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
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in Portugal on 03/01/2024. It is noted, however, that applicant has not filed a certified copy of the 119234 application as required by 37 CFR 1.55.
Information Disclosure Statement
The Office is hereby sua sponte waiving the express language requirement of 37 CFR 1.63(b)(3), where the oath or declaration was filed prior to 01 June 2008. The express language of 37 CFR 1.63(b)(3) is waived only to the extent necessary such that an oath or declaration containing the “material to examination” or “in accordance with § 1.56(a)” language, or both, will be accepted as acknowledging the applicant’s duty to disclose information “material to patentability” as defined in 37 CFR 1.56. Applicants are advised that, notwithstanding the preceding waiver, an applicant who has not disclosed information that is material to patentability as defined in 37 CFR 1.56, because it was believed that the information was not “material to the examination,” should disclose such information in order to discharge the applicant’s duty of disclosure as required by 37 CFR 1.56, and should file a supplemental oath or declaration acknowledging that duty of disclosure.
The individuals covered by 37 CFR 1.56 cannot assume that the examiner
of a particular application is necessarily aware of other applications which are “material to patentability” of the application in question, but must instead bring such other applications to the attention of the examiner. See Dayco Prod., Inc. v. Total Containment, Inc., 329 F.3d 1358, 1365-69, 66 USPQ2d 1801, 1806-08 (Fed. Cir. 2003). For example, if a particular inventor has different applications pending in which similar subject matter but patentably indistinct claims are present that fact must be disclosed to the examiner of each of the involved applications. Similarly, the prior art references from one application must be made of record in another subsequent application if such prior art references are “material to patentability” of the subsequent application. See Dayco Prod., 329 F.3d at 1369, 66 USPQ2d at 1808. See MPEP 2001.06(b).
Claim Objections
Claim 1 is objected to because of the following informalities: In line 10 of the claim, “the said insertion member—is an error for –the insertion member--.
Claims 2-4, 6 and 8-10, for a more exact antecedent basis for this limitation “The capsule” and “the capsule” its recommended replacing with –The container tamper detection capsule—and –the container tamper detection capsule--.
Appropriate correction is required.
Specification
The disclosure is objected to because of the following informalities: in the following paragraphs [0108], [0109], [0113], [0114], [0116], [0117], [0119] and [0120], the many reference number are just called “member” for example, in [0109] “the member (3)” should read –the axial displacement member (3)— in order to correspond with the rest of the specification.
Appropriate correction is required.
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 9-10 and 12-13 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 9 recites the limitation "A method of closing a container comprising using the capsule according to claim 8" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim and appears to be an error for --The method of closing a container comprising using the capsule according to claim 8--.
Claim 9 recites the limitation "containing a beverage selected from the group consisting of wine, beer, spirits, water and soft drinks" in lines 3-4. This limitation is unclear because this would require the container to contain a beverage in addition to containing food or non-food products. However, if this is further limiting the food or non-food limitation, the limitation should be written similar to the following –wherein the food or non-food product is a beverage selected from the group consisting of wine, beer, spirits, water and soft drinks--.
Claim 10 recites the limitation "A method of closing a container comprising using the capsule according to claim 8" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim and appears to be an error for --The method of closing a container comprising using the capsule according to claim 8--.
Claim 10 recites the limitation "containing a cosmetic product" in line 3. This limitation is unclear because this would require the container to contain a cosmetic product in addition to containing food or non-food products. However, if this is further limiting the food or non-food limitation, the limitation should be written similar to the following –wherein the food or non-food product is a cosmetic product--.
Claim 12 recites the limitation "A method of closing a container comprising using the capsule according to claim 11" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim and appears to be an error for --The method of closing a container comprising using the capsule according to claim 11--.
Claim 12 recites the limitation "containing a beverage selected from the group consisting of wine, beer, spirits, water and soft drinks" in lines 3-4. This limitation is unclear because this would require the container to contain a beverage in addition to containing food or non-food products. However, if this is further limiting the food or non-food limitation, the limitation should be written similar to the following –wherein the food or non-food product is a beverage selected from the group consisting of wine, beer, spirits, water and soft drinks--.
Claim 13 recites the limitation "A method of closing a container comprising using the capsule according to claim 11" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim and appears to be an error for --The method of closing a container comprising using the capsule according to claim 11--.
Claim 13 recites the limitation "containing a cosmetic product" in line 3. This limitation is unclear because this would require the container to contain a cosmetic product in addition to containing food or non-food products. However, if this is further limiting the food or non-food limitation, the limitation should be written similar to the following –wherein the food or non-food product is a cosmetic product--.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 4, 6-9, and 11 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 4 fails to further limit the capsule in which it depend and instead limits a container lid. Claim 6 fails to further limit the capsule in which it depend and instead limits a capsule production process. Claim 7 fails to further limit the container lid in which it depends and the capsule in which it further depends and instead limits a lid production process. Claim 8 fails to further limit the capsule in which it depends and instead limits a method of closing a container. Claim 11 fails to further limit the lid in which it depends and the capsule in which it further depends and instead limits a method of closing a container.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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, 4-9 and 11-12 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Giovannini et al. (US 9,114,912) which in figures 4a-4d discloses the following claimed invention:
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In re claim 1: A container tamper detection capsule, comprising: an upper cover member UCM comprising a top through-opening TTO; an axial displacement member ADM comprising an alignment member AM and an insertion member IM; and a lower cover member LCM comprising a bottom through-opening BTO; characterized in that wherein the upper cover member UCM is coupled to the lower cover member LCM, forming an assembly that defines a cavity within; and the axial displacement member ADM is arranged in the cavity of the assembly, the insertion member IM being fitted to the lower cover member LCM and said alignment member AM inserted into the top through-opening TTO of the upper cover member UCM; wherein, in operation, the axial displacement member ADM is axially displaceable relative to the assembly from a first closed position (fig.4a), in which a face F of the alignment member AM is aligned with a top surface TS of the upper cover member UCM, to a second open, fixed and irreversible position (fig.4c), in which the insertion member IM is axially blocked in the lower cover member LCM and said face F of the alignment member AM is recessed with respect to said top surface TS of the upper cover member UCM (see figure 4d above of Giovannini et al.).
In re claim 2: the insertion member IM and the lower cover member LCM comprise clip-type and indentation-type axial retention means ARM (see figure 4d above of Giovannini et al.).
In re claim 4: A container lid CL comprising the capsule of claim 1 and a stopper member SM (see figure 4d above of Giovannini et al.).
In re claim 5:the stopper member SM is made of a material selected from the group consisting of plastic, wood, cork, aluminum, composites and their combinations thereof (see col.3, ll.8-19 of Giovannini et al.).
In re claim 6: A capsule production process according to claim 1, comprising the following steps: fitting the insertion member IM of the axial displacement member ADM to the lower cover member LCM; and attaching the upper cover member UCM and the lower cover member LCM, by inserting the alignment member AM into the top through-opening TTO of the upper cover member UCM (see figures 4a-4c and 4d above of Giovannini et al.).
In re claim 7: A lid production process according to claim 4 comprising the following steps: fitting the insertion member IM of the axial displacement member ADM to the lower cover member LCM; attaching the upper cover member UCM and the lower cover member LCM, by inserting the alignment member AM into the top through-opening TTO of the upper cover member UCM; and gluing a top of the stopper member SM to a face of the insertion member IM through said bottom through-opening BTO of the lower cover member LCM (see col.5, ll.28-33 and 4a-4c and 4d above of Giovannini et al.).
In re claim 8: A method of closing a container 100 comprising using the capsule according to claim 1 to close the container 100, wherein the container containing food or non-food products (see col.3, ll.8-19 of Giovannini et al.).
In re claim 9: A method of closing a container 100 comprising using the capsule according to claim 8 to close the container 100, wherein the container containing a beverage selected from the group consisting of wine, beer, spirits, water and soft drinks (see col.3, ll.8-19 of Giovannini et al.).
In re claim 11: A method of closing a container 100 comprising using the lid according to claim 4 to close the container 100, wherein it closes the container containing food or non-food products (see col.3, ll.8-19 of Giovannini et al.).
In re claim 12: A method of closing a container 100 comprising using the lid according to claim 11 to close the container 100, wherein the container containing a beverage selected from the group consisting of wine, beer, spirits, water and soft drinks (see col.3, ll.8-19 of Giovannini et al.).
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.
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Giovannini et al. (US 9,114,912). Giovannini et al. discloses the claimed invention as discussed above with the exception of specifically disclosing the following claimed limitations:
In re claim 3: the upper cover and lower cover members are made of a material selected from the group consisting of plastic, wood, cork, composites and combinations thereof (see col.3, ll.8-19 of Giovannini et al.).
It would have been obvious to one having ordinary skill in the art at the time the invention was effectively filed to use one of the claimed materials in order to provide the desired material cost or material properties for a reliable closure. It has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Furthermore, it was notoriously well-known in the art at the time the invention was effectively filed to use materials such as plastic, wood, cork, composites and combinations thereof in the closure art. For evidence, see the references listed in the attached PTO-892.
Claim(s) 10 and 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Giovannini et al. (US 9,114,912) in view of Nakatani et al. (US 10,479,561). Giovannini et al. discloses the claimed invention as discussed above with the exception of specifically disclosing the following claimed limitations that is taught by Nakatani et al.:
In re claim 10: A method of closing a container P comprising using the capsule to close the container P, wherein the container P containing a cosmetic product (see col.1, ll.5-9 of Nakatani et al.).
In re claim 13: A method of closing a container P comprising using the lid to close the container P, wherein the container P containing a cosmetic product (see col.1, ll.5-9 of Nakatani et al.).
It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to modify the product being held by Giovannini et al. with a cosmetic product as taught by Nakatani et al. as an equivalent liquid product that required sealed protection (see col.1, ll.5-9 of Nakatani et al.). It should be noted that Nakatani et al. further teaches that it was notoriously well-known in the bottle closure art at the time the invention was effectively filed to store a plurality of different products such as, chemicals, cosmetics, drugs and medicines, detergents, foods, beverages, adhesives, paint, and ink (see col.1, ll.5-9 of Nakatani et al.)
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See the attached PTO-892 for prior art the teaches and suggest structural limitations of the claimed and disclosed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERNESTO A GRANO whose telephone number is (571)270-3927. The examiner can normally be reached M-F 7:00-3:30 EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anthony Stashick can be reached at (571)272-4561. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ERNESTO A GRANO/Primary Examiner, Art Unit 3735