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 tail portion being located on a first end of the tab opposite a second end of the tab covering the pour opening and being located on the end of the tab wherein a portion of the tab covering the pour opening is also located of claim 13, a tail portion and a second tail located on a first end of the tab opposite a second end of the tab covering the pour opening of claim 14, a tail portion located on a first end of the tab and located on an opposite second end of the tab covering the pour opening of claim 14, 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 12 is objected to because of the following informalities: “the tail” of line 2 should be corrected to “the tail portion”. Appropriate correction is required.
Claim 15 is objected to because of the following informalities: “the surface modifier” of line 1 should be corrected to “the surface energy modifier”. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 23 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention. The limitation of “wherein can end is entirely produced from aluminum”, while claim 1 requires a “reclosable beverage can end comprising: … one or more layers of a sealing material and a surface energy modifier” fails to comply with the enablement requirement. The original disclosure provides that the sealing material may be an epoxy, a thermoset polymer layer, a thermoplastic polymer resin of the polyester family, such as polyethylene terephthalate or a polyolefin, such as polypropylene. The original specification provides that surface energy modification techniques or layers include plasma activation, a layer of wet chemical treatment, including grafting, and a layer of thin-fil coating. Nowhere does the original disclosure provide that the sealing material or the surface energy modifier can be aluminum. Those of ordinary skill in the art do not recognize aluminum as a sealing material or surface energy modifier to be located between two aluminum structures. The Wands factors of MPEP 2164.01(a) have been considered. Based upon the state of the prior art presented in the attached PTO-892, the level of ordinary skill in the art presented in those references, the level of predictability (strong in the mechanical arts), and the amount of direction provided (as presented above), the quantity of experimentation needed to make the claimed invention commensurate in scope with the claims is undue.
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 8, 13-14, 18-21, and 23 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 limitation of claim 8 of “further comprising a thermoset polymer layer between the tab and the center panel forming the seal therebetween” is led to be indefinite. From claim 1 “a combination of the sealing material, the surface energy modifier, the center panel and the tab forms a seal of the pour opening”. The seal is not between the tab and center panel as recited in claim 8. Additionally, it is unclear if the thermoset polymer is a newly recited structure or further defines the sealing material. From the original specification “the sealing material 56 can be a thermoset polymer layer between the tab 26 and the center panel 12 forming the seal”. In light of the original disclosure an in order to apply art the limitation will be interpreted as if the sealing material can be a thermoset polymer layer between the tab and the center panel forming the seal.
Claim 13 is led to be indefinite as it is unclear if “an end” is a newly recited structure or refers back to the second end of claim 12. In order to apply art the claim will be interpreted as the latter.
Claim 13 is led to be indefinite because it is unclear if the claim requires a single tail portion to be located on a first end of the tab opposite a second end of the tab covering the pouring opening and also on an end (the second end) of the tab wherein a portion of the tab covering the pour opening is located. The original drawings do not depict a single tail portion on that exists on both ends, rather they depict two separate tail portions that exist on respective first and second ends. In light of the original disclosure and in order to apply art the claim will be interpreted as if a distinct tail portion is located on an end of the tab wherein a portion of the tab covering the pour opening is also located on the end of the tab.
Claim 13 recites the limitation "the tail" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 14 recites the limitation "the tail" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 14 is led to be indefinite as it is unclear if the second tail is a newly recited structure or refers to the tail of claim 13 which has been interpreted as distinct tail from the tail of claim 12. In light of the original disclosure which depicts two tails, the claim will be interpreted as if the second tail is the same tail as that of claim 13.
Claim 14 is led to be indefinite as it is unclear it “a first end” and “a second end” are newly recited structures or refer back to the first end and the second end of claim 12. In order to apply art the claim will be interpreted as the latter.
Claim 18 is led to be indefinite as it is unclear if the public side of the center panel is a newly recited structure or refers back to the public side of center panel of claim 1. In light of the original disclosure and in order to apply art the claim will be interpreted as the latter.
Claim 19 recites the limitation "the second position" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 19 recites the limitation "the first position" in lines 2-3. There is insufficient antecedent basis for this limitation in the claim.
Claim 20 recites the limitation "the tab curl" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 21 recites the limitation "the tab curl" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 23 recites the limitation "the reclosable beverage can" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 102
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 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) 1-4, 9, 15, and 22 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hail (US 20090026201).
Claim 1: Hail discloses a reclosable beverage can end comprising: a circumferential curl centered about a center longitudinal axis of the can end; a circumferential wall extending downwardly from the curl and inwardly towards the longitudinal axis; a center panel produced from a metallic material [P. 0003] and centered about the longitudinal axis comprising a public side and an opposing product side; a rotatable tab mounted to the public side of the center panel; a pour opening formed by an aperture, formed after rupture of break-line 1001, in the center panel; a pull-tab coat 102 (one or more layers of sealing material) and an adhesive promoter (surface energy modifier) [P. 0017] located between a surface of the tab and the center panel wherein a combination of the pull-tab coat 102 (sealing material), the adhesive promoter (surface energy modifier), the center panel and the tab forms a seal of the pour opening (see annotated fig. 2 below and fig. 3).
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Claim 2: Hail discloses wherein the seal is broken by rotating the tab on the center panel (see annotated fig. 2 above and fig. 3).
Claim 3: Hail discloses wherein the pull-tab coat 102 (layer of sealing material) has an annular shape (see annotated fig. 2 above).
Claim 4: Hail discloses wherein the pull-tab coat 102 (layer of sealing material) has a disk shape (see annotated fig. 2 above).
Claim 9: Hail discloses wherein the tab is staked to the public side of the center panel by a rivet connector 901 (rivet) (see P. 0026 and annotated fig. 2 above).
Claim 15: Hail discloses wherein the tab comprises a finger aperture 601 (finger hole) (see annotated fig. 2 above and P. 0006).
Claim 22: Hail discloses wherein the adhesive promoter (surface energy modifier) is a wet chemical treatment (see P. 0017).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hail (US 20090026201) as applied to claim 9 above, and further in view of LaBarge (US 4678096).
Claim 10: Hail discloses the claimed invention except wherein the rivet is formed from the material of the center panel and is integral therewith.
LaBarge teaches a plastic cap 10 staked to an end wall 16 of a metal can end clsoure 12 by a rivet 36 formed from a material of the end wall 16 (see C. 8 L. 29, C. 2 L. 26-29, C. 1 L. 9-10, and fig. 4).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have made the rivet connector 901 (rivet) using material from the center panel such that it was integral therewith, as taught by LaBarge, in order to reduce components and enhance manufacturing efficiency.
Claim(s) 5-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hail (US 20090026201) as applied to claim 2 above, and further in view of Vinger (US 20200407109).
Claim 5: Hail discloses the claimed invention except wherein the sealing material is an epoxy.
Vinger teaches the bottom portion of a closure flap having a lining sealant 710 in the form of epoxy resin (see P. 0071 and fig. 7A).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have made the pull-tab coat 102 (sealing material) out of an epoxy resin, as taught by Vinger, due to its durability, strength, low moisture absorption, and since 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.
Claim 6: The limitation that the epoxy is a thermally cured epoxy is a product by process limitation. “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.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted).
Claim 7: The limitation that the epoxy is cured by induction heating is a product by process limitation. “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.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted).
Claim 8: Hail discloses the claimed invention except further comprising a thermoset polymer layer between the tab and the center panel forming the seal therebetween.
Vinger teaches the bottom portion of a closure flap having a lining sealant 710 in the form of epoxy resin (thermoset polymer) (see P. 0071 and fig. 7A).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have made the pull-tab coat 102 (sealing material) out of an epoxy resin (thermoset polymer), as taught by Vinger, due to its durability, strength, low moisture absorption, and since 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.
Claim(s) 11-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hail (US 20090026201) as applied to claim 2 above, and further in view of McHenry (US 6626314).
Claim 11: Hail discloses the claimed invention except wherein the tab comprises a tail portion extending radially outwardly from a surface of the tab and configured for engagement by a user's finger to rotate the tab.
McHenry teaches a resealable closure 10 having a top panel 18 having a dispensing port and a sealing flap 22 having a tab 42 (tail portion) extending radially outward from a surface of the sealing flap 22 and configured for engagement by a user’s finger to rotate the sealing flap 22, wherein the tab 42 (tail portion) is located on a first end of the sealing flap 22 opposite a second end of the sealing flap 22 covering the pour opening, and a tab 40 located on the second end of the tab (see fig. 4a).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the tab to have a tab 42 (tail portion) extending radially outwardly from its surface on a first end opposite a second end covering the pour opening and a tab 40 located on the second end, as taught by McHenry, in order to permit a user to more easily engage the tab to rotate it.
Claim 12: The combination discloses wherein the tab 42 (tail portion) is located on a first end of the tab opposite a second end of the tab covering the pour opening (see fig. 4a ‘314).
Claim 13: The combination discloses wherein the tab 40 (tail) is located on an end of the tab wherein a portion of the tab covering the pour opening is also located on the end of the tab (see fig. 4a ‘314).
Claim 14: The combination discloses comprising a tab 40 (second tail) wherein the tab 42 (tail) is located on a first end of the tab opposite a second end of the tab covering the pour opening and wherein the tab 40 (second tail) is located on the second end the tab (see fig. 4a ‘314).
Claim(s) 24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hail (US 20090026201) as applied to claim 1 above, and further in view of Dyren (US 20030000952).
Claim 24: Hail discloses the claimed invention except wherein the center panel comprises indicia defining a direction for tab rotation.
Dyren teaches a can cover 12 having an opening device 30 that can be twisted to a resealing position and a flat opening area with an arrow and text reading RECLOSE (indicia) (see fig. 1).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the center panel to include the arrow and text reading RECLOSE (indicia), as taught by Dyren, in order to provide integral instructions for operation to a user.
Claim(s) 1, 2, 15, 16, 17, 18, and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over LaBarge (US 4678096) further in view of Mandel (US 4463866) and Vardon (US 20020190620).
Claim 1: LaBarge discloses a plastic cap 10 and metal can end closure 12, together reading on the claimed reclosable beverage can end, comprising: a circumferential curl centered about a center longitudinal axis of the plastic cap 10 and metal can end closure 12 (can end); a circumferential wall extending downwardly from the curl and inwardly towards the longitudinal axis; an end wall 16 (center panel) produced from a metallic material and centered about the longitudinal axis comprising a public side and an opposing product side; a plastic cap 10 (rotatable tab) mounted to the public side of the end wall 16 (center panel); a pour opening formed by an aperture in the end wall 16 (center panel) (see annotated fig. 2 below).
LaBarge does not disclose one or more layers of a sealing material and a surface energy modifier located between a surface of the tab and the center panel wherein a combination of the sealing material, the surface energy modifier, the center panel and the tab forms a seal of the pour opening.
Mandel teaches an aluminium top container 10 having an aluminium container top 22, aperture 50, recess 60, a resealing device 12 which is connected to the container top 22 by a pivot rivet 22 and which can seal the aperture 50, and a plastic material 56 (sealing material) coating an angled face of the stopper member 47 to form a seal between the container top 22 and the stopper member 47 (see fig. 2-4).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the inner surface of the tab curl to be coated with plastic material 56 (sealing material) such that the plastic material 56 (sealing material) is located between the plastic cap 10 (tab) and the end wall 16 (center panel) to form a seal therebetween over the pour opening, as taught by Mandel, in order to better seal the outlet opening.
Vardon teaches treating a surface 4 with a plasma treatment (surface energy modifier) prior to the application of adhesive of gasket (see P. 0027 & 0041).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have treated the plastic cap 10 (rotatable tab) with a plasma treatment (surface energy modifier) at the location where the plastic material 56 (sealing material) was to be applied, as taught by Vardon, in order to create roughness to better attach the plastic material 56 (sealing material).
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Claim 2: The combination discloses wherein the seal is broken by rotating the plastic cap 10 (tab) on the end wall 16 (center panel).
Claim 15: The combination discloses wherein the plastic cap 10 (tab) comprises a finger hole (see annotated fig. 1 below).
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Claim 16: The combination discloses wherein the finger hole is located on a first end of the plastic cap 10 (tab) opposite a second end of the plastic cap 10 (tab) covering the pour opening (see annotated fig. 1 above).
Claim 17: The combination discloses wherein the pour opening is at least partially defined by a pour opening curl (see annotated fig. 4 below).
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Claim 18: The combination discloses wherein the pour opening curl extends upwardly from the public side of the end wall 16 (center panel), and the plastic cap 10 (tab) comprises a tab curl extending downwardly towards the public side of the end wall 16 (center panel) and matingly engaged with the pour opening curl (see annotated fig. 4 above).
Claim 20: The combination discloses wherein the plastic material 56 (sealing material) is located between the tab curl and the pour opening curl (see annotated fig. 4 above).
Allowable Subject Matter
Claims 19 and 21 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. NL 9301501 is considered pertinent to a non-circumferential curl and US 20180141702, US 4979635, US 4433792, US 20070138178, US 4442950, US 8608007, KR 200316684, and WO 2006009483 are considered pertinent to reclosable beverage can ends with sealing materials.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALLAN D STEVENS whose telephone number is (571)270-7798. The examiner can normally be reached Monday-Friday 12-8 ET.
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, Orlando E. Aviles can be reached at (571)270-5531. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALLAN D STEVENS/Primary Examiner, Art Unit 3736
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