DETAILED ACTION
Double Patenting
1. 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.
2. Claims 17 and 18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 14 of U.S. Patent No. 12,545,485. Although the claims at issue are not identical, they are not patentably distinct from each other because patented claims 1 and 14 anticipate the scope of instant claims 17 and 18.
Claims 1 and 14 of US 12,545,485
Instant claims 17 and 18
A closure assembly for a container filled or fillable with a pourable product comprising at least:
(Claim 17) A closure assembly for a container filled or fillable with a pourable product comprising at least a closing group including:
a lid having a first rim;
a lid including a first rim;
a ring member having a second rim facing the first rim;
a ring member including a second rim facing the first rim; and
one or more coupling elements connected to the lid and to the ring member; (NOTE: Examiner does not interpret any structural or functional difference between the terms “connected” and “tethered”)
two coupling elements connected to the lid and to the ring member and tethering the lid and the ring member with one another; wherein
a tamper-evidence ring and at least one rupturable coupling bridge designed to rupturably connect and/or rupturably connecting the ring member and the tamper- evidence ring to one another;
the closure assembly further comprises a tamper-evidence ring and one or more rupturable coupling bridges connecting the tamper-evidence ring and the ring member with one another, wherein
at least one rupturable coupling bridge designed to rupturably connect … the ring member and the tamper-evidence ring to one another;
the coupling bridges are configured to rupture during a first-time operation of lid.
(Claim 14) further comprising a collar having a pouring outlet; wherein the ring member is mounted to and arranged around the collar; wherein the lid is configured to selectively close and open the pouring outlet.
(Claim 18) further comprising a collar delimiting a pouring outlet, wherein the pouring outlet is configured to allow for the outflow of the pourable product from container, and wherein the ring member and the tamper-evidence ring are arranged around the collar.
Claim Objections
3. Claim 1 is objected to because of the following informalities:
Regarding claim 1, the phrase “from container” (second-to-last line) should be “from the container”.
Appropriate correction is required.
Claim Rejections - 35 USC § 102
4. 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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
5. Claims 1-9, 12, 13, and 15-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by WO 2020/212430 (Trankle). Examiner notes Trankle was published October 22, 2020, but has a filing date of April 18, 2019, and European filing date of April 15, 2020.
Regarding claim 1, Trankle teaches a closure assembly for a container filled or fillable with a pourable product, the closure assembly comprising at least a closing group including:
a lid (2) including a first rim (bottom edge of skirt 4);
a ring member (5) including a second rim facing the first rim (upper edge of 5 facing bottom edge of 4 in Fig. 1); and
more than one coupling element (7) connected to the lid and to the ring member and tethering the lid and the ring member with one another (clearly shown located between 2 and 5 in Figs. 1 and 2);
wherein the more than one coupling element constitutes the sole connection between the lid and the ring member before a first-time operation of the lid (no additional connecting elements are shown or otherwise disclosed); and
wherein the closure assembly further comprises a tamper-evidence ring (6) and one or more rupturable coupling bridges (61) connecting the tamper-evidence ring and the ring member with one another, wherein the coupling bridges are configured to rupture during the first-time operation of lid (pg. 8, 24-27);
wherein the closure assembly further comprises a collar (9) delimiting a pouring outlet (94), wherein the pouring outlet is configured to allow for the outflow of the pourable product from container (see col. 9, lines 8-13), and wherein the ring member and the tamper-evidence ring are arranged around the collar (clearly shown in Fig. 3).
Regarding claim 2, the ring member and/or the tamper-evidence ring are coaxial to the collar (see Figs. 2 and 3).
Regarding claim 3, the lid is arrangeable in:
a closing position in which the lid is connected to the collar and covers the pouring outlet (Fig. 1); and
an opening position in which the lid is detached from the collar and clears the pouring outlet (Fig. 2);
wherein the lid is controllable between the closing position and the opening position by means of a screwing action (see closure thread 43 engaging with neck thread 93).
Regarding claim 4, the lid comprises an inner threaded portion (43), arranged at an inner surface of the lid, and the collar comprises an outer threaded portion (93), arranged at an outer surface of the collar, wherein the inner threaded portion and the outer threaded portion are configured to allow for selectively fastening and loosening the lid to and from the collar by means of a relative rotation between the lid and the collar (pg. 8, lines 3-4).
Regarding claim 5, the coupling bridges connect the ring member and the tamper-evidence ring with one another prior to a first- time control of the lid from the closing position to the opening position and, in use, during the first time the lid is controlled from the closing position to the opening position, the coupling bridges irreversibly rupture (bridges 61 are taught to separate in pg. 8, 24-27).
Regarding claim 6, the closure assembly further comprises an interaction unit coupled to the collar and configured to interact with the tamper-evidence ring so as to actuate rupture of coupling bridges during the first time the lid is controlled from the closing position to the opening position (91; see pg. 8, lines 12-14).
Regarding claim 7, the more than one coupling elements are two coupling elements (see two of connecting element 7 in Fig. 2).
Regarding claim 8, the ring member is interposed between the lid and the tamper-evidence ring (see 5 located between cap 2 and tamper-evidence ring 6 in Fig. 1).
Regarding claim 9, the collar comprises an interaction device configured to interact with the ring member for preventing the ring member from decoupling from the collar, wherein the interaction device is configured to delimit an axial movement of the ring member along a longitudinal axis of the collar (92; see pg. 8, lines 14-16).
Regarding claim 12, each coupling element is elastically deformable so to be deformable as a result of strain and/or stresses and/or forces acting during handling and/or operation of the closure assembly (the cap is taught to be injection molded of various polymers on pg. 6, lines 18-22, and thus all portions of it, including the coupling elements 7, inherently possess elastic deformability well-known to the sloped portion of the stress-strain curve; see pg. 6, lines 24-26).
Regarding claim 13, the closing group is molded as a single piece from a molten polymer (see pg. 6, lines 24-26; Examiner notes that the structure of claim 1 places the collar outside of the closing group, which is read to comprise only the lid and ring member; the tamper evidencing ring and collar are part of the closure assembly and not the closing group).
Regarding claim 15, Trankle fails to teach the closure further comprising a coupling base (10) carrying the collar (see 9 disposed on 10 in Fig. 2) and being configured to be connected to a main body of the container (pg. 9, lines 8-13), wherein at least a portion of the coupling base substantially has a plate-like configuration (see 10 as a planar element in Fig. 3).
Regarding claim 16, a container filled or fillable with a pourable product, comprising a main body and a closure assembly according to Claim 1, the closure assembly being coupled to the main body (closure attached to cardboard container; see pg. 9, lines 8-13).
Regarding claim 17, Trankle teaches a closure assembly for a container filled or fillable with a pourable product comprising at least a closing group including:
a lid (2) including a first rim (bottom edge of skirt 4);
a ring member (5) including a second rim facing the first rim (upper edge of 5 facing bottom edge of 4 in Fig. 1); and
two coupling elements (7) connected to the lid and to the ring member and tethering the lid and the ring member with one another (clearly shown located between 2 and 5 in Figs. 1 and 2);
wherein the closure assembly further comprises a tamper-evidence ring (6) and one or more rupturable coupling bridges (61) connecting the tamper-evidence ring and the ring member with one another, wherein the coupling bridges are configured to rupture during a first-time operation of lid (pg. 8, 24-27).
Regarding claim 18, further comprising a collar (9) delimiting a pouring outlet (94), wherein the pouring outlet is configured to allow for the outflow of the pourable product from container (neck openings allow dispensing of container contents), and wherein the ring member and the tamper-evidence ring are arranged around the collar (see Fig. 2).
Regarding claim 19, Trankle teaches a container for a pourable product comprising a main body (stated on pg. 9, lines 8-13) filled or fillable with a pourable product and a closure assembly coupled to the main body, wherein the main body defines a sealed carton package, including a designated pour opening surface area, and the closure assembly is fitted to the main body about the designated pour opening surface area, and wherein the closure assembly comprises at least a closing group including:
a lid (2) including a first rim (bottom edge of skirt 4);
a ring member (5) including a second rim facing the first rim (upper edge of 5 facing bottom edge of 4 in Fig. 1); and
one or more coupling elements (7) connected to the lid and to the ring member and tethering the lid and the ring member with one another,
wherein the one or more coupling elements constitute the sole connection between the lid and the ring member before a first-time operation of lid (no additional connecting elements are shown or otherwise disclosed); and
wherein the closure assembly further comprises a tamper-evidence ring (6) and one or more rupturable coupling bridges (61) connecting the tamper-evidence ring and the ring member with one another, wherein the coupling bridges are configured to rupture during the first-time operation of lid (pg. 8, 24-27).
Regarding claim 20, further comprising a collar (9) delimiting a pouring outlet (94), wherein the pouring outlet is configured to allow for the outflow of the pourable product from container (neck openings allow dispensing of container contents), and wherein the ring member and the tamper-evidence ring are arranged around the collar (see Fig. 2).
Claim Rejections - 35 USC § 103
6. 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.
7. Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over WO 2020/212430 (Trankle) as applied above under 35 U.S.C. 102(a)(2).
Regarding claim 10, Trankle in view of Gonnert fails to teach that the interaction device comprises an annular ridge radially protruding from an outer surface of the collar, wherein the annular ridge has a discontinuous shape and is formed from a multitude of single pieces protruding from the collar.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Trankle in view of Gonnert, forming the interaction device to comprise a discontinuous ridge formed of multiple single pieces, motivated by an obvious separation of the parts of the invention, having a predictable outcome absent a teaching of an unexpected result. It has been held that constructing a formerly integral structure in various elements involves only routine skill in the art. Nerwin v. Erlichman, 168 USPQ 177, 179. See also MPEP 2144.04(V)(C): In re Dulberg, 289 F.2d 522, 523, 129 USPQ 348, 349 (CCPA 1961) (The claimed structure, a lipstick holder with a removable cap, was fully met by the prior art except that in the prior art the cap is “press fitted” and therefore not manually removable. The court held that “if it were considered desirable for any reason to obtain access to the end of [the prior art’s] holder to which the cap is applied, it would be obvious to make the cap removable for that purpose.”).
7. Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over WO 2020/212430 (Trankle) in view of DE 10 2020 120 441 (Gonnert). Examiner notes Gonnert was published on February 3, 2022, but has a filing date of August 3, 2020.
Regarding claim 11, Trankle as applied above fails to teach that the closure assembly further comprises a cutting device configured to rupture a separation membrane and a control device configured to control the cutting device from a rest position to an operative position in which the cutting device is adapted to rupture the separation membrane.
Gonnert, analogous to threaded closures, teaches closure assembly comprising a cutting device (60) configured to rupture a separation membrane (an underlying portion of the container on which the closure is placed) and a control device (380) configured to control the cutting device from a rest position to an operative position in which the cutting device is adapted to rupture the separation membrane (elements 380 engage drive elements 610 on the cutter in order to provide rotation during unscrewing of the closure cap from the threaded neck 2).
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 Trankle, providing a cutter as taught by Gonnert, motivated by the benefit of applying the closure to a carton, 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”. Furthermore, regarding the physical combination, the question is not whether the prior art devices can be physically combined, but whether a person of ordinary skill in the art would have found it obvious to combine different features or elements of known devices in a predictable way. See Orthopedic Equip. Co. v. United States, 702 F.2d 1005, 1013 (Fed. Cir. 1983): "There is a distinction between trying to physically combine the two separate apparatus disclosed in two prior art references on the one hand, and on the other hand trying to learn enough from the disclosures of the two references to render obvious the claims in suit. ...Claims may be obvious in view of a combination of references, even if the features of one reference cannot be substituted physically into the structure of the other reference." See MPEP 2145(III).
Examiner notes that Trankle teaches a closure to be applied to a container neck, while Gonnert is applied to a threaded spout, which is attached to a container. A person of ordinary skill in the art will find it obvious to modify Trankle to provide the closure on the threaded spout (2) of Gonnert in order to apply the closure to a carton with the cutting mechanism taught therein, because the closure of Trankle is designed to seal threaded spouts, whether it is the threaded neck of a container, or the threaded neck of a carton attachment.
8. Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over WO 2020/212430 (Trankle) as applied above under 35 U.S.C. 102(a)(2) in view of ES 2,768,032 (Delcambre).
Regarding claim 14, Trankle as applied above fails to teach the closure assembly further comprises an interspace arranged between the lid and the ring member, wherein each coupling element is positioned within the interspace.
Delcambre, analogous to tamper evidencing closures, teaches two coupling elements (17, 18) located between a closure cap (3) and ring (4), which are positioned within an interspace (unlabeled; see Fig. 6).
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 Trankle, providing the coupling elements within an interspace as taught by Delcambre, motivated by the benefit of a smooth outer surface, 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”. Furthermore, regarding the physical combination, the question is not whether the prior art devices can be physically combined, but whether a person of ordinary skill in the art would have found it obvious to combine different features or elements of known devices in a predictable way. See Orthopedic Equip. Co. v. United States, 702 F.2d 1005, 1013 (Fed. Cir. 1983): "There is a distinction between trying to physically combine the two separate apparatus disclosed in two prior art references on the one hand, and on the other hand trying to learn enough from the disclosures of the two references to render obvious the claims in suit. ...Claims may be obvious in view of a combination of references, even if the features of one reference cannot be substituted physically into the structure of the other reference." See MPEP 2145(III).
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.
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, 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.
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.
/JAMES N SMALLEY/Examiner, Art Unit 3733
Prosecution Insights