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 .
Election/Restrictions
Applicant's election with traverse of Species 1, Figures 1A-2D in the reply filed on 6/11/2026 is acknowledged. The traversal is on the ground(s) that the Restriction Requirement does not properly outline the lack of unity of invention. This is not found persuasive because each species has the same technical feature, i.e. the flutes/slits, however this is not a special technical feature in light of Boshaw teaching the feature as set forth in the Restriction Requirement and as explained in the rejection below.
The requirement is still deemed proper and is therefore made FINAL.
Claims 6-12, 35, and 36 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected Species, there being no allowable generic or linking claim.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 6/11/2026.
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, 2, and 16-21 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Boshaw et al. (US 2022/0009193, hereinafter ‘Boshaw’).
Boshaw discloses a package, comprising: a first end (figs. 1A-1E; top of container 10a with opening 15); a second end opposite to the first end (figs. 1A-1E; bottom of container 10a opposite opening 15); a first side that extends from the first end to the second end (figs. 1A-1E; left edge of container 10a seal edges 40, 44); a second side opposite to the first side that extends from the first end to the second end (figs. 1A-1E; right edge of container 10a seal edges 40, 44); an outer layer (24) made of a first biodegradable/recyclable material (para 0059, paper is biodegradable/recyclable), the outer layer including an internal surface (inner surface of outer liner 24 near corrugations 20, 22) and an external surface opposite to the internal surface (outer surface of outer liner 24 opposite corrugations 20, 22); an inner layer (corrugations 20, 22) made of a second biodegradable/recyclable material (para 0059, paper is biodegradable/recyclable), the inner layer coupled to the outer layer (see Figs. 1A-1E), the inner layer including: a plurality of sub-flutes (see Figs. 1A-1E; see sub flutes formed by portions of flutes 26, 28 separated by score lines 30) including peaks spaced apart from the outer layer (50, 54) and valleys coupled to the internal surface of the outer layer (52, 56), wherein each one of the peaks is between adjacent ones of the valleys and each one of the valleys is between adjacent ones of the peaks (see Fig. 1E); and a plurality of slits (30, para 0065) that extends along and past the plurality of sub-flutes and define each respective sub-flute of the plurality of sub-flutes (see Figs. 1A-1E; score lines 30 surround all flutes 26, 28); a first sealed edge at the first side (40, 44 – sealed edges); a second sealed edge at the second side (42, 46 – sealed edges); a folded edge at the second end (68, Fig. 2); and an opening at the first end (15).
Boshaw further discloses the first biodegradable/recyclable material is the same as the second biodegradable/recyclable material (para 0059, paper throughout); the plurality of sub-flutes includes a first set of sub-flutes (20) and a second set of sub-flutes (22) offset relative to each other (see Fig. 1E), respective peaks of the second set of sub-flutes nest within respective valleys of the first set of sub-flutes, and respective peaks of the first set of sub-flutes nest within respective valleys of the second set of sub-flutes (see Figs. 1E, 2; para 0095); a closure flap at the first end of the package (34); an adhesive on the closure flap (para 0072-0073); a release liner on and covering the adhesive on the closure flap (para 0073); the first recyclable material is the same as the second recyclable material (para 0059, paper throughout).
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) 3 and 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Boshaw et al. (US 2022/0009193, hereinafter ‘Boshaw’).
Boshaw discloses all limitations of the claim(s) as detailed above except does not expressly disclose the first and second materials being different.
However, the ability to vary materials in the making of a packaging to suit the contents being contained, or increase durability of packaging, or reduce manufacturing costs, etc. has long been within the general knowledge of those having ordinary skill in the art since prior to the invention by applicant.
It would have been obvious to one having ordinary skill in the art at the time the invention was made to use different materials for the first and second materials, 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 as a matter of obvious design choice. In re Leshin, 125 USPQ 416. See also Ballas Liquidating Co. v. Allied industries of Kansas, Inc. (DC Kans) 205 USPQ 331.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PETER N. HELVEY whose telephone number is (571)270-1423. The examiner can normally be reached Monday-Friday 10am-7pm EST.
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/PETER N HELVEY/Primary Examiner, Art Unit 3734
July 30, 2026
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