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 .
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the wherein said cap comprises an inner sealing lip, having an annular shape, which projects from the upper wall to engage with an inner lateral surface of the neck defining a surface portion of interaction (claim 9) must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
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.
Claim Objections
Claim 1 is objected to because of the following informalities: claim 1 line 11 "layer (5)" should read - - layer - -. 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 5, 9, 11-12 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.
The term “said interface layer is made by moulding said portion and/or said closing element starting from a multi-layer material. ” in claim 5 is a relative term which renders the claim indefinite. Firstly, this is a product-by-process limitation. Secondly, what is meant by starting from a multi-layer material? The closing element or said portion are made from PET. Is the PET being considered multi-layer? Is the presence of PE on top of PET considered multi-layer? Is the interface layer (PE) being considered the multi-layer material? It's unclear the limitation of "starting from a multi-layer material". Also how is said interface layer made by moulding of said portion or closing element? That would only seem to be relevant to the manufacturing of the portion or closing element. This doesn’t describe manufacturing of the interface. This statement does not state that the interface layer is molded onto the closing element or said portion. It is unclear if this is a desired interpretation.
The term “ wherein said cap comprises an inner sealing lip, having an annular shape, which projects from the upper wall to engage with an inner lateral surface of the neck defining a surface portion of interaction ” in claim 9 is a relative term which renders the claim indefinite. The drawings define the inner sealing lip as item 9. Figures 1-4 feature the inner sealing lip (9). However, at no point does the lip of the cap ever engage a surface of the neck. In all embodiments, the lip includes or interacts with the separately claimed "interface layer". The interface layer is always sandwiched between the cap and container around the area of the opening. For the purposes of interpretation, the claim shall be broadly read such that the interface can be considered a feature of the sealing lip of the cap or container.
Claim 11 recites the limitation "said upper opening" in line 4. There is insufficient antecedent basis for this limitation in the claim.
The term “said opening ” in claim 12is a relative term which renders the claim indefinite. Opening is defined as “a void in solid matter; a gap, hole, or aperture.” (Dictionary.com). How can a void have a thickened edge? Opening pertains to an absence of space. The thickened edge, however, appears to be a physical structure on the container.
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.
Claim(s) 1-9 and 11-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Junichi (JP 3177804 B2).
With respect to claim 1, Junichi teaches a combination of a container and a closing element wherein: the container (container of 40) defines a containment space and comprises a portion (40) defining an access opening to the containment space; the closing element (2) is movable relative to the portion to open or close said opening and defining with said portion a closing assembly for the container; wherein said portion (40) and/or said closing element (2) is provided, on a surface portion of interaction (adjacent mating portions) between said portion and said closing element subjected to friction during opening or closing of the container, with an interface layer (8) suitable for facilitating a sliding between said portion and said closing element; wherein at least said portion and said closing element are made of polyethylene terephthalate (page 2 [0013] and page 3 [0016]) and wherein said layer is made of polyethylene (page 2 [0013]).
Junichi failed to outright state wherein a quantity of polyethylene is below a 15% threshold relative to the total weight of the combination . Although not stated, it is believed that this range can be met already (see note below) or by a change in shape and not novel in view of the guidelines established In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). The implementation of a 15% weight threshold for the polyethylene is only a modification in the shape of the sealing portion of Junichi and still provides the same results as Junichi (i.e. allowing a seal for a PET container). Essentially, Junichi and the present invention operate the same with the same working pieces, the only difference is the weight threshold of Junichi is not stated and the applications has a 15% weight threshold for PE relative to the combination assembly. In re Dailey established that a "change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results." The application has presented no argument which shows that the particular configuration of their polyethylene weight threshold is significant or is anything more than one of numerous configurations a person of ordinary skill in the art would find obvious for the purpose of allowing a seal from Junichi’s invention. See Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459.
Examiner Note: Junichi teaches of PET as accounting for the container and closing element. The container itself being significantly thicker than the interface layer. PET has a higher density than PE (interface layer). When considering the combination as a whole, the interface layer accounts for a small volume of the total volume of the container. So, Junichi’s teachings would inherently meet the claim limitation of “polyethylene is below a 15% threshold relative to the total weight of the combination”. Further any arguments can also be explained by a change in shape rationale (see above).
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With respect to claim 2, the references as applied to claim 1, above, disclose all the limitations. Junichi further discloses wherein the quantity of polyethylene is below a 15% threshold relative to the total weight of the container. (The container is made of PET [a denser material] and significantly thicker [Figure 5] than the PE layer [8]. See claim 1 rejection above.)
With respect to claim 3, the references as applied to claim 1, above, disclose all the limitations of the claims except for wherein the quantity of polyethylene is below a 15% threshold relative to the total weight of the closing assembly. Although not stated, it is believed that this range can be met a change in shape and not novel in view of the guidelines established In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). The implementation of a 15% weight threshold for the polyethylene is only a modification in the shape of the sealing portion of Junichi and still provides the same results as Junichi (i.e. allowing a seal for a PET container). Essentially, Junichi and the present invention operate the same with the same working pieces, the only difference is the weight threshold of Junichi is not stated and the applications has a 15% weight threshold for PE relative to the closing assembly. In re Dailey established that a "change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results." The application has presented no argument which shows that the particular configuration of their polyethylene weight threshold is significant or is anything more than one of numerous configurations a person of ordinary skill in the art would find obvious for the purpose of allowing a seal from Junichi’s invention. See Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459.
With respect to claim 4, the references as applied to claim 1, above, disclose all the limitations. Junichi further discloses wherein said interface layer (8) is made in the form of a film applied on said portion and/or on said closing element.
Examiner Note: the limitation “made in the form of a film applied” is considered to constitute a product by process limitation that does not materially affect structure. "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" (See MPEP 2113; In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985).)
With respect to claim 5, the references as applied to claim 1, above, disclose all the limitations. Junichi further discloses wherein said interface layer is made by moulding said portion and/or said closing element starting from a multi-layer material.
Examiner Note: the limitation “made by moulding” is considered to constitute a product by process limitation that does not materially affect structure. "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" (See MPEP 2113; In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985).)
With respect to claim 6, the references as applied to claim 1, above, disclose all the limitations. Junichi further discloses wherein said portion defines a neck of the container (40), comprising a lateral surface (outer side surface), and wherein said closing element (2) is made in the form of a cap comprising a lateral wall (side wall) and an upper wall (top wall) positioned transversally to the lateral wall, said lateral surface of the neck of the container and at least said lateral wall defining said surface portion of interaction.
With respect to claim 7, the references as applied to claim 6, above, disclose all the limitations. Junichi further discloses combination according to claim 6, comprising an anchoring element (threads and protrusion adjacent 8) defining said surface portion of interaction and made in the form of threads (42, 24) which are made respectively on the inside of said lateral wall of the cap and on an outer lateral surface of the neck.
With respect to claim 8, the references as applied to claim 6, above, disclose all the limitations. Junichi further discloses combination according to claim 6, wherein said cap (2) comprises a connecting zone, in which the lateral wall (side wall of 2) is connected to the upper wall (top wall of 2), comprising a first portion (planar top of 2) of wall which projects from the lateral wall towards the inside of the cap and a second portion (corner portion of 2) of wall which joins the first portion of wall to the upper wall, said second portion of wall comprising a sealing surface suitable for (intended functional language) engaging in a sealed fashion with an outer lateral surface of the neck defining said surface portion of interaction.
With respect to claim 9, the references as applied to claim 6, above, disclose all the limitations. Junichi further discloses wherein said cap comprises an inner sealing lip (10), having an annular shape, which projects from the upper wall to engage with an inner lateral surface of the neck defining a surface portion of interaction.
Examiner Note: See 112b rejection above.
With respect to claim 11, the references as applied to claim 1, above, disclose all the limitations. Junichi further discloses wherein said closing element is made in the form of a lid comprising a covering wall (top portion until threads), positioned to close the opening of the container, and an anchoring wall (wall with threads) suitable for (intended function) engaging with said upper opening defining said surface portion of interaction.
With respect to claim 12, the references as applied to claim 11, above, disclose all the limitations. Junichi further discloses wherein said anchoring wall is provided with an annular projection (threads) on an inner surface thereof and said opening comprises a thickened edge (threaded portion of neck), said annular projection being suitable for (intended function) engaging with said thickened edge defining said surface portion of interaction.
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Junichi (JP 3177804 B2) in view of Dreyer (US 20210122532 A1).
With respect to claim 10, the references as applied to claim 6, above, disclose all the limitations, except for wherein said cap also comprises a retaining ring suitable for being joined to said neck and a hinge structure interposed between the retaining ring and at least said lateral wall to allow the cap to be rotated relative to the retaining ring. However, in a similar field of endeavor, namely closures, Dreyer taught of a cap (figures 8a-8c) similar to Junichi that includes a retaining ring (30), and hinge (40) to help the cap remain tethered to the container (abstract). It would have been obvious for someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the cap of Junichi to include a retaining ring and hinge as taught by Dreyer in order to allow for retention of the cap to the container.
Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US-20240294312-A1 OR US-20050284775-A1 OR US-20040247813-A1 OR US-20210122532-A1 OR US-20210380317-A1 OR US-4347939-A OR US-4650088-A
Conclusion
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/SYMREN K SANGHERA/Examiner, Art Unit 3735
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