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 .
DETAILED ACTION
Response to Amendment
All rejections not repeated in this Office Action have been withdrawn.
Claims 21-22, and 25-31 are currently pending in this Office Action.
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.
Claim(s) 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nakamura (JP 09-295675A – see machine translations) in view of Bauer (US 2012/0031869), Lahti et al. (US 2017/0203534 A1) and Umenaka (WO 2011/115270 A1).
Regarding Claim 21, Nakamura discloses a frozen confection support assembly (Fig. 1) configured to receive and contain a liquid for subsequent freezing to form the frozen confection (see paragraph 3-4) and being further configured for removal of an outer portion of said frozen confection support assembly to permit consumption of the frozen confection while holding a second portion of said frozen confection support assembly (paragraph 4), said frozen confection support assembly comprising:
a stick spout member, said stick spout member comprising:
a cap portion (attachment portion 4);
a stick portion (straw 5), said stick portion configured to extend away a distance from a first side of said cap portion (extending downward, see Fig. 2); said stick portion comprising: a hollow interior (i.e. straw), and at least one opening being in fluid communication with said hollow interior (capable of drinking, paragraph 1);
a spout portion (drinking mouth 3a), said spout portion configured to extend away from a second side of said cap portion (extending upward, Fig. 2); said spout portion comprising: an opening defining a hollow interior (i.e. drink mouth);
wherein said stick spout member is formed with said hollow interior of said spout portion being in fluid communication with said hollow interior of said stick portion (paragraph 13);
a pouch (main body 1), said pouch formed of a flexible foil material (paragraph 23); said pouch comprising: an opening into a hollow interior configured to receive said stick portion (upper portion of body 1, Fig. 1); wherein a periphery of said opening in said pouch is secured to and sealed with respect to a peripheral portion of said cap portion to enclose said stick portion within said hollow interior of said pouch (see region surrounding attachment portion 4 of Fig. 1);
wherein said opening in said spout portion is configured to receive an amount of the confection in a non-frozen state to fill said pouch through said at least one opening in said stick portion and surround the enclosed stick portion (paragraph 19);
a stick cap, said stick cap comprising:
a cap portion (lid 3b); and
a handle portion (mouthpart 3, paragraph 9);
a first weakened line (breaking means 2) pre-formed on said pouch, said first weakened line configured to extend along a first side of said pouch being in proximity to a base (see Fig. 1), and
a first peel-back tab (end portion 2a), said first peel-back tab being positioned in proximity to said first end of said first weakened line (see Fig. 1), wherein said first peel-back tab is configured to be grasped by a user's finger to apply a force to tear away said pouch from said cap portion along said weakened line to expose the frozen confection (paragraph 12 and Fig. 3).
Nakamura is silent to the spout portion comprising an annular lock ring on an exterior surface
wherein said cap portion comprises: a lock well configured to correspond to said annular lock ring;
wherein said cap portion of said stick cap is configured to be punched directly onto and be fixedly secured to said spout portion of said stick spout member using said annular lock ring and said lock well, and wherein a distal wall of said cap portion thereby permanently seals said opening in said spout portion;
a second weakened line pre-formed on said pouch and being formed perpendicular to an outer surface of said pouch, said second weakened line configured to extend along a second side of said pouch beginning at a first end of said first weakened line;
a third weakened line pre-formed on said pouch and being formed perpendicular to an outer surface of said pouch, said third weakened line configured to extend along a third side of said pouch beginning at a second end of said first weakened line,
wherein said second weakened line is configured to extend along said second side of said pouch from said first end of said first weakened line to a first end of a fourth side of said pouch;
wherein said third weakened line is configured to extend along said third side of said pouch from said second end of said first weakened line to a second end of said fourth side of said pouch;
a first peel-back tab and a second peel-back tab each being integrally formed with said pouch, said first peel-back tab being positioned in proximity to said first end of said first weakened line, and said second peel-back tab positioned in proximity to said second end of said second weakened line;
wherein each of said first peel-back tab and said second peel-back tab are configured to be grasped by a user's finger to apply a force to tear away said pouch from said cap portion initially along said first weakened line, and next along each of said third weakened line and said fourth weakened line; and
wherein said first peel-back tab and said second peel-back tab are configured in combination with said first weakened line, said second weakened line, and said third weakened line for removal of an entire first face of said pouch adjacent to a first face of the frozen confection, and subsequent removal of an entire second face of said pouch adjacent to a second face of the frozen confection, to expose the entire frozen confection.
Bauer is relied on to teach a spout portion (neck region 140, see Fig. 1) comprising an annular lock ring on an exterior surface (cap region 130) and a cap portion (see cap in circled region, Fig. 3);
wherein said cap portion comprises: a lock well configured to correspond to said annular lock ring (“grooves in place for acceptance of the bottle cap”, paragraph 77); that is, the interior of the cap portion in which the spout portion is inserted to engage the annular lock ring is construed to be the “lock well”; and
wherein said cap portion of said stick cap is configured to be punched directly onto and be fixedly secured to said spout portion of said stick spout member using said annular lock ring and said lock well, and wherein a distal wall of said cap portion thereby permanently seals said opening in said spout portion (see Fig. 3 with the cap engaged with the spout opening). It is noted that the limitation “configured to be punched directly” is an intended use limitation. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. In this case, a user can take the cap portion of Bauer and punch it over the spout opening such that the cap flares out sufficiently and engages over the annular lock rings.
Since both Nakamura and Bauer are directed to beverage containers for holding liquid having both a cap portion and a spout portion, wherein liquid is dispensed through the spout portion, it would have been obvious to one of ordinary skill in the art to provide annular lock ring to engage the cap portion for the purpose of securing the cap portion onto the spout portion.
As to the limitations directed to the second, third, and fourth weakened lines, Lahti is relied on to teach a flexible film package (see abstract) that is capable of holding food materials (paragraph 19), comprising a first weakened line (lidding component 12, Fig. 1, which is construed as analogous to the claimed “base” for purpose of applying prior art),
a second weakened line, said second weakened line configured to extend along a second side of said pouch beginning at a first end of said first weakened line (left edge of the package, Fig. 1) ;
a third weakened line, said third weakened line configured to extend along a third side of said pouch beginning at a second end of said first weakened line (right edge of the package, opposite of the left edge, Fig. 1),
wherein said second weakened line is configured to extend along said second side of said pouch from said first end of said first weakened line to a first end of a fourth side of said pouch (fourth side is construed to be the top edge, opposite of lidding 12, Fig. 1);
wherein said third weakened line is configured to extend along said third side of said pouch from said second end of said first weakened line to a second end of said fourth side of said pouch (Fig. 1);
a first peel-back tab and a second peel-back tab each integrally formed with said pouch, said first peel-back tab being in positioned in proximity to said first end of said weakened line (unsealed flange 18, Fig. 1, paragraph 20); and said second peel-back tab positioned in proximity to said second end of said second weakened line; that is, a first peel-back tab and the second peel back tab can be construed as the opposite end of the unsealed flange 18 (i.e. two corners of the flange);
wherein each of said first peel-back tab and said second peel-back tab are configured to be grasped by a user's finger (paragraph 20) to apply a force to tear away said pouch from said cap portion initially along said first weakened line, and next along each of said third weakened line and said fourth weakened line; and
wherein said first peel-back tab and said second peel-back tab are configured in combination with said first weakened line, said second weakened line, and said third weakened line for removal of an entire first face of said pouch adjacent to a first face of the content (see Fig. 2), and subsequent removal of an entire second face of said pouch adjacent to a second face of the content (layer under the content seen in Fig. 1 and 2), to expose the entire stored content (20). This method of removing the package is advantageous in preventing substantial release of paper fibers or nonwoven material fibers onto the food material (see paragraph 20).
Since both Nakamura and Lahti are directed to flexible film packages for holding food materials, and both are directed to weakened lines for removing the package around the contents stored there, it would have been obvious to one of ordinary skill in the art to employ the weakened lines and tear-away mechanism of Lahti for the purpose of reducing substantial release of paper material or non-woven materials onto the food material. Also, since both are recognize as mechanisms of removing a film material through tearing of weakened lines, it would have been obvious to substitutes equivalents known for the same purpose. The difference would have been a matter of mere design choice to facilitate the removal of the packaging around the frozen confectionary product.
As to the limitation of the first, second, and third weakened line pre-formed on said pouch being formed perpendicular to said outer surface of said pouch, since Lahti discloses a similar configuration of first, second, and third weakened lines (comparable to Applicant’s Fig. 7 in that the weakened lines form the top, left, and right side of the pouch), the difference would have been a matter of the shape of the pouch. That is, the outer surfaces that are perpendicular to the weakened lines appear to be the side gusset 3 seen in Applicant’s Fig. 7. Therefore, Umenaka is relied on to teach a flexible pouch capable of holding frozen confectionary products (ice cream, see paragraph 72) wherein the pouch comprises gusset to enable a self-standing feature (see abstract), and thus comprises an outer surface that is perpendicular to the second and third exterior lines. Umenaka’s package also comprise a prism-shape cross section (see Fig. 8) where it is construed that at least some of the outer surface constitutes a surface that is perpendicular to the first weakened line. Since Umenaka is also directed to flexible pouch having a spout that is capable of containing ice cream, it would have been obvious to one of ordinary skill in the art to modify the pouch to comprise gusset in a configuration similar to Umenaka for the purpose of providing a self-standing pouch.
Claim(s) 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 21, further in view of Franca et al. (US 2018/0273268).
Regarding Claim 22, Nakamura further discloses a first platform wing and a second platform wing, said first platform wing configured to protrude outwardly from a first side of said stick portion in proximity to said cap portion, said second platform wing configured to protrude outwardly from a second side of said stick portion in proximity to said cap portion, said second side being an opposite side of said stick portion from said first side (see annotations of Fig. 6 below).
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The combination is silent to comprising a plurality of flanges, each of said plurality of flanges formed parallel to each other, and being further configured to protrude perpendicularly with respect to said first and second platform wings. Franca is relied on to teach a spout structure comprising a first wing platform and a second wing platform (opposing ends 24 and 26, see Fig. 1), said first platform wing configured to protrude outwardly from a first side of a stick portion (rigid component 51) in proximity to said cap portion, said second platform wing configured to protrude outwardly from a second side of said stick portion in proximity to said cap portion, said second side being an opposite side of said stick portion from said first side (Fig. 1), and further comprising a plurality of flanges formed parallel to each other (sealing ribs 30, paragraph 38 and Fig. 1), and being configured to protrude perpendicularly with respect to said first and second platform wing (Fig. 1). The sealing ribs includes an ethylene/α-olefin multiblock copolymer (paragraph 34), and configured to advantageously yield flexibility and elasticity to improve the seal between the fitment and films (paragraph 89).
Therefore, since both Franca and Nakamura are directed to spout fitments that are sealed between flexible films, it would have been obvious to one of ordinary skill in the art to incorporate the first and second wing platform comprising a plurality of flanges (i.e. sealing ribs) as taught by Franca into the spout fitment of Nakamura for the purpose of improving the seal between the fitment and the flexible films.
Claim(s) 25-29 and 31 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 22, further in view of Albano et al. (US 2014/0065267).
Regarding Claim 25, while Nakamura discloses a handle portion that is construed to be an elongate cylinder having a diameter configured to be grasped by the user’s hand (paragraph 28), Nakamura does not teach wherein a length of said handle portion is about as long as a length of said stick portion of said stick spout member. Albano is relied on to teach an assembly for holding a frozen confectionary (see abstract) having a stick portion (male insert mold body 16) and a handle portion (handle 44, paragraph 71), where it is construed that the length of the stick portion and the length of the handle portion are similar (see Fig. 1-2). The handle portion of Albano is also detachable, thus being capable of functioning as a cap portion that can be attached by punching the cap portion into the spout portion (friction fit end, paragraph 71). Therefore, since both Albano and Nakamura are direction to holding assemblies for frozen food products, having both a stick portion and a handle portion, it would have been obvious to one of ordinary skill in the art to modify the length of the handle portion based on design choice. One of ordinary skill in the art would have recognized that elongating the handle portion would facilitate gripping the handle portion within the user’s hand.
Regarding Claims 26 and 29, Nakamura further teaches wherein said pouch is formed of a polyethylene material (paragraph 11).
Regarding Claims 27 and 29, Nakamura discloses wherein the pouch film is made of “aluminum foil and a thermal fusion resin on a synthetic resin film made of polyethylene or the like is laminated…” (emphasis added, paragraph 15), but is silent to specifically reciting polypropylene. However, Franca, which was previously relied on to modify the structure of the spout fitment to enhance the seal between the spout fitment and the flexible pouch, is relied on to teach a flexible multilayer film that comprises polypropylene. Therefore, since both Nakamura and Franca are directed to flexible pouch for holding a beverage, it would have been obvious to one of ordinary skill in the art to substitute equivalents known for the same purpose (see MPEP 2144.06).
Regarding Claims 28 and 29, Nakamura further teaches wherein said pouch is formed of an aluminum foil material (paragraph 11).
Regarding Claim 31, Nakamura further teaches wherein said at least one opening in said stick portion comprises: a plurality of openings spaced along the length of said stick portion (holes 6a, paragraph 27 and Fig. 5a), each being in fluid communication with said hollow interior of said stick portion (due to being holes); and wherein the frozen confection within said plurality of openings is configured to keep the frozen confection from sliding off of said stick member (paragraph 27).
Nakamura does not specifically show that the holes are “equally” spaced along the length of the stick portion; however, Nakamura similarly provides the holes to prevent the frozen product from falling off the stick portion, and therefore can have different variations where “any means may be used as long as it is possible to prevent the frozen drink 9 from falling off” (paragraph 27). Nakamura also provides an alternative embodiment where the bumps are more uniformed and thus “equally spaced along the length of the stick portion” (see Fig. 2 and 5b). Therefore, to provide equally spaced holes would have been obvious to one of ordinary skill in the art based on design choice, so long as the holes prevent the product from falling off the stick portion.
Claim(s) 30 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 25, further in view of Canegallo (WO 2016/193319).
Regarding Claim 30, the combination is silent to wherein an exterior surface of said cap portion of said stick cap comprises a plurality of undulations configured to be grasped by the user to hold said frozen confection support assembly. Canegallo is relied on to teach a spout fitment that is similarly sealed to flexible packages (see abstract), wherein the cap portion (cap stopper 104) comprises knurling 147, which are construed as a plurality of undulations, for the purpose of facilitating the gripping of the cap portion (“advantageously gripping on the knurling…” see page 18, line 34 to page 19, line 2). Therefore, since both Nakamura and Canegallo are directed to similar flexible packages having a spout fitment with a cap portion, it would have been obvious to one of ordinary skill in the art to provide a plurality of undulations such as knurls to improve the gripping of the cap portion by the user.
Response to Amendment
Applicant’s arguments in the response filed 23 June 2025 has been considered, but is rendered moot in view of the new grounds of rejections.
Applicant argues that the Lahti reference do not teach using a line of weakness. However, the claimed term “weakened line pre-formed on said pouch” does not distinguish itself from Lahti’s method of peeling because the fact that the pouch can be separated along the sealed edges of the pouch through peeling constitutes a “weakened line”. In any case, Lahti further teaches means of perforation (see paragraph 54), thus rendering the claim obvious to one of ordinary skill in the art since perforation is construed as a “weakened line pre-formed on said pouch”.
In response to Applicant’s arguments that Lahti is directed to a package of different materials to satisfy different requirement, the arguments are not persuasive because Lahti is simply relied on to teach a configuration of opening a package using a peeling layer that separates the package across three weakened lines to prevent the tearing of paper fibers that may contaminate the contents of the package. Since Nakamura is directed to an edible product with a paper material surrounding the package that is to be torn, the teachings of Lahti would have been advantageous to mitigating paper fibers onto the consumable food product. Therefore, the fact that Lahti is directed to maintaining sterility within the medical industry would not teach away from using similar packaging since it would also be beneficial to prevent paper fibers from remaining on food items.
In response to Applicant’s argument that the combination would render the Lahti reference unsatisfactory for its intended purpose, the argument is found not persuasive because Lahti is not primarily relied on to teach the contents of the package; rather, Lahti is only relied on to modify the package of Nakamura to have similar tear line configurations.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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/T.H.N/Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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