DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Response to Amendment
Those rejections not repeated in this Office Action have been withdrawn.
Claims 17-36 are currently pending and rejected.
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 17-20, 22-25, 27, 28 and 31-36 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over “Dark Chocolate Ganache” (DCG) in view of Castonguay (US 20080210694), Weyers (WO02057158), “Flickr.com – Cryssie2009”, “Specialty Bottle,” “Poires au Chocolat” “Gordon’s Chocolate Velvet,” “Ganache Shots,” and “The Wandering Eater,” and in further view of “Dessert Shots and Mini Spoon Set” and in further view of “Show off Your Work here” and “Mad about Fruit Ganache.”
“The Versatility of Ganache” and the definition of “to” have been relied on as evidence.
Regarding claim 17, “Dark Chocolate Ganache” teaches depositing ganache into a cavity of a container, the ganache being fluid when warm and semi-solid at room temperature, and sealing the glass container with a seal (see page 2 - “jar of ganache” “tightly sealed”; and page 4 – “small jar for a friend”).
Further regarding the limitation “being fluid when warm and semi-solid at room temperature,” it is noted that since DCG teaches depositing ganache into the glass container, the ganache is seen to also possess the properties of being “fluid when warm and semi-solid at room temperature.”
As DCG teaches a sealed container, DCG teaches an encasement that is formed by the seal together with the base and the sides of the cavity of the glass container, which serves as a shell structure for only fully encasing a volume of the ganache or ganache compound.
Claim 17 differs from DCG in specifically reciting that the ganache has been deposited into a “shot glass,” and “the cavity of the shot glass having sides extending along a straight line from an unthreaded top perimeter opening to a base at a bottom edge of the shot glass, and an interior of the sides of the shot glass extending along the straight line forming the cavity of the shot glass that is structured to be limited to contain from a circumference of the base at the bottom edge of the shot glass to a circumference of the unthreaded top perimeter opening, only the single-serve volume of the ganache or the ganache compound which is directly edible from the shot glass in the single-serve volume”; “sealing the unthreaded top perimeter opening of the shot glass” and “wherein the seal is formed in a shape that covers in entirety the unthreaded top perimeter opening of the shot glass, wherein an encasement is formed by the seal together with the shot glass and while the seal covers the unthreaded top perimeter opening and the single-serve volume of the ganache or the ganache compound is contained in the cavity, the seal together with the shot glass serves as a shell only fully encasing the single-serve volume of the ganache or ganache compound of the chocolate truffle in the encasement formed by the seal, and the base and the sides of the cavity of the shot glass.”
Regarding the limitation of “shot glass,” and the limitation of, “depositing into a cavity of the shot glass, the cavity of the shot glass, having sides extending along a straight line from an unthreaded top perimeter opening to a base at a bottom edge of the shot glass, and an interior of the sides of the shot glass extending along the straight line forming the cavity of the shot glass that is structured to be limited to contain from a circumference of the base at the bottom edge of the shot glass to a circumference of the unthreaded top perimeter opening only the single-serve volume of the ganache or the ganache compound,” it is noted that while Applicant’s arguments on page 9 of the response filed November 10, 2014 indicate that the ordinary and customary meaning of a shot glass would exclude DCG’s jar from being “shot glass,” the definitions provided by Applicant are not seen to limit what can be construed as a shot glass. For example, the definition recited on page 3 of Applicant’s specification, filed November 7, 2011 of, “a small glass used for serving liquor” can still read on the glass container taught by DCG, especially since DCG teaches sealing ganache into “small jars.” (see page 4 of 7, - the caption above the first picture; and page 5 of 7, entry by “Jen B.” : “...I may put it in smaller jars..."). Similarly, the definition as provided on page 12 of Applicant’s remarks filed January 17, 2014 of, “a glass holding one shot" also reads on the glass container of DCG because the glass of DCG would have been capable of holding one shot. Since the limitation, of “a single-serve” volume is not seen to be limiting as to a specific volume, DCG could also be construed as having a size that is filled with a single serve volume of the ganache. Furthermore, page 3 of Applicant’s specification also provides a definition of “shot glass” to mean “a small glass designed to hold or measure liquor which is either drunk straight from the glass or poured into a mixed drink.” DCG’s jar is also seen to be meet this definition. As already indicated above, the limitation “a single serve volume” as recited in claim 17 is not seen to limit the specific quantity of ganache or ganache compound. As such, and in view of the above definitions and interpretations, the glass container as disclosed by DCG is still seen to be a shot glass from the base of the cavity to the top perimeter opening to be formed so that the cavity of the container is filled from the base at the bottom edge of the cavity to the unthreaded top perimeter opening to contain only the single serve volume of the ganache. To be filled from the base “to” the unthreaded top perimeter, also means to be filled toward the top perimeter, and therefore is suggested by DCG. (see the definition of “to”)
In any case, if DCG could have been construed as failing to recite a “shot glass,” then Castonguay has been further relied on to teach containers such as a shot glass (see the abstract, paragraph 8 - “Shot glass” and the figures), which is unthreaded as shown in the figures, and where the shot glass can be covered with a lid, cap or removable foil for hermetically sealing the contents (paragraph 39, last sentence) and where the contents can include products other than “drinks” such as yogurt, smoothies, etc. (see paragraph 39). Castonguay’s shot glass is seen to have a cavity (see figure 2, 4 and 10, item 14) having sides extending along a straight line from an unthreaded top perimeter opening, to a base at a bottom edge (see figure 10, item 14) of the shot glass and an interior of the sides of the shot glass extending along a straight line (see figure 10) forming the cavity of the shot glass that is structured to be limited to contain from a circumference of the base at the bottom edge of the shot glass to a circumference of the unthreaded top perimeter opening only the single-serve volume. See annotated figure 9 and 10 below:
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By hermetically sealing, Castonguay teaches the seal formed in a shape that covers in entirety the top perimeter opening of the shot glass to form an encasement.
If it could have been construed that Castonguay does not teach “the base at the bottom edge of the cavity” Weyers further teaches and suggests unthreaded shot glasses having a base at a bottom edge of the cavity (see figure 1), which are sealed with a liquid therein, because Weyers teaches the volume of the container is 20-50 mL (i.e. ~0.7-1.7oz), and the container is sealed for a water-tight seal (see the abstract - “detachable lid which forms a watertight seal”). Weyers also teaches the shot glass having sides extending from an unthreaded top perimeter opening to a base at a bottom end of the cavity, and the shot glass from the base of the cavity to the unthreaded top perimeter opening is formed to contain only a single-serve volume. Since Weyers teaches a circumferential wall, Weyers also teaches that the cavity of the shot glass is structured so that the cavity is limited to being filled from a circumference of the base at the bottom edge to a circumference of the unthreaded top perimeter opening.
Additionally, “Specialty Bottle” teaches jars used to hold food that can be as small as 1.5oz (see page 1, jar description “1.5oz Jam Jar w/ Gold lid”), which as indicated on page 12 of Applicant’s response filed January 17, 2014 is the typical size for a shot glass.
Even further, “Flickr.com – Cryssie2009” also teaches other variations of shot glasses, such as having a wider opening compared to the base (see page 2 and 3), and where the shot glass has a cover provided thereon (see page 2) and is filled from a circumference at a bottom edge to a circumference of the unthreaded top perimeter opening. Flickr.com – Cryssie2009 also teaches that the shot glass has sides extending along a straight line from an unthreaded top perimeter opening to a base at a bottom edge of the shot glass, and an interior of the sides of the shot glass extending along the straight line, forming the cavity of the shot glass that is structured to be limited to contain from a circumference of the base at the bottom edge of the shot glass to a circumference of the unthreaded top perimeter opening only the single-serve volume (see pages 1 and 2 of the reference).
DCG already teaches packaging the ganache in smaller jars (see the caption above the figure on page 4 of 7: "Small jar for a friend," and the entry on December 2, 2008 by “Jen B” even teaches putting the ganache in smaller jars). Castonguay, Weyers, Specialty Bottle and “Flickr-Cryssie2009” further teach shot glasses and “jars” within which a foodstuff can be sealed, where the jar and the shot glass are of similar sizes.
Therefore, to modify DCG which already teaches providing packaged ganache and even teaches packaging the contents in a “smaller jar”, and to package the ganache in a sealed, “unthreaded shot glass” as a single serve volume would have been obvious to one having ordinary skill in the art based on the particular quantity of ganache that was desired to be sealed and based on the conventional type of packaging materials desired. That is, the art recognized sealing foods in shot glasses and in other containers that are the same size as shot glasses, such that the modification would have been obvious as a matter of size/proportion based on the quantity of ganache that was desired to be packaged. It is noted that since the prior art already teaches a method of filling and sealing ganache into a container, that the particular size of the container is also seen to have been a matter of size/proportion (MPEP 2144.04(IV)(A). In view of Castonguay, Weyers, “Specialty Bottle,” and “Flickr-Cryssie2009” the prior art thus suggests glass containers which can be sealed for containing a small quantity of food. Paragraph 8 of Castonguay even further recites that the product can be a “shooter” which is known as a small quantity of a product (similar to a dessert shot for example). In view of this, modification of the container of DCG as taught by Castonguay, Weyers, Flickr-Cryssie2009 and “Specialty Bottle” for packaging smaller quantities of ganache (such as smaller serving and sample sizes) would necessarily have resulted in the ganache being sealed in an “unthreaded shot glass” for the similar purpose of providing shot glass sized food portions. While “Specialty Bottle” might teach a threaded top perimeter, it is noted that Castonguay, Weyers and “Flickr-Cryssie2009” clearly teach what can be construed as a shot-glass sized container where the container top perimeter is unthreaded because both these references teach using a foil or film or cap to seal the shot glass, as opposed to a threaded cap.
Since the prior art already suggests using a shot glass for depositing ganache therein and further teaches sealing such a shot glass, it would have been obvious to one having ordinary skill in the art to have modified the combination and used other known forms of shot glasses, such as straight walled shot glasses, as an obvious matter of engineering and/or design, based on known configurations for shot glasses.
As further motivation for using a shot glass, it is noted that Poires Au Chocolate also evidences a shot glass that has sides extending from an unthreaded top perimeter opening to a base at a bottom edge, so that the cavity of the shot glass filled from the base at the bottom edge of the cavity of the shot glass “to” the unthreaded top perimeter opening only contains a single serve volume of the confection (see the figure on page 1 and page 6). Gordon’s Chocolate Velvet (see the figure on page 1) and Ganache Shots (see the figure on page 1) are similar to Poires Au Chocolate because these references further evidence a shot glass with an unthreaded top perimeter, a base at a bottom edge and sides extending there-between, so that the cavity of the shot glass is filled from the base “to” the unthreaded top perimeter opening with only the single serving. These references evidence the desirability and conventionality of serving chocolate and ganache type products using containers such as shot glasses, and where the shot glass has a cavity with sides extending from an unthreaded top perimeter opening to a base at the bottom edge so that the cavity is filled from the base to the unthreaded top perimeter opening with no more than the single-serve volume. “The Wandering Eater” further teaches that it has been known to serve ganache in a shot glass and which would have been consumed therefrom (see page 13 of 20 – “… Towards the late afternoon-evening…It’s basically the stuff I made from this post (sans the hot chocolate but I gave her a shot glass of that ganache anyways)…”; “The Versatility of the Ganache” evidences that the above teachings of “The Wandering Eater” suggest serving ganache in a shot glass, because The Wandering Eater refers to “a shot glass of that ganache” which is the ganache used to make the hot chocolate). Thus, the art teaches that it has been conventional to serve confectionery products such as ganache from a shot glass, and the art also teaches sealing confectionary products within shot glass sized containers.
Since DCG also teaches the ganache as a gift (see page 2 “Christmas gift”), to modify DCG, who already suggests sealing ganache in smaller containers, and to seal the ganache in a shot glass, as taught by Castonguay, Weyers, “Flickr-Cryssie2009”, Poires Au Chocolate, Gordon’s Chocolate Velvet, Ganache Shots and The Wandering Eater would have been obvious to one having ordinary skill in the art, for the purpose of providing the ganache as a sealed dessert served in conventional dessert sized shot glass containers, which could also be a gift. As also discussed above, the art teaches that it has been conventional to serve confectionery products such as ganache from a shot glass, and further teaches sealing confectionery products within shot glass sized containers.
Therefore, modification of DCG who already suggests sealing ganache in smaller containers, and to seal the ganache in a shot-glass would have been obvious to one having ordinary skill in the art for the purpose of providing the ganache as a sealed dessert served in conventional dessert sized shot glass containers, where sealing the container would clearly have protected the contents prior to consumption.
Regarding the limitation of, “depositing a ganache or ganache compound that is a single-serve volume into a cavity of a shot glass,” the combination suggests a shot glass, and is thus seen to suggest a “single-serve volume.” The term, “single-serve volume” can be construed as any amount, since Applicant has not provided a definition of the term. In any case, the prior art also suggests a single-serve volume because the prior art also suggests a shot glass, as discussed above. It is noted that the combination also teaches ganache that is directly edible.
Further regarding the limitation of “directly edible from the shot glass,” it is noted that how the ganache has been consumed would have been an obvious matter of preference of the user. In any case, DCG teaches including a spoon (see page 2 of 7 – “You can wrap a spoon to the side of the jar…”) which is used to “directly access” the ganache and is thus seen to be directly edible from the container. Additionally, “The Wandering Eater” further teaches that it has been known to serve ganache in a shot glass (see page 13 of 20 – “… Towards the late afternoon-evening…It’s basically the stuff I made from this post (sans the hot chocolate but I gave her a shot glass of that ganache anyways…”)”) and which would have been consumed therefrom. Additionally, “Ganache Shots” further teaches that it has been conventional to provide a serving of ganache in a shot glass which would have been consumed therefrom.
Additionally, "Dessert Shots and Mini Spoon set” further teaches consuming small quantities of a food from a shot glass (see the description: “tiny little dessert shot glasses” “Set of twelve glasses comes with twelve 4” mini-spoons”). Since the combination provides motivation for sealing ganache in shot glass sized containers used for packaging small quantities of food, modification of the combination to directly eat ganache from the container would have been obvious to one having ordinary skill in the art, for the purpose of tasting the ganache.
Further regarding the limitation of “the ganache compound consists of a ganache admixed, layered or topped with consumable materials suitable for a conventional chocolate truffle, comprising caramel, gianduja, toffee, nuts, coconut, fruit, liqueurs or combinations thereof,” it is noted that the above combination is silent in regards to the additional components admixed, layered or topped with ganache. It is also noted however, that the claim does not require deposition of “a ganache compound” into the shot glass, in view of the “or” on the 3rd line of claim 17.
In any case, it is noted that “Gordon’s Chocolate Velvet” teaches while adding a chocolate mousse or confectionary mixture to a shot glass placing three mango slices (i.e. fruit) down the side of each glass (see steps 5- 8 of the recipe), spooning in a white chocolate mixture including crushed wafers, followed by scattering a few flaked almonds on top. Additionally, “Show off Your Work Here” teaches adding rum into dark chocolate ganache as well as limoncello liqueur (see the first entry – “White chocolate Limoncello ganache” and “Zacapa Centenario (only the best rum in the world!) dark chocolate ganache”). Also, “Mad about Fruit Ganache” further teaches mixing fruit with chocolate ganache.
Therefore, to modify the combination and to include and/or admix fruit or liqueurs with the ganache of “DCG” would have been obvious to one having ordinary skill in the art, for the purpose of providing a varied flavor to the ganache, other than just a chocolate flavor. Since it is known to add additional flavorings to a chocolate confection as taught by the above prior art, it would have been obvious to one having ordinary skill in the art to have added additional flavorings to the plain ganache taught by DCG to have produced a more attractive and flavorful chocolate ganache, hence producing a chocolate ganache compound.
Regarding the limitation, “sealing the unthreaded top perimeter opening of the shot glass that is located opposite the base with a seal subsequent to the depositing of the ganache or ganache compound that is of the single-serve volume into the cavity of the shot glass, wherein the seal is formed in a shape that covers in entirety the unthreaded top perimeter opening of the shot glass, wherein an encasement is formed by the seal together with the shot glass and while the seal covers the unthreaded top perimeter opening, and the single-serve volume of the ganache or the ganache compound is contained in the cavity, the seal together with the shot glass serves as a shell structure for only fully encasing the single serving portion of the ganache or ganache compound of the chocolate truffle in the encasement formed by the seal and the base and the sides of the cavity of the shot glass,” it is noted that the combination as discussed above is seen to teach this limitation.
That is, DCG already teaches that the ganache can be sealed in a glass container, such that the glass container and seal together seal and fully encase the single serving portion of the ganache or ganache compound of the chocolate truffle. Therefore, DCG teaches an encasement formed by a container and a seal, within which is ganache. The combination further teaches filling ganache into a shot-glass type container and further teaches sealing shot-glass type containers to seal the contents therein and therefore teaches encasements formed by a seal and a shot glass with an unthreaded top perimeter opening. The seal for the shot glass as taught by Castonguay, Weyer and “Flickr-Cryssie2009” is seen to be in a shape that covers the entirety of the unthreaded top perimeter opening and thus the combination suggest ganache fully encased within a shot glass having a seal covering the opening of the shot glass.
Modification of the combination to use a conventional type of container together with a conventional type of seal would have been obvious to one having ordinary skill in the art, for the purpose of providing protected smaller portions of the ganache as a sealed package, based on the particular desired size for the packaged ganache; as well as for packaging ganache in conventional types of container within which ganache can be served, as already discussed above.
It is noted that the combination teaches that the container only contains the ganache or ganache-compound.
Regarding claim 18, it is noted that the combination further teaches transparent shot glasses and DCG also teaches a transparent glass container. Therefore, to use a transparent shot glass would have been obvious to one having ordinary skill in the art for the purpose of viewing the contents thereof.
Regarding claim 19, the combination teaches a non-edible shot glass.
Regarding claims 20 and 27, the combination teaches a confectionery product obtained by the method of claim 17. It is noted that claim 27 repeats the structural elements necessarily obtained by the process as recited in claim 17.
Regarding claims 22 and 28, the combination teaches containers that can be shot glasses, and where said shot glasses have a rim that is wider than a middle section of the shot glass (see at least, Weyers, “Gordon’s Chocolate Velvet” “Ganache Shots” and “Flickr.com – Cryssie2009”).
Regarding claim 23, the combination applied to claim 22 teaches containers that can be shot glasses, and where said shot glasses has a rim that is wider than a middle section of the shot glass and where the shot glass is progressively wider from the bottom to the top of the shot glass. It is noted that the shot glass as taught by “Poires Au Chocolat”, “Gordon’s Chocolate Velvet” and “Flickr.com – Cryssie2009” on pages 2 and 3, can be construed as being “progressively wider” from the bottom base of the shot glass to the rim.
Regarding claim 24, in view of DCG, the combination teaches that it has been known to deposit only ganache into a container and then sealing. Therefore, to similarly only deposit ganache into a shot glass and seal would also have been obvious to one having ordinary skill in the art.
Regarding claim 25, in view of the combination applied above to claim 17 and the limitation, “ganache compound,” to further include consumable materials such as fruit or liqueurs into the ganache to make a ganache compound and similar seal a ganache compound into the shot glass would have been equally obvious to one having ordinary skill in the art, based on the conventional type of ganache that was desired to be packaged.
Regarding claims 31 and 32, the combination teaches the ganache or ganache compound deposited in the shot glass contains no edible shell or coating and the ganache or ganache compound constitutes all edible materials sealed in the shot glass.
Regarding claims 33 and 34, the combination as applied to claim 17 is incorporated herein. Regarding the size of the shot glass, as recited as being 2 ounces, as discussed in the rejection of claim 17 above, Specialty Bottle” even further teaches jars used to hold food that can be as small as 1.5oz. Weyers further supports sealed shot glasses that can hold 20-50mL (i.e. 0.7-1.75oz). Thus, using shot glasses of similar sizes, in view of the art taken as a whole would have been obvious to one having ordinary skill in the art. Regarding the limitation of the seal “is formed in a shape that covers in entirety the unthreaded top perimeter opening” and that “the seal together with the shot glass serve as a shell,” the combination as applied to claim 17 is incorporated herein. While claim 34 recites, “the shot glass is 2 ounces” it is noted that since the prior art teaches shot glass sizes such as having 1.5oz or 1.75oz, the specific size of the shot glass is seen to have been an obvious matter of engineering or design.
Regarding claim 35 which recites that “the shot glass is formed to have a rim structure” it is noted that Castonguay already teaches a shot glass with no ridges (see figures 2-8), which can be sealed. This is further supported by Weyers, who also teaches a glass that does not have any ridges; and is also supported by “Flickr-Cryssie2009”. Therefore, the art taken as a whole is seen to suggest a shot glass with no ridges and which can be sealed. Such a shot glass has been further evidenced by “Gordon’s chocolate velvet.” To thus modify the combination and to use a particular structure for the shot glass, such as that with a rim having no ridges, as taught by Castonguay or Gordon’s Chocolate Velvet is seen to have been an obvious matter of design choice based on the particular conventional type of shot glass that was desired to be used.
Regarding claim 36, in view of the combination, the prior art is seen to teach that the shot glass is full when the single-serve volume of the ganache or the ganache compound is deposited therein.
Claim 21 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over the combination as applied to claim 17, which relies on “Dark Chocolate Ganache” (DCG) as the primary reference, and in further view Nummer (“Canning Chocolate Sauces Unsafe”), “Ganache Recipes and Techniques” and “Dessert European Truffles.”
Regarding claim 21, DCG already teaches depositing the ganache or ganache compound when the ganache has a fluid state (see the bottom of page 3 of 7, “At this point, you can pour the ganache…”).
Regarding sealing the shot glass when the ganache reaches room temperature, it is noted that the prior art combination already teaches sealing the glass containing ganache. The claim differs in specifically reciting, sealing when the ganache reaches room temperature.
However, Nummer also teaches that it has been known to transfer chocolate into a container and after cooling to room temperature sealing the container (“Pour sauce into a clean, warm, …jar or similar freezer-safe container(s). Allow the sauce to cool at room temperature… Seal and freeze”). Similarly, “Ganache Recipes and Techniques” teaches sealing an airtight container after the ganache has cooled (see Basic Ganache; Method, step 4). Additionally, “Dessert European Truffles” discloses that European Truffles are made with syrup, cocoa powder, milk powder, fat (see page 2 of 5) and that the ganache can be placed into a bowl, allowed to cool and then covered (see page 3 of 5, step 5). Therefore, modification of DCG to allow the ganache within the container to cool prior to sealing would have been obvious to one having ordinary skill in the art as a conventional expedient for how one can package and seal ganache within a container so as to allow the ganache to have the proper consistency prior to sealing.
Claims 26 and 29 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over the combination as applied above to claims 17 and 28 respectively, which rely on “Dark Chocolate Ganache” (DCG) as the primary reference, and in further view Wilson (“The Sweet Success of a Chocolate Business”) and/or “Dessert European Truffles.”
Regarding claims 26 and 29, the combination teaches non-liquid materials sealed in a shot glass and which also would not “require” refrigeration; however the combination appears silent in specifically reciting that the materials sealed within the shot glass are shelf-stable and are silent in an explicit recitation of not requiring refrigeration.
It is noted however, that the art teaches that shelf-stable ganache has been known as taught by Wilson (see the bottom of page 1 – “...And you can't go wrong with basics like chocolate snacks or shelf-stable ganache..."). “Dessert European Truffles” even teaches ganache made from syrup, cocoa powder, milk powder and fat and which thus excludes the use of cream that could affect shelf-life. DCG also teaches on page 2 of 7 that ganache can be stored without refrigeration such as in an unheated basement ("... It is good for about three weeks after being made if kept tightly sealed in a cool, dark place like a fridge or unheated basement.”). Additionally, it is noted that the claims do not recite any particular length of time for shelf-stability. As such, the art already teaches ganache and the claims do not provide any specificity regarding a particular degree of shelf-stability or a particular composition of ganache for arriving at a particular degree of shelf-stability. Therefore, it is noted that a shelf-stable ganache as taught by Wilson is seen to also be capable of not requiring refrigeration. Thus, modification of the combination to use a shelf-stable ganache would have been obvious to one having ordinary skill in the art for the purpose of being able to extend the shelf-life of the packaged product.
Claim 30 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over the combination as applied to claim 29, which relies on “Dark Chocolate Ganache” (DCG) as the primary reference, and in further view Palmer (US 3204759).
The combination teaches sealed containers of ganache but does not specifically recite placing the ganache into an outer container, sleeve or box.
Palmer teaches that in the marketing of many items, the product is often placed in an inner container such as a glass or plastic bottle (see column 1, lines 12-15) and subsequently protected by placing the bottles into an outer box (see figures 1-3). Since the combination also teaches sealed glass containers, it would have been obvious to one having ordinary skill in the art to have applied the teachings of Palmer to that of DCG for the purpose of providing an outer protective layer to the sealed glass container.
Claim 34 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over the combination as applied to claim 17, which relies on “Dark Chocolate Ganache” (DCG) as the primary reference, and in further view “WebTender” and “Espresso Supply.”
Further regarding claim 34, which recites, “the shot glass is 2 ounces” it is noted that since the prior art teaches shot glass sizes such as having 1.5oz or 1.75oz, the specific size of the shot glass is seen to have been an obvious matter of engineering or design. Nonetheless, to expedite prosecution, “WebTender” teaches that it has been conventional for shot glasses to have volumes such as 2 ounces (see the bottom of the last page: “A shot glass is usually 1.5 ounces, but sometimes 2 ounces with a measuring line at 1.5 ounces…”). “Espresso Supply” further evidences various sized shot glasses including a 2oz shot glass. As such, since the combination teaches the use of shot glasses, the specific size of the shot glass would have been obvious to one having ordinary skill in the art as a matter of design, based on conventional sized shot glasses available to the ordinarily skilled artisan.
Response to Arguments
On page 7 of the response, Applicant urges that even if the DCG jar is a container that can be sealed the DCG jar is not a container for only single-serve volume and further the jar is not designed to allow handheld use and direct consumption therefrom.
These arguments are not sufficient in view of the prior art taken as a whole. It is initially noted that a jar such as DCG’s half-pint jar would still have been capable of being held in one’s hand and is capable of allowing direct consumption. Even further however, the prior art teaches that it has been conventional to fill “shot-glass” sized containers with ganache compositions and to seal shot-glass sized containers with edible foods, as evidenced by Castonguay, for example. Therefore, it would have been obvious to one having ordinary skill in the art to have packaged the DCG ganache in other sized containers such as a shot glass sized container, based on the particular quantity of ganache that was desired to be sealed and based on the conventional type of packaging materials desired. That is, the art recognized sealing foods in shot glasses and in other containers that are the same size as shot glasses, such that the modification would have been obvious as a matter of size/proportion based on the quantity of ganache that was desired to be packaged. It is noted that since the prior art already teaches a method of filling and sealing ganache into a container, that the particular size of the container is also seen to have been a matter of size/proportion (MPEP 2144.04(IV)(A).
On page 7-8 of the response, Applicant urges that the claimed encasement with the seal together with the shot glass cannot be equated to a single serve content in the DCG half-pint jar because the half-pint jar in DCG does not teach or suggest the claimed “interior of the sides of the shot glass extending along the straight line forming the cavity of the shot glass that is structured to be limited to contain, from a circumference of the base at the bottom edge of the shot glass to a circumference of the unthreaded top perimeter opening, only the single-serve volume.”
These arguments are not sufficient to overcome the rejection because DCG has not been relied on to teach the specific structure of the shot glass but rather, Castonguay, Weyers and Flickr-Cryssie2009 all teach shot glasses with the recited structure and into which foods similar to ganache can be packaged and sealed. DCG’s teaching of a half-pint jar suggests packaging the ganache in smaller sized container. Furthermore, the prior art as presented in the rejections above teaches and suggests that it has been known in the art to fill a single serve volume with ganache and ganache type products.
On pages 8-9 of the response, Applicant urges that Castonguay does not teach or suggest a “shot glass having sides extending along a straight line from an unthreaded top perimeter opening to a base at a bottom edge of the shot glass and an interior of the sides of the shot glass extending along the straight line forming the cavity of the shot glass.”
This argument is not persuasive because Castonguay can be construed has having sides that extend along a straight line from an unthreaded top perimeter opening to a base at a bottom edge of the shot glass and an interior of the sides of the shot glass extending along the straight line, as shown in the annotated figure presented in the rejection and also presented below:
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Because Castonguay teaches that the above shot glass can be sealed, the reference is teaching an encasement is formed by the seal together with the shot glass, which serves as a shell structure for only fully encasing a single-serve volume of a food. Additionally however, as evidenced by “Gordon’s Chocolate Velvet”, “Ganache Shots” and Poires Au Chocolat” and “Flickr.com – Cryssie2009”, it has been conventional in the art to use shot glass containers which have walls extending from a non-threaded top perimeter opening, to a base at a bottom edge of the cavity and which have sides that extend along a straight line and where an interior of the sides also extend along the straight line and which shot glass can be used for holding a single serve volume of foods including ganache.
Further regarding the particular structure of the shot glass, figure 1 of Weyers teaches a base at a bottom edge (near item 2) and sides extending along a straight line from an unthreaded top perimeter opening to the base at the bottom edge and an interior of the sides of the shot glass extending along the straight line and is limited to contain only the single serve volume. Ganache Shots (see the figure on page 1) and Flickr.com – Cryssie2009 (see page 2) are similar in this regard. Thus, as the prior art teaches the use of shot glasses for serving ganache, to thus use a shot glass that has a base at a bottom edge with an unthreaded top perimeter and sides extending along a straight line there-between and which provide a circumference to the top opening and a circumference to the base at a bottom edge, would have been obvious to one having ordinary skill in the art based on known configurations for shot glass type containers, which would have been an obvious matter of engineering and/or design.
On pages 9-10 of the response, Applicant remarks reiterate those presented above, and are not seen to be sufficient for the reasons discussed above.
Conclusion
The prior art already made of record and not relied upon is considered pertinent to applicant's disclosure.
JP-H1075713 (already of record) discloses depositing ganache into packaging containers (see figure 3, paragraph 1 and 17).
JP 2005-204593 (already of record) discloses ganache (paragraph 2) that can be packaged and sealed (paragraph 12)
Lebovitz (“Chocolate Mousse Recipe”) (already of record) discloses placing chocolate mousse into a shot glass See also the comment on page 23 of 28 by “Goodlongislandeats” disclosing a shot glass will the mousse.
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/VIREN A THAKUR/Primary Examiner, Art Unit 1792