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 .
The amendment filed 7/13/2026 has been entered.
Claim Rejections - 35 USC § 102
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) 1-7, and 18-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US Patent No. 5,874,141 (Matsui hereinafter).
In re claim 1, with reference to Fig. 1 below, Matsui discloses: An injection molded (“injection molding” column 4, lines 11-17) plastic (“suitable plastic”, “PET” column 4, lines 20-23) container, comprising: a base portion (15/16) configured to support the plastic container on a surface, the base portion including an outer peripheral edge portion (16) and a central base portion (15) disposed inwardly from the outer peripheral edge portion and having a curved portion with variable thickness (at joint of 15 with 16, see Fig. 1 below); a body portion (at 11) extending above the base portion; and a neck portion (13) extending above the body portion, the neck portion including a formation (“threads” T) configured to receive a cap or closure (column 4, lines 25-29); wherein the plastic container is formed as a final article without blow molding a preform (Note that the article of Fig. 1 is considered the final form of an injection molded article, having no blow molding performed prior to that of state of Fig. 1), the body portion and the base portion are not biaxially oriented (interpreted as a result of blow molding, parison 10 shown in Fig. 1 has not been blow molded); and a wall thickness of the neck portion, excluding the formation, is less than a minimum wall thickness of the base portion (see fig. 1 below where the claimed relative size limitations are clearly gleaned from the disclosure).
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In re claim 2, with reference to the Figs. noted above, Matsui discloses the claimed invention including wherein the neck formation in the neck portion comprises threading (at “T”, see in re claim 1 above).
In re claim 3, with reference to the Figs. noted above, Matsui discloses the claimed invention including wherein the plastic container comprises a jar (the term “jar” does not apply any further structural limitations to the container, and the shape of Fig. 1 above can be considered to be a jar inasmuch as is taught by Applicant’s specification in paragraph 0075, there being no special definition of the term).
In re claims 4, 5, and 6, with reference to the figs. Noted above, Matsui discloses the claimed invention including wherein a ratio of an outer diameter of the container to an overall length/height of the container is about 0.70 or greater (though absent specific literal teaching of the claimed ratio, the container shown in fig. 1 above is clearly greater in outer diameter than it is in height, and therefore has at least such a ratio of greater than 1.0, which satisfies the 0.7 or greater, 0.75 or greater, and 0.8 or greater limitations of the claims).
In re claim 7, with reference to the Figs. noted above, Matsui discloses the claimed invention including wherein the wall thickness of the neck portion, excluding the neck formation, is less than a minimum wall thickness of the body portion (see fig. 1 above).
In re claim 18, with reference to the Figs. noted above, Matsui discloses the claimed invention including wherein the base portion has a maximum thickness at or about an outer edge portion (at 16) of the base portion (see Fig. 1 above).
In re claim 19, with reference to the Figs. noted above, Matsui discloses the claimed invention including wherein the central base portion includes a raised central portion (at recess 17, see Fig. 1 above).
In re claim 20, with reference to the Figs. noted above, Matsui discloses the claimed invention including wherein the plastic comprises polyethylene terephthalate (PET) (as in re claim 1 above).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 8-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Matsui.
In re claims 8 and 10, with reference to the figs. Noted above, Matsui discloses the claimed invention including wherein the minimum wall thickness of the base portion (at portion 15) is greater than a maximum wall thickness of the neck portion, excluding the neck formation (see Fig. 1 above), and the base portion has a wall thickness in at least a portion thereof (at 16) that is greater than the maximum wall thickness in the neck portion, excluding the formation (see Fig. 1 above), but not specifically wherein the minimum wall thickness of the base portion is at least 1.09 times a maximum wall thickness of the neck portion, excluding the neck formation, and the base portion has a wall thickness in at least a portion thereof that is more than two times the maximum wall thickness in the neck portion, excluding the neck formation, the base portion being configured to provide structural support for the plastic container when holding hot-filled or pasteurized contents.
It has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed (“to provide structural support for the plastic container when holding hot-filled or pasteurized contents”) does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. See MPEP 2114, II. Absent evidence to the contrary, the base portion of Matsui is formed of a material capable of providing support to filled contents depending upon the temperature and pressure of a non-claimed filling/pasteurizing procedure.
However, it would have been obvious to one having ordinary skill in the art at the time the invention was made to have minimally tailored the dimensions/proportions of the wall thicknesses as claimed while retaining essentially the same proportions as shown in Matsui, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. Please note that in the instant application, paragraph 0058, applicant has not disclosed any criticality for the claimed limitations/ratios.
In re claim 9, with reference to the figs. Noted above, Matsui discloses the claimed invention except wherein the minimum wall thickness of the base portion is at least 1.12 times a maximum wall thickness of the body portion.
However, it would have been obvious to one of ordinary skill in the art at the time of the invention to have slightly modified the relative thicknesses of the base and body, since the court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant (MPEP 2144.04, IV, B). Please note that in the instant application, paragraph 0058, applicant has not disclosed any criticality for the claimed limitations/ratio.
In re claim 11, with reference to the figs. Noted above, Matsui discloses the claimed invention including wherein at least a portion of the body portion has a wall thickness that is greater than a maximum wall thickness in the neck portion, excluding the neck formation (see Fig. 1 above), the wall thickness of the body portion is configured to provide structural support for the plastic container when holding hot-filled or pasteurized contents (same rationale as in re claim 10 above regarding the capability of the base portion), but not specifically wherein at least a portion of the body portion has a wall thickness that is more than 1.43 times the maximum wall thickness in the neck portion, excluding the formation.
However, it would have been obvious to one having ordinary skill in the art at the time the invention was made to have minimally tailored the dimensions/proportions of the wall thicknesses of the body portion and neck portion as claimed while retaining essentially the same proportions as shown in Matsui, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. Please note that in the instant application, paragraph 0058, applicant has not disclosed any criticality for the claimed limitations/ratios.
Claim(s) 12-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Matsui as applied to claim 1 above, and further in view of US PG Pub No. 2014/0069884 (Paredes hereinafter).
In re claim 12, with reference to the Figs. noted above, Matsui discloses the claimed invention except wherein in cross section, at least a portion of the body portion has a non-circular shape.
However, with reference to Figs. 3-5, Paredes discloses a container (22) wherein in cross section (Xsec, annotated below), at least a portion of the body portion (26) has a non-circular shape.
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It would have been obvious to one of ordinary skill in the art at the time of the invention to have modified the shape of the body to have included a portion which is non-circular, such as for the purposes of allowing for a tilted position without rolling (paragraphs 0031-0033), since the court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant (MPEP 2144.04, IV, B). Please note that in the instant application, paragraph 0054, applicant has not disclosed any criticality for the claimed limitations.
In re claim 13, with reference to the Figs. noted above, Matsui in view of Paredes discloses the claimed invention including wherein in cross section, at least a portion of the body portion has a polygonal shape (as in re claim 12 above).
In re claim 14, with reference to the Figs. noted above, Matsui in view of Paredes discloses the claimed invention except wherein in cross section, at least a portion of the body portion has an octagonal shape.
It would have been obvious to one of ordinary skill in the art at the time of the invention to have formed the six-sided cross-sectional shape as instead an eight sided cross-sectional shape, such as an octagon, since the court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant (MPEP 2144.04, IV, B). Please note that in the instant application, paragraph 0054, applicant has not disclosed any criticality for the claimed limitations.
In re claim 15, with reference to the Figs. noted above, Matsui in view of Paredes discloses the claimed invention including wherein the body portion includes a plurality of panels (at 60 when modified to have the non-circular cross section as in re claim 12 above).
It has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed (“configured to function as vacuum panels in connection with hot-filling or pasteurization of contents held by the plastic container”) does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. See MPEP 2114, II.
In re claim 16, with reference to the Figs. noted above, Matsui in view of Paredes discloses the claimed invention including wherein each of the plurality of panels is separated by a vertical rib (as in Fig. 3 above).
Claim(s) 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Matsui as applied to claim 1 above, and further in view of US Patent No. 2,945,314 (Baldwin hereinafter).
In re claim 17, with reference to the Figs. noted above, Matsui discloses the claimed invention including wherein the base portion has a variable wall thickness that decreases radially inwardly from the outer peripheral edge portion toward a central vertical axis (e.g. at the joint of portions 15 and 16, see Fig. 1 above), but not wherein the thickness then increases at or about the central vertical axis.
However, with reference to Fig. 5, Baldwin discloses a clear plastic cup (13), wherein a base portion (14) has a variable wall thickness which increases at or about a central vertical axis (see below).
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Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention to have modified the base portion of Matsui to have an increased thickness near a center axis as taught by Baldwin for the purposes of permitting utilization of the base portion as a lens (Baldwin, column 3, lines 34-43).
Claim(s) 21, 22, and 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Matsui as applied to claim 1 above, and further in view of Us PG Pub No. 2017/0058119 (Brun et al. hereinafter).
In re claim 21, with reference to the Figs. noted above, Matsui discloses the claimed invention except wherein the plastic comprises high-density polyethylene (HDPE).
However, Brun et al. teaches utilizing a known material such as HPDE for injection molding of containers (paragraphs 0160 and 0176).
It would have been obvious to one having ordinary skill in the art at the time the invention was made to have utilized a known plastic such as HPDE for the injection molded container of Matsui, since 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. MPEP 2144.07. Please note that in the instant application, paragraph 0047, applicant has not disclosed any criticality for the claimed limitations.
In re claims 22 and 23, with reference to the Figs. noted above, Matsui discloses the claimed invention except wherein the plastic comprises a multilayer configuration, and wherein the multilayer configuration comprises an inner layer of PET, an outer layer of PET, and a layer of PEF therebetween.
However, with reference to Figs. 2 and 4, Brun et al. discloses an injection molded container formed with a multilayer configuration having an inner layer (421) and outer layer (411) (both formed of PET, paragraph 0176), and a PEF barrier layer (410) (paragraphs 0123 and 0174-0176).
It would have been obvious to one having ordinary skill in the art at the time the invention was made to have utilized a multilayer/barrier layer configuration, and formed the layers of materials as claimed for the injection molded container of Matsui, in order to provide an improved gas barrier layer (Brun et al. paragraph 0123) and since 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. MPEP 2144.07. Please note that in the instant application, paragraphs 0047 and 0099-0100, applicant has not disclosed any criticality for the claimed limitations.
Response to Arguments
Applicant's arguments filed 7/13/2026 have been fully considered but they are not persuasive.
Applicant argues on pages 1-2 of the remarks that Matsui does not teach the limitations of being a final article without blow molding a preform and not being biaxially oriented. However, since the article in Fig. 1 relied upon by the examiner as teaching the injection molded plastic container is prior to any blow molding/biaxial stretching caused thereby, and the base portion 15 is curved and has a variable thickness at its joint with 16, the claim limitations are met.
Applicant argues on pages 3-6, that intended use of the container is not met by Matsui. However, regarding these new limitations, see in re claims 10 and 11 above.
Applicant argues on pages 7-10 that Brun et al. is non-analogous art and relies upon impermissible hindsight.
In response to applicant's argument that Brun et al. is nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, the article/material of Brun et al. is specifically concerned with use in the storage of cosmetics (paragraph 0198) and/or foodstuffs (paragraph 0164).
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW T KIRSCH whose telephone number is (571)270-5723. The examiner can normally be reached Mon-Fri, 9a-5p 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, 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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/ANDREW T KIRSCH/ Primary Examiner, Art Unit 3733
