DETAILED ACTION
Claim Rejections - 35 USC § 102
1. 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.
2. Claims 1, 2, 5, 6, 8, 13, 14, 16, 17, 20, and 21 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 7,861,873 (Bragg).
Regarding claim 1, Bragg teaches a child-resistant vial comprising:
a one-piece container (170) having a top peripheral edge and a first cooperating part (177); and a one-piece cap assembly (120) including
i) a second cooperating part (131) engageable with the first cooperating part for fixedly mounting the cap assembly to the container at the top peripheral edge thereof (col. 6, lines 42-50),
ii) a first latching part (52), and
iii) a cap (40), that is pivotably mounted to the second cooperating part, for selectively closing the container when the second cooperating part is fixedly mounted to the container; the cap including a second latching part (54) for cooperating with the first latching part to lock the cap onto the container when the cap closes the container;
wherein the cap being unlockable from the container by simultaneously moving the cap away from the container and moving the first and second latching parts relatively to one another (cap 40 is lifted away while the latching parts are disengaged through squeezing of button 24).
Regarding claim 2, the second cooperating part includes an annular element (groove 131b is shown annular in Figure 8).
Regarding claim 5, the first latching part is mounted to the annular element (52 is mounted to the neck 176 as seen in Figure 8).
Regarding claim 6, the annular element includes a first outer skirt (130) and the cap includes a second outer skirt (42) to cover the first outer skirt at least partially when the cap is moved to close the vial (cap skirt 42 covers the upper peripheral edge of the first outer skirt 130; see analogous embodiment in Figure 6).
Regarding claim 8, the first latching part is a tab (52) that is part of the first outer skirt (130), and the second latching part is a cut (the gap between 54a-54c e.g. Figure 3) in the second outer skirt.
Regarding claim 13, the cap is pivotably mounted to the second cooperating part via a hinge (20a).
Regarding claim 14, the second cooperating part is configured to be mounted onto the one-piece container in a snap-fit manner (131a snap fits onto 177; see col. 6, lines 39-46).
Regarding claim 16, the first cooperating part is a rim at the top peripheral edge (see neck 173 which inherently includes an upper peripheral rim).
Regarding claim 17, Bragg teaches a one-piece cap assembly for a child-resistant vial comprising:
an annular cooperating part (131) that is permanently attachable to a top peripheral edge of a container for fixedly mounting the cap assembly to the container;
a first latching part (52), and
a cap (40), that is pivotably mounted to the second cooperating part (at hinge 20a), for selectively closing the container when the second cooperating part is fixedly mounted to the container;
the cap including a second latching part (54) for cooperating with the first latching part to lock the cap onto the container when the cap closes the container;
the first and second latching parts being further configured so that the cap being unlockable from the container by simultaneously moving the cap away from the container and moving the first and second latching parts relatively to one another (cap 40 is lifted away while the latching parts are disengaged through squeezing of button 24).
Regarding claim 20, the cap is pivotably mounted to the second cooperating part via a flexible hinge (20a).
Regarding claim 21, vial comprising: a one-piece container having a top peripheral edge and a rim at the top peripheral edge; and
a one-piece cap assembly (120) including:
(i) an annular cooperating part (131) configured to engage the rim and permanently mount the
cap assembly to the container at the top peripheral edge (see col. 6, lines 34-50);
(ii) a first latching part (52) disposed on the annular cooperating part; and
(iii) a cap (40) pivotably mounted to the annular cooperating part (by hinge 20a), the cap
including a second latching part (54) configured to cooperate with the first latching part to lock the cap onto the container when the cap is in a closed position (col. 2, lines 41-43).
Regarding claim 22, two-part vial assembly comprising a one-piece container; and a one-piece cap assembly including i) a mounting portion (131) that is permanently attachable to the container (see col. 6, lines 34-50), and ii) a cap (40) pivotably mounted to the mounting portion (by hinge 20a) for selectively closing the container in a sealed and lockable manner when the cap assembly is mounted to the container (e.g. Figure 11).
Claim Rejections - 35 USC § 103
3. 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.
4. Claims 3, 4, 18, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over US 7,861,873 (Bragg) as applied above under 35 U.S.C. 102(a)(1) to claim 1, in view of US 4,715,506 (McLaren).
Regarding claim 3, Bragg as applied above fails to teach that the first cooperating part is a rim; the second cooperating part includes at least one tooth extending from the annular element; the at least one tooth being so positioned on the annular element as to be forced under the rim when the cap assembly is mounted to the one-piece container.
Examiner notes Bragg contemplates various non-removal structures such as a bead (177) and groove (131a) in Figure 8, or a ratchet configuration (273) in Figure 9.
McLaren, analogous to non-removable closures, teaches a retaining structure comprising lugs (7) which secure under a container annular bead (unlabeled; see Figure 5), and which prevent removal without destruction of the frangible tongues (5). Although disposed on a tamper evident band, a person of ordinary skill in the art would recognize the lugs (7), which can be read as teeth, as providing interference to prevent removal, and operate independently of the tamper band itself.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the closure of Bragg, providing retaining teeth as taught by McLaren, motivated by the use of a suitable non-removal structure by simple substitution, having a predictable outcome absent a teaching of an unexpected result. See KSR International Co. v. Teleflex Inc. et al., 550 U.S. 2007 at 13, lines 22-25 which states, “When a work is available in one field of endeavor, design incentives ...can prompt variations of it, either in the same field or a different one. Furthermore, see id. at 13, lines 27-31 which states “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious”.
Regarding claim 4, the at least one tooth includes a bottom edge (bottom edge of 7 in McLaren Figure 1) and a beveled hook portion at the bottom edge (see McLaren Figure 1 and col. 2, lines 8-12 teaching a lower inclined, or beveled, lower surface which facilitates snapping onto the container by moving past the container bead in a well-known manner in the art).
Regarding claim 18, Bragg as applied above fails to teach that the annular cooperating part includes at least one tooth configured to be moved under a rim of the container when the annular cooperating part is mounted to the container.
Examiner notes Bragg contemplates various non-removal structures such as a bead (177) and groove (131a) in Figure 8, or a ratchet configuration (273) in Figure 9.
McLaren, analogous to non-removable closures, teaches a retaining structure comprising lugs (7) which secure under a container annular bead (unlabeled; see Figure 5), and which prevent removal without destruction of the frangible tongues (5). Although disposed on a tamper evident band, a person of ordinary skill in the art would recognize the lugs (7), which can be read as teeth, as providing interference to prevent removal, and operate independently of the tamper band itself.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the closure of Bragg, providing retaining teeth as taught by McLaren, motivated by the use of a suitable non-removal structure by simple substitution, having a predictable outcome absent a teaching of an unexpected result. See KSR International Co. v. Teleflex Inc. et al., 550 U.S. 2007 at 13, lines 22-25 which states, “When a work is available in one field of endeavor, design incentives ...can prompt variations of it, either in the same field or a different one. Furthermore, see id. at 13, lines 27-31 which states “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious”.
Regarding claim 19, the at least one tooth includes a plurality of teeth spaced-apart along the annular cooperating part (McLaren teaches a plurality of teeth 7; see Figure 3 therein).
5. Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over US 7,861,873 (Bragg) as applied above under 35 U.S.C. 102(a)(1) to claim 1.
Regarding claim 15, both the one-piece container and one-piece cap assembly are molded from a polymeric material. However, the reference discuses molding techniques at length in
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the container and cap assembly of Bragg, forming the container and closure of polymeric material as is well-known in the art, motivated by the use of a suitable molding material, having a predictable outcome absent a teaching of an unexpected result. 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. In re Leshin, 125 USPQ 416. See MPEP 2144.07.
Allowable Subject Matter
6. Claims 7 and 9-12 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
7. The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 7, Bragg fails to teach that one of the first and second latching parts is a tab that is part of one of the first and second outer skirts respectively, and the other one of the first and second latching parts is a cut in another one of the first and second outer skirts respectively.
Regarding claim 9, from which claim 10 depends, Bragg fails to teach that the tab extends from the annular element via a breakable bridge; whereby, the tab is removable to convert the vial from a child-resistant vial to a non-child-resistant vial.
Regarding claim 11, from which claim 12 depends, Bragg fails to teach that the cap is in the form of a disk-shaped body that includes inner and outer concentric skirts extending on one side of the disk-shaped body so as to receive the annular element therebetween when the cap closes the container.
No motivation could be found to modify the references in order to arrive at the claimed invention.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES N SMALLEY whose telephone number is (571)272-4547. The examiner can normally be reached M-F 9:00 am to 6:00 pm.
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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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/JAMES N SMALLEY/Examiner, Art Unit 3733
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