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 .
The amendment filed 3/2/2026 has been entered.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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) 1-2, 5-6, and 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over US Patent No. 5,456,380 (Ito et al., of record) in view of US PG Pub No. 2022/0047103 (Leimer, of record) and US Patent No. 5,427,269 (Willbrandt hereinafter).
In re claim 1, with reference to Fig. 1 and Detail below, Ito et al. discloses: A beverage system (10, 30), comprising: a base structure (31 and 32) having an outer wall (31) and defining an interior volume for holding a beverage, the base structure having an upper portion and a base portion (see Fig. 1 below), the outer wall having a first portion recessed relative to a second portion to define a circumferential step that defines an offset distance and a recessed seat configured to receive a protective element (33) separate from the base structure (31 and 32); a lid structure (10) coupled to the base structure; and the protective element formed from a material and having a thickness complementary to the offset distance such that, when installed in the recessed seat, an outer surface of the protective element is level with an outer surface of the second portion, the protective element being configured to be removably retained in the recessed seat (see Fig. 1 above).
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Ito et al. fails to disclose wherein the protective element material is elastic, and that the protective element is retained by stretching over the base structure and resiliently retracting to grip the base structure.
However, Leimer discloses a beverage system wherein a material for a boot (22) is elastic, and is resilient to stretch and expand to receive and resiliently grip a beverage container/base structure (14) and retract about the perimeter of the beverage container/base structure (paragraph 0039), the boot being at least easily cut for removal.
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention to have utilized a known material for the boot of Ito et al. as taught by Leimer in order to facilitate retention of the protective element by virtue of the resilient elasticity of the material, 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. MPEP 2144.07.
Ito et al. in view of Leimer fails to disclose wherein the base portion tapers inward toward a bottom margin, and wherein the first portion tapers inward at a reduced angle relative to the second portion.
However, with reference to Fig. 1 below, Willbrandt discloses a beverage system which includes a base structure having an upper portion (20) and a base portion (18) that tapers inward toward a bottom margin, wherein a first portion (14) tapers inward at a reduced angle relative to a second portion (16), the shape of the base portion being configured to aid in fitment into a vehicle cup holder (column 3, lines 24-41).
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Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention to have formed the first portion of Ito et al. in view of Leimer to have been tapered inward at a reduced angle as taught by Willbrandt et al. for the purposes of aiding in fitment of the beverage system into a vehicle cupholder as taught by Willbrandt (column 3, lines 24-41).
In re claim 2, with reference to the Figs. noted above, Ito et al. in view of Leimer and Willbrandt discloses the claimed invention including wherein the base structure comprises a double wall configuration having an inner wall (32) and the outer wall (31), and wherein the offset distance between the first portion and the second portion is less than a distance between the inner wall and the outer wall (see “distance” above).
In re claim 5, with reference to the Figs. noted above, Ito et al. in view of Leimer and Willbrandt discloses the claimed invention including wherein the protective element is configured to provide anti-slip properties when the beverage system is placed on a surface (when modified to be elastic as in re claim 1 above, elastic materials conform to surface imperfections and can provide “anti-slip properties” fully dependent upon the material/configuration/condition of the surface, i.e. table, etc.).
Please note that the claims are directed to apparatus which must be distinguished from the prior art in term of structure rather function [MPEP 2144]. Hence, the functional limitations “to provide anti-slip properties“ which are narrative in form have not been given any patentable weight. In order to be given patentable weight, a functional recitation must be supported by recitation in the claim of sufficient structure to warrant the presence of the functional language. In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997).
In re claim 6, with reference to the Figs. noted above, Ito et al. in view of Leimer and Willbrandt discloses the claimed invention including wherein the protective element is configured to provide cushioning protection to the base structure during impact (due to material modification as in re claim 1 above).
In re claim 8, with reference to the Figs. noted above, Ito et al. in view of Leimer and Willbrandt discloses the claimed invention including wherein the protective element has an open top end and a closed bottom end forming a boot configuration (see Fig. 1 and Detail above).
Claim(s) 7, 9-11 and 13-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ito et al. in view of Leimer and Willbrandt as applied to claims 1 and 8 above, and further in view of US Patent No. 6,511,031 (Lin hereinafter).
In re claim 7, with reference to the Figs. noted above, Ito et al. in view of Leimer and Willbrandt discloses the claimed invention including wherein the protective element has a tubular configuration with an open top end (See Fig. 1 above).
Ito et al. in view of Leimer and Willbrandt fails to disclose wherein the protective element has an open bottom end.
However, with reference to Figs. 5-8, Lin discloses a container having a boot (24) which includes a vent (26) in a bottom of the boot.
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Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention to have included a vent in the boot of Ito et al. as taught by Lin for the purposes of preventing condensation build-up between the boot and the container within an air space between the two elements (Lin, column 4, lines 21-27).
In re claim 9, with reference to the Figs. noted above, Ito et al. in view of Leimer, Willbrandt and Lin discloses the claimed invention including wherein the closed bottom end comprises at least one vent hole to facilitate installation of the protective element (as in re claim 7 above).
In re claim 10, with reference to the Figs. noted above, Ito et al. in view of Leimer, Willbrandt and Lin discloses A beverage system, comprising: a base structure having an outer wall and defining an interior volume for holding a beverage, the base structure having an upper portion and a base portion that tapers inward toward a bottom margin, the outer wall having a first portion recessed relative to a second portion to define a circumferential step that defines an offset distance and a recessed seat configured to receive a removable protective cover separate from the base structure, wherein the first portion tapers inward at a reduced angle relative to the second portion; a lid structure coupled to the base structure (as in re claim 1 above); and the removable protective cover formed from an elastic material and having a thickness complementary to the offset distance such that, when installed in the recessed seat, an outer surface of the removable protective cover is level with an outer surface of the second portion (as in re claim 1 above), the removable protective cover having a closed bottom end comprising at least one vent hole (as in re claim 7 above), the removable protective cover being configured to be removably retained in the recessed seat by stretching over the base structure and resiliently retracting to grip the base structure (as in re claim1 above).
In re claim 11, with reference to the Figs. noted above, Ito et al. in view of Leimer, Willbrandt and Lin discloses the claimed invention including wherein a diameter of the removable protective cover is smaller than a diameter of the base structure (note that the cover 33 is shown having a groove engaged with a bead of the base, and that a diameter of the cover is therefore smaller than a diameter of the base at at least one portion along the height of the cover and base structure.
It would have been obvious to one having ordinary skill in the art at the time the invention was made to have designated the difference in diameter of the removable protective cover and the diameter of the base structure as a particular small percentage, such as 0.1% to 5% to allow the stretchable cover/element of Ito et al. in view of Leimer Willbrandt and Lin to stretch/retract as disclosed, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. Please note that in the instant application, paragraphs 0033 and 0035 applicant has not disclosed any criticality for the claimed limitations.
In re claim 13, with reference to the Figs. noted above, Ito et al. in view of Leimer Willbrandt and Lin discloses the claimed invention including wherein the removable protective cover is configured to provide anti-slip properties when the beverage system is placed on a surface (as in re claim 5 above).
In re claim 14, with reference to the Figs. noted above, Ito et al. in view of Leimer Willbrandt and Lin discloses the claimed invention including wherein the removable protective cover has an open top end and the closed bottom end forming a boot configuration (as in re claim 1 above).
In re claim 15, with reference to the Figs. noted above, Ito et al. in view of Leimer Willbrandt and Lin discloses the claimed invention including wherein the base structure has a tapering shape from a top margin to a bottom margin (see Fig. 1 above, i.e. from element 35 to element at 31).
In re claim 16, with reference to the Figs. noted above, Ito et al. in view of Leimer Willbrandt and Lin discloses the claimed invention including wherein a diameter of the removable protective cover is smaller than a diameter of the base structure to provide a secure fit through resilient properties of the material (as in re claims 1 and 11 above).
Claim(s) 4, 17-18, and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ito et al. in view of Leimer and Willbrandt as applied to claim 1 above, and further in view of US Patent No. 10,549,902 (Brown, II et al. hereinafter).
In re claim 4, with reference to the Figs. noted above, Ito et al. in view of Leimer and Willbrandt discloses: the protective element is configured to cover the base structure a bottom margin of the base structure up to a height of the base structure (as in re claim 1 above).
Ito et al. in view of Leimer and Willbrandt fails to disclose wherein the protective element covers the base portion of the base structure up to about 95% of a height of the base structure.
However, Brown, II et al. discloses a beverage system wherein a protective element (200) provides protection to a double wall base structure (130) and extends a significant distance upwards to cover a large portion of the outer wall of the base structure.
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Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention to have modified the height of the protective element of Ito et al. to have extended a further percentage of the height of the vase structure, since it has been held that the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device (MPEP 2144.04 IV, A).
In re claim 17, with reference to the Figs. noted above, Ito et al. in view of Leimer, Willbrandt and Brown II et al. discloses A beverage system, comprising: a base structure having an outer wall and defining an interior volume for holding a beverage (as in re claim 1 above), the base structure having a uniform diameter in an upper portion and a base portion that tapers inward toward a bottom margin (See Fig. 1 above), the outer wall having a first portion recessed relative to a second portion to define a circumferential step that defines an offset distance and a recessed seat configured to receive a boot (33) separate from the base structure, wherein the first portion tapers inward at a reduced angle relative to the second portion; (as in re claim 1 above); a lid structure coupled to the base structure; and the boot (33) formed from an elastic material (as in re claim 1 above) and having a thickness complementary to the offset distance such that, when installed in the recessed seat, an outer surface of the boot is level with an outer surface of the second portion (as in re claim 1 above), and wherein the boot covers at least about 35% of the height of the base structure (as in re claim 4 above), the boot being configured to be removably retained in the recessed seat by stretching over the base structure and resiliently retracting to grip the base structure (as in re claim 1 above).
In re claim 18, with reference to the Figs. noted above, Ito et al. in view of Leimer, Willbrandt and Brown II et al. discloses the claimed invention including wherein the boot has an open top end and a closed bottom end (see fig. 1 above).
In re claim 20, with reference to the Figs. noted above, Ito et al. in view of Leimer, Willbrandt and Brown II et al. discloses the claimed invention including wherein the base structure comprises a double wall configuration having an inner wall and the outer wall (see annotated Fig. 1 above, as in re claims 1 and 2 above).
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ito et al. in view of Leimer, Willbrandt and Lin as applied to claim 10 above, and further in view of Brown II et al.
In re claim 12, with reference to the Figs. noted above, Ito et al. in view of Leimer, Willbrandt and Lin discloses the claimed invention including wherein the removable protective cover is configured to provide additional insulation to a beverage stored within the base structure (due to 33 located between the base structure and the surrounding environment), but not covering at least about 35% of the height of the base structure.
However, Brown, II et al. discloses a beverage system wherein a protective element (200) provides protection to a double wall base structure (130) and extends a significant distance upwards to cover a large portion of the outer wall of the base structure.
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention to have modified the height of the protective element of Ito et al. (in view of Leimer, Willbrandt and Lin) to have extended a further percentage of the height of the vase structure, since it has been held that the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device (MPEP 2144.04 IV, A).
Claim(s) 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ito et al. in view of Leimer, Willbrandt and Brown, II et al. as applied to claim 18 above, and further in view of Lin.
In re claim 19, with reference to the Figs. noted above, Ito et al. in view of Leimer, Willbrandt and Brown II et al. discloses the claimed invention including wherein the boot comprises at least one vent hole positioned at the closed bottom end to facilitate installation of the boot onto the base portion.
However, with reference to Figs. 5-8, Lin discloses a container having a boot (24) which includes a vent (26) in a bottom of the boot.
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention to have included a vent in the boot of Ito et al. in view of Leimer, Willbrandt and Brown II et al. as taught by Lin for the purposes of preventing condensation build-up between the boot and the container within an air space between the two elements (Lin, column 4, lines 21-27).
Response to Arguments
Applicant's arguments filed 3/2/2026 have been fully considered but they are not persuasive.
Applicants’ arguments on pages 7-8 of the Remarks regarding the relative term “substantially smoothly” are moot in view of the amendments.
Applicants arguments on pages 9-10 of the Remarks regarding the consideration of “slidably fitted” as product by process are moot in view of the amendments.
Applicant argues on pages 11-13 of the Remarks that each individual reference fails to teach the claimed invention individually. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant argues on page 11 of the Remarks that Ito et al. does not teach wherein the element 33 can be removed and reinstalled by a user. However, this limitation is not found in the current claims.
Applicant argues on pages 11-12 of the Remarks that Leimer, which teaches stetching sleeve around a beverage container operates opposite to Applicant’s boot which stretches around a beverage container. However, one of ordinary skill in the art at the time of the invention would not have discounted the teachings, advantages, and benefits of Leimer merely due to an interpretation of the container being inserted into a sleeve vs a sleeve being applied to the outside of the container.
Applicant argues on pages 12-13 of the Remarks that the base of Lin is not taught as being removable, however admits that Lin utilizes threads to attach the base to the container. Further, Lin is not used in the rejection to teach this feature.
Applicant argues on pages 13 of the Remarks that Brown teaches a beverage system where a vessel fits inside a protective shell, and alleges that this is “the opposite configuration from the claimed invention”. While false, Brown is not used in the rejection to teach this limitation.
No further arguments are presented.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW T KIRSCH whose telephone number is (571)270-5723. The examiner can normally be reached Mon-Fri, 9a-5p EST.
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/ANDREW T KIRSCH/Primary Examiner, Art Unit 3733