DETAILED ACTION
Response to Arguments
1. Applicant’s arguments with respect to claims 26-29 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
2. Examiner notes that Applicant only amended claims 1 and 26 with portions of the dependent clams which were indicated allowable, drawn to the location of the friction barrier relative to the living hinge of the tab, and excluded the remaining limitations drawn to the teardrop shape of the friction barrier. Claim 25 was amended with limitations from a dependent clam not previously dependent therefrom, nor was the limitation alone ever considered allowable within a similar scope. Accordingly final rejection of these claims is proper.
Claim Rejections - 35 USC § 112
3. The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
4. Claims 26-29 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 26, from which claims 27-29 depend, the term “the slot” lacks proper antecedent basis in the claims.
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 1, 8, 10, 15, 18, 25, 26, and 28 are rejected under 35 U.S.C. 102(a) as being anticipated by US 8,146,766 (Vovan).
Regarding claim 1, Vovan teaches a container (10) comprising a container body (12) and a collar (broadly 50) integrally formed on the container body (see e.g. Figure 1), wherein when the collar is in an unopen position, the collar comprises:
a discontinuous annular portion (specifically 50) which extends circumferentially outward from the container body (see e.g. Figure 1) and includes a slot disposed therein (read as one of the perforations 90);
a tamper evident tab (52) formed integrally with the discontinuous annular portion, wherein the tab comprises:
an annularly extending portion at least partially aligned with the annular portion of the collar (the specifically unlabeled horizontally extending body of the tab 52); and
an insert notch positioned on the annularly extending portion (read as the gap defined by walls 64 and 66 in Figure 4);
at least one living hinge (82) that joins the tab to the collar; and
at least one frangible connection (81) which connects the tab to the collar prior to actuation of the tab;
wherein the container further comprises a friction barrier (100) located adjacent the discontinuous annular portion and positioned between the at least one living hinge and the slot (Examiner notes the slot is rejected above for lacking proper antecedent basis; the claim limitation can be met considering the hinge 82 (e.g. Figure 4) as the starting point, circumferentially traveling away from tab 52, i.e. counterclockwise as viewed in Figure 4, circumscribing the collar, and ending at tear line 81; by reading one of the perforations 90 as a slot, the friction barrier 100 will be located circumferentially between the hinge 82 and slot 90; see annotated Figure 4 below).
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Regarding claim 8, the at least one living hinge connects the annular portion of the collar and the annularly extending portion of the tab (see living hinge connection at 82 in Figures 4 and 7), and wherein the at least one living hinge can bend and rotate without breaking from the collar and the tab (see 82 in Figure 7).
Regarding claim 10, the at least one frangible connection disconnects from the collar by the application of force (col. 4, lines 55-61).
Regarding claim 15, the at least one living hinge is offset from the radius of a cross section of the container (Examiner provides annotated Figure 8 below, which already shows a radial line; Examiner uses the center point provided therein to demonstrate that the hinge axis is angularly offset from the radial line which extends through the nearest point of the hinge).
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Regarding claim 18, the container further includes a closure having a leading edge (44) that is removably fitted on the container body adjacent the collar, wherein the collar covers the leading edge of the closure when the tamper evident tab is in the unopened position (by underlapping it), and wherein the leading edge of the closure is accessible when the tamper evident tab is in an open position (see e.g. Figure 5).
Regarding claim 25, Vovan teaches a container (10) comprising a container body (12) and a collar (broadly 50) integrally formed on the container body (see e.g. Figure 1), wherein when the collar is in an unopen position, the collar comprises:
a discontinuous annular portion (specifically 50) which extends circumferentially outward from the container body (see e.g. Figure 1) and includes a slot disposed therein (one of perforations 90);
a tamper evident tab (52) formed integrally with the discontinuous annular portion, wherein the tab comprises:
an annularly extending portion (the specifically unlabeled horizontally extending body of the tab 52) at least partially aligned with the annular portion of the collar (shown to be on the same horizontal level in Figure 3); and
an insert notch (read as the gap defined by walls 64 and 66 in Figure 4) positioned on the annularly extending portion;
at least one living hinge (82) that joins the tab to the collar; and
at least one frangible connection (81) which connects the tab to the collar prior to actuation of the tab;
a discontinuous radially outward edge (100) which extends vertically from the annular portion and extends substantially circumferentially about the container body (labeled in Figure 4 but best seen extending circumferentially in Figure 2).
Regarding claim 26, Vovan teaches a container (10) comprising a container body (12) and a collar (broadly 50) integrally formed on the container body (see e.g. Figure 1), wherein when the collar is in an unopen position, the collar comprises:
a discontinuous annular portion (specifically 50) which extends circumferentially outward from the container body (see e.g. Figure 1);
a tamper evident tab (52) formed integrally with the discontinuous annular portion and includes an annularly extending portion (the specifically unlabeled horizontally extending body of the tab 52) at least partially aligned with the annular portion of the collar (shown to be on the same horizontal level in Figure 3);
at least one living hinge (82) that joins the tab to the collar; and
at least one frangible connection (81) which connects the tab to the collar prior to actuation of the tab;
wherein the container further comprises a friction barrier (100) located adjacent the discontinuous annular portion and positioned between the at least one living hinge and the slot (Examiner notes the slot is rejected above for lacking proper antecedent basis; the claim limitation can be met considering the hinge 82 (e.g. Figure 4) as the starting point, circumferentially traveling away from tab 52, i.e. counterclockwise as viewed in Figure 4, circumscribing the collar, and ending at tear line 81; by reading one of the perforations 90 as a slot, the friction barrier 100 will be located circumferentially between the hinge 82 and slot 90; see annotated Figure 4 above with regard to claim 1).
Regarding claim 28, the tab is rotated towards and over the friction barrier until the tab is disposed on or above the friction barrier (the limitation is met with reference to the tab as seen in Figure 5 and holding the container in an inverted position such that the tab will bend about hinge 82, unlabeled in this Figure, and contact the bottom of the rim, which will be the top when inverted, and thus “over” the friction barrier 100; Examiner notes this broad interpretation is possible because the language “disposed on or above” does not define any fixed point or frame of reference).
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 16 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over US 8,146,766 (Vovan) as applied above under 35 USC 102(a)(1) to claim 15.
Regarding claims 16 and 17, Vovan as applied above fails to teach that the at least one living hinge is offset by between 0.30 degrees and 0.70 degrees, based upon the 360 degrees of the container, or the angle of the at least one living hinge is offset by between 0.40 degrees and 0.60 degrees, based upon the 360 degrees of the container.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the angular offset of the hinge of Vovan by between 0.30 degrees and 0.70 degrees, or by between 0.40 degrees and 0.60 degrees, based upon the 360 degrees of the container, because such is a change in the location (a rearrangement) of the parts of the prior art, having a predictable outcome absent a teaching of an unexpected result.
A rearrangement of the parts of the prior art is obvious, absent a teaching of an unexpected result. See MPEP 2144.04(VI)(C). In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice).
Allowable Subject Matter
9. Claims 19-23 and 30 are allowed.
10. Claims 2-7, 9, and 11-14 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.
11. Claims 27 and 29 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
12. The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 2, from which claims 3, 6, and 9 depend, Vovan fails to teach that the collar further comprises a discontinuous radially outward edge which extends vertically from the annular portion and extends substantially circumferentially about the container body. Vertically extending outer rib (100) is already identified as the claimed friction barrier, and thus the reference fails to teach any additional vertically and circumferentially extending portion on the collar.
Regarding claim 4, Vovan fails to teach that the container further comprising a rim extending circumferentially around an upper portion of the container body wherein the friction barrier is positioned on a lower portion of the rim and the collar is located near an upper portion of the rim of the container body. Vovan only teaches the upwardly extending outer rib (100) and fails to teach anything on the lower portion of the collar.
Regarding claim 5, Vovan as applied fails to teach that the friction barrier comprises a substantially three-dimensional teardrop shaped configuration, and wherein the friction barrier is positioned between the at least one living hinge and the slot. No teardrop shaped barrier is taught.
Regarding claim 7, Vovan fails to teach at least one living hinge is on the opposite side of the tab as the at least one frangible connection, and wherein the slot is positioned more proximate to the at least one living hinge than the at least one frangible connection. The identified slot (90) is on the far opposite side of the tab from the living hinge (82).
Regarding claim 11, from which claim 12 depends, Vovan fails to teach the insert notch is configured to be removably inserted into the slot and the tab is disposed on or above the friction barrier when the at least one living hinge is in a hinged configuration. No such insertion is taught in Vovan.
Regarding claim 13, from which claim 14 depends, Vovan fails to teach that the insert notch, the slot and the friction barrier comprise a locking mechanism. Vovan does not teach these elements collectively forming any type of mechanism.
Regarding claim 19, Marshall fails to teach that the collar further comprises a discontinuous radially outward edge which extends vertically from the annular portion and extends substantially circumferentially about the container body, and wherein the tab further comprises a radially outward edge which extends vertically from the annularly extending portion of the tab and is at least partially aligned with the discontinuous radially outward edge of the collar. Examiner notes the frame (4) which is correlated to the claimed annular discontinuous portion is already vertically oriented (at 18), and extending therefrom; thus, there is no additional structure to anticipate, or modification to obviate the claimed limitation.
Further regarding claim 19, Vovan fails to further teach a tamper evident locking mechanism beyond the tamper evident tab, frangible connection, and living hinge already identified in the rejection.
Regarding claim 27, Vovan fails to teach the container further comprising a rim extending circumferentially around an upper portion of the container body, wherein the friction barrier is positioned on a lower portion of the rim, and wherein the collar is located near an upper portion of the rim of the container body. Vovan only teaches the upwardly extending outer rib (100) and fails to teach anything on the lower portion of the collar.
Regarding claim 29, Vovan fails to teach the friction barrier includes a substantially three-dimensional teardrop shaped configuration, and wherein the friction barrier is positioned between the at least one living hinge and the slot. No teardrop shaped barrier is taught.
Regarding claim 30, Marshall fails to teach a friction barrier located adjacent the discontinuous annular portion and positioned between the at least one living hinge and the slot. At the very least the asserted friction barrier (16) does not appear to be located between the hinge and the slot, noting Figure 26 whereby the span of tab (20) does not have any such barriers (16) behind it, in order to accommodate the hinged tab (28). As such, it would not be obvious to modify the reference in order to locate barriers (16) in this location.
Further regarding claim 30, Vovan at least fails to teach the method step of inserting a notch into a slot.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 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.
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 Jenness can be reached at (571) 270-5055. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JAMES N SMALLEY/Examiner, Art Unit 3733
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