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 .
Claim Interpretation
The claims introduce a limitation of a lamination plug without defining what exactly the plug entails. The act of positioning the plug within the compartment and then also moving it within the apartment is unclear as to if the initial positioning is the movement or if this is secondary step.
Upon review of the instant specification, it is inferred that the intent of the lamination plug and its movement is to move the plug into a position DI away from the bottom after the laminate is heated and under a specific speed to allow for a stretching of the laminating in a controlled manner to arrive a laminate layer with varying levels of weakness for further processing to be acted upon.
It is the Examiner’s stance that this particular combination fo actions is not required by the claims in their current written format. As the Exameirn is held to broadest reasonable intrerpation, the act of applying a male member of a mold or a stretching rod or an inseart in a ehated mold would read on the deffiantinon of a lamination plug as broadly defined. The act of stretching a heating laminatino layer will inherently provide some aeras of weaker strength than others that would be enabled for future peircign of the layer if desired.
The claims further introduce a speed component and a heating component to the act of providing the lamination plug, but as separate independent claims that do not depend on each other.
An art rejection will be presented below to address the broadest reasonable interpretations of the claims as discussed above, but it is noted that the instant specification describes the act of stretching the laminate layer through the controlled movement of the plug with a specified combination of speed and temperature to provide for the novel conditions to be captured by the claims.
This clarification is provided to show that such the above combination has not been actively claimed and is not currently taken into consideration, but would be given weight if the claims were to provide the discussed combination of limitations with an argument to their criticality would be given full weight.
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) 1-20 is/are rejected under 35 U.S.C. 102a1 as being anticipated by Esgueva Gutierrez et al, US Patent Publication 2020/0181849
Regarding claims 1 and 14, Esgueva Gutierrez teaches a method of making a molded fiber packaging unit (see abstract and figures) comprising the steps of preparing a moldable fiber material (claim 8 step a);
forming the mouldable fiber material in a mould into a primary packaging unit with compartment (claim 8 step d);
bringing the primary packaging unit to a lamination temperature (heating ins claim 8 step e);
providing a laminate layer (claim 8 step e);
positioning a lamination plug with the laminate layer at least partly in the compartment of the primary packaging unit (plug would read on second mold opposite shape that forms the shape of the tray); and
attaching the laminate layer to the fiber material of the packaging unit (see claim 8 step e);
wherein positioning the lamination plug in the compartment comprises partly entering the compartment of the primary packaging unit with the lamination plug to a lamination distance DI (no specific distance is claimed just that a distance is present, under broadest reasonable interpretation the positioning as shown in figures 2 and 3 read on the limitations as claimed) from a bottom of the compartment, and further comprising the step of blowing and/or drawing the laminate layer over the lamination distance to the bottom of the compartment [0092-0108];
further comprising the step of stretching the laminate layer, wherein stretching the laminate layer comprises providing one or more weaker areas in the laminate layer to enable piercing of such area [0111].
Regarding claims 2-13 and 15-20, Esgueva Gutierrez remain as applied and teaches the broadest reasonable interpretation of the remaining steps such as controlling the temperature and pressure of the operations to 120-180C, controlling the moisture of the set up during operation [0022], preheating the laminate [0111], allowing for die cutting of a portion [0114], and the act of multiple formation steps which the cylinders for the second mold face are moved into contact to stretch and form the shape [0081-0088]. While there is not a direct teaching of the percentage of the movement of the cylinders being 60-90%, it is depicted through the figures and descriptions to move most of the way through the mold and then flipped and performed on the other side. It must be moved less than 100% of the way as it does not break through to the other side and the act of flipping and performing the feature again would lead the average artisan to understand that the range of 60-90% of the depth will be met by the description of the formatting steps that occur.
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 7-8 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 19/310765 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the instant application requires all of the broader limitations of the ‘765 application and then additional limitations.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JACOB T MINSKEY whose telephone number is (571)270-7003. The examiner can normally be reached M-F 8-6 PM.
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JACOB T. MINSKEY
Examiner
Art Unit 1741
/JACOB T MINSKEY/Primary Examiner, Art Unit 1748
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