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 .
Priority
This application is claiming the benefit of prior-filed application No. 17/167,013 under 35 U.S.C. 120, 121, 365(c), or 386(c). Copendency between the current application and the prior application is required. Since the applications are not copending, the benefit claim to the prior-filed application is improper. The parent application expired on August 28, 2024 (see MPEP 711.04(a)), while the present application was filed November 26, 2024. Applicant is required to delete the claim to the benefit of the prior-filed application, unless applicant can establish copendency between the applications.
Applicant states that this application is a divisional application of the prior-filed application. If Applicant can establish copendency between the applications, Applicant is required to change the relationship to continuation because this application does not claim an invention that is independent and distinct from that claimed in the prior application.
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.
Claims 6, 7, and 12 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 6 recites “the negative space comprises a transparent material.” It is unclear how a negative space could comprise a material. The specification describes the “negative space” to be “an empty space, empty arc, etc.” and notes that it may be formed “by carving/cutting/slitting a portion of the cover” (see para. [0055]). That is, a “negative space” is interpreted as a lack of material, which is consistent with the specification. Having a “negative space” further comprising a material is contradictory. For purposes of examination, claim 6 will be interpreted to depend from claim 1 and recite “the labeling region comprises a transparent material.”
Claim 7 recites “the negative space includes a color filter.” It is unclear how a negative space could comprise a color filter. The specification describes the “negative space” to be “an empty space, empty arc, etc.” and notes that it may be formed “by carving/cutting/slitting a portion of the cover” (see para. [0055]). That is, a “negative space” is interpreted as a lack of material, which is consistent with the specification. Having a “negative space” further comprising a color filter is contradictory. For purposes of examination, claim 7 will be interpreted to depend from claim 1 and recite “the labeling region comprises a color filter.”
Claim 12 recites “the content” in line 1. There is insufficient antecedent basis for this limitation in the claim. It is unclear whether this is referring to “a container content type” recited in claim 1 or something else.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-20 are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by U.S. Pub. 2022/0242615 to Guy et al. (hereinafter, “Guy”).
Regarding claim 1, Guy discloses an apparatus (system 100, Figs. 1, 7) comprising: a container (container 102, Fig. 1) comprising a plurality of labels (labels 103, Figs. 1, 7); and a cover (cover 104, Fig. 1) at least partially surrounding the container (container 102, see para. [0038]), the cover (cover 102) including a labeling region (labeling region 104a, Fig. 1) selectively positionable to expose a label of the plurality of labels (para. [0038]), wherein the exposed label is indicative of a container content type (para. [0038]).
Regarding claim 2, Guy further discloses the cover (cover 104) comprises a sleeve (paras. [0006], [0014]).
Regarding claim 3, Guy further discloses the cover (cover 104) comprises silicone (paras. [0006], [0014]).
Regarding claim 4, Guy further discloses the labeling region (labeling region 104a) does not include the silicone (paras. [0006], [0014]).
Regarding claim 5, Guy further discloses the labeling region (labeling region 104a) is a negative space (paras. [0006], [0015]).
Regarding claim 6, Guy further discloses the negative space (para. [0006]) comprises a transparent material (para. [0006]).
Regarding claim 7, Guy further discloses the negative space (para. [0006]) includes a color filter (para. [0006]).
Regarding claim 8, Guy further discloses the labeling region (labeling region 104a) has a first color (para. [0006]) that is different from a second color (para. [0006]) of the cover (cover 104).
Regarding claim 9, Guy further discloses a segment (paras. [0007], [0067]) of the cover (cover 104) surrounding a bottom portion of the container (paras. [0007], [0067]) includes a cutout (cutout 604b, see Fig. 6).
Regarding claim 10, Guy further discloses the cover (cover 104) is configured to be detachable (para. [0007]) from the container (container 102).
Regarding claim 11, Guy further discloses the cover (cover 104) surrounding the container (container 102) is rotatable (paras. [0007], [0045]) relative to the container (container 102) such that the labeling region (labeling region 104a) is selectively positioned to expose a second label (see Fig. 7; para. [0045]) of the plurality of labels (Fig. 7).
Regarding claim 12, Guy further discloses the content (see para. [0041]) is of a first content type (para. [0041]) and the second label (para. [0041]) is indicative of a second container content type (para. [0041]).
Regarding claim 13, Guy further discloses the labeling region (labeling region 104a) is rotatable around a longitudinal axis of the container (para. [0008]).
Regarding claim 14, Guy further discloses the plurality of labels (labels 103) are oriented parallel to the longitudinal axis of the container (Figs. 1-2, 7).
Regarding claim 15, Guy further discloses the plurality of labels (labels 103) are oriented at an angle relative to the longitudinal axis of the container (Figs. 3A-3B).
Regarding claim 16, Guy further discloses the labeling region (labeling region 104a) is translatable along a longitudinal axis (para. [0009]).
Regarding claim 17, Guy further discloses the plurality of labels (labels 103) are oriented perpendicular to the longitudinal axis (Fig. 3A).
Regarding claim 18, Guy further discloses the plurality of labels (labels 103) are oriented at an angle relative to the longitudinal axis (Figs. 3A-3B).
Regarding claim 19, Guy further discloses one or more labels (labels 103) in the plurality of labels (labels 103) are indicative of a type of cleaner solution (para. [0010]).
Regarding claim 20, Guy further discloses the plurality of labels (labels 103) are on a surface of the container (see Fig. 2; para. [0010]).
Claims 1, 2, 5, 6, 9-14, 16, 17, and 20 are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by U.S. Pat. 5,809,674 to Key (hereinafter, “Key”).
Regarding claim 1, Key discloses an apparatus (embodiment 600, Fig. 6) comprising: a container (container 602, Fig. 6) comprising a plurality of labels (information fields 108, 110, 604, 606, Fig. 6); and a cover (shell 616, Fig. 6) at least partially surrounding the container (see Fig. 6), the cover (shell 616) including a labeling region (window 112, Fig. 6) selectively positionable to expose a label (see col. 5, ll. 42-67) of the plurality of labels (information fields 108, 110, 604, 606), wherein the exposed label is indicative of a container content type (information fields 108, 110, 604, 606 provide information such as “ingredients” that indicate a container content type, col. 5, ll. 54-67; col. 6, ll. 1-13).
Regarding claim 2, Key further discloses the cover (shell 616) comprises a sleeve (see Fig. 6).
Regarding claim 5, Key further discloses the labeling region (window 112) is a negative space (col. 3, ll. 66-67; col. 4, ll. 1-4).
Regarding claim 6, as best understood, Key further discloses the labeling region (window 112) comprises a transparent material (col. 3, l. 57).
Regarding claim 9, Key further discloses a segment (lower half of shell 616, see annotated Fig. 6 below) of the cover (shell 616) surrounding a bottom portion (lower half of container 602, see annotated Fig. 6) of the container includes a cutout (bottom edge of shell 616 or alternatively, window 112, see Fig. 6).
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Key Annotated Figure 6
Regarding claim 10, Key further discloses the cover (shell 616) is configured to be detachable from the container (shell 616 is capable of being detached from container 602, see e.g., Figs. 3, 8).
Regarding claim 11, Key further discloses the cover (shell 616) surrounding the container (container 602) is rotatable relative to the container (shell 616 rotates about the y axis in response to a rotational force 114, see Fig. 6; col. 5, ll. 57-66) such that the labeling region (window 112) is selectively positioned to expose a second label of the plurality of labels (see col. 5, ll. 54-67; col. 6, ll. 1-13).
Regarding claim 12, Key further discloses the content (information fields 108, 110, 604, 606) is of a first content type (information field 108 contains “other product information,” see Fig. 6; col. 5, ll. 64-66) and the second label (information field 110) is indicative of a second container content type (information field 110 contains “ingredients,” which is a different content type than information field 108, see Fig. 6; col. 6, ll. 2-4).
Regarding claim 13, Key further discloses the labeling region (window 112) is rotatable (shell 616 rotates about the y axis in response to a rotational force 114, see Fig. 6; col. 5, ll. 57-66) around a longitudinal axis of the container (axis along y-direction through center of container).
Regarding claim 14, Key further discloses the plurality of labels (information fields 108, 110, 604, 606) are oriented parallel to the longitudinal axis of the container (information fields 108, 604 are oriented next to one another in a direction parallel to the y-axis, see annotated Fig. 6).
Regarding claim 16, Key further discloses the labeling region (window 112) is translatable (shell 616 translates along the y axis in response to a translation force 302, see Fig. 6; col. 5, ll. 57-66) along a longitudinal axis (axis along y-direction through center of container).
Regarding claim 17, Key further discloses the plurality of labels (information fields 108, 110, 604, 606) are oriented perpendicular to the longitudinal axis (information fields 108, 110 are oriented next to one another in a direction perpendicular to the y-axis, see annotated Fig. 6).
Regarding claim 20, Key further discloses the plurality of labels (information fields 108, 110, 604, 606) are on a surface of the container (see Figs. 6, 8).
Claim Rejections - 35 USC § 102 / 103
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.
Claims 15 and 18 are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Key, or in the alternative under 35 U.S.C. 103 as being unpatentable over Key in view of U.S. Pub. 2009/0019741 to Schwartz et al. (hereinafter, “Schwartz”) and design choice.
Regarding claim 15, Key further discloses the plurality of labels (information fields 108, 110, 604, 606) are oriented at an angle relative to the longitudinal axis of the container (fields 108, 604 are oriented at an angle of 0° and fields 108, 110 are oriented at an angle of 90° relative to the y-axis, see annotated Fig. 6 above).
Thus, claim 15 is anticipated. However, to the extent that the angles of 0° and 90° are not construed to be “at an angle” as claimed, arranging the labels at different angle would be obvious in view of Schwartz and design choice.
Schwartz teaches a container for consumer products having a plurality of labels (see Abstract, Fig. 3). Schwartz teaches that the labels may be oriented at an angle relative to a longitudinal axis of the container (Fig. 3).
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to have modified the container of Key to have the plurality of labels arranged at an angle relative to the longitudinal axis as taught by Schwartz because it has been held that changes in shape are an obvious matter of design choice absent persuasive evidence that the particular claimed configuration is significant (MPEP 2144.04(IV)(B), citing In re Dailey, 149 USPQ 47) and aesthetic design choices relating to ornamentation only cannot be relied upon to distinguish the claimed invention from the prior art (MPEP 2144.04(I), citing In re Seid, 73 USPQ 431).
Regarding claim 18, Key further discloses the plurality of labels (information fields 108, 110, 604, 606) are oriented at an angle relative to the longitudinal axis (fields 108, 604 are oriented at an angle of 0° and fields 108, 110 are oriented at an angle of 90° relative to the y-axis, see annotated Fig. 6 above).
Thus, claim 18 is anticipated. However, to the extent that the angles of 0° and 90° are not construed to be “at an angle” as claimed, arranging the labels at different angle would be obvious in view of Schwartz and design choice.
Schwartz teaches a container for consumer products having a plurality of labels (see Abstract, Fig. 3). Schwartz teaches that the labels may be oriented at an angle relative to a longitudinal axis of the container (Fig. 3).
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to have modified the container of Key to have the plurality of labels arranged at an angle relative to the longitudinal axis as taught by Schwartz because it has been held that changes in shape are an obvious matter of design choice absent persuasive evidence that the particular claimed configuration is significant (MPEP 2144.04(IV)(B), citing In re Dailey, 149 USPQ 47) and aesthetic design choices relating to ornamentation only cannot be relied upon to distinguish the claimed invention from the prior art (MPEP 2144.04(I), citing In re Seid, 73 USPQ 431).
Claim Rejections - 35 USC § 103
Claims 3 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over Key in view of NPL “Savvy Planet Empty Clear Glass 2oz Small Spray Bottles,” retrieved from https://www.amazon.com/SAVVY-PLANET-Bottles-Silicone-Protection/dp/B08TWF3S9V, hereinafter “Savvy Planet.”
Regarding claim 3, Key does not expressly disclose the cover comprises silicone.
Savvy Planet teaches a container and a cover having a labeling region that is a negative space (see Fig. on p. 1). Savvy Planet teaches that the container may be used for cleaner solutions (p. 1) and may include a dispenser (p. 1). Savvy Planet teaches that the cover is formed from silicone. Savvy Planet teaches that forming the cover from silicone provides protection to the container and prevents it from breaking on hard surfaces (p. 1).
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to have modified the container of Key to from the cover from silicone as taught by Savvy Planet for the purpose of providing protection to the container, as recognized by Savvy Planet (p. 1).
Regarding claim 4, Key as modified by Savvy Planet already includes the labeling region (Key, window 112) does not include the silicone (Savvy Planet, p. 1).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Key in view of U.S. Pub. 5,953,170 to Glancy (hereinafter, “Glancy”).
Regarding claim 7, Key does not expressly disclose the negative space includes a color filter.
Glancy teaches an apparatus comprising a container and a cover at least partially surrounding the container (see Fig. 1). Glancy teaches the cover includes a labeling region (windows 4, 5, Figs. 2-3). Glancy teaches that the labeling region includes a color filter (col. 4, ll. 40-43). Glancy further teaches that the labeling region with the color filter visually conveys information to a user (col. 3, ll. 6-19).
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to have modified the container of Key to add a color filter to the labeling region as taught by Glancy for the purpose of visually conveying information to a user, as recognized by Glancy (col. 3, ll. 6-19). Additionally, and in the alternative, it would have been obvious to one having ordinary skill in the art at the time the invention was filed to have modified the container of Key to add a color filter to the labeling region as an obvious matter of design choice because aesthetic design choices relating to ornamentation only cannot be relied upon to distinguish the claimed invention from the prior art (MPEP 2144.04(I), citing In re Seid, 73 USPQ 431).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Key in view of design choice.
Regarding claim 8, Key does not expressly disclose the labeling region has a first color that is different from a second color of the cover.
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to have modified the container of Key to select a first color of the labeling region to differ from a second color of the cover as an obvious matter of design choice because aesthetic design choices relating to ornamentation only cannot be relied upon to distinguish the claimed invention from the prior art (MPEP 2144.04(I), citing In re Seid, 73 USPQ 431). Applicant has not disclosed any criticality for the claimed features.
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Key in view of U.S. Pub. 2013/0037569 to Kelly et al. (hereinafter, “Kelly”).
Regarding claim 19, Key further discloses one or more labels in the plurality of labels are indicative of a type of consumer product, and include information such as “ingredients” “product information,” and “warnings.”
Key does not expressly disclose that the plurality of labels are indicative of a type of cleaner solution.
Kelly teaches a container for a cleaner solution (see Fig. 6). Kelly teaches that the container may be used to hold different types of cleaner solutions (para. [0008]). Kelly teaches that the container includes a label to indicate the type of cleaner solution (para. [0008]).
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to have modified the container of Key to have the plurality of labels indicate a type of cleaner solution as taught by Kelly for the purpose of using the container for cleaning solution and indicating the relevant information to the user, as recognized by Kelly, and because the container of Key is suitable for the purpose of holding cleaner solution (see e.g., MPEP 2144.06-07).
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, 5, 13, and 20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 19 of copending Application No. 18/241,484 (“the ‘484 application”). Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1 and 19 of the ‘484 application “anticipate” application claims 1, 5, 13, and 20 as shown below.
Present Claims
Claims of Application No. 18/241,484
Claim 1: An apparatus comprising:
a container comprising a plurality of labels; and
a cover at least partially surrounding the container, the cover including a labeling region selectively positionable to expose a label of the plurality of labels, wherein the exposed label is indicative of a container content type.
Claim 1: An apparatus comprising:
a container that includes a circumferentially extending groove, the container defining a longitudinal axis;
a labeling ring, wherein the labeling ring is configured to be inserted into the circumferentially extending groove and includes a plurality of labels disposed on an exterior surface of the labeling ring, and wherein the labeling ring is configured to circumferentially rotate about the longitudinal axis, within the circumferentially extending groove; and
a cover disposed about a portion of the container including the circumferentially extending groove and the labeling ring, wherein the cover defines an opening through which one of the labels is exposed.
See also claim 19.
Claim 5: The apparatus of claim 1, wherein the labeling region is a negative space.
Claim 1: “the cover defines an opening”
Claim 13: The apparatus of claim 1, wherein the labeling region is rotatable around a longitudinal axis of the container.
Claim 1: “the labeling ring is configured to circumferentially rotate about the longitudinal axis”
Claim 20: The apparatus of claim 1, wherein the plurality of labels are on a surface of the container.
Claim 1: “the labeling ring is configured to be inserted into the circumferentially extending groove and includes a plurality of labels disposed on an exterior surface of the labeling ring”
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
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/LAURA E. PARKER/Examiner, Art Unit 3733