DETAILED ACTION
Claim Objections
1. Claim 16 is objected to because of the following informalities:
Regarding claim 16, the term “aa” (line 6) should be “a”; the terms “an external thread formation” “a container” (line 9) should be “the external thread formation of the container”.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
2. 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.
3. Claims 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over US 2017/0066164 (Luzzato).
Regarding claim 1, Luzzato teaches a closure comprising:
a first closure portion including:
a polymeric top wall portion (10; the entire cap is taught to be formed of polypropylene or polyethylene in para. [0028]);
a polymeric annular skirt portion (12.1) depending from the polymeric top wall portion, the annular skirt portion including an exterior surface (radially outer surface) and an interior surface (radially inner surface), the interior surface of the annular skirt portion including an internal thread formation (16) for mating engagement with an external thread formation of a container; and
a second closure portion including:
a polymeric tamper-evident band depending from and being at least partially detachably connected to the polymeric annular skirt portion by a frangible connection (20), the polymeric tamper-evident band including a first portion (12.2) and a second portion (22) connected via a bending area (unlabeled area between 12B and 22A in Figure 3), the first portion having a flared end (12B) in which the thickness of the flared end is at least 1.25 times greater than the thickness of a directly adjacent section of the first portion (not explicitly taught), the second portion extending generally upwardly from the bending area towards the polymeric top wall portion (22 extends upwardly from the region of 22A in Figure 1) and being located inwardly from the first portion of the polymeric tamper-evident band (22 is located radially inwardly of 12.2 as seen in Figure 1), the second portion of the tamper-evident band including a tab portion (the portion of 22 extending from 22A to 22B and progressively projecting radially inward to form a maximum radial width at ledge 24) and an extension portion (26), the tab portion including an upper section (24) and a lower section (22 adjacent 22B), the upper section of the tab portion being located closer to the extension portion than the bending area (24 is closer to 26 than the upper portion of 22 as seen in Figure 1), the lower section of the tab portion being located closer to the bending area than the extension portion (lower section of 22 is closer to 22A), the extension portion being located further from the bending area than the tab portion (26 is farther from 22A than 22B), the average thickness of the tab portion being greater than the average thickness of the extension portion (22B is thicker than 26 as seen in Figure 1), the extension portion extending continuously around an entire inner circumference of the closure (see 22 being annular in Figure 2).
Luzzato fails to teach the thickness of the flared end is at least 1.25 times greater than the thickness of a directly adjacent section of the first portion. However, Examiner notes that portion (12B) is thicker than the portion of (12) immediately above it in Figure 3.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Luzzato, forming the flared end to a thickness 1.25 times greater than the thickness of a directly adjacent section of the first portion, motivated by an obvious change in size, having a predictable outcome absent a teaching of an unexpected result. A change in size, absent a teaching of an unexpected result, is within ordinary skill in the art. See MPEP 2144.04(IV)(A):
In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) (Claims directed to a lumber package “of appreciable size and weight requiring handling by a lift truck” where held unpatentable over prior art lumber packages which could be lifted by hand because limitations relating to the size of the package were not sufficient to patentably distinguish over the prior art.); In re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA 1976) (“mere scaling up of a prior art process capable of being scaled up, if such were the case, would not establish patentability in a claim to an old process so scaled.” 531 F.2d at 1053, 189 USPQ at 148.).
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In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.
Regarding claim 2, Luzzato fails to teach that the thickness of the flared end is at least 1.5 times greater than the thickness of the directly adjacent section of the first portion.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Luzzato, forming the flared end to a thickness 1.5 times greater than the thickness of a directly adjacent section of the first portion, motivated by an obvious change in size, having a predictable outcome absent a teaching of an unexpected result. A change in size, absent a teaching of an unexpected result, is within ordinary skill in the art. See MPEP 2144.04(IV)(A).
Regarding claim 3, Luzzato fails to teach that the thickness of the flared end is at least 1.75 times greater than the thickness of the directly adjacent section of the first portion.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Luzzato, forming the flared end to a thickness 1.75 times greater than the thickness of a directly adjacent section of the first portion, motivated by an obvious change in size, having a predictable outcome absent a teaching of an unexpected result. A change in size, absent a teaching of an unexpected result, is within ordinary skill in the art. See MPEP 2144.04(IV)(A).
Regarding claim 4, Luzzato fails to teach that the thickness of the flared end is from about 1.25 to about 2.5 times greater than the thickness of the directly adjacent section of the first portion.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Luzzato, forming the flared end to a thickness from about 1.25 to about 2.5 times greater than the thickness of a directly adjacent section of the first portion, motivated by an obvious change in size, having a predictable outcome absent a teaching of an unexpected result. A change in size, absent a teaching of an unexpected result, is within ordinary skill in the art. See MPEP 2144.04(IV)(A).
Regarding claim 5, Luzzato fails to teach that the thickness of the flared end is from about 1.5 to about 2.5 times greater than the thickness of the directly adjacent section of the first portion.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Luzzato, forming the flared end to a thickness from about 1.5 to about 2.5 times greater than the thickness of a directly adjacent section of the first portion, motivated by an obvious change in size, having a predictable outcome absent a teaching of an unexpected result. A change in size, absent a teaching of an unexpected result, is within ordinary skill in the art. See MPEP 2144.04(IV)(A).
Regarding claim 6, the extension portion is spaced entirely from the interior surface of the polymeric annular skirt portion before mating engagement with the container (see configuration of Figure 2).
Regarding claim 7, the tab portion and the extension portion are substantially vertical after fitment with a container (clearly shown in Figure 1).
Regarding claim 8, the extension portion of the tamper-evident band is at an angle of from 5 to about 30 degrees inwardly relative to an axis extending to the polymeric top wall portion before mating engagement with the container (Examiner notes the movement from Figure 2, whereby band 22 has a nearly 180 degree relationship to a vertical axis, to the position shown in Figure 1 whereby band 22 has a 0 degree relationship to a vertical axis, by which the band inherently passes a 30-degree angle relative to vertical before arriving at the parallel position of Figure 1).
Regarding claim 9, the extension portion of the tamper-evident band is at an angle of from about 10 to about 25 degrees inwardly relative to an axis extending to the polymeric top wall portion before mating engagement with the container (Examiner notes the movement from Figure 2, whereby band 22 has a nearly 180 degree relationship to a vertical axis, to the position shown in Figure 1 whereby band 22 has a 0 degree relationship to a vertical axis, by which the band inherently passes a 10 to 25 degree angle relative to vertical before arriving at the parallel position of Figure 1).
Regarding claim 10, the extension portion of the tamper-evident band is at an angle of from 10 to about 20 degrees inwardly relative to an axis extending to the polymeric top wall portion before mating engagement with the container (Examiner notes the movement from Figure 2, whereby band 22 has a nearly 180 degree relationship to a vertical axis, to the position shown in Figure 1 whereby band 22 has a 0 degree relationship to a vertical axis, by which the band inherently passes a 10 to 20 degree angle relative to vertical before arriving at the parallel position of Figure 1).
Regarding claim 11, Luzzato fails to teach that the average thickness of the tab portion is from about 2 to about 8 times greater than the average thickness of the extension portion. However, Examiner notes that the tab portion (22b) is thicker than the extension portion (26) as seen in Figure 1.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Luzzato, forming the average thickness of the tab portion to be from about 2 to about 8 times greater than the average thickness of the extension portion, motivated by an obvious change in size, having a predictable outcome absent a teaching of an unexpected result. A change in size, absent a teaching of an unexpected result, is within ordinary skill in the art. See MPEP 2144.04(IV)(A).
Regarding claim 12, Luzzato fails to teach that the average thickness of the tab portion is from about 3 to about 6 times greater than the average thickness of the extension portion.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Luzzato, forming the average thickness of the tab portion to be from about 3 to about 6 times greater than the average thickness of the extension portion, motivated by an obvious change in size, having a predictable outcome absent a teaching of an unexpected result. A change in size, absent a teaching of an unexpected result, is within ordinary skill in the art. See MPEP 2144.04(IV)(A).
Regarding claim 13, Luzzato fails to teach that the length of the tab portion is from about 0.75 to about 3 times greater than the length of the extension portion. However, Examiner notes the length of the tab portion (extending from 22A to 22B) is longer than the length of the extension portion (26) as seen in Figure 1.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Luzzato, forming the length of the tab portion to be from about 0.75 to about 3 times greater than the length of the extension portion, motivated by an obvious change in size, having a predictable outcome absent a teaching of an unexpected result. A change in size, absent a teaching of an unexpected result, is within ordinary skill in the art. See MPEP 2144.04(IV)(A).
Regarding claim 14, Luzzato fails to teach that the length of the tab portion is from about 1 to about 2 times greater than the length of the extension portion.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Luzzato, forming the length of the tab portion to be from about 1 to about 2 times greater than the length of the extension portion, motivated by an obvious change in size, having a predictable outcome absent a teaching of an unexpected result. A change in size, absent a teaching of an unexpected result, is within ordinary skill in the art. See MPEP 2144.04(IV)(A).
Regarding claim 15, the closure is a one-piece closure (explicitly stated in para. [0028]).
Regarding claim 16, Luzatto teaches a package comprising:
a container (2) having a neck portion (3) defining an opening (at rim 4), the container having an external thread formation (5) on the neck portion (see Figure 1); and
a closure (1) being configured for fitment to the neck portion of the container for closing the opening, the closure including a first closure portion and a second closure portion, the first closure portion including a polymeric top wall portion (10; the entire cap is taught to be formed of polypropylene or polyethylene in para. [0028]) and aa polymeric annular skirt portion (12.1) depending from the polymeric top wall portion, the annular skirt portion including an exterior surface (radially outer surface) and an interior surface (radially inner surface), the interior surface of the annular skirt portion including an internal thread formation (16) for mating engagement with an external thread formation (5) of a container, the second closure portion including a polymeric tamper-evident band (12.2) depending from and being at least partially detachably connected to the polymeric annular skirt portion by a frangible connection (20), the polymeric tamper-evident band including a first portion (12.2) and a second portion (22) connected via a bending area (unlabeled area between 12B and 22A in Figure 3), the first portion having a flared end (12B) in which the thickness of the flared end is at least 1.25 times greater than the thickness of a directly adjacent section of the first portion (not explicitly taught), the second portion extending generally upwardly from the bending area towards the polymeric top wall portion (22 extends upwardly from the region of 22A in Figure 1) and being located inwardly from the first portion of the polymeric tamper-evident band (22 is located radially inwardly of 12.2 as seen in Figure 1), the second portion of the tamper-evident band including a tab portion (the portion of 22 extending from 22A to 22B and progressively projecting radially inward to form a maximum radial width at ledge 24) and an extension portion (26), the tab portion including an upper section (24) and a lower section (22 adjacent 22B), the upper section of the tab portion being located closer to the extension portion than the bending area (24 is closer to 26 than the upper portion of 22 as seen in Figure 1), the lower section of the tab portion being located closer to the bending area than the extension portion (lower section of 22 is closer to 22A), the extension portion being located further from the bending area than the tab portion (26 is farther from 22A than 22B), the average thickness of the tab portion being greater than the average thickness of the extension portion (22B is thicker than 26 as seen in Figure 1), the extension portion extending continuously around an entire inner circumference of the closure (see 22 being annular in Figure 2).
Luzzato fails to teach the thickness of the flared end is at least 1.25 times greater than the thickness of a directly adjacent section of the first portion. However, Examiner notes that portion (12B) is thicker than the portion of (12) immediately above it in Figure 3.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Luzzato, forming the flared end to a thickness 1.25 times greater than the thickness of a directly adjacent section of the first portion, motivated by an obvious change in size, having a predictable outcome absent a teaching of an unexpected result. A change in size, absent a teaching of an unexpected result, is within ordinary skill in the art. See MPEP 2144.04(IV)(A):
In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) (Claims directed to a lumber package “of appreciable size and weight requiring handling by a lift truck” where held unpatentable over prior art lumber packages which could be lifted by hand because limitations relating to the size of the package were not sufficient to patentably distinguish over the prior art.); In re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA 1976) (“mere scaling up of a prior art process capable of being scaled up, if such were the case, would not establish patentability in a claim to an old process so scaled.” 531 F.2d at 1053, 189 USPQ at 148.).
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In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.
Regarding claim 17, Luzzato fails to teach that the thickness of the flared end is at least 1.5 times greater than the thickness of the directly adjacent section of the first portion.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Luzzato, forming the flared end to a thickness 1.5 times greater than the thickness of a directly adjacent section of the first portion, motivated by an obvious change in size, having a predictable outcome absent a teaching of an unexpected result. A change in size, absent a teaching of an unexpected result, is within ordinary skill in the art. See MPEP 2144.04(IV)(A).
Regarding claim 18, Luzzato fails to teach that the thickness of the flared end is from about 1.25 to about 2.5 times greater than the thickness of the directly adjacent section of the first portion.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Luzzato, forming the flared end to a thickness from about 1.25 to about 2.5 times greater than the thickness of a directly adjacent section of the first portion, motivated by an obvious change in size, having a predictable outcome absent a teaching of an unexpected result. A change in size, absent a teaching of an unexpected result, is within ordinary skill in the art. See MPEP 2144.04(IV)(A).
Regarding claim 19, Luzzato fails to teach that the thickness of the flared end is from about 1.5 to about 2.5 times greater than the thickness of the directly adjacent section of the first portion.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Luzzato, forming the flared end to a thickness from about 1.5 to about 2.5 times greater than the thickness of a directly adjacent section of the first portion, motivated by an obvious change in size, having a predictable outcome absent a teaching of an unexpected result. A change in size, absent a teaching of an unexpected result, is within ordinary skill in the art. See MPEP 2144.04(IV)(A).
Regarding claim 20, the extension portion is spaced entirely from the interior surface of the polymeric annular skirt portion before mating engagement with the container (see configuration of Figure 2).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES N SMALLEY whose telephone number is (571)272-4547. The examiner can normally be reached M-F 9:00 am to 6:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nathan Jenness can be reached at (571) 270-5055. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JAMES N SMALLEY/Examiner, Art Unit 3733