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.
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Claims 1-2 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 20-22 of U.S. Patent No. 10899493 (Yourist) in view of US 2024/0150064 (Howell) and US 2022/0312802 (Melrose). Please see the attached claim comparison chart for a side-by-side presentation of the claims.
Regarding Claim 1, Yourist Claim 1 discloses the limitations of Claim 1 including the bottom portion including a support surface and a variable dynamic base portion extending inward from the support surface configured to deflect in response to a pressure differential between the chamber and an exterior of the container body; the container body having a chamber defined therein, the container body further comprising a finish portion extending from the upper portion and defining a mouth in fluid communication with the chamber.
Yourist also discloses in Claim 20 the sidewall portion including a lower circumferential groove ring and an upper circumferential groove ring, wherein the lower circumferential groove ring has a width W1 and depth D1 in side view, and an outer radius R1 in plan view, the ratio of the width W1 to the outer radius R1 ranges between 0.07 to 0.22, and the ratio of the depth D1 to the outer radius R1 ranges between 0.04 to 0.18.
Yourist in Claim 21 discloses the upper circumferential groove ring has a width W2 and depth D2 in side view, and an outer radius R2 in plan view, the ratio of the width W2 to the outer radius R2 ranges between 0.07 to 0.22, and the ratio of the depth D2 to the outer radius R2 ranges between 0.04 to 0.18.
Yourist does not disclose the base comprising: a support surface defining a horizontal reference plane; a sidewall having a plurality of horizontally displaced annular ribs, an inner support wall extending upwardly from the support surface, wherein an upper section of the inner support wall extends inwardly at an angle of between about 15 degrees to about 85 degrees relative to the reference plane a first radiused portion extending radially inward toward the central longitudinal axis from the inner support wall and concave relative to the reference plane a second radiused portion extending radially inward toward the longitudinal axis from the first radiused portion and convex relative to the reference plane; an intermediate surface extending radially inward toward the longitudinal axis from the second radiused portion, wherein the intermediate surface comprises an intermediate radiused portion concave relative to the reference plane; a third radiused portion extending radially inward toward the longitudinal axis from the intermediate surface and convex relative to the reference plane; and a central portion disposed proximate the third radiused portion.
Howell discloses the base comprising: a support surface defining a horizontal reference plane, a sidewall having a plurality of horizontally displaced annular ribs, an inner support wall extending upwardly from the support surface, wherein an upper section of the inner support wall extends inwardly at an angle of between about 15 degrees to about 85 degrees relative to the reference plane; a first radiused portion extending radially inward toward the central longitudinal axis from the inner support wall and concave relative to the reference plane; a second radiused portion extending radially inward toward the longitudinal axis from the first radiused portion and convex relative to the reference plane; an intermediate surface extending radially inward toward the longitudinal axis from the second radiused portion, wherein the intermediate surface comprises an intermediate radiused portion concave relative to the reference plane; a third radiused portion extending radially inward toward the longitudinal axis from the intermediate surface and convex relative to the reference plane; and a central portion disposed proximate the third radiused portion as discussed in Howell Claim 1 and Howell Paragraphs 0008, 0077, and 0095.
Yourist and Howell are analogous inventions in the art of hot-fillable bottles with dynamic base portions which respond to pressure changes of the contents.
It would have been obvious for one having ordinary skill in the art before the effective filing date of the claimed invention to modify the container of Yourist with the base structure of Howell in order to allow the radiused base portion to function as hinges and can cooperate for dynamic movement of the base as a whole in response to pressure differentials to accommodate a range of thermodynamic environments in hot-fill filling lines (Paragraphs 0077-0078).
Yourist and Howell do not disclose the container is molded from a preform comprising at least 25% post-consumer resin.
Melrose discloses that Post-consumer PET or Resin (PCR – Paragraph 0012) may be used at larger percentages that 25% by using color masking. Yourist, Howell, and Melrose are analogous inventions in the art of blow-molded resin bottles and containers.
It would have been obvious for one having ordinary skill in the art before the effective filing date of the claimed invention to modify the containers of Yourist as modified by Howell to have at least 25% PCR as disclosed in Melrose in order to lower the cost of producing the container by using a more successfully masked container with upwards of 75% recycled material (Paragraph 0040).
Regarding Claim 2, Modified Yourist in view of Howell discloses the limitations as disclosed above in Claim 1. Yourist further discloses at least one circumferential groove ring has a width W3 and depth D3 in side view, and an inside radius R3 in plan view, the ratio of the width W3 to the inside radius R3 ranges between about 0.15 to about 0.46, and the ratio of the depth D3 to the inside radius R3 ranges between about 0.10 to about 0.3 as discussed in Yourist Claim 22.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GIDEON R. WEINERTH whose telephone number is (571)270-5121. The examiner can normally be reached Monday-Friday 10AM-6PM EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Orlando 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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/GIDEON R WEINERTH/Examiner, Art Unit 3736