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
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 1-13 is/are rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 1-13 of prior U.S. Patent No. US12,161,241. This is a statutory double patenting rejection.
Claim Rejections - 35 USC § 102
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 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.
Claim(s) 1, 2, 3, 6 and 7 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lambert (US2005/0139570).
Lambert teaches a beverage cup comprising a base (30), a bowl (20), a seal (100) and a cover (90), wherein said base extends with curvature downwardly from said bowl and comprises a bottom wall (in the bellow annotated Fig. 6), a side wall (30, 80 and 70) and a top wall (in the bellow annotated Fig. 6) constructed and arranged to form an open bottom area in said base and the diameter of said base decreases from said bottom wall of said base to said top wall of said base (Fig. 6), wherein said bowl comprises a bottom wall (in the bellow annotated Fig. 6), a side wall (in the bellow annotated Fig. 6) and a top wall (in the bellow annotated Fig. 6) constructed and arranged to form an opening at said top wall for receiving a beverage and said bottom wall of said bowl substantially corresponds to said top wall of said base (Fig. 6), wherein at least a portion of said top wall of said base and at least a portion of said bottom wall of said bowl form an opening (in the bellow annotated Fig. 6) for filling the bowl with a beverage and a means for closing said opening (90 and 100) for filling the bowl, and wherein said seal and cover are constructed and arranged to close said opening of said bowl when filling said bowl with the beverage into said bowl and thereafter retain said beverage in said cup and are adapted to be opened to expose said beverage for drinking (Fig. ).
The beverage cup according to claim 1 wherein said cup is made of plastic (Fig. 1).
The beverage cup according to claim 2 wherein said plastic is polyethylene terephthalate (Fig. 1).
The beverage cup according to claim 1 wherein said seal and cover are attached to said cup by induction sealing, screw threads, friction fit or a combination thereof (Fig. 1).
The beverage cup according to claim 1 wherein said cup includes a first outer packaging and a second inner packaging (where the seal is an inner packaging and the cover is the second outer packaging).
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 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) 4-5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lambert (US2005/0139570), in view of Wolter et al (US20180132986).
Regarding claim 4, Lambert DIFFERS in that it does not disclose the polyethylene terephthalate includes an oxygen inhibitor. Attention, however is directed to Wolter which discloses such a material is old and well known (paragraph 0082). Therefore, it would have been obvious, to one of ordinary skill within the art, at the time the invention was made, to employ such a material, in order to use an alternative durable material.
Regarding claim 5, the seal and cover are attached to said cup by induction sealing, screw threads, friction fit or a combination thereof (there is a friction fit).
Claim(s) 9-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lambert (US2005/0139570), in view of Morenstein et al (US20080264947).
Regarding claims 9-11, Lambert DIFFERS in that it does not disclose the base includes indicia selected from the group consisting of a brand, a logo and a design, least some of said indicia extend outwardly from said base and are adapted to be gripped by a user or the punt base includes indicia selected from the group consisting of a brand, a logo and a design. Attention, however is directed to Morenstein which discloses such a logo can be used (abstract). Therefore, it would have been obvious, to one of ordinary skill within the art, at the time the invention was made, to employ such a logo, in order to advertise the product.
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lambert (US2005/0139570), in view of Block (US20100096441).
Regarding claim 13, Lambert DIFFERS in that it does not disclose the cup includes an outer packaging shrink wrapped onto the cup. Attention, however is directed to Block which discloses shrink wrapping for a package (Fig. 3). Therefore, it would have been obvious, to one of ordinary skill within the art, at the time the invention was made, to employ such a shrink wrap, in order to package the product.
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lambert (US2005/0139570), in view of Wolter et al (US20180132986).
Regarding claim 8, Lambert Differs in that it does not disclose the base is opaque and said bowl is transparent. However, a change in color or material is considered to be within the skill level of one of ordinary skill within the art, therefore it would have been obvious to employ such a color or material as a design choice.
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Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KAREEN KAY THOMAS whose telephone number is (571)270-5611. The examiner can normally be reached 9:00am-5:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Orlando E. Aviles can be reached at 571-270-5531. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KAREEN K THOMAS/Primary Examiner, Art Unit 3736