DETAILED ACTION
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 present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include at least the following reference character(s) not mentioned in the description: 120, 134, 136, 144, 146, and 148. Corrected drawing sheets in compliance with 37 CFR 1.121(d), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.121(b) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
The drawings are objected to under 37 CFR 1.83(a) because they fail to show “a downwardly extending ridge between the inner diameter and the outer diameter” a as described in the specification. Any structural detail that is essential for a proper understanding of the disclosed invention should be shown in the drawing. MPEP § 608.02(d). Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 4, 6, and 7 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.
Claim 4 recites that “the amorphous thermoplastic polyester is an L-PET”. It is unknown what the term “L-PET” is referring to. Would this be a Linear Low Density Polyethylene, which is not polyester terephthalate, a low melting point PET, an unmodified PET, or some other amorphous thermoplastic polyester? Applicant’s specification provides no further information regarding what would constitute an “L-PET” and the claim has been treated as reciting the amorphous thermoplastic polyester would be polyethylene terephthalate.
Claim 6, recites, “the top rim comprises a flange that extends from the top rim in a shared plane.” Would this be a shared plane in the horizontal, vertical, or some other orientation?
Claim 7 recites “a median passes perpendicularly through a center of the container” i.e., a centre point. It is unknown how a “median” would pass perpendicularly through a point. Does this mean that said median passed perpendicularly through a centre line of the container? If so, would the centre line pass from the bottom of the container to the top of the container or from side to side through the bottom, the top, at a centre point between the bottom and the top or at some other centre of said container?
Claim 7 recites “the top rim includes a third point on a first side of the median and a fourth point on a second side of the median”. It is unknown how there would be a third point and/or a fourth point since there has been no first point or second point previously recited.
Claim Rejections - 35 USC § 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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating
obviousness or nonobviousness.
Claims 1, 2, 6 – 10, 16, and 18 – 20 are rejected under 35 U.S.C. 103 as being unpatentable over Gelov et al US 2019/0053511 as further evidenced by the Indianapolis Business Journal (IBJ) in view of Java House (JHCP) in view of Benson et al. US 2021/0094744.
Regarding claim 1, Gelov discloses a container (sealed coffee pod . . . such as Keurig) capable of storing concentrated beverages (coffee concentrates) (paragraph [0005]) which container would comprise a polymer body (plastic cup, Keurig K-cups) (paragraph [0091]).
Claim 1 differs from Gelov in the polymer body having a top rim, a circumferential sidewall, and a circular base.
As further evidenced by IBJ (page 4, paragraph 8), Gelov is assigned to Heartland Consumer Products which also provides a liquid beverage concentrate in a container capable of “use in a Keurig single serve coffee maker” under the name “Java House”. JHCP ( three screen shots below) discloses it was conventional and established in the art to provide a container capable of storing concentrated beverages (cold brew coffee) having a top rim, a circumferential sidewall, a circular base, and a lid.
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Java House discloses a container capable of storing concentrated beverages (cold brew coffee) as seen in the following screen shot.
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As seen in the close up screen shot above and below JHCP clearly shows the body would have a top rim, a circumferential sidewall having an inner sidewall surface, an outer sidewall surface, a circular base having an inner base surface and an outer base surface, and a lid affixed to the top rim.
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Further, since Gelov, IBJ, and JHCP all teach the use of containers capable of storing concentrated beverages in a Keurig type brewing machine it would have been an obvious matter of choice and/or design to modify the polymer container disclosed by Gelov to include a top rim, circumferential sidewall with an inner and outer respective surface, a circular base having an inner base surface and an outer base surface, and a lid as taught by JHCP.
Claim 1 differs from Gelov as further evidenced by IBJ in view of JHCP in the lid affixed to the top rim being a multilayer lid.
Benson discloses a container capable of storing a concentrated beverage which container would have a polymer body (primary package) (polyethylene terephthalate). Benson further discloses there would be a multilayer lid (lidding film) (aluminium and polyethylene terephthalate) (paragraph [0007]) affixed to the top rim, wherein the multilayer lid is affixed via a single use thermal seal (peelably sealed by heat) (paragraph [0039]). Benson is providing a container having a polymer body with a multilayer lid affixed to the top rim via a single use thermal seal for the art recognized as well as applicant’s intended function which is to protect a contained product by providing the package with a lid affixed to the top rim (sealed by heat seal) (paragraph [0039]) to reduce moisture vapour transmission rate (mvtr) (paragraph [0033]) as well protecting the package and contents from damage by compression (paragraph [0005]). To therefore modify Gelov as further evidenced by IBJ in view of JHCP to affix a multilayer lid to the top rim of the container to reduce mvtr and protect the package and contents thereof from compression damage as taught by Benson would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Regarding claim 2 Gelov as further evidenced by IBJ in view of JHCP in view of Benson disclose the polymer body includes polyethylene terephthalate (‘744, paragraph [0007]).
Regarding claim 6, Gelov as further evidenced by IBJ in view of JHCP in view of Benson disclose the top rim comprises a flange that extends from the top rim in a shared plane (‘744, fig. 2 and 4).
Regarding claim 7, Gelov as further evidenced by IBJ in view of JHCP in view of Benson disclose a median passes perpendicularly through a center of the container, wherein the top rim includes a third point on a first side of the median and a fourth point on a second side of the median, and wherein the top rim extends tangentially from the third point toward the median and tangentially from the fourth point of toward the median to form the flange (‘744 fig. 1 and 2) (JHCP screen shot below).
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Regarding claim 8, Gelov as further evidenced by IBJ in view of JHCP in view of Benson disclose the flange includes a circular protrusion extending from the shared plane away from the circular base (JHCP screen shot above circled). Benson further discloses the flange would include a circular protrusion (bumps 22) and that such protrusion on the flange would be raised to help the consumer grip and separate the multilayer lid (‘744, paragraph [0046] and fig. 2 and 3C). Given the art taken as a whole and since JHCP teaches peeling of the lid it would have been obvious to one having ordinary skill in the art to modify the combination to include a protrusion for making it easier to peel the lid
Regarding claim 9, Gelov as further evidenced by IBJ in view of JHCP in view of Benson disclose the top rim has an inner edge, an outer edge, and the circumferential sidewall (primary package . . . can be a circle) (‘744, paragraph [0044]) extends from the inner edge of the top rim to the circular base (‘744, fig. 1 and 4) (JHCP screen shot).
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Regarding claim 10, once it was known that the container would be designed as a K-cup to fit a Keurig coffee brewing machine and would have a top rim that would have a diameter as Gelov as further evidenced by IBJ in view of JHCP in view of Benson disclose it is not seen that patentability would be predicated on the specific diameter of the top rim. Limitations relating to the diameter of the container rim are not sufficient to patentably distinguish over the prior art. The mere scaling up or down of a prior art container rim capable of being so scaled, if such were the case, would not establish patentability in a claim to an old container rim so scaled. Where the only difference between the prior art rim and the claims is a recitation of relative dimensions of the claimed container rim and a container rim having the claimed relative dimensions would not perform differently than the prior art container rim, the claimed container rim is not patentably distinct from the prior art container rim (MPEP § 2144.04 IV.A.).
Regrading claim 16, Gelov as further evidenced by IBJ in view of JHCP in view of Benson disclose an aseptic liquid would be enclosed in the container by the inner base surface, the inner sidewall surface, and the multilayer lid (K-cup) (‘511, paragraph [00091]).
Regarding claim 18, Gelov as further evidenced by IBJ in view of JHCP in view of Benson disclose the aseptic liquid would include caffeine (higher in caffeine content) (‘511, paragraph [0004]).
Regarding claims 19 and 20, claim 20 recited that the container would include about 45 ml of the aseptic liquid which would allow for somewhat less than 45 ml and Gelov as further evidenced by IBJ in view of JHCP in view of Benson disclose the container would include about 40 ml of the aseptic liquid (‘511, paragraph [0034]) and would allow for somewhat more than 40 ml of liquid. This is to say that Gelov as further evidenced by IBJ in view of JHCP in view of Benson reads on the claimed amount of aseptic liquid.
Claims 3 – 5 are rejected under 35 U.S.C. 103 as being unpatentable over Gelov et al US 2019/0053511 as further evidenced by the Indianapolis Business Journal (IBJ) in view of Java House (JHCP) in view of Benson et al. US 2021/0094744 and in further view of Trombley US 2016/0145037.
Claims 3 – 5 differ from Gelov as further evidenced by IBJ in view of JHCP in view of Benson in the thermoplastic being an amorphous thermoplastic polyester.
Trombley discloses a container capable of storing concentrated beverages comprising a polymer body (PET) having a top rim, a circumferential sidewall having an inner sidewall surface and an outer sidewall surface (paragraph [0029]). Trombley further discloses the container would have a multilayer lid comprising a layer of amorphous thermoplastic polyester (APET) (paragraph [0056]). Trombley is providing the multilayer lid with a layer of amorphous thermoplastic polyester in order to provide a tear resistant property to the lid to provide greater child resistant properties to protect the contents of the container. To therefore modify Gelov as further evidenced by IBJ in view of JHCP in view of Benson and provide the multilayer lid with an amorphous thermoplastic polyester layer as taught by Trombley would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Claims 11 – 15 are rejected under 35 U.S.C. 103 as being unpatentable over Gelov et al US 2019/0053511 as further evidenced by the Indianapolis Business Journal (IBJ) in view of Java House in view of Benson et al. US 2021/0094744 in view of Foster US 2017/0121050
Regarding claim 11, Gelov as further evidenced by IBJ in view of JHCP in view of Benson disclose the circular base would include an inner diameter and an outer diameter (‘744, fig. 4). It is The Office’s position that Gelov as further evidenced by IBJ in view of JHCP in view of Benson teach the inside diameter of the container at the base would have an inner diameter and the outside diameter of the container at the base would have an outside diameter.
In the event that claim 11 can be construed as the inner and an outer diameter would be on the outside surface of the base of the container Foster discloses a container capable of storing a concentrated beverage which container has a circular base (12) and includes an inner diameter of about 31.5 mm (r1) (9 mm – 100 mm) and an outer diameter of about 38.5 mm (R) (20 mm – 100 mm) (fig. 1 and 4) (paragraph [0019] – [0022]). Foster further discloses that providing the inner and outer diameter to the circular base of the container advantageously reduces stress on the container (paragraph [0018]). To therefore modify Gelov as further evidenced by IBJ in view of JHCP in view of Benson and provide inner and outer diameters to the circular base of the container as taught by Foster to reduce stress on the container would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Regarding claim 12, Gelov as further evidenced by IBJ in view of JHCP in view of Benson in view of Hale disclose the circular base would include a downwardly extending ridge (20/24) (fig. 3 and 4) between the inner diameter and the outer diameter (paragraph [0022]).
Regarding claim 13, once it was known that the container would be designed as a K-cup to fit a Keurig coffee brewing machine and would have a circular base that would have an inner diameter and an outer diameter as Gelov as further evidenced by IBJ in view of JHCP in view of Benson in view of Hale disclose it is not seen that patentability would be predicated on the specific diameter of the inner and outer diameters of the circular base. Limitations relating to the diameter of the inner diameter and outer diameter of the circular base of the container are not sufficient to patentably distinguish over the prior art. The mere scaling up or down of a prior art inner and outer container circular base diameters capable of being so scaled, if such were the case, would not establish patentability in a claim to an old container’s circular base so scaled. Where the only difference between the inner and outer diameters of the container’s circular base and the claims is a recitation of relative dimensions of the claimed diameters and a container’s circular base having the claimed relative dimensions would not perform differently than the prior art container’s circular base, the claimed inner and outer diameters of the circular base of the container is not patentably distinct from the prior art container’s circular base (MPEP § 2144.04 IV.A.). Nevertheless, claim 13 is further rejected with respect to the inner diameter and outer diameter for the same reasons given above in the rejection of claim 11.
Claims 14 and 15 differ from Gelov as further evidenced by IBJ in view of JHCP in view of Benson in the outer sidewall surface being not perpendicular to the top rim and extending at an angle from the top rim in a range of 87 degrees and 89 degrees.
Regarding claims 14 and 15, once Gelov as further evidenced by IBJ in view of JHCP in view of Benson disclose a container capable of storing a concentrated beverages as shown in the screen shots of JHCP above and that said container would be capable of use in a Keurig single serve coffee maker it is not seen that patentability would be predicated on the outer sidewall being not perpendicular to the top rim or the circular base or the particular angle that would be employed since this would be an obvious matter of choice and/or design which the ordinarily skilled artisan would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant (MPEP § 2144.04 IV.B.). Nevertheless, Foster discloses a container capable of storing concentrated beverages wherein the outer sidewall surface is not perpendicular to the top rim of the circular base (fig. 7) and the sidewall surface extends at an angle (Φ) (paragraph [0021]) from the tip rim in a range of 90 degrees (approach angel Φ of the sidewall 2 degrees – 10 degrees to the vertical is 90 degrees from the horizontal) (paragraph [0022]). Foster is employing an outer sidewall surface being that is not perpendicular to the top rim and extending at an angle from the top rim in a range of 87 degrees and 89 degrees for the art recognized as well as applicant’s intended function which is to increase strength and to facilitate the punctureability of the container (paragraph [0020] – [0021]). To therefore modify Gelov as further evidenced by IBJ in view of JHCP in view of Benson and employ an outer sidewall surface being that is not perpendicular to the top rim and extending at an angle from the top rim in a range of about 87 degrees and 89 degrees as taught by Foster would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Further regarding claim 15, where the claimed ranges or amounts do not overlap with the prior art but are merely close, in this case within one degree, the angle is so close that prima facie the ordinarily skilled artisan would have expected the angle to provide the same structural properties (MPEP § 2144.05 l.).
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Gelov et al US 2019/0053511 as further evidenced by the Indiana Business Journal (IBJ) in view of Java House in view of Benson et al. US 2021/0094744 in view of Bentley et al. US 4,853,234.
Claim 17 differs from Gelov as further evidenced by IBJ in view of JHCP in view of Benson in the aseptic liquid including sugar.
Bentley discloses a container capable of storing concentrated beverages (liquid beverage ingredients, concentrate) and that the container would also include sucrose (sugar) and/or artificial sweeteners (col. 5, ln 10 – 18). Bentley is providing the container with sucrose according to the individual taste of those that might desire a sweeter beverage and therefore it is seen to have been an obvious matter of personal taste to have included sucrose in the container, which is to say that to modify Gelov as further evidenced by IBJ in view of JHCP and include sucrose as taught by Bentley would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Further, once it was known to provide the container with an artificial sweetener it is not seen that patentability would be predicated on the particular sweetener one would choose to include. The selection of a known material based on its suitability for its intended use would have been obvious (MPEP 2144.07).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHAIM A SMITH whose telephone number is (571)270-7369. The examiner can normally be reached Monday-Thursday 09:00-18:00.
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/C.S./
Chaim SmithExaminer, Art Unit 1791 11 July 2026
/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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