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
Applicant’s election without traverse of Group I, claims 2 – 19, in the reply filed on June 16, 2026 is acknowledged.
Claims 20 and 21 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on June 16, 2026.
Double Patenting
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 2 – 19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim1 – 3, 7 – 9, 11, 12 and 14 of U.S. Patent No. 12,283,206 to Livingston et al. in view of U.S. Patent No. 12,260,784 to Livingston et al.
Livingston et al. (‘206) disclose a tamper-evident label, comprising: a label substrate having a top portion, a middle portion, and a bottom portion; a liner substrate having a liner middle portion aligned with the middle portion of the label substrate; a flap defined by a die cut in at least one of the label substrate or the liner substrate; wherein the middle portion is configured to be positioned over an opening of a container; and wherein the top portion and the bottom portion are configured to adhere to sides of the container to secure the tamper-evident label to the container (Claims 1 and 7) as in claim 2. With respect to claim 3, the middle portion and the liner middle portion are wider than the top portion and the bottom portion (Claim 8). Regarding claim 4, the die cut defining the flap tapers from the flap to sides of the label substrate (Claim 9). For claim 5, the top portion and the bottom portion are barbell shaped (Claim 7). In claim 6, the middle portion and the liner middle portion are bell shaped (Claim 7). With regard to claim 7, at least a portion of a frontside of the label substrate for the tamper-evident label includes a thermally sensitive image coating for thermally imaging indicia, symbols, or graphics (Claim 7). As in claim 8, additional die cuts in a center corresponding to the middle portion and the liner middle portion made through the label substrate and the liner substrate (Claims 7, 11 and 12). With respect to claim 9, the additional die cuts are shaped in an X and adapted to puncture the center of the middle portion and the liner middle portion when a straw is pushed through to the opening of the container (Claims 7, 11 and 12). Regarding claim 10, the flap is configured to extend upward when the tamper-evident label is adhered to the container (Claims 1 – 3 and 7). For claim 11, an end of the bottom portion includes a tab die cut in the label substrate to remove the tamper-evident label from a sheet of the label substrate and liner substrate (Claims 1 and 14). Livingston et al. (‘206) further disclose a liner-label combination, comprising: a label substrate having die cuts defining a tamper-evident label with a top portion, a middle portion, and a bottom portion; a liner substrate having die cuts defining a liner middle portion aligned with the middle portion of the label substrate; wherein the middle portion and the liner middle portion are configured to remain adhered together when separated from the top portion and the bottom portion; and wherein the tamper-evident label is configured to cover an opening of a beverage container with the middle portion positioned over the opening (Claims 1 and 7) as in claim 13. With respect to claim 14, the tamper-evident label further includes fourth die cuts along a top center corresponding to the middle portion in the label substrate and the liner middle portion in liner substrate (Claim 11). Regarding claim 15, the die cuts in the label substrate and the liner substrate define a flap that extends above a surface of the tamper- evident label when the tamper-evident label is attached to a beverage container and covers the opening of the beverage container (Claim 7). For claim 16, the flap when pulled up away from the surface separates the middle portion and the liner middle portion from the tamper-evident label and exposes the opening of a beverage lid (Claim 7). In claim 17, the middle portion includes center perforations or die cuts to permit a consumer to poke a straw through and use a straw to drink a beverage (Claim 12). With regard to claim 18, at least a portion of a frontside of the label substrate includes a thermally sensitive image coating for thermally imaging indicia, symbols, or graphics (Claim 7). As in claim 19, the middle portion and the liner middle portion are bell shaped, including two bell shapes, a first bell shape oriented with a top toward the top portion and a second bell shape oriented with a top toward the bottom portion and bases of the two bell shapes adjoined together (Claim 7). However, Livingston et al. (‘206) fail to disclose an adhesive applied on backsides of the top portion, the middle portion, and the bottom portion is a microsphere adhesive that is adapted to adhere to wet surfaces.
Livingston et al. (‘784) teach a tamper-evident label, comprising: a label substrate having a top portion, a middle portion, and a bottom portion; a liner substrate having a liner middle portion aligned with the middle portion of the label substrate; a flap defined by a die cut in at least one of the label substrate or the liner substrate; wherein the middle portion is configured to be positioned over an opening of a container; and wherein the top portion and the bottom portion are configured to adhere to sides of the container to secure the tamper-evident label to the container, having an adhesive applied on backsides of the top portion, the middle portion, and the bottom portion is a microsphere adhesive that is adapted to adhere to wet surfaces (Claims 1 and 12) for the purpose of forming a tamper evident label for a container (Claims 1 and 12).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have a microsphere adhesive in Livingston et al. (‘206) in order to form a tamper evident label for a container as taught by Livingston et al. (‘784).
Claims 2 – 19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 13, 15 and 16 of U.S. Patent No. 12,260,784 to Livingston et al. in view of U.S. Patent No. 12,283,206 to Livingston et al.
Livingston et al. (‘784) disclose a tamper-evident label, comprising: a label substrate having a top portion, a middle portion, and a bottom portion; a liner substrate having a liner middle portion aligned with the middle portion of the label substrate; a flap defined by a die cut in at least one of the label substrate or the liner substrate; wherein the middle portion is configured to be positioned over an opening of a container; and wherein the top portion and the bottom portion are configured to adhere to sides of the container to secure the tamper-evident label to the container (Claims 1 and 13) as in claim 2. With respect to claim 3, the middle portion and the liner middle portion are wider than the top portion and the bottom portion (Claim 13). With regard to claim 7, at least a portion of a frontside of the label substrate for the tamper-evident label includes a thermally sensitive image coating for thermally imaging indicia, symbols, or graphics (Claim 13). Regarding claim 10, the flap is configured to extend upward when the tamper-evident label is adhered to the container (Claims 1 and 13). For claim 11, an end of the bottom portion includes a tab die cut in the label substrate to remove the tamper-evident label from a sheet of the label substrate and liner substrate (Claims 1, 13, 15, and 16). In claim 12, an adhesive applied on backsides of the top portion, the middle portion, and the bottom portion is a microsphere adhesive that is adapted to adhere to wet surfaces (Claims 1 and 13). Livingston et al. (‘784) further disclose a liner-label combination, comprising: a label substrate having die cuts defining a tamper-evident label with a top portion, a middle portion, and a bottom portion; a liner substrate having die cuts defining a liner middle portion aligned with the middle portion of the label substrate; wherein the middle portion and the liner middle portion are configured to remain adhered together when separated from the top portion and the bottom portion; and wherein the tamper-evident label is configured to cover an opening of a beverage container with the middle portion positioned over the opening (Claims 1 and 13) as in claim 13. With respect to claim 14, the tamper-evident label further includes fourth die cuts along a top center corresponding to the middle portion in the label substrate and the liner middle portion in liner substrate (Claims 1 and 13). Regarding claim 15, the die cuts in the label substrate and the liner substrate define a flap that extends above a surface of the tamper- evident label when the tamper-evident label is attached to a beverage container and covers the opening of the beverage container (Claims 1 and 13). For claim 16, the flap when pulled up away from the surface separates the middle portion and the liner middle portion from the tamper-evident label and exposes the opening of a beverage lid (Claims 1 and 13). With regard to claim 18, at least a portion of a frontside of the label substrate includes a thermally sensitive image coating for thermally imaging indicia, symbols, or graphics (Claims 1 and 13). However, Livingston et al. (‘784) fail to disclose the die cut defining the flap tapers from the flap to sides of the label substrate, the top portion and the bottom portion are barbell shaped, the middle portion and the liner middle portion are bell shaped, additional die cuts in a center corresponding to the middle portion and the liner middle portion made through the label substrate and the liner substrate, the additional die cuts are shaped in an X and adapted to puncture the center of the middle portion and the liner middle portion when a straw is pushed through to the opening of the container, the middle portion includes center perforations or die cuts to permit a consumer to poke a straw through and use a straw to drink a beverage, and the middle portion and the liner middle portion are bell shaped, including two bell shapes, a first bell shape oriented with a top toward the top portion and a second bell shape oriented with a top toward the bottom portion and bases of the two bell shapes adjoined together.
Livingston et al. (‘206) teach a tamper-evident label, comprising: a label substrate having a top portion, a middle portion, and a bottom portion; a liner substrate having a liner middle portion aligned with the middle portion of the label substrate; a flap defined by a die cut in at least one of the label substrate or the liner substrate; wherein the middle portion is configured to be positioned over an opening of a container; and wherein the top portion and the bottom portion are configured to adhere to sides of the container to secure the tamper-evident label to the container (Claims 1 and 7), the die cut defining the flap tapers from the flap to sides of the label substrate (Claim 9), the top portion and the bottom portion are barbell shaped (Claim 7), the middle portion and the liner middle portion are bell shaped (Claim 7), additional die cuts in a center corresponding to the middle portion and the liner middle portion made through the label substrate and the liner substrate (Claims 7, 11 and 12), the additional die cuts are shaped in an X and adapted to puncture the center of the middle portion and the liner middle portion when a straw is pushed through to the opening of the container (Claims 7, 11 and 12), the middle portion includes center perforations or die cuts to permit a consumer to poke a straw through and use a straw to drink a beverage (Claims 7, 11 and 12), and the middle portion and the liner middle portion are bell shaped, including two bell shapes, a first bell shape oriented with a top toward the top portion and a second bell shape oriented with a top toward the bottom portion and bases of the two bell shapes adjoined together (Claim 7) for the purpose of a tamper evident label for a container (Claims 1 and 7).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have bell shapes in Livingston et al. (‘784) in order to form a tamper evident label for a container as taught by Livingston et al. (‘206).
Claims 2 – 19 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 2, 3, 7, 8, 10 – 14, and 18 of copending Application No. 19/057,795 in view of U.S. Patent No. 12,283,206 to Livingston et al.
This is a provisional nonstatutory double patenting rejection.
Application No. 19/057,795 disclose a tamper-evident label, comprising: a label substrate having a top portion, a middle portion, and a bottom portion; a liner substrate having a liner middle portion aligned with the middle portion of the label substrate; a flap defined by a die cut in at least one of the label substrate or the liner substrate; wherein the middle portion is configured to be positioned over an opening of a container; and wherein the top portion and the bottom portion are configured to adhere to sides of the container to secure the tamper-evident label to the container (Claims 2, 3, 13 and 14) as in claim 2. Regarding claim 4, the die cut defining the flap tapers from the flap to sides of the label substrate (Claims 2, 3, 13 and 14). With regard to claim 7, at least a portion of a frontside of the label substrate for the tamper-evident label includes a thermally sensitive image coating for thermally imaging indicia, symbols, or graphics (Claims 7, 8 and 18). Regarding claim 10, the flap is configured to extend upward when the tamper-evident label is adhered to the container (Claims 2, 3, 13 and 14). For claim 11, an end of the bottom portion includes a tab die cut in the label substrate to remove the tamper-evident label from a sheet of the label substrate and liner substrate (Claim 12). In claim 12, an adhesive applied on backsides of the top portion, the middle portion, and the bottom portion is a microsphere adhesive that is adapted to adhere to wet surfaces (Claims 10 and 11). Application No. 19/057,795 further disclose a liner-label combination, comprising: a label substrate having die cuts defining a tamper-evident label with a top portion, a middle portion, and a bottom portion; a liner substrate having die cuts defining a liner middle portion aligned with the middle portion of the label substrate; wherein the middle portion and the liner middle portion are configured to remain adhered together when separated from the top portion and the bottom portion; and wherein the tamper-evident label is configured to cover an opening of a beverage container with the middle portion positioned over the opening (Claims 2 and 13) as in claim 13. With respect to claim 14, the tamper-evident label further includes fourth die cuts along a top center corresponding to the middle portion in the label substrate and the liner middle portion in liner substrate (Claims 2 and 13). Regarding claim 15, the die cuts in the label substrate and the liner substrate define a flap that extends above a surface of the tamper-evident label when the tamper-evident label is attached to a beverage container and covers the opening of the beverage container (Claims 2 and 13). For claim 16, the flap when pulled up away from the surface separates the middle portion and the liner middle portion from the tamper-evident label and exposes the opening of a beverage lid (Claims 2 and 13). With regard to claim 18, at least a portion of a frontside of the label substrate includes a thermally sensitive image coating for thermally imaging indicia, symbols, or graphics (Claims 7 and 8). However, Application No. 19/057,795 fail to disclose the middle portion and the liner middle portion are wider than the top portion and the bottom portion, the top portion and the bottom portion are barbell shaped, the middle portion and the liner middle portion are bell shaped, additional die cuts in a center corresponding to the middle portion and the liner middle portion made through the label substrate and the liner substrate, the additional die cuts are shaped in an X and adapted to puncture the center of the middle portion and the liner middle portion when a straw is pushed through to the opening of the container, the middle portion includes center perforations or die cuts to permit a consumer to poke a straw through and use a straw to drink a beverage, and the middle portion and the liner middle portion are bell shaped, including two bell shapes, a first bell shape oriented with a top toward the top portion and a second bell shape oriented with a top toward the bottom portion and bases of the two bell shapes adjoined together.
Livingston et al. (‘206) teach a tamper-evident label, comprising: a label substrate having a top portion, a middle portion, and a bottom portion; a liner substrate having a liner middle portion aligned with the middle portion of the label substrate; a flap defined by a die cut in at least one of the label substrate or the liner substrate; wherein the middle portion is configured to be positioned over an opening of a container; and wherein the top portion and the bottom portion are configured to adhere to sides of the container to secure the tamper-evident label to the container (Claims 1 and 7), the die cut defining the flap tapers from the flap to sides of the label substrate (Claim 9), the top portion and the bottom portion are barbell shaped (Claim 7), the middle portion and the liner middle portion are bell shaped (Claim 7), additional die cuts in a center corresponding to the middle portion and the liner middle portion made through the label substrate and the liner substrate (Claims 7, 11 and 12), the additional die cuts are shaped in an X and adapted to puncture the center of the middle portion and the liner middle portion when a straw is pushed through to the opening of the container (Claims 7, 11 and 12), the middle portion includes center perforations or die cuts to permit a consumer to poke a straw through and use a straw to drink a beverage (Claims 7, 11 and 12), and the middle portion and the liner middle portion are bell shaped, including two bell shapes, a first bell shape oriented with a top toward the top portion and a second bell shape oriented with a top toward the bottom portion and bases of the two bell shapes adjoined together (Claim 7) for the purpose of a tamper evident label for a container (Claims 1 and 7).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have bell shapes in Application No. 19/057,795 in order to form a tamper evident label for a container as taught by Livingston et al. (‘206).
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 2 – 12, 15 and 16 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 phrases “a flap defined by a die cut in at least one of the label substrate or the liner substrate” in claim 2 and “the die cut defining the flap tapers from the flap to sides of the label substrate” in claim 4 is unclear, which render the claims vague and indefinite. It is unclear from the above claim language where the flap is located with regard to the different portions of the label as the label substrate appears to include the entire label surface. Also, it is unclear how the die cut forming the flap can taper from itself.
The phrase “the die cuts in the label substrate and the liner substrate define a flap that extends above a surface of the tamper- evident label” in claim 15 is unclear, which renders the claim vague and indefinite. It is unclear from the above claim language where the flap is located with regard to the different portions of the label as the label substrate appears to include the entire label surface.
Claims 3, and 5 – 12 are also rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, due their dependency on the above rejected claims.
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “configured to” in claims 2, 10, and 13.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim limitation “configured to” invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. Applicant’s specification discuss the portions of the label, but fail to discuss how they are would be positioned and maintained over the desired sections of the container. Applicant’s specification discuss discussed the flap but fails to disclose the structure which allows it extends upward from the label system. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
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.
Claims 2, 3, 10, 11 and 13 – 16 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by JP 3194260U.
A machine-generated translation of JP 3194260U accompanies this action. In reciting this rejection, the examiner will cite this translation.
JP 3194260U discloses a tamper-evident label, comprising: a label substrate having a top portion, a middle portion, and a bottom portion; a liner substrate having a liner middle portion aligned with the middle portion of the label substrate; a flap defined by a die cut in at least one of the label substrate or the liner substrate; wherein the middle portion is configured to be positioned over an opening of a container; and wherein the top portion and the bottom portion are configured to adhere to sides of the container to secure the tamper-evident label to the container (Figures; Abstract; Page 2, line 14 to Page 3, line 42; Figures 6 – 8, #7) as in claim 2. With respect to claim 3, the middle portion and the liner middle portion are wider than the top portion and the bottom portion (Figures; Abstract; Page 2, line 14 to Page 3, line 42). Regarding claim 10, the flap is configured to extend upward when the tamper-evident label is adhered to the container (Figures; Abstract; Page 2, line 14 to Page 3, line 42). For claim 11, an end of the bottom portion includes a tab die cut in the label substrate to remove the tamper-evident label from a sheet of the label substrate and liner substrate (Figures, 1, 4, and 5, #7). Livingston further discloses a liner-label combination, comprising: a label substrate having die cuts defining a tamper-evident label with a top portion, a middle portion, and a bottom portion; a liner substrate having die cuts defining a liner middle portion aligned with the middle portion of the label substrate; wherein the middle portion and the liner middle portion are configured to remain adhered together when separated from the top portion and the bottom portion; and wherein the tamper-evident label is configured to cover an opening of a beverage container with the middle portion positioned over the opening (Figures; Abstract; Page 2, line 14 to Page 3, line 42; Figures 6 – 8, #7) as in claim 13. With respect to claim 14, the tamper-evident label further includes fourth die cuts along a top center corresponding to the middle portion in the label substrate and the liner middle portion in liner substrate (Figures; Abstract; Page 2, line 14 to Page 3, line 42; Figures 6 – 8, #7). Regarding claim 15, the die cuts in the label substrate and the liner substrate define a flap that extends above a surface of the tamper- evident label when the tamper-evident label is attached to a beverage container and covers the opening of the beverage container (Figures; Abstract; Page 2, line 14 to Page 3, line 42; Figures 6 – 8, #7). For claim 16, the flap when pulled up away from the surface separates the middle portion and the liner middle portion from the tamper-evident label and exposes the opening of a beverage lid (Figures; Abstract; Page 2, line 14 to Page 3, line 42; Figures 6 – 8, #7).
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.
Claims 2 – 7, 10, 11, 13 – 16, 18, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Ambartsoumian (WO 2022/077118 A1) in view of JP 2011-170221A, and JP 3104907 U.
A machine-generated translation of JP 2011-170221A and JP 3104907 U accompanies
this action. In reciting this rejection, the examiner will cite this translation
Ambartsoumian discloses a tamper-evident label (Figures; Abstract; Paragraph 0058) comprising: a label substrate having a top portion, a middle portion, and a bottom portion (Figures 2C, 2D); a flap defined by a die cut in at least one of the label substrate or the liner substrate (Figure 5 and 7, #13E); wherein the middle portion is configured to be positioned over an opening of a container (Figure 1, 2C, and 2D; Abstract; Paragraph 0058); and wherein the top portion and the bottom portion are configured to adhere to sides of the container to secure the tamper-evident label to the container (Figure 1, 2C, and 2D; Abstract; Paragraph 0058) as in claim 2. For claim 5, the top portion and the bottom portion are barbell shaped (Figure 2C, and 2D). In claim 6, the middle portion and the liner middle portion are bell shaped (Figure 2C, and 2D). With regard to claim 7, at least a portion of a frontside of the label substrate for the tamper-evident label includes a thermally sensitive image coating for thermally imaging indicia, symbols, or graphics (Paragraph 0060, wherein the label may be thermal printed). For claim 11, an end of the bottom portion includes a tab die cut in the label substrate to remove the tamper-evident label from a sheet of the label substrate and liner substrate (Figure 5, wherein the labels are die cut into the substrate.). Livingston further discloses a liner-label combination (Figures; Abstract; Paragraph 0058) comprising: a label substrate having die cuts defining a tamper-evident label with a top portion, a middle portion, and a bottom portion (Figures 2C, 2D); and wherein the tamper-evident label is configured to cover an opening of a beverage container with the middle portion positioned over the opening (Figure 1, 2C, and 2D; Abstract; Paragraph 0058; A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. The label of Ambartsoumian may be adhered to a variety of surfaces, including a beverage container.) as in claim 13. With respect to claim 14, the tamper-evident label further includes fourth die cuts along a top center corresponding to the middle portion in the label substrate and the liner middle portion in liner substrate (Paragraph 0059, wherein the die cut may be at other locations). With regard to claim 18, at least a portion of a frontside of the label substrate includes a thermally sensitive image coating for thermally imaging indicia, symbols, or graphics (Paragraph 0060, wherein the label may be thermal printed). As in claim 19, the middle portion and the liner middle portion are bell shaped, including two bell shapes, a first bell shape oriented with a top toward the top portion and a second bell shape oriented with a top toward the bottom portion and bases of the two bell shapes adjoined together (Figure 2C, and 2D). However, Ambartsoumian fails to disclose a liner substrate having a liner middle portion aligned with the middle portion of the label substrate, the middle portion and the liner middle portion are wider than the top portion and the bottom portion, the flap is configured to extend upward when the tamper-evident label is adhered to the container, the die cut defining the flap tapers from the flap to sides of the label substrate, a liner substrate having die cuts defining a liner middle portion aligned with the middle portion of the label substrate; wherein the middle portion and the liner middle portion are configured to remain adhered together when separated from the top portion and the bottom portion, the die cuts in the label substrate and the liner substrate define a flap that extends above a surface of the tamper- evident label when the tamper-evident label is attached to a beverage container and covers the opening of the beverage container, the flap when pulled up away from the surface separates the middle portion and the liner middle portion from the tamper-evident label and exposes the opening of a beverage lid.
JP 2011-170221A teaches a liner-label combination (Figures; Abstract) having the die cut defining the flap tapers from the flap to sides of the label substrate (Figures), a flap is adapted to extend upward when the tamper-evident label is adhered to the container (Figures; Abstract; Page 2, line 14 to Page 3, line 42); wherein the second die cuts and the third die cut are adapted to break away from the tamper-evident label when the flap is pulled upward separating the middle portion and the liner middle portion as a single unit and exposing the opening in the container (Figures; Abstract; Page 2, line 14 to Page 3, line 42); wherein the tamper-evident label
adapted to cover an opening of a beverage lid for a beverage cup with the middle portion and the
liner middle portion over the beverage lid and the opening and with backsides of the top portion
and the bottom portion adhered to sides of the beverage cup (Figures; Abstract; Page 2, line 14 to
Page 3, line 42); wherein the middle portion and the liner middle portion adapted to separate as a
single unit from the tamper-evident label when attached to the beverage cup along the second die
cuts (Figures; Abstract; Page 2, line 14 to Page 3, line 42), and the fourth die cuts define a flap
that flares up above a surface of the tamper-evident label when the tamper-evident label is
attached to the beverage cup and covers the opening of the beverage lid (Figures; Abstract; Page
2, line 14 to Page 3, line 42) for the purpose of sealing a container (Abstract).
JP 3104907 U teaches a liner-label combination (Figures; Page 1, Abstract; Page 2, lines
12 - 46; Page 3, lines 6 - 15) comprising a liner substrate with second die cuts that correspond to
the middle portion (Figures; Page 1, Abstract; Page 2, lines 12 - 46; Page 3, lines 6 - - 15),
wherein the top portion, the middle portion, and the bottom portion adapted to be separated from
the liner substrate as a single unit representing a tamper evident label with the middle portion
comprising the corresponding liner substrate remaining attached to a backside of the middle
portion (Figures; Page 1, Abstract; Page 2, lines 12 46; Page 3, lines 6 - 15), a front side of the
liner substrate includes a release coating in areas corresponding to the top portion and the bottom
portion but not in other areas corresponding to the middle portion (Figures; Page 1, Abstract;
Page 2, lines 12 46; Page 3, lines 6 - 15), the second die cuts comprise single continuous die
cuts within the liner substrate adjacent to a first side of the label substrate (Figures; Page 1,
Abstract; Page 2, lines 12 - 46; Page 3, lines 6 - 15), and wherein the middle portion defined by third die cuts in a liner substrate (Figures; Page 1, Abstract; Page 2, lines 12 - 46; Page 3, lines 6
- 15) for the purpose of having a label that has portion that is not adhered to the container
(Abstract).
It would have been obvious to one of ordinary skill in the art before the effective filing
date of the claimed invention to have a flap is adapted to extend upward when the tamper-evident
label is adhered to the container and a liner covering the middle portion of the label substrate in Ambartsoumian in order to seal a container as taught by JP 2011-170221A and to have a label that has portion that is not adhered to the container as taught by JP 3104907 U.
Claims 8, 9 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Ambartsoumian (WO 2022/077118 A1) in view of JP 2011-170221A, and JP 3104907 U as applied to claims 2 and 13 above, and further in view of JP 2016204033 A.
A machine-generated translation of JP 2016204033 A accompanies this action. In
reciting this rejection, the examiner will cite this translation.
Ambartsoumian, as modified with JP 2011-170221A and JP 3104907 U,
discloses the claimed invention except for additional die cuts in a center corresponding to the middle portion and the liner middle portion made through the label substrate and the liner substrate, the additional die cuts are shaped in an X and adapted to puncture the center of the middle portion and the liner middle portion when a straw is pushed through to the opening of the container, and the middle portion includes center perforations or die cuts to permit a consumer to poke a straw through and use a straw to drink a beverage.
JP 2016204033 A teaches a tamper-evident label (Figures; Abstract) that includes a
fourth die cuts in a center corresponding to middle portion and the liner middle portion made
through the label substrate and the liner substrate (Figures 2 - 5, #16), and wherein the fourth die
cuts are shaped in an X (Figures 2 - 5, #16) and adapted to puncture the center of the middle
portion and the liner middle portion when a straw is pushed through to the opening of the cup
(Abstract) for the purpose having a label that protects the contents of a container from spilling
(Abstract).
It would have been obvious to one of ordinary skill in the art before the effective filing
date of the claimed invention to have a fourth die cuts are shaped in an X for a straw in the
modified Ambartsoumian in order to have a label that protects the contents of a container from
spilling as taught by JP 2016204033 A
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Ambartsoumian (WO 2022/077118 A1) in view of JP 2011-170221A, and JP 3104907 U as applied to claim 2, and further in view of Pusateri et al. (WO 98/14377).
Ambartsoumian, as modified with JP 2011-170221A and JP 3104907 U, discloses the claimed invention except for an adhesive applied on backsides of the top portion, the middle portion, and the bottom portion is a microsphere adhesive that is adapted to adhere to wet surfaces.
Pusateri et al. teaches an adhesive on the backsides substrate is a microsphere adhesive
(Figure 2, #28), the microsphere adhesive is adapted to adhere to wet surfaces (Page 9, lines 13 -
20, wherein the microspheres push aside containments, which would include water), and an
adhesive on backsides of the top portion and the bottom portion is a microsphere adhesive that is
adapted to adhere to wet surfaces (Figure 2, #28; Page 9, lines 13 - 20, wherein the microspheres
push aside containments, which would include water) for the purpose of leaving an
uncontaminated surface (Page 9, lines 13 - 20).
It would have been obvious to one of ordinary skill in the art before the effective filing
date of the claimed invention to have microsphere adhesive in the modified Ambartsoumian in
order to leave an uncontaminated surface as taught by Pusateri et al.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Patricia L Nordmeyer whose telephone number is (571)272-1496. The examiner can normally be reached 10am - 6:30pm EST, Monday - Friday.
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, Alicia Chevalier can be reached at 571-272-1490. 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 https://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.
/Patricia L. Nordmeyer/
Primary Examiner
Art Unit 1788
/pln/
Primary Examiner, Art Unit 1788
July 7, 2026
Prosecution Insights