FINAL ACTION
The merits of this case have been carefully examined again in light of applicant's response received 06/09/2025. The Examiner has determined that applicant’s arguments and comments do not overcome the rejection of record under 35 USC § 103 which is set forth again and made FINAL.
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 .
Claim Refusal - 35 USC § 103
The following is a quotation of 35 USC 103 which forms the basis for all obviousness refusals 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 claim is refused under 35 USC § 103 as being unpatentable over the bottle in U.S. Design Patent No. D272,989 by Vittorio Moretti (hereinafter: Moretti) in view of the bottle in U.S. Design Patent No. D540,629 by Cynthia D. Fritts (hereinafter: Fritts)
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Although the invention is not identically disclosed or described as set forth 35 USC 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 present claimed invention to a designer having ordinary skill in the art to which the claimed invention pertains, the invention is not patentable.
Moretti shows a bottle having design characteristics which are visually similar as those of the claimed design, in that they both are bottles with narrow necks, sloped shoulders and rounded bottom edge.
However, Moretti includes a top with an indented portion with a rounded rim above it while the claim has a top with straight sides. Both designs of a bottle are well known in the art of packaging.
Fritts teaches that a top with straight sides was well known in the art before the effective filing date of the claim.
It would have been obvious to a designer of ordinary skill in the art before the effective filing date of the present claimed invention to modify Moretti with Fritts by substituting the straight sided top of Fritts with the indented top with round rim of Moretti because such modification is no more than substituting one commonplace ornamental top for another (straight sided top replacing an indented top). Moreover, such substitution of one known design element for another known design element in the same field would have been within the skill of an ordinarily skilled designer.
Response to Arguments
Applicant’s argument in rebuttal of the rejection of record has been carefully considered but is found unconvincing. Applicant argues:
One skilled in the art would not be motivated to modify Moretti with Fritts because the bottles require different corks
The width to height ratio of Moretti is drastically different than the claimed design
The examiner disagrees with the applicant’s assertion that one skilled in the art would not be motivated to modify Moretti with Fritts because the bottles require different corks. Many wineries produce both still and sparkling wine which require different corks and therefore different bottle necks. It would be well within the knowledge of a designer to take the shape of a bottle and modify the neck to meet the corkage needs of the product.
Further, slightly reducing the width of the base of the bottle is an obvious modification and is well within the skill of an ordinary designer.
For the above reasons, the rejection of the claim under 35 USC § 103 is considered proper.
Discussion of the Merits of the Case
All discussions between the applicant and the examiner regarding the merits of a pending application will be considered an interview and are to be made of record. See MPEP 713. The examiner will not discuss the merits of the application with applicant’s representative if the representative is not registered to practice before the USPTO. Appointment as applicant’s representative before the International Bureau pursuant to Rule 3 of the Common Regulations under the Hague Agreement does NOT entitle such representative to represent the applicant before the USPTO. Furthermore, an applicant that is a juristic entity must be represented by a patent attorney or agent registered to practice before the USPTO. Additional information regarding interviews is set forth below.
Telephonic or In Person Interviews
A telephonic or in person interview may only be conducted with an attorney or agent registered to practice before the USPTO (“registered practitioner”) or with a pro se applicant (an applicant who is the inventor and who is not represented by a registered practitioner).
The registered practitioner may either be of record or not of record. To become “of record”, a power of attorney (POA) in accordance with 37 CFR 1.32 must be filed in the application. Form PTO/AIA /80 “Power of Attorney to Prosecute Applications Before the USPTO”, may be used for this purpose:
https://www.uspto.gov/patent/forms/forms-patent-applications-filed-or-after-september-16-2012
See MPEP 402.02(a) for further information. Interviews may also be conducted with a registered practitioner not of record provided the registered practitioner can show authorization to conduct an interview by completing, signing and filing an “Applicant Initiated Interview Request Form’ (PTOL-413A) (available at the USPTO web page indicated above). See MPEP 405. For acceptable ways to submit forms to the USPTO, see “When Responding to Official USPTO Correspondence” below.
If a pro se applicant or registered practitioner located outside of the United States wishes to communicate by telephone, it is suggested that such person email the examiner at haley.schnebele@uspto.gov to arrange a time and date for the telephone interview. Please include proposed days and times for the proposed call. When proposing a day/time for the interview, please take into account the examiner’s work schedule indicated in the last paragraph of this communication. The email should also be used to determine who will initiate the telephone call.
Email Communications
The merits of the application will not be discussed via email (or other electronic medium) unless appropriate authorization for internet communication is filed in the application. Form PTO/SB/439 “Authorization for Internet Communications in a Patent Application or Request to Withdraw Authorization for Internet Communications” may be used to provide such authorization and is available at the USPTO web page indicated above. The authorization may not be sent by email to the USPTO. For acceptable ways to submit the authorization form to the USPTO, see “When Responding to Official USPTO Correspondence” below. See MPEP 502.03 II for further information.
When Responding to Official USPTO Correspondence
When responding to an official correspondence issued by the USPTO, including refusals, Ex Parte Quayle, Notice of Allowances, or Notice of Abandonments, please note the following:
The USPTO transacts business in writing. Applicants may submit replies to Office actions only by:
Online via the USPTO's Electronic Filing System-Web (EFS-Web) (Registered eFilers only)
https://www.uspto.gov/patents-application-process/applying-online/efs-web-guidance-and-resources
Mail: Commissioner For Patents, P.O. Box 1450, Alexandria, VA, 22313-1450
Facsimile to the USPTO's Official Fax Number (571-273-8300)
Hand-carry to USPTO's Alexandria, Virginia Customer Service Window
https://www.uspto.gov/patents-maintaining-patent/responding-office-actions
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HALEY K SCHNEBELE whose telephone number is (571)272-7929. The examiner can normally be reached M-F, 8-4 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, Jennifer Rempfer can be reached on (571)270-0248. 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.
/H.K.S./Examiner, Art Unit 2933
/KAREN E KEARNEY/Supervisory Patent Examiner, Art Unit 2917