DETAILED ACTION
Election/Restrictions
1. Claims 11-14 and 19-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on February 10, 2016.
Claim Objections
2. Claim 19 is objected to because of the following informalities:
Regarding claim 19, line 4 ends in a comma and a semicolon.
Appropriate correction is required.
Double Patenting
3. 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.
4. Claims 1-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 12,145,782 (“the ‘782 patent”). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the ‘782 patent anticipate the instant claims. See claim-by-claim analysis below:
Claims 1-17 of the ‘782 patent
Instant claims 1-18
1. A sealing structure comprising:
1. A sealing structure comprising:
a lid comprising a first lid face,
a lid comprising a first lid face,
a second lid face opposite to the first lid face, and
a second lid face opposite to the first lid face, and
a fragile area between the first lid face and the second lid face;
a fragile area between the first lid face and the second lid face;
a cover comprising a first cover face facing the second lid face and covering the fragile area, and
a cover comprising a first cover face facing the second lid face and covering the fragile area, and
a second cover face opposite to the first cover face,
a second cover face opposite to the first cover face,
wherein a first distance of a gap between the second lid face and the first cover face is substantially equal to or less than a second distance between the first cover face and the second cover face; and
wherein a first distance of a gap between the second lid face and the first cover face is substantially equal to or greater than a second distance between the first cover face and the second cover face; and
a connector configured to connect the lid and the cover…
a connector configured to connect the lid and the cover.
1. … wherein the cover further comprises: a proximal end portion connected to lid through the connector; a distal end portion opposite to the proximal end portion; and an extension portion extending along the second lid face between the proximal end portion and the distal end portion, wherein the extension portion decreases in thickness from the proximal end portion to the distal end portion, and wherein the gap is maintained from the proximal end portion to the distal end portion.
2. The sealing structure of claim 1, wherein the cover further comprises: a first end portion; a second end portion opposite to the first end portion; and an extension extending along the second lid face between the first end portion and the second end portion.
2. The sealing structure of claim 1, wherein the extension portion is configured to deform based on the proximal end portion.
3. The sealing structure of claim 2, wherein the extension is configured to deform based on the first end portion.
3. The sealing structure of claim 1, wherein the cover further comprises a seat connected to the distal end portion and configured to contact the second lid face.
4. The sealing structure of claim 2, wherein the cover further comprises a seat connected to the second end portion and configured to contact the second lid face.
4. The sealing structure of claim 3, wherein the second lid face and the seat are separated from each other by a gap therebetween.
5. The sealing structure of claim 4, wherein the second lid face and the seat are separated from each other by a gap therebetween.
5. The sealing structure of claim 3, wherein the second lid face and the seat are configured to be in contact with each other, and wherein the second lid face and the seat are not physically restrained to each other.
6. The sealing structure of claim 4, wherein the second lid face and the seat are configured to be in contact with each other, and wherein the second lid face and the seat are not physically restrained to each other.
6. The sealing structure of claim 3, wherein the cover further comprises an adhesive portion provided between the second lid face and the seat, the adhesive portion being configured to bond the second lid face and the seat.
7. The sealing structure of claim 4, wherein the cover further comprises an adhesive portion provided between the second lid face and the seat, the adhesive portion being configured to bond the second lid face and the seat.
7. The sealing structure of claim 1, wherein the connector is positioned between the second lid face and the first cover face and the connector has a thickness smaller than the second distance between the first cover face and the second cover face.
8. The sealing structure of claim 1, wherein the connector is positioned between the second lid face and the first cover face and the connector has a thickness smaller than the second distance between the first cover face and the second cover face.
8. The sealing structure of claim 1, further comprising: a protrusion protruding from the second lid face or the connector.
9. The sealing structure of claim 1, further comprising: a protrusion protruding from the second lid face or the connector.
9. The sealing structure of claim 1, wherein the cover further comprises a coating layer provided on the first cover face.
10. The sealing structure of claim 1, wherein the cover further comprises a coating layer provided on the first cover face.
10. The sealing structure of claim 1, wherein the connector comprises: a support structure provided on the second lid face; and an elastic body connected to the support structure and the second cover face.
11. The sealing structure of claim 1, wherein the connector comprises: a support structure provided on the second lid face; and an elastic body connected to the support structure and the second cover face.
11. The sealing structure of claim 10, wherein the support structure comprises: a wall portion extending from the second lid face in a first direction; and a base portion extending from the wall portion in a second direction intersecting with the first direction to be connected to the elastic body.
12. The sealing structure of claim 11, wherein the support structure comprises: a wall portion extending from the second lid face in a first direction; and a base portion extending from the wall portion in a second direction intersecting with the first direction to be connected to the elastic body.
12. The sealing structure of claim 1, wherein the connector comprises a support structure provided on the second lid face, the support structure having a pivot to which the cover is rotatably connected.
13. The sealing structure of claim 1, wherein the connector comprises a support structure provided on the second lid face, the support structure having a pivot to which the cover is rotatably connected.
1. … wherein the cover further comprises: a proximal end portion connected to lid through the connector; a distal end portion opposite to the proximal end portion; and an extension portion extending along the second lid face between the proximal end portion and the distal end portion, …
…
13. The sealing structure of claim 12, wherein the cover further comprises: a weight provided on the extension portion.
14. The sealing structure of claim 13, wherein the cover further comprises: a first end portion; a second end portion opposite to the first end portion; an extension extending along the second lid face between the first end portion and the second end portion to be connected to the pivot; and a weight provided on the extension.
14. A sealing structure comprising:
15. A sealing structure comprising:
a lid comprising a first lid face,
a lid comprising a first lid face,
a second lid face opposite to the first lid face,
a second lid face opposite to the first lid face,
a fragile area between the first lid face and the second lid face, and
a fragile area between the first lid face and the second lid face, and
a first pole element provided in the fragile area and configured to exhibit a first polarity; and
a first pole element provided in the fragile area and configured to exhibit a first polarity; and
a cover comprising a first cover face connected to the second lid face,
a cover comprising a first cover face connected to the second lid face,
a second cover face opposite to the first cover face, and
a second cover face opposite to the first cover face, and
a second pole element configured to exhibit a second polarity opposite to the first polarity,
a second pole element configured to exhibit a second polarity opposite to the first polarity,
wherein the first cover face faces the second lid face and overlaps the fragile area, …
wherein the first cover face faces the second lid face and overlaps the fragile area.
15. The sealing structure of claim 14, wherein the lid and the cover are formed of substantially a same material.
16. The sealing structure of claim 15, wherein the lid and the cover are formed of substantially a same material.
16. The sealing structure of claim 14, wherein the lid is formed of a first material and the cover is formed of a second material different from the first material.
17. The sealing structure of claim 15, wherein the lid is formed of a first material and the cover is formed of a second material different from the first material.
14. … wherein the cover further comprises: a proximal end portion connected to the lid; a distal end portion opposite to the proximal end portion; and an extension portion extending along the second lid face between the proximal end portion and the distal end portion, …
17. The sealing structure of claim 14, wherein the extension portion configured to deform based on the proximal end portion.
18. The sealing structure of claim 15, wherein the cover further comprises: a first end portion connected to the second lid face; a second end portion opposite to the first end portion; and an extension extending along the second lid face between the first end portion and the second end portion, and configured to deform based on the first end portion.
Claim Rejections - 35 USC § 102
5. 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.
6. Claims 15-17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 2016/0030286 (Fazi).
Regarding claim 15, Fazi teaches a sealing structure comprising:
a lid (120) comprising a first lid face (bottom face of 120; see annotated Figure 1 below), a second lid face (upper face of 120; see annotated Figure 1 below) opposite to the first lid face, a fragile area between the first lid face and the second lid face (141; Examiner notes para. [0003] stating the collar “may include a septum” which is known in the art to be pierced by a needle in order to extract the contents of the vial), and a first pole element provided in the fragile area and configured to exhibit a first polarity (magnets may be embedded in collar 120, thus making them “in the fragile area”; para. [0021]); and
a cover (100) comprising a first cover face (bottom face of 103) connected to the second lid face, a second cover face opposite to the first cover face (upper face of 103), and a second pole element (102) configured to exhibit a second polarity opposite to the first polarity (explicitly taught to magnetically connect with 120, thus comprising an opposite polarity; see para. [0023]),
wherein the first cover face faces the second lid face and overlaps the fragile area (explicitly stated that cap 100 is held in contact with collar 120 by the magnetic connection; see para. [0023]).
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Regarding claim 16, the lid and the cover are formed of substantially a same material (Examiner notes para. [0024] teaches the collar 120, which is read as the claimed lid, is the same element as 220; para. [0032] teaches forming the collar 220 of “polymeric material” or “metal”; para. [0039] teaches cap 100, which is read as the claimed cover, is the same element as cap 400; para. [0041] teaches cap 400 may be formed of “polymeric material, metal, composite material, or combinations thereof”).
Regarding claim 17, the lid is formed of a first material and the cover is formed of a second material different from the first material (Examiner notes in view of the teaching above, the lid and cover i.e. the collar and cap of Fazi can be formed of different materials e.g. one of polymeric material and the other of metal, while still providing magnets in order to secure to each other).
Claim Rejections - 35 USC § 103
7. 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.
8. Claims 1-6 and 8-10 are rejected under 35 U.S.C. 103 as being unpatentable over US 5,810,189 (Baker).
Regarding claim 1, Baker teaches a sealing structure comprising:
a lid (12, 21) comprising a first lid face (exterior surface of 12), a second lid face opposite to the first lid face (interior surface of 21), and a fragile area (17) between the first lid face and the second lid face (line of weakness 17 well-known in the art to comprise a score which extends into the material and thus locates between the two faces);
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a cover (25) comprising a first cover face (upper surface of 25) facing the second lid face and covering the fragile area (see Figure 2), and a second cover face (bottom surface of 25) opposite to the first cover face, wherein a first distance of a gap between the second lid face and the first cover face is substantially equal to or less than a second distance between the first cover face and the second cover face (not explicitly taught); and
a connector configured to connect the lid and the cover (unlabeled fold between 21 and 24).
Baker fails to explicitly teach:
wherein a first distance of a gap between the second lid face and the first cover face is substantially equal to or less than a second distance between the first cover face and the second cover face.
However, Examiner notes the general structural relationship of the limitation is taught by Baker, noting the thinnest separation between (21) and (24) in Figure 1, roughly where reference numeral lines for either (23) or (24) point in the Figure, are similar to the thickness of the cover, e.g. the distance between the first and second cover face.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to form a first distance of a gap between the second lid face and the first cover face to be substantially equal to or less than a second distance between the first cover face and the second cover face, because such is mere change in size of the prior art, having a predictable outcome absent a teaching of an unexpected result. A change in size, absent a teaching of an unexpected result, is within ordinary skill in the art. See MPEP 2144.04(IV)(A):
In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) (Claims directed to a lumber package “of appreciable size and weight requiring handling by a lift truck” where held unpatentable over prior art lumber packages which could be lifted by hand because limitations relating to the size of the package were not sufficient to patentably distinguish over the prior art.); In re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA 1976) (“mere scaling up of a prior art process capable of being scaled up, if such were the case, would not establish patentability in a claim to an old process so scaled.” 531 F.2d at 1053, 189 USPQ at 148.).
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In Gardnerv.TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.
Regarding claim 2, the cover further comprises:
a first end portion (e.g. 25 in Figure 1);
a second end portion (e.g. 23 in Figure 1) opposite to the first end portion; and
an extension (24; Figure 1) extending along the second lid face between the first end portion and the second end portion.
Regarding claim 3, the extension is configured to deform based on the first end portion (see difference in position of 25 between Figures 1 and 3).
Regarding claim 4, a seat (26; no physical structure is read into the term “seat” beyond that which is explicitly claimed) connected to the second end portion and configured to contact the second lid face (see col. 4, lines 37-41).
Regarding claim 5, the second lid face and the seat are separated from each other by a gap therebetween (see distance between 26 and the bottom surface of 21 in Figure 1).
Regarding claim 6, the second lid face and the seat are configured to be in contact with each other (see Figure 3 showing 26 in contact with the bottom of 21), and wherein the second lid face and the seat are not physically restrained to each other (26 and 21 are not physically restrained to each other by any structure, only by the elastic force in blade 24).
Regarding claim 8, Baker teaches the connector is positioned between the second lid face and the first cover face (the connector is the hinged section between 21 and 24 and thus is explicitly located between the lower face of the lid and upper face of the cover), but fails to explicitly teach the connector has a thickness smaller than the second distance between the first cover face and the second cover face.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to form the connector to have a thickness smaller than the second distance between the first cover face and the second cover face, because such is mere change in size of the prior art, having a predictable outcome absent a teaching of an unexpected result. A change in size, absent a teaching of an unexpected result, is within ordinary skill in the art. See MPEP 2144.04(IV)(A).
Regarding claim 9, Baker fails to teach the sealing structure further comprising: a protrusion protruding from the second lid face or the connector.
Examiner takes Official Notice it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide a protrusion protruding from the second lid face or the connector e.g. reinforcing rib, motivated by the benefit of providing a desired structural characteristic to the lid or cover, having a predictable outcome absent a teaching of an unexpected result.
Regarding claim 10, Baker fails to teach the cover further comprises a coating layer provided on the first cover face.
Examiner takes Official Notice it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide a coating on the first cover face, e.g. antibacterial or hydrophobic coating, motivated by the benefit of providing a desired characteristic to the cover as it interacts with the food products contained in the container, having a predictable outcome absent a teaching of an unexpected result.
9. Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over US 2016/0030286 (Fazi) as applied above under 35 USC 102(a)(1) to claim 15, in view of US 9,815,601 (Browne).
Regarding claim 18, Fazi fails to explicitly teach the cover further comprises:
a first end portion connected to the second lid face; a second end portion opposite to the first end portion; and an extension extending along the second lid face between the first end portion and the second end portion, and configured to deform based on the first end portion.
Browne, analogous to sealing vials, teaches
a first end portion (unlabeled; see annotated Figure 6 below) connected to the second lid face (top surface of collar 50 in a similar interpretation as that used in Fazi above with respect to claim 15);
a second end portion (unlabeled; see annotated Figure 6 below) opposite to the first end portion; and
an extension (the portion of 62 located radially inside of legs 70) extending along the second lid face between the first end portion and the second end portion (spans the first and second portions, and extends along the second lid face e.g. the top surface of the collar), and configured to deform based on the first end portion (lifting of one end of flip cover 60 deforms the other end, as seen in the bending of leg 76 in Figure 5), for purposes of maintaining the sterility of the contents (col. 2, lines 55-59).
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It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Fazi, providing a clip cover as taught by Browne, motivated by the benefit of maintain the sterility of the contents. See KSR International Co. v. Teleflex Inc. et al. No. 04-1350, 550 U.S. (2007) at 13, lines 22-25 which states, “When a work is available in one field of endeavor, design incentives ...can prompt variations of it, either in the same field or a different one. Furthermore, see id. at 13, lines 27-31 which states “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious”.
Allowable Subject Matter
10. Claim 7 is 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.
11. The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 7, Baker fails to teach that the cover further comprises an adhesive portion provided between the second lid face and the seat, the adhesive portion being configured to bond the second lid face and the seat. No motivation could be found to modify the reference in order to arrive at the claimed invention.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES N SMALLEY whose telephone number is (571)272-4547. The examiner can normally be reached M-F 9:00 am to 6:00 pm.
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/JAMES N SMALLEY/Examiner, Art Unit 3733