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 .
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) 1-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Morgan (US-20210362910-A1) in view of Migas et al. (US-20200115115-A1).
Regarding claim 1, Morgan discloses:
1. A closing cap (10) for a container, comprising a lateral wall (23) extending around an axis and a transversal wall (22) positioned at one end of the lateral wall, a separating line (at 40) being provided on the lateral wall to define: a retaining ring (30), which is configured to remain anchored to a neck (100) of the container and extends as far as a free edge (Fig. 2, bottom of 30); a closing element (20) removably engageable with the neck , so as to open or close the container; wherein the separating line extends around the axis and is circumferentially interrupted to define in the lateral wall a joining zone (at 50) which extends circumferentially for an angle (Fig. 6), in which the retaining ring and the closing element are joined; wherein the retaining ring comprises a connecting portion (50) which extends continuously for said angle from the joining zone as far as the free edge (Fig. 6) and an engaging element (34) which projects inwards (Fig. 12) and is configured to engage with a locking ring of the neck during a passage from a closed condition to an open condition of the cap; and wherein the engaging element comprises a deformable region (par. 0046), which extends at least in said angle; wherein the engaging element comprises a retaining part, configured to make contact with the locking ring during said final step of opening, which has a contact surface configured to make contact with a lower wall of the locking ring (Fig. 12, edge of 34, the structure is capable of perming the action with a container).
Morgan fails to specifically teach wherein the engaging element is in a bent configuration when the cap is in the closed condition and, wherein the deformable region is configured to deform and to be positioned in a stretched out configuration during a final step of opening of the cap when the engaging element makes contact with the locking ring, and wherein at the deformable region that contact between the contact surface and the lower wall allows the deformation of the deformable region into the stretched out configuration.
Migas teaches that it is known in the art to manufacture a cap with a retaining element having a bent configuration (Fig. 3) wherein the engaging element has a deformable region is configured to deform and to be positioned in a stretched out configuration during a final step of opening of the cap when the engaging element makes contact with the locking ring, and wherein at the deformable region that contact between the contact surface and the lower wall allows the deformation of the deformable region into the stretched out configuration (par. 0046).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have manufactured the cap of Morgan out of material that could be stretched, as taught by, Migas so that the cap could fit with different surfaces and since such a modification would be making a known surface stretchable in a known manner. It would have been obvious to one of ordinary skill in the art before the effective filing date to have manufactured the cap with a bent portion, in order to secure the cap to a specific container and since such a modification would be a simple substitution of known engaging elements for securing a cap to a container.
Regarding claims 2-17, the modified cap of Morgan teaches:
2. The cap according to claim 1, and comprising breakable elements (Morgan, 40) positioned along the separating line, which are intended to break upon cap first opening when the contact surface makes contact with the lower wall of the locking ring (Morgan, par. 0032).
3. The cap according to claim 1, wherein the engaging element comprises an anti-rotation part (Migas, 36b) configured to be facing and in contact with an outer edge of the locking ring, when the engaging element is in the bent configuration (Migas, Fig. 3).
4. The cap according to claim 1, wherein the engaging element comprises an anti-rotation part (Migas, 36b) configured to be in contact with an upper wall of the locking ring , when the deformable region is in the stretched out configuration (Migas, 6B).
5. The cap according to claim 4, wherein the deformable region of the engaging element is configured to enclose the locking ring around an outer edge , when the deformable region is in the stretched out configuration, the contact surface being in contact with the lower wall of the locking ring , the anti-rotation part being in contact with the upper wall of the locking ring (Migas, Fig. 2B, 2C, depending on container).
6. The cap according to claim 1,wherein the retaining part of the engaging element extends starting from the retaining ring and has a thickness increasing until it defines the contact surface, and wherein the anti-rotation part extends from the contact surface (Migas, Fig. 3).
7. The cap according to claim 6, wherein the anti-rotation part is shaped like a projection which projects from the contact surface and which forms a final end of the engaging element (Migas, Fig. 3).
8. The cap according to claim 1,wherein the connecting portion is facing the deformable region (Morgan, Fig. 6) and is also configured to deform so as to allow the deformable region to be positioned in said stretched out configuration during said final step of opening of the cap (Migas, par. 0046).
9. The cap according to claim 1, wherein the retaining ring can have zones of thickness (Morgan, par. 0045), but fails to teach wherein the retaining ring comprises two zones of weakness, which are positioned on both sides of the connecting portion, for example parallel to the axis, and having a radial thickness which is less than that of the remaining zones of the retaining ring positioned adjacent to them, the zones of weakness being configured to be able to be subjected to twisting when the deformable region is in the stretched out configuration.
It would have been obvious to one of ordinary skill in the art before the effective filing date to have manufactured the ring with different thickness, in order to adjust how the ring bends and since such a modification would have been a change in size of an existing component. A change in size is generally recognized as being within the level of ordinary skill in the art.
10. The cap according to claim 1, wherein the angle is between 20 and 90 degrees (Morgan, par. 0042).
11. The cap according to claim 1, wherein a radial thickness of the retaining ring is greater than or equal to 0.4 mm and is less than or equal to 1.1 mm (Morgan, par. 0055).
12. The cap according to claim 1, wherein a height of the retaining ring, measured parallel to the axis is greater than or equal to 1.4 mm and less than or equal to 5.2 mm (Morgan, par. 0052).
13. The cap according to claim 1, wherein the deformable region is configured to emit a sound and/or touch indication when the deformable region makes contact with the locking ring and is positioned in the stretched out configuration at least during a final step of a first opening of the cap (based on use).
14. The cap according to claim 1, wherein the deformable region is configured to be positioned in the bent configuration when the closing element is again positioned to close the neck of the container in the closed condition (Migas, par. 0046).
15. The cap according to claim 1, wherein the connecting portion extends continuously from the joining zone as far as the free edge since the connecting portion is without cuts, incisions, or weakened zones (Morgan, Fig. 6).
16. The cap according to claim 1, wherein the deformable region has an end margin in contact with the locking ring in the stretched out configuration and in the bent configuration when the cap is in the closed condition (due to the flexibility of the modified structure).
17. The cap according to claim 1, wherein the connecting portion is planar to the deformable region when the deformable region is in the stretched out configuration, and the connection portion is separated from the neck of the container by the deformable region (due to the flexibility of the modified structure).
Response to Arguments
Applicant's arguments filed 4/15/2026 have been fully considered but they are not persuasive.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art.
An argument by the applicant is not evidence unless it is an admission, in which case, an examiner may use the admission in making a rejection. See MPEP § 2129 and § 2144.03 for a discussion of admissions as prior art.
Arguments presented by applicant cannot take the place of evidence in the record. See In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984); In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965); In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997) ("An assertion of what seems to follow from common experience is just attorney argument and not the kind of factual evidence that is required to rebut a prima facie case of obviousness."). See MPEP § 716.01(c) for examples of applicant statements which are not evidence and which must be supported by an appropriate affidavit or declaration.
The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). In this case one of ordinary skill in the art that the modified structure of Morgan would be more likely to work as intended because it would be less likely to break unnecessarily.
In response to applicant's argument that the prior art structure is not configures to perform specific functions, 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.
Conclusion
THIS ACTION IS MADE FINAL. 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 JEFFREY R ALLEN whose telephone number is (571)270-7426. The examiner can normally be reached 9:00 am - 5:00 pm, Monday-Friday.
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/JEFFREY R ALLEN/Primary Examiner, Art Unit 3733
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