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 .
Election/Restrictions
Claims 20-24 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 18 May 2026.
Applicant's election with traverse of Group I, claims 14-19, in the reply filed on 18 May 2026 is acknowledged. The traversal is on the ground(s) that Fernandes does not teach the indicator substance dot has a uniform thickness. This is not found persuasive because Fernandes teaches that the indicator substance dot is coated onto the carrier layer as a thin film and is shown to have a uniform thickness (Fernandes, Par. 0073 and Figs 3-4b). Furthermore, although the indicator material is embedded in another material for Fernandes, the instant claims state that the indicator substance dot has a uniform thickness and the entire layer (30) of Fernandes is considered to be the indicator substance dot.
The requirement is still deemed proper and is therefore made FINAL.
Claim Objections
Claim 14s and 18 are objected to because of the following informalities:
Claim 14 recites the phrase “applied flatly on the an underside” in line 5 which is believed to be a typographical error. Claim 14 should instead recite “applied flatly on an underside”.
Claim 18 recites the phrase “wherein an area covered by the indicator label, the imprint” in lines 1-2 which is believed to be a typographical error. Claim 18 should instead recite “wherein in an area covered by the indicator label, the imprint”.
Appropriate correction is required.
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.
Claims 14-15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Fernandes et al. (US 20130177480 A1).
Regarding claim 14, Fernandes teaches a package comprising an interior filled with a modified atmosphere and an indicator label (probe), wherein the indicator label comprises a carrier layer (40), an adhesive layer (60) applied flatly on an underside of the carrier layer, and an indicator substance dot (30) on an upper side of the carrier layer, which is opposite to the underside (Fernandes, Abstract, Par. 0005-0007, 0070, 0073-0075, 0082, 0088 Figs. 3-4b, and 7). Fernandes teaches the indicator substance dot comprises an indicator substance (fluorescent dye) that enables a determination of a presence and/or concentration of an analyte in a multicomponent fluid mixture using an optical sensor through an excitation of the indicator substance with excitation light and reading fluorescence light emitted by the indicator substance using the optical sensor (Fernandes, Par. 0011, 0023, 0057-0059, and 0088). Fernandes teaches the indicator substance dot is a thin film coated on the carrier layer and has a uniform thickness in a direction that is perpendicular to the upper side of the carrier layer (Fernandes, Par. 0073 and Figs 3-4b). Fernandes teaches the indicator label is adhered to a location of the packaging that is sufficiently transparent for excitation and fluorescent light (Fernandes, Par. 0088, 0095).
Regarding claim 15, Fernandes teaches the packaging encloses a flat or dish-shaped lower part which is closed by a film that is at least partially transparent to excitation and fluorescent light and the indicator label is adhered in a region of the film that is transparent to excitation and fluorescent light on a side of the film that is in contact with the atmosphere in the packaging (Fernandes, Par. 0088, 0095, and Fig. 7).
Claim Rejections - 35 USC § 103
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 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 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Fernandes et al. as applied to claims 14-15 above, further in view of Kennedy et al. (US 20030082321 A1).
Regarding claims 16-17, Fernandes teaches all of the elements of the claimed invention as stated above for claims 14-15. Fernandes further teaches that the location where the indicator label is adhered is transparent for excitation and fluorescent light.
Fernandes is silent regarding an imprint at the location where the indicator label is adhered, wherein the imprint comprises an ink that is transparent to the excitation and fluorescent light.
Kennedy teaches a package comprising an indicator label (patch) wherein the indicator label is adhered to the package and an imprint (Strips, stripes, grids, etc.) is located where the indicator label is adhered (Kennedy, Par. 0085, 0090-0093, Fig. 11, and 14). Kennedy teaches the imprint comprises an ink (pigment) (Kennedy, Par. 0093). Alternatively, Kennedy teaches the indicator label is printed in registration with other graphics and thus Kennedy teaches a printed imprint comprising an ink (other graphics) at a location where the indicator label is adhered (Kennedy, Par. 0090).
Fernandes and Kennedy are analogous art as they both teach packages comprising an indicator label adhered to the package. It would have been obvious to one of ordinary skill in the art to include the imprint (either strips or other graphics) of Kennedy at a location where the imprint of Fernandes is adhered. This would allow for designated areas for the indicator label and/or a graphic label (Kennedy, Par. 0090-0093). Furthermore, as Fernandes teaches that the location where the indicator label is adhered is transparent to the excitation and fluorescent light, this would result in one of ordinary skill in the art using transparent ink as the ink comprised in the imprint.
Claims 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Fernandes et al. and Kennedy et al. as applied to claims 14-17 above, further in view of Cook et al. (US 20130017493 A1).
Regarding claims 18-19, modified Fernandes teaches all of the elements of the claimed invention as stated above for claims 14-17. Modified Fernandes is silent regarding that in an area covered by the indicator label, the imprint includes printed and non-printed areas wherein the non-printed areas make up at least 5% of the area of the indicator label as required by claim 18. Modified Fernandes is further silent regarding the imprint comprising a grid of halftone dots applied by digital printing, and a distance between neighboring dots of the grid is 1.05 – 1.5 times a radius of the halftone dots.
Cook teaches a packaging comprising a printed region wherein the printed region comprises a grid of halftone dots, wherein the printed region has printed areas (where the halftone dots are) and non-printed areas (where the halftone dots are not) (Cook, Par. 0001, 0003, 0015-0022). Cook teaches the non-printed areas can make up from 5-95% of the area of the printed region (Cook, Par. 0019), which lies within the claimed range of at least 5% and therefore satisfies the claimed range, see MPEP 2144.05, I. Cook further teaches that the size (i.e. radius) of the dots an the distance between dots can be varied depending on the desired darkness/grayness of the printed region (Cook, Par. 0015-0022). Cook thus teaches the distance between neighboring dots and the radius of the halftone dots are result effective variables. It would have been obvious to one of ordinary skill in the art to vary the radius of the dots and the distance between neighboring dots depending on the desired darkness/grayness of the printed region such that the distance between neighboring dots renders obvious the claimed range through routine optimization, see MPEP 2143 & 2144.05, I. Regarding the limitation of the halftone dots being applied by digital printing, this is considered a product by process limitation. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (See MPEP 2113). The halftone dot structure of the prior art discloses a product which reasonably appears to be either identical or substantially identical to the claimed product-by-process halftone dot structure subjected to the process steps of digital printing, and therefore absent any objective evidence showing to the contrary, the addition of the process limitations of claim 19 does not provide a patentable distinction over the prior art.
Modified Fernandez and Cook are analogous art as they both teach packaging comprising a printed region. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have formed the imprint of modified Fernandez out of halftone dots as taught by Cook. This would allow for a printed image with varying darkness/grayness (Cook, Par. 0015-0022).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THOMAS J KESSLER JR whose telephone number is (571)272-3075. The examiner can normally be reached 7:30-5:30 M-Th.
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/THOMAS J KESSLER/Examiner, Art Unit 1782
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