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 .
Information Disclosure Statement
It is desirable to avoid the submission of long lists of documents if it can be avoided. Clearly irrelevant and marginally pertinent cumulative information should be eliminated. If a long list is submitted, those documents which have been specifically brought to applicant's attention and/or are known to be of most significance should be highlighted. See Penn Yan Boats, Inc. v. Sea Lark Boats, Inc., 359 F. Supp. 948, 175 USPQ 260 (S.D. Fla. 1972), affd, 479 F.2d 1338, 178 USPQ 577 (5th Cir. 1973), cert. denied, 414 U.S. 874 (1974). But cf. Molins PLC v. Textron Inc., 48 F.3d 1172, 33 USPQ2d 1823 (Fed. Cir. 1995). See MPEP §2004
Applicant's duty of disclosure of material and information is not satisfied by presenting a patent examiner with "a mountain of largely irrelevant [material] from which he is presumed to have been able, with his expertise and with adequate time, to have found the critical [material]. It ignores real world conditions under which, applicant has a duty not just to disclose pertinent prior art references but to make a disclosure in such way as not to "bury" it within other disclosures of less relevant prior art; See Golden Valley Microwave Foods Inc. v. Weaver Popcorn Co. Inc., 24 USPQ2d 1801 (N.D. Ind. 1992); Molins PLC v. Textron Inc., 26 USPQ2d 1889, at 1899 (D.Del 1992); Penn Yan Boats, Inc. v. Sea Lark Boats, Inc. et al., 175 USPQ 260, at 272 (S.D. F1. 1972).
The examiner is not afforded the time to thoroughly review each reference, given the number of references cited. By initialing each of the cited references on the accompanying 1449 form(s), the examiner is merely acknowledging the submission of the cited references and indicating that only a cursory review was made of the cited references.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because:
reference character 16 has been used to designate both “opposing lower surface” and “bottom surface” (see [0022]).
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because:
reference character 36 has been used to designate “angle” or “acute angle” (see [0025-0039])
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.
Specification
The disclosure is objected to because of the following informalities: as noted in the drawing objections above. Appropriate correction is required.
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required:
“first angle”, “second angle”, “third angle” and “fourth angle” in claims 1-3, 8-16 and 18-20 (respectively).
Claim Objections
Claim 5 is/are objected to because of the following informalities:
In claim 5, ln. 1, “…wherein…” should be added “…the second line of weakness…” to correct the typographical error.
The forgoing analysis may not be exhaustive. Applicant should carefully proofread all claims and make all necessary corrections.
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 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, 4-5 and 7 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bassi (WO 2021014290 A1; hereinafter Bassi).
Regarding claim 1, Bassi discloses a closure embodiment (1; as shown in Fig. 14) comprising:
a top panel (4) including an upper surface and a lower surface;
a rotational axis (Z) about which the top panel is centered;
a cylindrical wall (3) extending from the lower surface of the top panel to a bottom edge of the cylindrical wall;
an inner surface of the cylindrical wall facing towards the rotational axis;
a retention band (301, 306 and 307) pivotally coupled to the cylindrical wall, the retention band attached to the bottom edge by a plurality of frangible members (503), the plurality of frangible members providing a visual indication, when broken, that the closure has been opened;
a first line of weakness (i.e. the form of separation line (5)) that separates the cylindrical wall and the retention band, wherein the plurality of frangible members extend across the first line of weakness and connect the cylindrical wall and the retention band, the first line of weakness extending circumferentially with respect to the rotational axis from a first end (501) to a second end (502), wherein the first end and the second end are separated by a first angle with respect to the rotational axis;
a second line of weakness (i.e. in the form of incision line (7)) that extends circumferentially with respect to the rotational axis, wherein the second line of weakness is distinct from the first line of weakness, the second line of weakness including a central portion (308a) that extends horizontally and circumferentially, and side portions (6) that extend upward from the central portion;
a first tether (306) that couples the cylindrical wall to the retention band, wherein the first tether extends between the second line of weakness and the first end of the first line of weakness;
a second tether (307) that couples the cylindrical wall to the retention band, wherein the second tether extends between the second line of weakness and the second end of the first line of weakness; and
a tab (308) that extends from the cylindrical wall, the tab defined by the central portion and the side portions of the second line of weakness, the tab configured to interface against a container neck of a container subsequent to the closure being opened, thereby biasing the cylindrical wall from the container neck, wherein the central portion defines a second angle with respect to the rotational axis, wherein the second angle is greater than the first angle (Bassi pg. 12 ln. 1 – pg. 28 ln. 4 and see annotated Fig. 14 below).
PNG
media_image1.png
853
1101
media_image1.png
Greyscale
Regarding claim 4, Bassi further discloses wherein the closure is configured to be affixed to a container neck of a container (see annotated Bassi Fig. 14 above), and wherein the retention band is configured to remain coupled to the container after the closure has been opened.
Regarding claim 5, Bassi further discloses the second line of weakness comprising lateral portions (702 and 703) extending circumferentially away from the side portions, wherein the lateral portions are closer to the top panel than the central portion (see annotated Bassi Fig. 14 above).
Regarding claim 7, Bassi further discloses wherein the closure is configured to be affixed to a container neck of a container, wherein the retention band is configured to remain coupled to the container after the closure has been opened, the tab comprising an upper portion and a lower portion that is further from the top panel than the upper portion, the lower portion defining an interfacing surface that interfaces against the container neck to bias the top panel away from an opening of the container neck.
Double Patenting
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 18-20 is/are rejected under 35 U.S.C. 101 as claiming the same invention as that of claim 18-20 of U.S. Patent No. 12,252,304 (reference application).
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 1-7, 10-15 and 17 is/are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 and 13-17 of U.S. Patent No. 12,252,304. Although the claims at issue are not identical, they are not patentably distinct from each other.
Regarding claim 1 (of the instant application) and claims 1, 3-4, 8 and 18 (of the ‘304 patent), both disclose or teach a closure comprising:
a top panel including an upper surface and a lower surface;
a rotational axis about which the top panel is centered;
a cylindrical wall extending from the lower surface of the top panel to a bottom edge of the cylindrical wall;
an inner surface of the cylindrical wall facing towards the rotational axis;
a retention band pivotally coupled to the cylindrical wall, the retention band attached to the bottom edge by a plurality of frangible members, the plurality of frangible members providing a visual indication, when broken, that the closure has been opened;
a first line of weakness that separates the cylindrical wall and the retention band, wherein the plurality of frangible members extend across the first line of weakness and connect the cylindrical wall and the retention band, the first line of weakness extending circumferentially with respect to the rotational axis from a first end to a second end, wherein the first end and the second end are separated by a first angle with respect to the rotational axis;
a second line of weakness that extends circumferentially with respect to the rotational axis, wherein the second line of weakness is distinct from the first line of weakness, the second line of weakness including a central portion that extends horizontally and circumferentially, and side portions that extend upward from the central portion;
a first tether that couples the cylindrical wall to the retention band, wherein the first tether extends between the second line of weakness and the first end of the first line of weakness;
a second tether that couples the cylindrical wall to the retention band, wherein the second tether extends between the second line of weakness and the second end of the first line of weakness; and
a tab [that extends from the cylindrical wall], the tab defined by the central portion and the side portions of the second line of weakness, the tab configured to interface against a container neck of a container subsequent to the closure being opened, thereby biasing the cylindrical wall from the container neck, wherein the central portion defines a second angle with respect to the rotational axis, wherein the second angle is greater than the first angle.
As for claims 2-7 (of the instant application), the limitations can be found in claims 2, 5-7 and 9 (of the ‘304 patent).
Regarding claim 10 (of the instant application) and claim 13 (of the ‘304 patent), both disclose or teach a closure comprising:
a top panel including an upper surface and a lower surface;
a rotational axis about which the top panel is centered;
a cylindrical wall extending from the lower surface of the top panel to a bottom edge of the cylindrical wall;
an inner surface of the cylindrical wall facing towards the rotational axis;
a retention band pivotally coupled to the cylindrical wall, the retention band attached to the bottom edge by a plurality of frangible members, the plurality of frangible members providing a visual indication, when broken, that the closure has been opened;
a first line of weakness that separates the cylindrical wall and the retention band, wherein the plurality of frangible members extend across the first line of weakness and connect the cylindrical wall and the retention band, the first line of weakness extending circumferentially with respect to the rotational axis from a first end to a second end, wherein the first end and the second end are separated by a first angle with respect to the rotational axis, wherein the first angle is acute;
a second line of weakness extending circumferentially with respect to the rotational axis from a third end to a fourth end, wherein the second line of weakness is distinct from the first line of weakness, wherein the third end and the fourth end are separated by a second angle with respect to the rotational axis, wherein the second angle is acute, and wherein a ratio of the first angle to the second angle is between 1:3 and 1:8;
a first tether that couples the cylindrical wall to the retention band, wherein the first tether extends between the second line of weakness and the first end of the first line of weakness; and
a second tether that couples the cylindrical wall to the retention band, wherein the second tether extends between the second line of weakness and the second end of the first line of weakness.
As for claims 11-15 and 17 (of the instant application), the limitations can be found in claims 14-17 (of the ‘304 patent).
Allowable Subject Matter
Claims 8-9 and 16 is/are objected to as being dependent upon a rejected base claim (in particular claims 1, 7, 10 and 15 (respectively)), but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRIJESH V. PATEL whose telephone number is (571)270-1878. The examiner can normally be reached Monday - Thursday 6:00 am - 4:00 pm.
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, Orlando E. Avilés can be reached on 571-270-5531. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit ttps://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/B. V. P./
Examiner, Art Unit 3736
/ORLANDO E AVILES/Supervisory Patent Examiner, Art Unit 3736