DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejection--35 U.S.C. § 103
The claim is rejected under 35 U.S.C. 103 as being unpatentable over United States Patent number 3,563,371 (Heinz) in view of United States Design Patent number D386,398 (Davis) and United States Patent number 5,222,813 (Kopp) . Although the invention is not identically disclosed or described as set forth in 35 U.S.C. 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 designer having ordinary skill in the art to which the claimed invention pertains, the invention is not patentable.
Heinz shows a package having design characteristics that are visually similar to those of the claimed design: Both designs consist of a rectangular package with a protruding center portion that consists of a relatively thin rectangular design with rounded corners and outer sides that slope into a substantially thinner frame portion with a textured surface and sharp outer corners. The claim differs from Heinz showing a wider design and a tear notch positioned near the corner on the long side of the design.
Davis shows a wider design.
Kopp shows a tear notch positioned near the corner on the long side of the design.
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It would have been obvious to a designer of ordinary skill in the art before the effective filing date of the claimed invention to modify Heinz with Davis by widening the packaging because this modification is a well-known practice in the art. It is customary for designers to offer package designs with slightly different dimensions to appeal to consumers who are looking for packaging that best suits their need, which is demonstrated by United States Patent publication 2005/0214495 (Thiebaut).
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It would have been obvious to a designer of ordinary skill in the art before the effective filing date of the claimed invention to modify Heinz with Kopp by adding a tear notch near the corner of the design because this modification is also well-known in the art. It is customary for designers to offer package designs with tear notches including using a slit style notch shown in the claim to appeal to consumers who want to make the design more visually intuitive and appealing, which is demonstrated by United States patent D464,257 (Gates), D312569 (Wijas), D746152 (Murray).
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This modification of the primary reference in light of the secondary reference is proper because the applied references are so related that the appearance of features shown in one would suggest the application of those features to the other.1 Further, it is noted that case law has held that a designer skilled in the art is charged with knowledge of the related art; therefore, the combination of old elements, herein, would have been well within the level of ordinary skill.2
Conclusion
The claim stands rejected for the reasons set forth above. The references cited but not applied, are considered cumulative art related to the claimed design.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CLARE ANN GANNON whose telephone number is (571)270-0212. The examiner can normally be reached on Monday through Friday 10am to 6pm EST. To act on behalf of the applicant in most situations, a properly executed power of attorney must be present in the application file. See MPEP 402.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michelle Wilson can be reached on (571) 272-7639. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CLARE ANN GANNON/Examiner, Art Unit 2926
1 See In re Rosen, 673 F.2d 388, 213 USPQ 347 (CCPA 1982); In re Carter, 673 F.2d 1378, 213 USPQ 625 (CCPA 1982), and In re Glavas, 230 F.2d 447, 109 USPQ 50 (CCPA 1956).
2 See In re Antle, 444 F.2d 1168,170 USPQ 285 (CCPA 1971) and In re Nalbandian, 661 F.2d 1214, 211 USPQ 782 (CCPA 1981).