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 .
Elections / Restrictions
Applicant's election with traverse of Invention I (Claims 1-10) in the reply filed on 2/16/2026 is acknowledged. The traversal is on the ground(s) that:
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This is not found persuasive because Examiner respectfully asserts that a serious search burden does exist between the Inventions as outlined as the different inventions are of different categories of invention. In this instance, Invention I is drawn to a sealing system for sealing a closure while Invention II is drawn to a method for sealing a closure to a container and therefore would readily require different search strategies and techniques among different search areas while also requiring different approaches in the interpretation of the prior art references. Further, the method of Invention II requires manipulation steps such as "positioning the container", "translating the outer mandrel", "suctioning gas...", "translating the inner mandrel", "sealing the container end" as outlined in Claim 11 and therefore Invention Il requires such manipulation steps whereas Claim 1 does not. Further, the method requires the details of the container and lid and therefore would likely require search in other areas (i.e. B65D). Therefore, the search strategies would likely diverge. Refer to the Restriction Requirement mailed on 12/16/2025 for more details.
The requirement is still deemed proper and is therefore made FINAL.
Claims 11-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected Invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 2/16/2026.
Claims 1-10 are pending and drawn to the elected invention and therefore, are examined below.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 10/10/2025 is in compliance with the provisions of 37 CFR 1.97 and 1.98. Accordingly, the information disclosure statement is being considered by the examiner.
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 1-7 and 10 are rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 1-3, 7-10 and 13 of U.S. Patent No. 12,240,644. Although the claims at issue are not identical, they are not patentably distinct from each other because
Regarding Claim 1 of the instant application, Claim 1 of US Patent 12,240,644 renders the claim patentably indistinct as Claim 1 of US Patent 12,240,644 discloses essentially all of the claimed limitations of Claim 1 of the instant application. Note that although Claim 1 of the instant application recites “a means for suctioning gas from the interior of the die” while Claim 1 of US Patent 12,240,644 recites “a means for suctioning gas from the interior of the container”, this difference is not readily viewed as a patentably distinguishable feature as if the means for suctioning gas is able to suction gas from an interior of a container, the means for suctioning is also readily capable of suctioning gas from an interior of the die.
Regarding Claim 2 of the instant application, Claim 2 of US Patent 12,240,644 renders the claim patentably indistinct.
Regarding Claim 3 of the instant application, Claim 3 of US Patent 12,240,644 renders the claim patentably indistinct.
Regarding Claim 4 of the instant application, Claim 7 of US Patent 12,240,644 renders the claim patentably indistinct.
Regarding Claim 5 of the instant application, Claim 8 of US Patent 12,240,644 renders the claim patentably indistinct.
Regarding Claim 6 of the instant application, Claim 9 of US Patent 12,240,644 renders the claim patentably indistinct.
Regarding Claim 7 of the instant application, Claim 10 of US Patent 12,240,644 renders the claim patentably indistinct.
Regarding Claim 10 of the instant application, Claim 13 of US Patent 12,240,644 renders the claim patentably indistinct.
Claims 8 and 9 are rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 11 and 12 of U.S. Patent No. 12,240,644 in view of Lehmann (US Patent 2,859,575).
Regarding Claims 8 and 9 of the instant application, Claims 11 and 12 of US Patent 12,240,644 render the respective claims patentably indistinct. Although Claims 11 and 12 of US Patent 12,240,644 do not disclose ejectors extend, translate and retract parallel to the mandrels and also do not disclose ejectors translate vertically, these limitations are not viewed as patentably distinguishable.
Attention is brought to the teachings of Lehmann which includes another sealing system (i.e. Figure 4) which includes inner and outer mandrels (guide rings 20, 21, and die 7) and includes an ejectors (disc 30, plate 39; Col 3, lines 23-26) wherein the ejectors (30, 39) and mandrels (20, 21, 7) all extend vertically, translate vertically and retract parallel to one another (as shown in the Figures 4-5).
It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to have incorporated an ejectors as taught by Lehmann into the system of Claims 11 and 12 of US Patent 12,240,644 as such a modification would allow for the container to be readily removed in the event that the container is jammed after being sealed as taught by Lehmann (Col 4, lines 19-27).
Note per MPEP 804 (II)(B): “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).”
Claim Objections
Claim 10 is objected to because of the following informalities:
-Claim 10, “the closure” should instead be “the disc”.
-Appropriate correction is required.
Claim Rejections - 35 USC § 112
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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-10 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 1, lines 16-17 recite “at least one interior channel which extends at least partially circumferentially within an interior of the die” and lines 24-25 recite “a means for suctioning gas from the interior of the die, the at least one channel opening, and the at least one channel”. These limitations, in combination, render the claim indefinite as it is unclear as to whether “an interior of the die” and “the interior of the die ” are referring to the same feature. Specifically the recitation on lines 16-17 appears to be referring to an interior of the die in which the channel is formed while the recitation of lines 24-25 appears to be referring to an interior of the die such as the cavity thereof including the die opening as lines 24-25 already recite suctioning from the at least one channel which would be the only portion of the interior, housed by the die itself, that would be suctioned. It would appear that that the “interior” of lines 24-25 is referring to the interior of the container or some other space such as including the die opening but this is not readily clear.
Further regarding Claim 1, line 5 recites “at least one sealing member” and line 23 recites “the sealing member”. This renders the claim indefinite as it is unclear if the Applicant is attempting to claim the sealing member as a singular member or intending to encompass alternatives of multiple sealing members.
Further, Claim 7 recites “the sealing member” which renders the claim indefinite for the same reasoning outlined above pertaining to Claim 1.
Regarding Claim 2, line 1 recites “a plurality channel openings” which renders the claim indefinite as Claim 1, line 20 defines “at least one channel opening”. This renders the claim indefinite as it is unclear if the Applicant is now attempting to refer to “at least one channel opening” now comprises a plurality of channel openings.
Regarding Claim 4, line 1 recites “the channel openings” which renders the claim indefinite as Claim 1, line 20 defines “at least one channel opening”. This renders the claim indefinite as it is unclear if the Applicant is now attempting to refer to “at least one channel opening” now comprises a plurality of channel openings.
Regarding Claims 8 and 9, the claims recite “the ejectors” and “the ejector”, respectively, which renders the claims indefinite as there is no antecedent basis for an ejector/ejectors.
Claims 3, 5-6 and 10 are also rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite as the claims depend from at least one of the claims outlined above.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
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. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that use the word "means," and therefore interpreted as invoking 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Such claim limitation is: "means for suctioning" in claim 1 which is being interpreted as "a side channel pump or a vacuum pump" or equivalents thereof based on Para. 0008 of the specification.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Examiner’s Note/Allowable Subject Matter
Claims 1-10 would be allowable if (1) rewritten or amended 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 (2) a corresponding Terminal Disclaimer is filed or the claims are amended to overcome the Double Patenting rejection outlined above.
Regarding Claim 1, attention can be brought to the disclosures of Cassoni (US PGPUB 2013/0092312), Sireix (US PGPUB 2019/0152631), and Kamp (EP 2374730 A1) (all of which are cited in IDS filed 10/10/2025).
Cassoni discloses a sealing system (200, 300, 400; Figure 3) for sealing a closure (140) to a container (10) comprising:
a die assembly (300) comprising:
a die (300 including 320) having a positioning portion (302, 304) configured to retain a disc (140) and a die opening (310) adjacent the positioning portion (302, 304; Para. 0047); and
at least one sealing member (320) configured to move radially toward the container (10) and die opening (310) to compress the container (10) outer sidewall and provide heat to seal the disc (140) to the container (10; Para. 0049); and
a mandrel assembly (200) having a recessed position (Figure 5 or further retracted) and an extended position (Figures 7-8) and comprising:
an outer mandrel (210) comprising an extending portion (forming surface 214) which is sized to fit within an inner circumference of the positioning portion (of 304) in its extended position (See Figures 5-9), adjacent a peripheral portion of the retained disc (140; Figures 9-10);
an inner mandrel (220) configured to translate through an inner circumference of the extending portion (214) of the outer mandrel (210) and the die opening (310) to its extended position (Figures 7-8), wherein the at least one clamping ring sealing member (320) is disposed opposite the mandrel assembly (200) when the mandrel assembly (200) is in its extended position (Figures 7-8 as shown).
Further, although Cassoni discloses usage of the sealing system for closing containers for oxygen sensitive products (Para. 0002) and forming a hermetic seal for packaging such products (Para. 0015), Cassoni does not disclose any gas treatment of the product and container and therefore does not disclose a gas evacuation assembly comprising:
at least one interior channel which extends at least partially circumferentially within an interior of the die and which extends circumferentially within the dies further than it extends radially within the die;
at least one channel opening disposed in the die which connects the at least one interior channel to an interior surface of the die, wherein the at least one channel opening is disposed between the positioning portion of the die and the at least one sealing member; and
a means for suctioning gas from the interior of the die, the at least one channel opening, and the channel to an exterior of the die.
Attention can be brought to the teachings of Sireix which includes another a sealing system (1; Figure 1) for sealing a closure (4) to a container (2) having a mandrel assembly (5 including cushion 12 and stamp 8), a die assembly (16, 26) comprising a die (16) and a sealing member (28; “polygonal (or round) shape” per Para. 0072 forms a ring; i.e. see Figures 13A-13F) configured to compress the container outer sidewall and the system further comprising a gas evacuation assembly (V1 and 22) comprising:
a channel (22 and portion of die 26 below 22 that extends around the container (i.e. where bearing element 28 expands into)) which extends within the die (16; Para. 0070);
at least one channel opening (opening of 22 shown in Figures) disposed in the die (16; Para. 0070) which connects the channel (22, of 26) to an interior surface of the die (16; Para. 0070), wherein the at least one channel opening is disposed between the positioning portion (18) of the die (16) and the sealing member (28 as shown); and
a means (associated with vacuum pipe V1; note that it can be readily assumed that some form of vacuum pump or equivalent is associated with V1 in order to create the vacuum as disclosed) for suctioning gas from the interior of the die (16), the at least one channel opening (of 22), and the at least one channel (22, area of 26 forming channel) to an exterior of the die (16; Para. 0070, 0089).
Utilizing an evacuation system to evacuate air between a closure and a container is well known in the art of packaging. It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to have incorporated a gas evacuation assembly as taught by Sireix into the system of Cassoni. By incorporating such an evacuation assembly, by evacuating the container, the closure can be inserted into the container without the resistance of the pre-existing gasses in the container and further, the shelf life of the product being packaged can be further extended without being exposed in the package to such gasses.
However, even as modified in view of Sireix, Cassoni would not readily comprise at least one interior channel which extends at least partially circumferentially within an interior of the die and which extends circumferentially within the dies further than it extends radially within the die.
Kamp teaches another sealing system (Figure 5) comprising a die assembly (21, 20) and mandrel (stamp 22) for sealing a container (Figure 3) and wherein the sealing system (Figure 5) further includes a gas evacuation assembly (formed by channel formed in “widened” surface of lower die 20 per Para. 0019 and “exhaust channels” 27 per Paras. 0020, 0022) comprising a channel (formed by channel formed in “widened” surface of lower die 20 per Para. 0019 and channels 27) which extends circumferentially about the die (20, 21; see “Annotated View of Figure 5” below) and comprises several channel openings (27) disposed in the die (20, 21) which connects the channel (of 20) to an interior of the die (20, 21 as shown; Para. 0020).
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Annotated View of Figure 5
However, the channel of Kamp is not an “interior channel” extending circumferentially within the die such that the channel openings thereof connect the channel to an interior surface of the die. Note Kamp comprises interior channels within the die but these channels are not extending circumferentially.
In conclusion, the prior art references outlined do not anticipate or render obvious the claimed invention of Claim 1.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See “Notice of References Cited”.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSHUA G KOTIS whose telephone number is (571)270-0165. The examiner can normally be reached Monday - Thursday 6am-430pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Shelley Self can be reached on 571-272-4524. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOSHUA G KOTIS/Examiner, Art Unit 3731 3/17/2026