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 .
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-22 of U.S. Patent No. 12,122,584 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because each claim a tubular, spiral wound paperboard container with a sealed top rim and bottom closure; said container formed from a composite having a barrier layer with an oxygen transmission rate of about 0.5 cubic centimeters/meter squared/day or less, a water vapor transmission rate of about 0.5 g/meter squared/day or less, and can withstand at least 10 inHG of pressure for at least 10 minutes.
Claim Rejections - 35 USC § 103
4. 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.
5. 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.
6. Claim(s) 1-9 and 12-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guzzi et al. (US 2013/0092697 A1; hereinafter Guzzi) in view of Nomula (EP 1595802 A2) and Dregger et al. (US 2020/0189791 A1; hereinafter Dregger).
Regarding claims 1-4, 6-7, 12, 15, and 17-19, Guzzi discloses a composite container comprising at least one sidewall (10) defining a container interior (see Fig. 1), a top rim circumscribing a top end (20) of the at least one sidewall, and a bottom peripheral edge (22) circumscribing a bottom end (18) of the at least one sidewall a top closure (72) affixed to the top rim; and a bottom closure (40) recessed into the bottom end and forming a seal with an interior surface of the container body (see Fig. 2); wherein at least one of the container body and bottom closure comprise a plurality of layers including one or more barrier layers and one or more paper-based layers (see Par. 0023 and 0031). Examiner considers the one or more paper-based layers of the container body, top closure, and bottom closure to comprise at least about 95% of the mass of the overall construction.
Guzzi lacks teaching of an oxygen transmission rate, a water vapor transmission rate, and the amount of pressure the composite material can withstand.
Nomula teaches a high-barrier liner for paperboard composite cans wherein the paper-based container assembly has an oxygen transmission rate of about 0.5 cm3/m2/day or less and a water vapor transmission rate of about 0.5 g/m2/day or less (see Par. 0014). It would have been obvious to one of ordinary skill in the art at the time of Applicant’s filing to use materials having the oxygen transmission rate and vapor transmission rate taught by Nomula in order to have a container safe for foods that is shelf stable for a long duration of time (Nomula; Par. 0003).
Dregger teaches a paper based pressure-resistant container made to withstand at least 10 inHG for at least 10 minutes, or however long it is intended to be shelved (Par. 0092-0093). It would have been obvious to further modify Guzzi’s composite to be formed in the manner taught by Dregger in order to allow the container to withstand certain amounts of pressure during storage and transport (Dregger; see Par. 0003-0005).
Regarding claims 5 and 14, Guzzi, as modified above, teaches a composite container wherein the plurality of layers includes one or more ionomer layers within at least one of the container body and the bottom closure; and the one or more ionomer layers are of the same grade and, when heated, form a seal between the bottom closure and the interior surface of the container body (Guzzi; Par. 0036).
Regarding claims 8-9 and 16, Guzzi, as modified above, teaches a composite container wherein the one or more barrier layers of at least one of the container body, top closure, and bottom closure comprise metalized polyethylene terephthalate (Guzzi; Par. 0031).
Regarding claim 13, Guzzi, as modified above, teaches a composite container wherein the bottom closure is recessed into the bottom end of the container body at a recessed distance within a range of about 0.2 to 2 cm (Guzzi; Par. 0033).
7. Claim(s) 10-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guzzi in view of Nomula and Dregger as applied to claim 1 above, and further in view of Fatica et al. (US 2003/0215587 A1; hereinafter Fatica).
Regarding claims 10-11, Guzzi, as modified above, discloses the claimed invention except for the composite including metalized polybutylene terephthalate. Fatica teaches a metallized high barrier lap-sealable liner for spiral wound containers wherein the one or more barrier layers of at least one of the container body, top closure, and bottom closure comprise metalized polybutylene terephthalate (see Par. 0020-0021 and 0028). It would have been obvious to one of ordinary skill in the art at the time of Applicant’s filing to further modify Guzzi’s composite to include MPBT in order to create a tubular container that seals at a lower, more ideal temperature (Fatica; Par. 0009-0010).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO-892.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTOPHER R DEMEREE whose telephone number is (571)270-1982. The examiner can normally be reached 9:00 am - 5:00 pm, Monday through Friday.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, NATHAN J NEWHOUSE can be reached at (571)272-4544. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/CHRISTOPHER R DEMEREE/Primary Examiner, Art Unit 3734