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 .
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of U.S. Patent No. 12,358,712. Although the claims at issue are not identical, they are not patentably distinct from each other because all the limitations of the instant application can be arrived at from the claim limitations of the cited patent.
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.
Claims 1-20 rejected under 35 U.S.C. 103 as being unpatentable over Auclair et al. (US 7,073,665) in view of Notheis (US 4,478,354).
Claim 1, Auclair discloses a package dispenser comprising: a bottom wall (18); a top wall (24); first (40,44) and second (40,44) side walls that are opposite each other, that extend in a height direction (H) of the package dispenser, and that are parallel to a length direction (L) of the package dispenser; and first (20) and second (20) end walls that are opposite each other, that extend in the height direction (H) of the package dispenser, and that are parallel to a width direction (W) of the package dispenser, wherein the bottom wall (18), the top wall (24), the first (40,44) and second (40,44) side walls, and the first (20) and second (22) end walls together delimit a storage space containing at least one stack of wipes (the article dispenser of Auclair is fully capable of storing a stack of wipes; see abstract), wherein a second set of intermittent cuts (50,52) is formed in at least the first (40,44; fig.3) side wall, the second set of intermittent cuts delimiting a second removable panel (54) configured to be removed to form a second dispensing opening (fig.10), wherein a third set of intermittent cuts (92) is formed in at least the first side wall (40,44), the third set of intermittent cuts delimiting a third removable panel (92; figs.11-12) configured to be removed to form a third dispensing opening (fig.12), and wherein the second removable panel (54) is removable to form the second dispensing opening (fig.10) without removing the third removable panel (92), and wherein the third dispensing opening (fig.12) is continuous with the second dispensing opening (fig.10) such that, when both the second (54) and third (92) removable panels are removed, a combined dispensing opening including the second dispensing opening and the third dispensing opening (figs.10-12).
Auclair does not disclose wherein the top wall comprises a handle; wherein a first set of intermittent cuts is formed in at least the top wall, the first set of intermittent cuts delimiting a first removable panel configured to be removed to form a first dispensing opening; the second set of intermittent cuts delimiting a second removable panel configured to be removed to form a second dispensing opening separate from the first dispensing opening; the third set of intermittent cuts delimiting a third removable panel configured to be removed to form a third dispensing opening separate from the first dispensing opening.
Notheis discloses wherein the top wall (26) comprises a handle (30); wherein a first set of intermittent cuts (28) is formed in at least the top wall, the first set of intermittent cuts delimiting a first removable panel (28) configured to be removed to form a first dispensing opening (fig.3). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to provide the device of Auclair with wherein the top wall comprises a handle; wherein a first set of intermittent cuts is formed in at least the top wall, the first set of intermittent cuts delimiting a first removable panel configured to be removed to form a first dispensing opening; the second set of intermittent cuts delimiting a second removable panel configured to be removed to form a second dispensing opening separate from the first dispensing opening; the third set of intermittent cuts delimiting a third removable panel configured to be removed to form a third dispensing opening separate from the first dispensing opening in order to form a hand opening for grasping a handle panel used for hand carrying an open package and to enable articles to be dispensed from the top of the article dispenser, all of which are widely known configurations in the art.
Claim 2, Auclair discloses wherein the second removable panel (54) is larger than the third removable panel (92).
Claim 3, Auclair discloses wherein a first portion of the second removable panel (54) is formed on the end wall (20,22) and a second portion of the second removable panel (54) is formed on the first side wall (40,44).
Although Auclair does not disclose wherein a first portion of the second removable panel is formed on the upper wall and a second portion of the second removable panel is formed on the first side wall, it would have been obvious to one of ordinary skill in the art before the effective filing date to implement such a configuration since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70.
Claim 4, Auclair discloses wherein an entire periphery of the second removable panel (54) is curved.
Claim 5, Auclair discloses wherein a lower edge of the third removable panel (92) is not straight. Although Auclair does not disclose a straight lower edge of the third removable panel, it would have been obvious to one having ordinary skill in the art before the effective filing date to implement such a configuration since a change in the shape of a prior art device is a design consideration within the skill of the art. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
Claim 6, Auclair discloses wherein an upper edge of the third removable panel (92) is curved (fig.1).
Claim 7, Auclair discloses wherein the second removable panel (54) comprises a grip portion (54 inherently has a gripping portion since the removable panel has to be gripped by a user to remove the panel).
Claim 8, Auclair discloses wherein the grip portion (54 inherently has a gripping portion since the removable panel has to be gripped by a user to remove the panel) is configured to be pushed in (fig.3; lower portion of 54 can be pushed in to form a grip opening) or folded out to form a grip opening.
Claim 9, Auclair discloses wherein the grip portion (54 inherently has a gripping portion since the removable panel has to be gripped by a user to remove the panel) is formed on a lower edge (fig.3; the lower edge portion of 54 can be punched in to form a grip opening) of the second removable panel (54).
Claim 10, Auclair discloses wherein the third removable panel (92) comprises a grip portion (fig.10; portions of 92 can be pushed in to form a grip opening).
Claim 11, Auclair discloses wherein the grip portion (fig.10; portions of 92 can be pushed in to form a grip opening) is configured to be pushed in or folded out to form a grip opening (fig.10; portions of 92 can be pushed in to form a grip opening).
Claim 12, Auclair discloses wherein the grip portion (fig.10; portions of 92 can be pushed in to form a grip opening) is formed on an upper edge of the third removable panel (92).
Although Auclair does not disclose the grip portion is formed on a lower edge of the third removable panel, it would have been obvious to one of ordinary skill in the art before the effective filing date to implement such a configuration since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70.
Claim 13, Auclair discloses wherein the second removable panel (54) is not larger than the third removable panel (92) in the width direction (W) of the package dispenser.
Although Auclair does not disclose wherein the second removable panel (54) is larger than the third removable panel (92) in the width direction (W) of the package dispenser, it would have been obvious to one of ordinary skill in the art before the effective filing date to implement such a configuration since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
Claim 14, Auclair does not disclose wherein the first removable panel and the first portion of the second removable panel are positioned on opposite sides of the handle in the width direction (W) of the package dispenser.
Notheis discloses wherein the first removable panel (28) and the first portion of the second removable panel (28) are positioned on opposite sides of the handle (30) in the width direction (W) of the package dispenser (10). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to provide the device of Auclair with wherein the first removable panel and the first portion of the second removable panel are positioned on opposite sides of the handle in the width direction (W) of the package dispenser in order to form a hand opening for grasping a handle panel used for hand carrying an open package and to enable articles to be dispensed from the top of the article dispenser, all of which are widely known configurations in the art.
Claim 15, Auclair does not disclose wherein the first portion of the second removable panel is spaced apart from the handle.
Notheis discloses wherein the first portion of the second removable panel (28) is spaced apart from the handle (30). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to provide the device of Auclair with wherein the first portion of the second removable panel is spaced apart from the handle in order to form a hand opening for grasping a handle panel used for hand carrying an open package and to enable articles to be dispensed from the top of the article dispenser, all of which are widely known configurations in the art.
Claim 16, Auclair discloses wherein the third removable panel (92) extends from an upper edge of the second removable panel (54).
Although Auclair does not disclose wherein the third removable panel (92) extends from a lower edge of the second removable panel (54), it would have been obvious to one of ordinary skill in the art before the effective filing date to implement such a configuration since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70.
Claim 17, Auclair discloses wherein the third removable panel (92) is spaced from an upper edge of the first side wall (40,44).
Although Auclair does not disclose wherein the third removable panel (92) is spaced from a lower edge of the first side wall (40,44), it would have been obvious to one of ordinary skill in the art before the effective filing date to implement such a configuration since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70.
Claim 18, Auclair discloses wherein the third removable panel (92) is spaced from an upper edge of the first end wall (20).
Although Auclair does not disclose wherein the third removable panel (92) is spaced from an upper edge of the first side wall (40,44), it would have been obvious to one of ordinary skill in the art before the effective filing date to implement such a configuration since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70.
Claim 19, Auclair discloses wherein the second removable panel (54) is spaced from the first end wall (20) and the second end wall (20).
Claim 20, Auclair discloses the articles being dispensed through the first dispensing opening, the second dispensing opening (fig.10), or the combined dispensing opening (fiogs.11-12).
Auclair does not disclose each of the at least one stack of wipes has a bottom surface formed from a bottom wipe, a top surface formed from a top wipe, two side surfaces and two end surfaces, wherein the side surfaces and the end surfaces extend between the bottom surface and the top surface, wherein each of the at least one stack of wipes is placed in the storage space and rest with the bottom surface on the bottom wall of the package dispenser, and with the top surface of the stack facing the top wall of the package dispenser, wherein each of the at least one stack of wipes in the package dispenser is a stack of interfolded wipes, wherein each of the at least one stack of wipes is arranged to be dispensed from the top surface of the stack, the interfolded wipes in the stack being dispensed through the first dispensing opening, the second dispensing opening, or the combined dispensing opening.
Notheis discloses each of the at least one stack of wipes has a bottom surface formed from a bottom wipe (fig.3), a top surface formed from a top wipe, two side surfaces and two end surfaces (fig.3), wherein the side surfaces and the end surfaces extend between the bottom surface and the top surface (fig.3), wherein each of the at least one stack of wipes is placed in the storage space and rest with the bottom surface on the bottom wall of the package dispenser (fig.3), and with the top surface of the stack facing the top wall of the package dispenser, wherein each of the at least one stack of wipes in the package dispenser is a stack of interfolded wipes (see figures), wherein each of the at least one stack of wipes is arranged to be dispensed from the top surface of the stack, the interfolded wipes in the stack being dispensed through the first dispensing opening (28). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to provide the device of Auclair with each of the at least one stack of wipes has a bottom surface formed from a bottom wipe, a top surface formed from a top wipe, two side surfaces and two end surfaces, wherein the side surfaces and the end surfaces extend between the bottom surface and the top surface, wherein each of the at least one stack of wipes is placed in the storage space and rest with the bottom surface on the bottom wall of the package dispenser, and with the top surface of the stack facing the top wall of the package dispenser, wherein each of the at least one stack of wipes in the package dispenser is a stack of interfolded wipes, wherein each of the at least one stack of wipes is arranged to be dispensed from the top surface of the stack, the interfolded wipes in the stack being dispensed through the first dispensing opening, the second dispensing opening, or the combined dispensing opening in order to form a hand opening for grasping a handle panel used for hand carrying an open package and to enable articles to be dispensed from the top of the article dispenser, all of which are widely known configurations in the art.
Conclusion
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/AYODEJI H OJOFEITIMI/Examiner, Art Unit 3651
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