DETAILED ACTION
Election/Restrictions
Applicant's election with traverse of group I in the reply filed on 7/16/2026 is acknowledged. The traversal is on the ground(s) that examiner has not proven lack of unity of invention. This is not found persuasive. Applicant argues that the body of claim 1 and 8 are almost identical and therefore they do share the same corresponding technical feature (pages 2-3). However, claim 1 is a product by process claim. Under MPEP 2113, a product by process claim is defined by the product itself and not by the process steps. Examiner disclosed that claim 1 and 8 do not share the same or corresponding technical feature. Claim 1 is directed to the claimed product (see the pre-amble of claim 1) of the rim. Claim 8 is directed to the method (see the preamble of claim 8) of heat sealing a lid on a rim. Therefore, in light of the preamble, the claimed rim is not the same corresponding technical feature because the rim in the product claim is directed to the structure and the rim in the method claim is directed to the claimed method of heat sealing the rim.
Applicant argued that Examiner did not show prior art to prove the validity of the restriction (page 3). This is not found persuasive because examiner is not relying on the rational that the groups share the same technical feature where the technical feature does not make a contribution over the prior art. Examiner is relying on the rational that the two groups (group I and II) do not share the same corresponding technical feature. Therefore, in light of the preamble, the claimed rim is not the same corresponding technical feature because the rim in the product claim is directed to the structure and the rim in the method claim is directed to the claimed method of heat sealing the rim.
The requirement is still deemed proper and is therefore made FINAL.
Claim Rejections - 35 USC § 102
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 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 and 5 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by EP0906871A1 (Rube) (English translation).
1. Rube teaches a thermoplastic container (Abstract and in the below Fig. at 1) comprising a wall (below Fig. at 1) with an upper end (below Fig. at 3) having a rim (below Fig. at 3), the rim comprising: an annular rib (below Fig. at 6) having a central upper surface (in the below Fig.), a first lateral surface (in the below Fig.) and a second lateral surface (in the below Fig.), and two collecting surfaces (in the below Fig.) extending on either side of the annular rib (23), the first lateral surface (in the below Fig.) and the second lateral surface (in the below Fig.) of the annular rib (below Fig. at 6) extending below the central upper surface (in the below Fig.) and above the collecting surfaces (in the below Fig.), wherein the rim also comprises first and second annular grooves (in the below Fig.) extending between the annular rib (in the below Fig. 6) and the collecting surfaces (in the below Fig.) and recessed from the collecting surfaces (in the below Fig.), a lid (translation, page 2/4, paragraph 10) is sealed on the rim.
Regarding the limitation of “so that all or part of the annular rib flows into the annular grooves when” the lid “is heat-sealed on the rim”, such limitation is being treated as the product-by-process claim, and the determination of patentability of a product-by-process claim is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 227 USPQ 964, (Fed. Cir.1985). See MPEP § 2113
5. The container according to claim 1, wherein the collecting surfaces (in the below Fig) and the central upper surface (in the below Fig) of the annular rib (below Fig. at 6) are substantially rounded in shape.
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) 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over EP0906871A1 (Rube) (English translation).
6. The container according to claim 1, Rube DIFFERS in that it does not disclose the rim has a radial width between 2 and 4 millimeters. 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. Therefore, it would have been obvious, to one of ordinary skill within the art, at the time the invention was made, to modify Rube, by employing the radial width to be between 2 and 4 millimeters, in order to have a desired size that a consumer requires.
Allowable Subject Matter
Claims 2-4 and 7 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.
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Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KAREEN KAY THOMAS whose telephone number is (571)270-5611. The examiner can normally be reached 9:00am-5:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Orlando E. Aviles 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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/KAREEN K THOMAS/Primary Examiner, Art Unit 3736
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