a) 37C.F.R 1.77 (b)(6). After original filing , applicant is required to provide an affidavit or declaration, see MPEP 717.01, 37 C.F.R. 1.130 (b). 37 CFR 1.130(b) provides that when any claim of an application or a patent under reexamination is rejected, the applicant or patent owner may submit an appropriate affidavit or declaration to disqualify a disclosure as prior art by establishing that the subject matter disclosed had, before such disclosure was made or before such subject matter was effectively filed, been publicly disclosed by the inventor or a joint inventor or another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor.
Claim(s) 1-7, 9-12, and 15-19 are rejected under 35 U.S.C. 35 U.S.C. 102(a)(1) as being anticipated by Umeoka (JP 3099687 B2).
Regarding claims 1-3, 9-10, Umeoka discloses system capable of being used as a humidor and capable of storing cigars comprising:
a container 2 formed of EPP (see description of Fig. 1, 3rd page of translation: “The container body 2 and the lid 3 are made of, for example, foamed polystyrene-based resin such as foamed polystyrene, foamed polyolefin-based resin such as foamed polyethylene or foamed polypropylene, or foamed copolymer of styrene and olefin such as ethylene or propylene. It is made of a foamed resin or a foamed synthetic resin such as foamed polyurethane.”) comprising four side walls and a base;
a lid 3 formed of EPP and configured to form an airtight seal with the container; and
a cutout in the base, fig. 15, the space between stepped portions at 15 is cut out to form the stepped portions, the space is filled with liquid as seen in fig. 10 and is considered to meet the limitation of a “humidity” cutout.
According to MPEP 2114, while features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997). 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). Since the Umeoka teaches all the structural limitations as claimed by applicant it would follow that it would be capable of performing the recited functions. Furthermore, one of ordinary skill in the art at the time of the invention could have used the structure of Umeoka in order to achieve this function should they have desired.
Umeoka discloses that each of the lid, container, and accessory tray are formed from a single piece of material, fig. 15.
Regarding claim 4, if a person intended to house a humidity pack in the cutout, the would be capable of selecting one according to the size and shape of the cutout disclosed by Umeoka.
Regarding claims 5 and 11, Umeoka discloses a cutout along a base of the container, fig. 17, not numbered. The cutout is capable of being used as a handle.
Regarding claims 6 and 12, reference annotated fig. 15, Umeoka discloses a lid lip comprising a lip on a top of the container and a sealing lid lip, extending from the lid lip and configured to interface with the lid 5, fig. 1, configured to interface with the lid.
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Regarding claim 7, Umeoka discloses a cutout along the lid lip, not numbered, fig. 17, that when the lid is secured on the container, is useable to help pry the lid off the container.
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Regarding claim 15, Umeoka discloses a humidor system comprising:
a container 2 formed of EPP (see description of Fig. 1, 3rd page of translation: “The container body 2 and the lid 3 are made of, foamed polyethylene”, EPP) comprising four side walls and a base;
a lid 3 formed of EPP and configured to form an airtight seal with the container; and
an accessory tray 7 comprising a solid platform configured to fit within the container, fig. 9. The term “solid” does not appear in the specification. No particular meaning of solid is found in the disclosure; the broadest reasonable interpretation of “solid” is used. The tray of Umeoka meets the limitation of solid because it is made of one piece.
Regarding claim 16, Umeoka discloses that each of the lid, container, and accessory tray are formed from a single piece of material, fig. 1.
Regarding claims 17, Umeoka further discloses, in the embodiment seen in fig 16, a cutout at A2 in the base. The cutout of Umeoka is fully capable of holding a humidity pack.
Regarding claim 18, Umeoka discloses a lid lip (outside the upstanding lip at 5), fig. 1, formed on the container; and a sealing lid lip at 5, fig. 1, configured to interface with the lid, see also annotated fig. 17 of Umeoka.
Regarding claim 19, Umeoka discloses, fig. 1, that the accessory tray further comprises: a single piece body further comprising:
a first substantially vertical brace at 9;
a second substantially vertical brace, at 9; and
a solid platform at 7 (the platform is formed in one solid piece), fig. 1, connected to the first substantially vertical brace and the second substantially vertical brace.
Claim Rejections - 35 USC § 103
Claim(s) 1, 4, 8, 9, 13-15, 17, 19 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Smith (US 2015/0021217) in view of Cainarca et al. (WO 99/09844) and Kim (CN 1772569-A).
Regarding claims 1, 9, 14, 15, 17, Smith discloses a humidor system 100 comprising:
a container (at 110, fig. 7, and 8) comprising four side walls and a base, the container being configured to store tobacco products;
a lid at 120, fig. 7, and configured to form an airtight seal [0012] with the container.
Smith discloses an accessory tray at 310, fig. 8, comprising a solid platform, configured to fit within the container.
Smith does not disclose a means for maintaining the humidity of the container.
Cainarca is analogous art in regard to a humidor system.
Cainarca teaches a container 100 comprising four side walls and a base, the container being configured to store tobacco products, a humidity pack cutout 22 formed in the base of the container and configured to hold a humidity pack 24, the humidity pack comprising a pack configured to maintain humidity level in the container, page 3: 1-5 and a lid 14 configured to form an airtight seal with the container.
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 container of Smith to include a humidifying means having humidity cutout and a humidifier (humidity pack) in order to maintain the humidity levels within the container as per the teaching of Cainarca.
Smith does not disclose the particular material used for the container. However, Smith further discloses that the container can be made to be resilient to external pressure and able to withstand a dropping from a height without comprising the integrity [0037].
Kim teaches a package for protecting sensitive materials from damage and moisture that is airtight and impact, the preferred material used is EPP for the high mechanical strength, good elasticity and flexibility as well as being light weight and excellent impact absorption, see translation, last paragraph.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the undisclosed container material of Smith with of EPP in order to provide a container with high mechanical strength, good elasticity and flexibility as well as being light weight and having excellent impact absorption as taught by Kim in order to allow the container to withstand dropping from a height without comprising the integrity as desired by Smith.
Regarding claim 4, the humidity cutout of Smith as modified above is configured in a shape and size of the humidity pack, reference fig. 3 of Cainarca.
Regarding claims 8 and 13, Smith discloses an interior separator (best seen in fig. 8, but not numbered) configured to seal one section of an interior volume of the container from another section of the interior volume of the container, as seen in fig. 7, the lid has a depending portion that meets the separator and will seal one section of an interior volume from another.
Regarding claims 19 and 20, Smith discloses the accessory tray further comprises:
a single piece body at 310, fig. 8 further comprising:
a first substantially vertical brace (at the arrow position in fig. 8);
a second substantially vertical brace (the vertical braces are the walls of the tray 310, fig. 8, four in total);
wherein the solid platform comprising depressions is connected to the first substantially vertical brace and the second substantially vertical brace.
Claim(s) 1-4, 9, 10, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Cainarca in view of Kim.
Regarding claims 1, 9, and 14 Cainarca discloses a humidor system comprising:
a container 100 comprising four side walls and a base, the container being configured to store tobacco products, a humidity pack cutout 22 formed in the base of the container and configured to hold a humidity pack 24, the humidity pack comprising a pack configured to maintain humidity level in the container, page 3: 1-5 and a lid 14 configured to form an airtight seal (sealed from outside environment) with the container, col. 3: 5-10.
Cainarca further discloses that the container can be made from plastic, page 3: 19-25 but discloses no particular plastic material.
Kim teaches a package for protecting sensitive materials from damage and moisture that is airtight and impact, the preferred material used is EPP for the high mechanical strength, good elasticity and flexibility as well as being light weight and excellent impact absorption, see translation, last paragraph.
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 container of Cainarca to be made out of EPP in order to provide a container that can provide impact resistance if the container is dropped.
Regarding claims 2, 3, and 10, as seen in the figures, Cainarca discloses that the container and lid are each formed of a single piece of material, fig. 3 and 4.
Regarding claim 4, Cainarca discloses that the humidity cutout is configured in a shape and size of the humidity pack.
Response to Arguments
Applicant's arguments filed 20 January 2026 have been fully considered but they are not persuasive.
In response to applicant's remark that the applied Minato reference was made by the inventor or joint inventor or by another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor and should be withdrawn, the remark is not a sufficient affidavit or declaration of attribution and is not sufficient to overcome the rejection at hand.
Any prior public disclosure could have been made in the originally filed application See MPEP 608.01(a) 37C.F.R 1.77 (b)(6). After original filing , applicant is required to provide an affidavit or declaration, see MPEP 717.01, 37 C.F.R. 1.130 (b). 37 CFR 1.130(b) provides that when any claim of an application or a patent under reexamination is rejected, the applicant or patent owner may submit an appropriate affidavit or declaration to disqualify a disclosure as prior art by establishing that the subject matter disclosed had, before such disclosure was made or before such subject matter was effectively filed, been publicly disclosed by the inventor or a joint inventor or another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor.
In addition, several other public disclosures were revealed by searching the internet. All public disclosures should be accounted for.
In response to applicant's argument that the cutout of Umeoka is for holding liquid as ice melts from fish and is not intended to house tobacco products or a humidity pack, 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 Umeoka does not teach the lid lip and sealing lid lip, below is applicant’s fig. 2 the lid lip is at 210 and the sealing lid lip is at 220, as disclosed.
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The sealing lid lip and lid lip of Umeoka is shown in annotated fig. 15.
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As seen from the figures, the lid lip and sealing lid lip of Umeoka are essentially the same stepped structure disclosed by applicant. With this in mind, the argument is not found persuasive.
In response to applicant's argument that that Umeoka reference teaches a tray with holes but the claim is amended to recite that the tray is solid. The term “solid” does not appear in the specification in regard to the tray. No particular meaning of solid is found in the disclosure. For the purposes of examination, the broadest reasonable interpretation of “solid” is used. The tray of Umeoka meets the limitation of solid because it is made of one piece. Applicant intends solid to mean that the platform has no openings; while solid is ambiguous because of the different meanings, other language such as “no apertures” or “no openings” can be used.
Applicant' s remaining arguments 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.
Conclusion
Feurer et al. (US 2013/0056479) discloses a container made from EPP [0017] having all the sealing lid features and openings, fig. 1 and 2.
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 MOLLIE L IMPINK whose telephone number is (571)270-1705. The examiner can normally be reached Monday-Friday (7:30-3:30).
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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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/MOLLIE IMPINK/Primary Examiner, Art Unit 3799
MOLLIE LLEWELLYN IMPINK
Primary Examiner
Art Unit 3799