DETAILED ACTION
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 Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 1, 11, 16, and 22-24 are rejected under 35 U.S.C. 103 as being unpatentable over “200 Top Bar Hives: The Low Cost Sustainable Way” <https://web.archive.org/web/20150428044709/https://www.tbhsbywam.com/products/> (archived April 28, 2015) (herein referred to as “200 Top Bar Hives”) in view of “Honey 12 Gram Portion Control – 200/Case” <https://www.webstaurantstore.com/honey-12-gram-portion-cup-case/125PCHONEY.html?srsltid=AfmBOopeCuSiC3yBZEaUNfHSmLHRuHRpqW-_WgYwLhRMMKhNykdjRhJW> (published May 3, 2010) (herein referred to as “Honey 12 Gram Portion Control), Dickinson’s Pure Honey .5oz Portion Cup – 200/Case” <https://www.webstaurantstore.com/dickinsons-pure-honey-5oz-portion-cup-case/125PCAL3434.html> (published January 7, 2017) (herein referred to as “Dickinson’s Pure Honey .5oz Portion Cup”), “Reviews for Salad Fresh Honey Mustard Sauce 1 oz. Portion Cup – 100/Case” <https://www.webstaurantstore.com/product-reviews/125PCHONMUST.html> (published August 12, 2009) (herein referred to as “Honey Mustard Sauce 1 oz. Portion Cup”), Honey Bee Suite “Making comb honey should be simple and fun” <https://www.honeybeesuite.com/making-comb-honey-should-be-simple-and-fun/> (published February 15, 2018) (herein referred to as “Honey Bee Suite”), Hirsch “Honeycomb best way to consume sweet stuff” <https://www.dispatch.com/story/lifestyle/food/2012/05/23/honeycomb-best-way-to-consume/23452177007/?gnt-cfr=1&gca-cat=p&gca-uir=true&gca-epti=z1197xxe1197xxv006475d--71--b--71--&gca-ft=150&gca-ds=sophi> (published May 23, 2012) (herein referred to as “Hirsch”), Sprunk “You Shouldn’t Be Eating More Than This Amount of Honey Every Week” <https://womenshealthsa.co.za/honey-healthy-sweetener/> (published October 25, 2017), Lisk US 2012/0183650, and Noth US 2018/0110362 as further evidenced by Van Handel et al. US 2005/0011898.
Regarding Claim 1, 200 Top Bar Hives discloses a food package comprising a single serve portion of honeycomb having a honeycomb structure (scrap cut comb honey sold in condiment cups like you get at restaurants), a rigid protective support structure (condiment cups like you get at restaurants) having structural rigidity that protects the honeycomb structure of the single serve portion of honeycomb (scrap cut comb honey) wherein the honeycomb structure of the single serve portion of honeycomb (scrap cut comb honey) is contained within the rigid protective support structure (condiment cups like you get at restaurants) and wherein the honeycomb structure of the single serve portion of honeycomb (scarp cut comb honey) is protected by the rigid protective support structure (condiment cups like you get at restaurants) (200 Top Bar Hives, Page 2).
200 Top Bar Hives discloses the single serve portion of honeycomb (scrap cut comb honey) being sold in a rigid protective support structure (condiment cups like you get at restaurants) (200 Top Bar Hives, Page 2). However, 200 Top Bar Hives is silent regarding the condiment cups like you get at restaurants being sized such that an amount of honeycomb in the single serve portion of honeycomb weights about 30 grams or less and has a volume of about 1 cubic inch. 200 Top Bar Hives is also silent regarding the condiment cups like you get at restaurants that reads on the claimed rigid protective support structure being shaped as a rectangular prism and having at least three orthogonal sides that are orthogonal to each other wherein the rigid support structure has structural rigidity that protects the structure of the single serve portion of honeycomb from at least three orthogonal directions wherein the rigid protective support structure is formed from a food grade plastic based material that is water resistant.
Honey 12 Gram Portion Control discloses a food package comprising a single serve portion of honey having a structure wherein an amount of honey in the single serve portion of honey weighs about 12 grams (Honey 12 Gram Portion Control, Page 2), which falls within the claimed amount of honey weighing about 30 grams or less. The food package also comprises a rigid protective support structure being shaped as a rectangular prism and having at least three orthogonal sides that are orthogonal to each other wherein the rigid protective support structure has structural rigidity that protects the structure of the single serve portion of honey from at least three orthogonal directions wherein the rigid protective support structure is formed from a food grade plastic based material (Honey 12 Gram Portion Control, Page 1). These portion controlled packs are ideal for restaurants (Honey 12 Gram Portion Control, Page 2).
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Dickinson’s Pure Honey .5oz Portion Cup discloses a food package comprising a single serve portion of honey having a structure wherein an amount of honey in the single serve portion of honey weighs about 0.5 ounces (Dickinson’s Pure Honey .5oz Portion Cup, Page 2), converts to about 14 grams, which falls within the claimed amount of honey weighing about 30 grams or less. The food package also comprises a rigid protective support structure being shaped as a rectangular prism and having at least three orthogonal sides that are orthogonal to each other wherein the rigid protective support structure has structural rigidity that protects the structure of the single serve portion of honey from at least three orthogonal directions wherein the rigid protective support structure is formed from a food grade plastic based material (Dickinson’s Pure Honey .5oz Portion Cup, Page 1). These portioned controlled cups are found in restaurants (Dickinson’s Pure Honey .5 oz Portion Cup, Page 2).
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Honey Mustard Sauce 1 oz. Portion Cup discloses a food package comprising a single serve portion of honey having a structure wherein an amount of honey in the single serve portion of honey weighs about 1 ounce (Honey Mustard Sauce 1 oz. Portion Cup, Page 1), which converts to about 28 grams, which falls within the claimed amount of honey weighing about 30 grams or less. The food package also comprises a rigid protective support structure being shaped as a rectangular prism and having at least three orthogonal sides that are orthogonal to each other wherein the rigid protective support structure has structural rigidity that protects the structure of the single serve portion of honey from at least three orthogonal directions wherein the rigid protective support structure is formed from a food grade plastic based material (Honey Mustard Sauce 1 oz. Portion Cup, Page 1). These portioned containers accompany menu items (Honey Mustard Sauce 1 oz., Page 40), which indicates that these honey food product containers are suitable for restaurant use (Honey Mustard Sauce 1 oz., Page 1).
200 Top Bar Hives discloses the single serve portion of honeycomb (scrap cut comb honey) being sold in a rigid protective support structure (condiment cups like you get at restaurants) (200 Top Bar Hives, Page 2). Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5oz Portion Cup, and Honey Mustard Sauce 1 oz. Portion Cup all disclose condiment cups like you get at restaurants having honey food products disposed therein having the claimed amount of single serve portion of honey product weight. Although Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5oz Portion Cup and Honey Mustard Sauce 1 oz. Portion Cup all disclose condiment cups like you get at restaurants having liquid honey food products disposed therein instead of a honeycomb structure, Honey Bee Suite discloses pieces of cut comb honey placed in a container wherein the container determines the size of the pieces or use a variety of containers that suit the shape of the comb wherein the cut comb honey can be covered with extracted honey (Honey Bee Suite, Pages 3 and 6).
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It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the type of condiment cup like you get at restaurants in which the honeycomb is disposed in 200 Top Bar Hives to be shaped as a rectangular prism and having at least three orthogonal sides that are orthogonal to each other wherein the rigid support structure has structural rigidity that protects the structure of the single serve portion of honeycomb from at least three orthogonal directions wherein the rigid protective support structure includes a food grade plastic based material as taught by Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5oz Portion Cup, and Honey Mustard Sauce 1 oz. Portion Cup since the configuration of the claimed disposable plastic container is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container storing the honey product was significant in view of In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (MPEP § 2144.04.IV.B.). Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the amount of the condiment cups like you get at restaurants that the honeycomb of 200 Top Bar Hives is disposed and provide the claimed amount of single serve portion of honey product weight of about 30 grams or less as taught by Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5oz Portion Cup, and Honey Mustard Sauce 1 oz. Portion Cup since where the claimed honey single serve product weight range encompasses honey single serve product ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Additionally, Honey 12 Gram Portion Control discloses 12 grams of honey product are perfectly portioned control packs that deliver just the right amount of sweetness to food or beverage that make it easy for customers to grab and go and helps with portion control which prevents customers from taking excess amounts (Honey 12 Gram Portion Control, Page 2). Differences in the amount of single serve honey product disposed in the food package will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such amount of single serve honey product is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Sprunk discloses honey is a natural food that is considered a type of added sugar when you eat it and is rich in probiotics and antioxidants (Sprunk, Page 1) and that portions of added sugars should be limited each day (Sprunk, Page 2). One of ordinary skill in the art would adjust the amount of honey product of the single serve portion of honey product disposed in the food package of 200 Top Bar Hives to be portioned to a small size since Honey 12 Gram Portion Control discloses 12 grams of honey product are perfectly portioned control packs that deliver just the right amount of sweetness to food or beverage that make it easy for customers to grab and go and helps with portion control which prevents customers from taking excess amounts (Honey 12 Gram Portion Control, Page 2) and since Sprunk teaches that American Heart Association guidelines recommends limiting added sugars such as honey (Sprunk, Page 2). Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the type of honey product disposed in the small single serve portion of honeycomb of modified 200 Bar Hives to have a honeycomb structure as taught by Honey Bee Suite based upon the desired texture of honey product as suggested by Hirsch (Hirsch, Page 3).
Further regarding Claim 1, 200 Top Bar Hives modified with Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5oz Portion Cup, Honey Mustard Sauce 1 oz. Portion Cup, Honey Bee Suite, Hirsch, and Sprunk is silent regarding the single serve portion of honeycomb having a volume of about 1 cubic inch.
Liske discloses packaging a moldable food product into a tray having a plurality of compartments (‘650, Paragraph [0006]) wherein each compartment has a volume of sufficient for containing the moldable food product in an amount in a range of from 7 g to 8 kg (‘650, Paragraph [0028]) and storing 5 mL to 4.5 L of the moldable food product (‘650, Paragraph [0048]). The moldable food product contained in the interior space of each compartment is molded to a shape of the interior space of each compartment (‘650, Paragraph [0023]) wherein the food product conforms to a shape of the interior space of the compartment (‘650, Paragraph [0045]). Noth discloses a foodstuff container having an internal volume of 5-80 mL (‘362, Paragraph [0024]), which converts to an internal volume of 0.305 cubic inches to 4.88 cubic inches, which encompasses the claimed volume of about 1 cubic inch. Since Liske teaches the food product contained in the compartment being molded to a shape of the interior space of each compartment and the food product conforming to a shape of the interior space of the compartment, the disclosure of the food container of Noth having an internal volume of 5 mL (0.305 cubic inches) to 80 mL (4.88 cubic inches) also corresponds to the volume of food disposed within the compartment.
Modified 200 Top Bar Hives, Liske, and Noth are all directed towards the same field of endeavor of food packages storing a foodstuff. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the volume of food disposed within the food container of modified 200 Top Bar Hives and dispose between 0.305 cubic inches to 4.88 cubic inches, which encompasses the claimed volume of about 1 cubic inch, as taught by the amount of food disposed within the food container of Noth since where the claimed volume ranges overlaps volume ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, claims directed to a food package of appreciable size is held unpatentable over prior art food packages because limitations relating to the size of the food package are not sufficient to patentably distinguish over the prior art in view of In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) (MPEP § 2144.04.IV.A.). One of ordinary skill in the art would package the desired quantity and volume of honeycomb into the food package of modified 200 Top Bar Hives based upon the particular amount of honeycomb desired to be eaten in a single individualized portion.
Further regarding Claim 1, 200 Top Bar Hives discloses the single serve portion of honeycomb being disposed in a rigid protective support structure in the form of condiment cups like you get at restaurants (200 Top Bar Hives, Page 2). Van Handel et al. provides evidence that it was known in the food packaging art that single serve portion of individual condiment containers are conventionally made to be substantially liquid proof (‘898, Paragraph [0015]), which reads on the condiment cup of 200 Top Bar Hives having a water resistant rigid protective support structure in the form of a substantially liquid proof condiment container as further evidenced by Van Handel et al.
Further regarding Claim 1, the limitations “wherein the rigid protective support structure has structural rigidity that protects the structure of the single serve portion of honeycomb from at least three orthogonal directions” are seen to be recitations regarding the intended use of the “food package.” In this regard, applicant’s attention is invited to MPEP § 2114.II. which states that [A]pparatus claims cover what a device is, not what a device does in view of Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). A claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” is the prior art apparatus teaches all the structural limitations of the claim in view of Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987) (MPEP § 2114.II.). Furthermore, if the prior art structure is capable of performing the intended use, then it meets the claim. The prior art reference of modified 200 Top Bar Hives is capable of performing the intended use limitations since modified 200 Top Bar Hives teaches a food container wherein the food container has a rectangular prism shape and is covered by a rectangular shaped lid. This structure is the same shape as the rigid protective support structure disclosed by FIG. 3G of applicant’s drawings (Specification, Paragraph (16)).
Regarding Claim 11, the limitations “wherein the rigid protective support structure is configured to be resealable” are intended use limitations and as such are rejected for the same reasons regarding intended use enumerated in the rejections of Claim 1 provided above. Nevertheless, 200 Top Bar Hives discloses an embodiment of the food package being a clamshell (200 Top Bar Hives, Page 2), which is known in the food packaging art to be capable of resealing.
Regarding Claim 16, the limitations “wherein the rigid protective support structure is configured to be stackable with other rigid protective support structures” are intended use limitations and as such are rejected for the same reasons regarding intended use enumerated in the rejections of Claim 1 provided above. Nevertheless, Van Handel et al. provides evidence that the rigid support structures are capable of being stacked with other rigid protective support structures (‘898, FIGS. 8-9) (‘898, Paragraph [0055]).
Regarding Claims 22-24, 200 Top Bar Hives discloses the single serve portion of honeycomb having a shape of a polygonal prism in the form of a rectangular prism and the single serve portion of honeycomb being packaged within the food package for a sale to a consumer (sale at a farmers market) (200 Top Bar Hives, Page 3).
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Claims 2, 14, and 17 are rejected under 35 U.S.C. 103 as being unpatentable over “200 Top Bar Hives: The Low Cost Sustainable Way” <https://web.archive.org/web/20150428044709/https://www.tbhsbywam.com/products/> (archived April 28, 2015) (herein referred to as “200 Top Bar Hives”) in view of “Honey 12 Gram Portion Control – 200/Case” <https://www.webstaurantstore.com/honey-12-gram-portion-cup-case/125PCHONEY.html?srsltid=AfmBOopeCuSiC3yBZEaUNfHSmLHRuHRpqW-_WgYwLhRMMKhNykdjRhJW> (published May 3, 2010) (herein referred to as “Honey 12 Gram Portion Control), Dickinson’s Pure Honey .5oz Portion Cup – 200/Case” <https://www.webstaurantstore.com/dickinsons-pure-honey-5oz-portion-cup-case/125PCAL3434.html> (published January 7, 2017) (herein referred to as “Dickinson’s Pure Honey .5oz Portion Cup”), “Reviews for Salad Fresh Honey Mustard Sauce 1 oz. Portion Cup – 100/Case” <https://www.webstaurantstore.com/product-reviews/125PCHONMUST.html> (published August 12, 2009) (herein referred to as “Honey Mustard Sauce 1 oz. Portion Cup”), Honey Bee Suite “Making comb honey should be simple and fun” <https://www.honeybeesuite.com/making-comb-honey-should-be-simple-and-fun/> (published February 15, 2018) (herein referred to as “Honey Bee Suite”), Hirsch “Honeycomb best way to consume sweet stuff” <https://www.dispatch.com/story/lifestyle/food/2012/05/23/honeycomb-best-way-to-consume/23452177007/?gnt-cfr=1&gca-cat=p&gca-uir=true&gca-epti=z1197xxe1197xxv006475d--71--b--71--&gca-ft=150&gca-ds=sophi> (published May 23, 2012) (herein referred to as “Hirsch”), Sprunk “You Shouldn’t Be Eating More Than This Amount of Honey Every Week” <https://womenshealthsa.co.za/honey-healthy-sweetener/> (published October 25, 2017), Lisk US 2012/0183650, and Noth US 2018/0110362 as further evidenced by Van Handel et al. US 2005/0011898 as applied to claim 1 above in further view of Long “Photos: Beekeeping is sweet for Michael Martin” <https://www.ldnews.com/picture-gallery/news/2016/08/14/photos-beekeeping-is-sweet-for-michael-martin/88723036/> (published August 14, 2016) (herein referred to as “Long” as further evidenced by Roberge “Common Shrink Wrap Problems and How to Solve Them” <https://www.packagingstrategies.com/blogs/14-packaging-strategies-blog/post/90137-common-shrink-wrap-problems-and-how-to-solve-them> (published December 27, 2017) in further view of Johnson et al. US 2008/0026114.
Regarding Claim 2, 200 Top Bar Hives modified with Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5 oz Portion Cup, Honey Mustard Sauce 1 oz. Portion Cup, Honey Bee Suite, Hirsch, Sprunk, Lisk, and Noth as further evidenced by Van Handel et al. is silent regarding a wrapper wrapped around both the single-serve portion and the rigid protective support structure such that both the single-serve portion and the rigid protective support structure are contained within the wrapper wherein the wrapper is formed from a food grade material different from any food grade plastic based material that forms some or all of the rigid support structure.
Long discloses a food package comprising a wrapper (shrink wrap) wrapped around a single serve portion of honeycomb having a structure (Long, Page 9). The shrink wrap wrapper disclosed by Long is necessarily made of a food grade plastic and is water resistant as further evidenced by Roberge, which teaches that shrink wrap entails a plastic wrap that is waterproof (Roberge, Page 1). The food grade plastic of Long is flexible, i.e. a food grade material different from the food grade rigid plastic material forming the rigid support structure of 200 Top Bar Hives.
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Both modified 200 Top Bar Hives and Long are directed towards the same field of endeavor of food packages comprising single serve portions of honeycomb. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the food package of modified 200 Top Bar Hives and incorporate a wrapper that wraps around a single serve portion of honeycomb as taught by Long for sanitation purposes.
Further regarding Claim 2, Long discloses the wrapper being wrapped around the single serve portion of honeycomb (Long, Page 9). However, 200 Top Bar Hives modified with Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5 oz Portion Cup, Honey Mustard Sauce 1 oz. Portion Cup, Honey Bee Suite, Hirsch, Sprunk, Lisk, and Noth as further evidenced by Van Handel et al. further modified with Long is silent regarding the wrapper containing both the single serve portion of honeycomb and the rigid protective support structure.
Johnson et al. discloses a food package comprising a portion of a food product having a structure (food product 10) and a rigid protective support structure (package blank 30) having structural rigidity that protects the structure of the food product (food product 10) (‘114, Paragraphs [0032]-[0033]) wherein the structure of the food product (food product 10) is contained within the rigid protective support structure (package blank 30) and the structure of the portion of the food product (food product 10) is protected by the rigid protective support structure (package blank 30) (‘114, FIGS. 1-2) (‘114, Paragraph [0032]). Johnson et al. also discloses a wrapper wrapped around the portion of the food product (food product 10) and the rigid protective support structure (package blank 30) such that both the portion of the food product and the rigid protective support structure are contained within the wrapper (shrink wrap wraps the entire exterior of the package) wherein the food product (food product 10) is also wrapped within the wrapper (shrink wrap) (‘114, Paragraph [0034]). The wrapper (shrink wrap) is made of a food grade plastic based material (plastic film overwrap) (‘114, Paragraph [0034]).
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Both modified 200 Top Bar Hives and Johnson et al. are directed towards the same field of endeavor of food packages comprising a food product wrapped within a wrapper which food product is disposed within a rigid support structure in the form of a container (via Page 9 of Long). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the food package of modified 200 Top Bar Hives and also incorporate a wrapper that contains both the portion of food product and the rigid protective support structure as taught by Johnson et al. for imparting additional sanitation properties to both the single serve portion of honeycomb as well as the rigid protective support structure.
Regarding Claim 14, Long discloses the wrapper being sealed by heat shrinking (shrink wrap) (Long, Page 9). Johnson et al. also discloses the wrapper being sealed by heat shrinking (shrink wrap) or overwrapping (‘114, Paragraph [0034]).
Regarding Claim 17, it is noted that the claimed method for packaging steps of Claim 17 does not provide any specific method steps other than obtaining and providing the honeycomb package of the product Claims 1 and 2 in combination. The method of Claim 17 also requires the rigid protective support structure to include a food grade plastic based material and the rigid protective support structure to be a unitary construction. Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5oz Portion Cup, and Honey Mustard Sauce 1 oz. Portion Cup all disclose condiment cups like you get at restaurants having honey food products disposed therein wherein the condiment cups are rigid support structures including a food grade plastic material. Van Handel et al. also provides evidence that it was known in the food packaging art to construct the rigid support structure (plastic food container) out of a food grade plastic material (‘898, Paragraph [0016]). With respect to the limitations regarding the rigid protective support structure being a unitary construction, the use of a one piece construction instead of the structure disclosed by the prior art would be merely a matter of obvious engineering choice in view of In re Larson, 340 F.2d 965, 968, 144 USPQ 347, 349 (CCPA 1965) (MPEP § 2144.04.V.B.). With respect to the remaining limitations, the method of Claim 17 is rejected for the same reasons regarding the product Claims 1 and 2 in combination since the product of Claims 1 and 2 in combination would necessarily result from the method as claimed in Claim 17.
Claims 3 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over “200 Top Bar Hives: The Low Cost Sustainable Way” <https://web.archive.org/web/20150428044709/https://www.tbhsbywam.com/products/> (archived April 28, 2015) (herein referred to as “200 Top Bar Hives”) in view of “Honey 12 Gram Portion Control – 200/Case” <https://www.webstaurantstore.com/honey-12-gram-portion-cup-case/125PCHONEY.html?srsltid=AfmBOopeCuSiC3yBZEaUNfHSmLHRuHRpqW-_WgYwLhRMMKhNykdjRhJW> (published May 3, 2010) (herein referred to as “Honey 12 Gram Portion Control), Dickinson’s Pure Honey .5oz Portion Cup – 200/Case” <https://www.webstaurantstore.com/dickinsons-pure-honey-5oz-portion-cup-case/125PCAL3434.html> (published January 7, 2017) (herein referred to as “Dickinson’s Pure Honey .5oz Portion Cup”), “Reviews for Salad Fresh Honey Mustard Sauce 1 oz. Portion Cup – 100/Case” <https://www.webstaurantstore.com/product-reviews/125PCHONMUST.html> (published August 12, 2009) (herein referred to as “Honey Mustard Sauce 1 oz. Portion Cup”), Honey Bee Suite “Making comb honey should be simple and fun” <https://www.honeybeesuite.com/making-comb-honey-should-be-simple-and-fun/> (published February 15, 2018) (herein referred to as “Honey Bee Suite”), Hirsch “Honeycomb best way to consume sweet stuff” <https://www.dispatch.com/story/lifestyle/food/2012/05/23/honeycomb-best-way-to-consume/23452177007/?gnt-cfr=1&gca-cat=p&gca-uir=true&gca-epti=z1197xxe1197xxv006475d--71--b--71--&gca-ft=150&gca-ds=sophi> (published May 23, 2012) (herein referred to as “Hirsch”), Sprunk “You Shouldn’t Be Eating More Than This Amount of Honey Every Week” <https://womenshealthsa.co.za/honey-healthy-sweetener/> (published October 25, 2017), Lisk US 2012/0183650, and Noth US 2018/0110362 as further evidenced by Van Handel et al. US 2005/0011898 as applied to claim 1 or claim 17 above in further view of Alzemi US 2015/0004291.
Regarding Claim 3, 200 Top Bar Hives modified with Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5 oz Portion Cup, Honey Mustard Sauce 1 oz. Portion Cup, Honey Bee Suite, Hirsch, Sprunk, Lisk, and Noth as further evidenced by Van Handel et al. is silent regarding one or more supplemental ingredients being combined in a combination with the single-serve portion of honeycomb wherein the one or more supplemental ingredients include a spice ingredient.
Alzemi discloses adding the spices of basil, cilantro, mint, rosemary, sage, and tarragon to a honey sweetener product (‘291, Paragraphs [0021]-[0022]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the honeycomb package of modified 200 Top Bar Hives and incorporate one or more supplemental ingredients of a spice ingredient to the honeycomb as taught by Alzemi based on the particular flavor profile desired by a particular consumer.
Regarding Claim 19, it is noted that the claimed method for packaging steps of Claim 19 does not provide any specific method steps other than obtaining and providing the honeycomb package of the product Claim 3. Therefore, the method of Claim 19 is rejected for the same reasons regarding the product Claim 3 since the product of Claim 3 would necessarily result from the method as claimed in Claim 19.
Claims 3-4 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over “200 Top Bar Hives: The Low Cost Sustainable Way” <https://web.archive.org/web/20150428044709/https://www.tbhsbywam.com/products/> (archived April 28, 2015) (herein referred to as “200 Top Bar Hives”) in view of “Honey 12 Gram Portion Control – 200/Case” <https://www.webstaurantstore.com/honey-12-gram-portion-cup-case/125PCHONEY.html?srsltid=AfmBOopeCuSiC3yBZEaUNfHSmLHRuHRpqW-_WgYwLhRMMKhNykdjRhJW> (published May 3, 2010) (herein referred to as “Honey 12 Gram Portion Control), Dickinson’s Pure Honey .5oz Portion Cup – 200/Case” <https://www.webstaurantstore.com/dickinsons-pure-honey-5oz-portion-cup-case/125PCAL3434.html> (published January 7, 2017) (herein referred to as “Dickinson’s Pure Honey .5oz Portion Cup”), “Reviews for Salad Fresh Honey Mustard Sauce 1 oz. Portion Cup – 100/Case” <https://www.webstaurantstore.com/product-reviews/125PCHONMUST.html> (published August 12, 2009) (herein referred to as “Honey Mustard Sauce 1 oz. Portion Cup”), Honey Bee Suite “Making comb honey should be simple and fun” <https://www.honeybeesuite.com/making-comb-honey-should-be-simple-and-fun/> (published February 15, 2018) (herein referred to as “Honey Bee Suite”), Hirsch “Honeycomb best way to consume sweet stuff” <https://www.dispatch.com/story/lifestyle/food/2012/05/23/honeycomb-best-way-to-consume/23452177007/?gnt-cfr=1&gca-cat=p&gca-uir=true&gca-epti=z1197xxe1197xxv006475d--71--b--71--&gca-ft=150&gca-ds=sophi> (published May 23, 2012) (herein referred to as “Hirsch”), Sprunk “You Shouldn’t Be Eating More Than This Amount of Honey Every Week” <https://womenshealthsa.co.za/honey-healthy-sweetener/> (published October 25, 2017), Lisk US 2012/0183650, and Noth US 2018/0110362 as further evidenced by Van Handel et al. US 2005/0011898 as applied to claim 1 or claim 17 above in further view of Boukraa et al. US 2015/0150930.
Regarding Claims 3-4, 200 Top Bar Hives modified with Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5 oz Portion Cup, Honey Mustard Sauce 1 oz. Portion Cup, Honey Bee Suite, Hirsch, Sprunk, Lisk, and Noth as further evidenced by Van Handel et al. is silent regarding one or more supplemental ingredients being combined in a combination with the single-serve portion of honeycomb wherein the one or more supplemental ingredients include a medicinal ingredient.
Boukraa et al. discloses that honey can incorporate folic acid (‘930, Paragraph [0012]) and that honey can be used in various medicinal traditions to treat numerous ailments (‘930, Paragraph [0011]), which reads on the claimed combination of honeycomb and the medicinal ingredient being capable of providing health related benefits to a user who consumes the combination. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the honeycomb package of modified 200 Top Bar Hives and incorporate one or more supplemental ingredients of a medicinal ingredient as taught by Boukraa et al. in order to provide additional health related benefits by providing the consumer with additional vitamins.
Regarding Claim 19, it is noted that the claimed method for packaging steps of Claim 19 does not provide any specific method steps other than obtaining and providing the honeycomb package of the product Claim 3. Therefore, the method of Claim 19 is rejected for the same reasons regarding the product Claim 3 since the product of Claim 3 would necessarily result from the method as claimed in Claim 19.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over “200 Top Bar Hives: The Low Cost Sustainable Way” <https://web.archive.org/web/20150428044709/https://www.tbhsbywam.com/products/> (archived April 28, 2015) (herein referred to as “200 Top Bar Hives”) in view of “Honey 12 Gram Portion Control – 200/Case” <https://www.webstaurantstore.com/honey-12-gram-portion-cup-case/125PCHONEY.html?srsltid=AfmBOopeCuSiC3yBZEaUNfHSmLHRuHRpqW-_WgYwLhRMMKhNykdjRhJW> (published May 3, 2010) (herein referred to as “Honey 12 Gram Portion Control), Dickinson’s Pure Honey .5oz Portion Cup – 200/Case” <https://www.webstaurantstore.com/dickinsons-pure-honey-5oz-portion-cup-case/125PCAL3434.html> (published January 7, 2017) (herein referred to as “Dickinson’s Pure Honey .5oz Portion Cup”), “Reviews for Salad Fresh Honey Mustard Sauce 1 oz. Portion Cup – 100/Case” <https://www.webstaurantstore.com/product-reviews/125PCHONMUST.html> (published August 12, 2009) (herein referred to as “Honey Mustard Sauce 1 oz. Portion Cup”), Honey Bee Suite “Making comb honey should be simple and fun” <https://www.honeybeesuite.com/making-comb-honey-should-be-simple-and-fun/> (published February 15, 2018) (herein referred to as “Honey Bee Suite”), Hirsch “Honeycomb best way to consume sweet stuff” <https://www.dispatch.com/story/lifestyle/food/2012/05/23/honeycomb-best-way-to-consume/23452177007/?gnt-cfr=1&gca-cat=p&gca-uir=true&gca-epti=z1197xxe1197xxv006475d--71--b--71--&gca-ft=150&gca-ds=sophi> (published May 23, 2012) (herein referred to as “Hirsch”), Sprunk “You Shouldn’t Be Eating More Than This Amount of Honey Every Week” <https://womenshealthsa.co.za/honey-healthy-sweetener/> (published October 25, 2017), Lisk US 2012/0183650, and Noth US 2018/0110362 as further evidenced by Van Handel et al. US 2005/0011898 as applied to claim 1 above in further view of Luburic US 2018/0273258.
Regarding Claim 10, 200 Top Bar Hives modified with Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5 oz Portion Cup, Honey Mustard Sauce 1 oz. Portion Cup, Honey Bee Suite, Hirsch, Sprunk, Lisk, and Noth as further evidenced by Van Handel et al. is silent regarding the rigid protective support structure including polyethylene.
Luburic discloses a food package comprising a rigid protective support structure (food tub) including polyethylene (‘258, Paragraph [0030]).
Both modified 200 Top Bar Hives and Luburic are directed towards the same field of endeavor of rigid protective support structures in the form of food tubs that store food. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the material from which the rigid protective support structure in the form of a food container of modified 200 Top Bar Hives to be polyethylene as taught by Luburic since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Luburic teaches that it was known and conventional to incorporate polyethylene in the construction of food tubs at the time of the invention.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over “200 Top Bar Hives: The Low Cost Sustainable Way” <https://web.archive.org/web/20150428044709/https://www.tbhsbywam.com/products/> (archived April 28, 2015) (herein referred to as “200 Top Bar Hives”) in view of “Honey 12 Gram Portion Control – 200/Case” <https://www.webstaurantstore.com/honey-12-gram-portion-cup-case/125PCHONEY.html?srsltid=AfmBOopeCuSiC3yBZEaUNfHSmLHRuHRpqW-_WgYwLhRMMKhNykdjRhJW> (published May 3, 2010) (herein referred to as “Honey 12 Gram Portion Control), Dickinson’s Pure Honey .5oz Portion Cup – 200/Case” <https://www.webstaurantstore.com/dickinsons-pure-honey-5oz-portion-cup-case/125PCAL3434.html> (published January 7, 2017) (herein referred to as “Dickinson’s Pure Honey .5oz Portion Cup”), “Reviews for Salad Fresh Honey Mustard Sauce 1 oz. Portion Cup – 100/Case” <https://www.webstaurantstore.com/product-reviews/125PCHONMUST.html> (published August 12, 2009) (herein referred to as “Honey Mustard Sauce 1 oz. Portion Cup”), Honey Bee Suite “Making comb honey should be simple and fun” <https://www.honeybeesuite.com/making-comb-honey-should-be-simple-and-fun/> (published February 15, 2018) (herein referred to as “Honey Bee Suite”), Hirsch “Honeycomb best way to consume sweet stuff” <https://www.dispatch.com/story/lifestyle/food/2012/05/23/honeycomb-best-way-to-consume/23452177007/?gnt-cfr=1&gca-cat=p&gca-uir=true&gca-epti=z1197xxe1197xxv006475d--71--b--71--&gca-ft=150&gca-ds=sophi> (published May 23, 2012) (herein referred to as “Hirsch”), Sprunk “You Shouldn’t Be Eating More Than This Amount of Honey Every Week” <https://womenshealthsa.co.za/honey-healthy-sweetener/> (published October 25, 2017), Lisk US 2012/0183650, and Noth US 2018/0110362 as further evidenced by Van Handel et al. US 2005/0011898 as applied to claim 1 as further evidenced by Cozzi et al. US 5,012,971.
Regarding Claim 12, 200 Top Bar Hives discloses an embodiment wherein the rigid protective support structure forms a clamshell (200 Top Bar Hives, Page 2). Van Handel et al. provides evidence that it was known in the food container art to have the rigid support structure forming a clamshell having a hinge as taught by Cozzi et al. US 5,012,971 (‘898, Paragraph [0004]). Cozzi et al. discloses a food package (‘971, Column 1, lines 11-15) comprising a rigid protective support structure forming a clamshell (‘971, Column 2, lines 30-45) having a hinge (‘971, FIG. 1) (‘971, Column 7, lines 25-37). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the embodiment of the food package comprising honeycomb disposed in condiment cups like you get in restaurants relied upon in the rejection and instead dispose the honeycomb in a rigid support structure in the form of a clamshell as taught by a separate embodiment disclosed by 200 Top Bar Hives (200 Top Bar Hives, Page 2) since the configuration of the claimed container in which the honeycomb is disposed is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant in view of In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (MPEP § 2144.04.IV.B.). Furthermore, the simple substitution of one known element (a food package comprising honeycomb disposed in a rigid support structure of a condiment cup) for another (a food package comprising honeycomb disposed in a rigid support structure of a clamshell container having a hinge) to obtain predictable results (to store honeycomb) is prima facie obvious (MPEP § 2143.I.B.).
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over “200 Top Bar Hives: The Low Cost Sustainable Way” <https://web.archive.org/web/20150428044709/https://www.tbhsbywam.com/products/> (archived April 28, 2015) (herein referred to as “200 Top Bar Hives”) in view of “Honey 12 Gram Portion Control – 200/Case” <https://www.webstaurantstore.com/honey-12-gram-portion-cup-case/125PCHONEY.html?srsltid=AfmBOopeCuSiC3yBZEaUNfHSmLHRuHRpqW-_WgYwLhRMMKhNykdjRhJW> (published May 3, 2010) (herein referred to as “Honey 12 Gram Portion Control), Dickinson’s Pure Honey .5oz Portion Cup – 200/Case” <https://www.webstaurantstore.com/dickinsons-pure-honey-5oz-portion-cup-case/125PCAL3434.html> (published January 7, 2017) (herein referred to as “Dickinson’s Pure Honey .5oz Portion Cup”), “Reviews for Salad Fresh Honey Mustard Sauce 1 oz. Portion Cup – 100/Case” <https://www.webstaurantstore.com/product-reviews/125PCHONMUST.html> (published August 12, 2009) (herein referred to as “Honey Mustard Sauce 1 oz. Portion Cup”), Honey Bee Suite “Making comb honey should be simple and fun” <https://www.honeybeesuite.com/making-comb-honey-should-be-simple-and-fun/> (published February 15, 2018) (herein referred to as “Honey Bee Suite”), Hirsch “Honeycomb best way to consume sweet stuff” <https://www.dispatch.com/story/lifestyle/food/2012/05/23/honeycomb-best-way-to-consume/23452177007/?gnt-cfr=1&gca-cat=p&gca-uir=true&gca-epti=z1197xxe1197xxv006475d--71--b--71--&gca-ft=150&gca-ds=sophi> (published May 23, 2012) (herein referred to as “Hirsch”), Sprunk “You Shouldn’t Be Eating More Than This Amount of Honey Every Week” <https://womenshealthsa.co.za/honey-healthy-sweetener/> (published October 25, 2017), Lisk US 2012/0183650, and Noth US 2018/0110362 as further evidenced by Van Handel et al. US 2005/0011898 in further view of Long “Photos: Beekeeping is sweet for Michael Martin” <https://www.ldnews.com/picture-gallery/news/2016/08/14/photos-beekeeping-is-sweet-for-michael-martin/88723036/> (published August 14, 2016) (herein referred to as “Long” as further evidenced by Roberge “Common Shrink Wrap Problems and How to Solve Them” <https://www.packagingstrategies.com/blogs/14-packaging-strategies-blog/post/90137-common-shrink-wrap-problems-and-how-to-solve-them> (published December 27, 2017) in further view of Johnson et al. US 2008/0026114 as applied to claim 2 above in further view of Friedman et al. US 4,972,953 and Brandt et al. US 3,557,516.
Regarding Claim 15, 200 Top Bar Hives modified with Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5 oz Portion Cup, Honey Mustard Sauce 1 oz. Portion Cup, Honey Bee Suite, Hirsch, Sprunk, Lisk, and Noth as further evidenced by Van Handel et al. as further modified with Long as further evidenced by Roberge as further modified with Johnson et al. is silent regarding the wrapper being closed by an adhesive.
Friedman et al. discloses applying an adhesive to a wrapper (film) to close the wrapper (film) (‘953, Column 25, lines 36-55). Brandt et al. also teaches the wrapper being closed by an adhesive (‘516, Column 7, lines 38-42). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the wrapper of modified 200 Top Bar Hives and apply an adhesive to close the wrapper since Friedman et al. and Brandt et al. both teach that adhesive is a conventional way to close a wrapper wrapped around a food package.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over “200 Top Bar Hives: The Low Cost Sustainable Way” <https://web.archive.org/web/20150428044709/https://www.tbhsbywam.com/products/> (archived April 28, 2015) (herein referred to as “200 Top Bar Hives”) in view of “Honey 12 Gram Portion Control – 200/Case” <https://www.webstaurantstore.com/honey-12-gram-portion-cup-case/125PCHONEY.html?srsltid=AfmBOopeCuSiC3yBZEaUNfHSmLHRuHRpqW-_WgYwLhRMMKhNykdjRhJW> (published May 3, 2010) (herein referred to as “Honey 12 Gram Portion Control), Dickinson’s Pure Honey .5oz Portion Cup – 200/Case” <https://www.webstaurantstore.com/dickinsons-pure-honey-5oz-portion-cup-case/125PCAL3434.html> (published January 7, 2017) (herein referred to as “Dickinson’s Pure Honey .5oz Portion Cup”), “Reviews for Salad Fresh Honey Mustard Sauce 1 oz. Portion Cup – 100/Case” <https://www.webstaurantstore.com/product-reviews/125PCHONMUST.html> (published August 12, 2009) (herein referred to as “Honey Mustard Sauce 1 oz. Portion Cup”), Honey Bee Suite “Making comb honey should be simple and fun” <https://www.honeybeesuite.com/making-comb-honey-should-be-simple-and-fun/> (published February 15, 2018) (herein referred to as “Honey Bee Suite”), Hirsch “Honeycomb best way to consume sweet stuff” <https://www.dispatch.com/story/lifestyle/food/2012/05/23/honeycomb-best-way-to-consume/23452177007/?gnt-cfr=1&gca-cat=p&gca-uir=true&gca-epti=z1197xxe1197xxv006475d--71--b--71--&gca-ft=150&gca-ds=sophi> (published May 23, 2012) (herein referred to as “Hirsch”), Sprunk “You Shouldn’t Be Eating More Than This Amount of Honey Every Week” <https://womenshealthsa.co.za/honey-healthy-sweetener/> (published October 25, 2017), Lisk US 2012/0183650, and Noth US 2018/0110362 as further evidenced by Van Handel et al. US 2005/0011898 in further view of Long “Photos: Beekeeping is sweet for Michael Martin” <https://www.ldnews.com/picture-gallery/news/2016/08/14/photos-beekeeping-is-sweet-for-michael-martin/88723036/> (published August 14, 2016) (herein referred to as “Long” as further evidenced by Roberge “Common Shrink Wrap Problems and How to Solve Them” <https://www.packagingstrategies.com/blogs/14-packaging-strategies-blog/post/90137-common-shrink-wrap-problems-and-how-to-solve-them> (published December 27, 2017) in further view of Johnson et al. US 2008/0026114 as applied to claim 17 above as further evidenced by Boukraa et al. US 2015/0150930.
Regarding Claim 20, the limitations “providing health related benefits to a user who consumes the single-serve portion of honeycomb” are naturally met by modified 200 Top Bar Hives since modified 200 Top Bar Hives teaches packaging honeycomb (200 Top Bar Hives, Page 2). Where applicant claims a composition in terms of a property and the composition of the prior art is the same as that of the claim but the function is not explicitly disclosed by the reference, the examiner may make a rejection under 35 USC 103 (MPEP § 2112.II.). Nevertheless, Boukraa et al. teaches that honey is used in various medicinal traditions to treat numerous ailments (‘930, Paragraph [0011]). Therefore, the honeycomb package of modified 200 Top Bar Hives reads on the claimed health related benefits provided to the user.
Claims 21 and 25-27 are rejected under 35 U.S.C. 103 as being unpatentable over “200 Top Bar Hives: The Low Cost Sustainable Way” <https://web.archive.org/web/20150428044709/https://www.tbhsbywam.com/products/> (archived April 28, 2015) (herein referred to as “200 Top Bar Hives”) in view of “Honey 12 Gram Portion Control – 200/Case” <https://www.webstaurantstore.com/honey-12-gram-portion-cup-case/125PCHONEY.html?srsltid=AfmBOopeCuSiC3yBZEaUNfHSmLHRuHRpqW-_WgYwLhRMMKhNykdjRhJW> (published May 3, 2010) (herein referred to as “Honey 12 Gram Portion Control), Dickinson’s Pure Honey .5oz Portion Cup – 200/Case” <https://www.webstaurantstore.com/dickinsons-pure-honey-5oz-portion-cup-case/125PCAL3434.html> (published January 7, 2017) (herein referred to as “Dickinson’s Pure Honey .5oz Portion Cup”), “Reviews for Salad Fresh Honey Mustard Sauce 1 oz. Portion Cup – 100/Case” <https://www.webstaurantstore.com/product-reviews/125PCHONMUST.html> (published August 12, 2009) (herein referred to as “Honey Mustard Sauce 1 oz. Portion Cup”), Honey Bee Suite “Making comb honey should be simple and fun” <https://www.honeybeesuite.com/making-comb-honey-should-be-simple-and-fun/> (published February 15, 2018) (herein referred to as “Honey Bee Suite”), Hirsch “Honeycomb best way to consume sweet stuff” <https://www.dispatch.com/story/lifestyle/food/2012/05/23/honeycomb-best-way-to-consume/23452177007/?gnt-cfr=1&gca-cat=p&gca-uir=true&gca-epti=z1197xxe1197xxv006475d--71--b--71--&gca-ft=150&gca-ds=sophi> (published May 23, 2012) (herein referred to as “Hirsch”), Sprunk “You Shouldn’t Be Eating More Than This Amount of Honey Every Week” <https://womenshealthsa.co.za/honey-healthy-sweetener/> (published October 25, 2017), Lisk US 2012/0183650, and Noth US 2018/0110362 as further evidenced by Van Handel et al. US 2005/0011898 in further view of Malay et al. US 2005/0042414.
Regarding Claim 21, 200 Top Bar Hives discloses a food package comprising a single serve portion of honeycomb having a structure (scrap cut comb honey sold in condiment cups like you get at restaurants), a rigid protective support structure (condiment cups like you get at restaurants) having structural rigidity that protects the structure of the single serve portion of honeycomb (scrap cut comb honey) wherein the structure of the single serve portion of honeycomb (scrap cut comb honey) is contained within the rigid protective support structure (condiment cups like you get at restaurants) and wherein the structure of the single serve portion of honeycomb (scarp cut comb honey) is contained within and protected by the rigid protective support structure (condiment cups like you get at restaurants) (200 Top Bar Hives, Page 2).
200 Top Bar Hives discloses the single serve portion of honeycomb (scrap cut comb honey) being sold in a rigid protective support structure (condiment cups like you get at restaurants) (200 Top Bar Hives, Page 2). However, 200 Top Bar Hives is silent regarding the condiment cups like you get at restaurants being sized such that an amount of honeycomb in the single serve portion of honeycomb weights about 30 grams or less and has a volume of about 1 cubic inch. 200 Top Bar Hives is also silent regarding the condiment cups like you get at restaurants that reads on the claimed rigid protective support structure being shaped as a rectangular prism and having at least three orthogonal sides that are orthogonal to each other wherein the rigid support structure has structural rigidity that protects the structure of the single serve portion of honeycomb from at least three orthogonal directions by forming a single whole component having at least three orthogonal sides that are orthogonal to each other wherein the rigid protective support structure includes a food grade plastic based material that is water resistant and oil resistant.
Honey 12 Gram Portion Control discloses a food package comprising a single serve portion of honey having a structure wherein an amount of honey in the single serve portion of honey weighs about 12 grams (Honey 12 Gram Portion Control, Page 2), which falls within the claimed amount of honey weighing about 30 grams or less. The food package also comprises a rigid protective support structure being shaped as a rectangular prism and having at least three orthogonal sides that are orthogonal to each other wherein the rigid protective support structure has structural rigidity that protects the structure of the single serve portion of honey from at least three orthogonal directions wherein the rigid protective support structure includes a food grade plastic based material (Honey 12 Gram Portion Control, Page 1). These portion controlled packs are ideal for restaurants (Honey 12 Gram Portion Control, Page 2).
Dickinson’s Pure Honey .5oz Portion Cup discloses a food package comprising a single serve portion of honey having a structure wherein an amount of honey in the single serve portion of honey weighs about 0.5 ounces (Dickinson’s Pure Honey .5oz Portion Cup, Page 2), converts to about 14 grams, which falls within the claimed amount of honey weighing about 30 grams or less. The food package also comprises a rigid protective support structure being shaped as a rectangular prism and having at least three orthogonal sides that are orthogonal to each other wherein the rigid protective support structure has structural rigidity that protects the structure of the single serve portion of honey from at least three orthogonal directions wherein the rigid protective support structure includes a food grade plastic based material (Dickinson’s Pure Honey .5oz Portion Cup, Page 1). These portioned controlled cups are found in restaurants (Dickinson’s Pure Honey .5 oz Portion Cup, Page 2).
Honey Mustard Sauce 1 oz. Portion Cup discloses a food package comprising a single serve portion of honey having a structure wherein an amount of honey in the single serve portion of honey weighs about 1 ounce (Honey Mustard Sauce 1 oz. Portion Cup, Page 1), which converts to about 28 grams, which falls within the claimed amount of honey weighing about 30 grams or less. The food package also comprises a rigid protective support structure being shaped as a rectangular prism and having at least three orthogonal sides that are orthogonal to each other wherein the rigid protective support structure has structural rigidity that protects the structure of the single serve portion of honey from at least three orthogonal directions wherein the rigid protective support structure includes a food grade plastic based material (Honey Mustard Sauce 1 oz. Portion Cup, Page 1). These portioned containers accompany menu items (Honey Mustard Sauce 1 oz., Page 40), which indicates that these honey food product containers are suitable for restaurant use (Honey Mustard Sauce 1 oz., Page 1).
200 Top Bar Hives discloses the single serve portion of honeycomb (scrap cut comb honey) being sold in a rigid protective support structure (condiment cups like you get at restaurants) (200 Top Bar Hives, Page 2). Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5oz Portion Cup, and Honey Mustard Sauce 1 oz. Portion Cup all disclose condiment cups like you get at restaurants having honey food products disposed therein having the claimed amount of single serve portion of honey product weight. Although Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5oz Portion Cup and Honey Mustard Sauce 1 oz. Portion Cup all disclose condiment cups like you get at restaurants having liquid honey food products disposed therein instead of a honeycomb structure, Honey Bee Suite discloses pieces of cut comb honey placed in a container wherein the container determines the size of the pieces or use a variety of containers that suit the shape of the comb wherein the cut comb honey can be covered with extracted honey (Honey Bee Suite, Pages 3 and 6). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the type of condiment cup like you get at restaurants in which the honeycomb is disposed in 200 Top Bar Hives to be shaped as a rectangular prism and having at least three orthogonal sides that are orthogonal to each other wherein the rigid support structure has structural rigidity that protects the structure of the single serve portion of honeycomb from at least three orthogonal directions wherein the rigid protective support structure includes a food grade plastic based material as taught by Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5oz Portion Cup, and Honey Mustard Sauce 1 oz. Portion Cup since the configuration of the claimed disposable plastic container is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container storing the honey product was significant in view of In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (MPEP § 2144.04.IV.B.). Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the amount of the condiment cups like you get at restaurants that the honeycomb of 200 Top Bar Hives is disposed and provide the claimed amount of single serve portion of honey product weight of about 30 grams or less as taught by Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5oz Portion Cup, and Honey Mustard Sauce 1 oz. Portion Cup since where the claimed honey single serve product weight range encompasses honey single serve product ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Additionally, Honey 12 Gram Portion Control discloses 12 grams of honey product are perfectly portioned control packs that deliver just the right amount of sweetness to food or beverage that make it easy for customers to grab and go and helps with portion control which prevents customers from taking excess amounts (Honey 12 Gram Portion Control, Page 2). Differences in the amount of single serve honey product disposed in the food package will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such amount of single serve honey product is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Sprunk discloses honey is a natural food that is considered a type of added sugar when you eat it and is rich in probiotics and antioxidants (Sprunk, Page 1) and that portions of added sugars should be limited each day (Sprunk, Page 2). One of ordinary skill in the art would adjust the amount of honey product of the single serve portion of honey product disposed in the food package of 200 Top Bar Hives to be portioned to a small size since Honey 12 Gram Portion Control discloses 12 grams of honey product are perfectly portioned control packs that deliver just the right amount of sweetness to food or beverage that make it easy for customers to grab and go and helps with portion control which prevents customers from taking excess amounts (Honey 12 Gram Portion Control, Page 2) and since Sprunk teaches that American Heart Association guidelines recommends limiting added sugars such as honey (Sprunk, Page 2). Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the type of honey product disposed in the small single serve portion of honeycomb of modified 200 Top Bar Hives to have a honeycomb structure as taught by Honey Bee Suite based upon the desired texture of honey product as suggested by Hirsch (Hirsch, Page 3).
Further regarding Claim 21, 200 Top Bar Hives modified with Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5oz Portion Cup, Honey Mustard Sauce 1 oz. Portion Cup, Honey Bee Suite, Hirsch, and Sprunk is silent regarding the single serve portion of honeycomb having a volume of about 1 cubic inch.
Liske discloses packaging a moldable food product into a tray having a plurality of compartments (‘650, Paragraph [0006]) wherein each compartment has a volume of sufficient for containing the moldable food product in an amount in a range of from 7 g to 8 kg (‘650, Paragraph [0028]) and storing 5 mL to 4.5 L of the moldable food product (‘650, Paragraph [0048]). The moldable food product contained in the interior space of each compartment is molded to a shape of the interior space of each compartment (‘650, Paragraph [0023]) wherein the food product conforms to a shape of the interior space of the compartment (‘650, Paragraph [0045]). Noth discloses a foodstuff container having an internal volume of 5-80 mL (‘362, Paragraph [0024]), which converts to an internal volume of 0.305 cubic inches to 4.88 cubic inches, which encompasses the claimed volume of about 1 cubic inch. Since Liske teaches the food product contained in the compartment being molded to a shape of the interior space of each compartment and the food product conforming to a shape of the interior space of the compartment, the disclosure of the food container of Noth having an internal volume of 5 mL (0.305 cubic inches) to 80 mL (4.88 cubic inches) also corresponds to the volume of food disposed within the compartment.
Modified 200 Top Bar Hives, Liske, and Noth are all directed towards the same field of endeavor of food packages storing a foodstuff. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the volume of food disposed within the food container of modified 200 Top Bar Hives and dispose between 0.305 cubic inches to 4.88 cubic inches, which encompasses the claimed volume of about 1 cubic inch, as taught by the amount of food disposed within the food container of Noth since where the claimed volume ranges overlaps volume ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, claims directed to a food package of appreciable size is held unpatentable over prior art food packages because limitations relating to the size of the food package are not sufficient to patentably distinguish over the prior art in view of In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) (MPEP § 2144.04.IV.A.). One of ordinary skill in the art would package the desired quantity and volume of honeycomb into the food package of modified 200 Top Bar Hives based upon the particular amount of honeycomb desired to be eaten in a single individualized portion.
Further regarding Claim 21, 200 Top Bar Hives discloses the single serve portion of honeycomb being disposed in a rigid protective support structure in the form of condiment cups like you get at restaurants (200 Top Bar Hives, Page 2). Van Handel et al. provides evidence that it was known in the food packaging art that single serve portion of individual condiment containers are conventionally made to be substantially liquid proof (‘898, Paragraph [0015]), which reads on the condiment cup of 200 Top Bar Hives having a water resistant rigid protective support structure in the form of a substantially liquid proof condiment container as further evidenced by Van Handel et al.
Further regarding Claim 21, 200 Top Bar Hives modified with Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5 oz Portion Cup, Honey Mustard Sauce 1 oz. Portion Cup, Hirsch, Sprunk, Lisk, and Noth as further evidenced by Van Handel et al. is silent regarding the rigid protective support structure forming an integral whole component and the rigid protective support structure being oil resistant.
Malay et al. discloses a food package comprising a portion of food disposed within a rigid protective support structure (food tub) having structural rigidity wherein the rigid protective support structure is oil resistant (‘414, Paragraph [0032]).
Both modified 200 Top Bar Hives and Malay et al. are directed towards the same field of endeavor of food packages comprising a portion of food disposed within a rigid protective support structure in the form of a food container. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the rigid protective support structure in the form of a food container of modified 200 Top Bar Hives and construct the food container with materials that have oil resistance as taught by Malay et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Malay et al. teaches that it was known and conventional to incorporate oil resistant materials in the construction of food tubs at the time of the invention.
Further regarding Claim 21, the limitations “a rigid protective support structure being shaped as a rectangular prism and having structural rigidity wherein the rigid protective support structure is configured to protect the structure of the single serve portion of honeycomb from at least three orthogonal directions by forming an integral whole having at least three orthogonal sides that are orthogonal to each other” are seen to be recitations regarding the intended use of the “food package.” In this regard, applicant’s attention is invited to MPEP § 2114.II. which states that [A]pparatus claims cover what a device is, not what a device does in view of Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). A claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” is the prior art apparatus teaches all the structural limitations of the claim in view of Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987) (MPEP § 2114.II.). Furthermore, if the prior art structure is capable of performing the intended use, then it meets the claim. The prior art reference of modified 200 Top Bar Hives is capable of performing the intended use limitations since modified 200 Top Bar Hives teaches a food container wherein the food container has a rectangular prism shape and is covered by a rectangular shaped lid. This structure is the same shape as the rigid protective support structure disclosed by FIG. 3G of applicant’s drawings (Specification, Paragraph (16)).
Further regarding Claim 21, in the event that it can be argued that modified Van Handel et al. does not read on the claimed limitations regarding forming a single whole component, the use of a one piece construction instead of the structure disclosed in the prior art would be merely a matter of obvious engineering choice in view of In re Larson, 340 F.2d 965, 968, 144 USPQ 347, 349 (CCPA 1965) (MPEP § 2144.04.V.B.).
Regarding Claims 25-27, 200 Top Bar Hives discloses the single serve portion of honeycomb having a shape of a polygonal prism in the form of a rectangular prism and the single serve portion of honeycomb being packaged within the food package for a sale to a consumer (sale at a farmers market) (200 Top Bar Hives, Page 3).
Claim 28 is rejected under 35 U.S.C. 103 as being unpatentable over “200 Top Bar Hives: The Low Cost Sustainable Way” <https://web.archive.org/web/20150428044709/https://www.tbhsbywam.com/products/> (archived April 28, 2015) (herein referred to as “200 Top Bar Hives”) in view of “Reviews for Salad Fresh Honey Mustard Sauce 1 oz. Portion Cup – 100/Case” <https://www.webstaurantstore.com/product-reviews/125PCHONMUST.html> (published August 12, 2009) (herein referred to as “Honey Mustard Sauce 1 oz. Portion Cup”), Honey Bee Suite “Making comb honey should be simple and fun” <https://www.honeybeesuite.com/making-comb-honey-should-be-simple-and-fun/> (published February 15, 2018) (herein referred to as “Honey Bee Suite”), Hirsch “Honeycomb best way to consume sweet stuff” <https://www.dispatch.com/story/lifestyle/food/2012/05/23/honeycomb-best-way-to-consume/23452177007/?gnt-cfr=1&gca-cat=p&gca-uir=true&gca-epti=z1197xxe1197xxv006475d--71--b--71--&gca-ft=150&gca-ds=sophi> (published May 23, 2012) (herein referred to as “Hirsch”), Sprunk “You Shouldn’t Be Eating More Than This Amount of Honey Every Week” <https://womenshealthsa.co.za/honey-healthy-sweetener/> (published October 25, 2017), Lisk US 2012/0183650, and Noth US 2018/0110362 as further evidenced by Van Handel et al. US 2005/0011898.
Regarding Claim 28, 200 Top Bar Hives discloses a food package comprising a single serve portion of honeycomb having a structure (scrap cut comb honey sold in condiment cups like you get at restaurants), a rigid protective support structure (condiment cups like you get at restaurants) having structural rigidity that protects the structure of the single serve portion of honeycomb (scrap cut comb honey) wherein the structure of the single serve portion of honeycomb (scrap cut comb honey) is contained within the rigid protective support structure (condiment cups like you get at restaurants) and wherein the structure of the single serve portion of honeycomb (scarp cut comb honey) is protected by the rigid protective support structure (condiment cups like you get at restaurants) (200 Top Bar Hives, Page 2).
200 Top Bar Hives discloses the single serve portion of honeycomb (scrap cut comb honey) being sold in a rigid protective support structure (condiment cups like you get at restaurants) (200 Top Bar Hives, Page 2). However, 200 Top Bar Hives is silent regarding the condiment cups like you get at restaurants being sized such that an amount of honeycomb in the single serve portion of honeycomb weighs between about 20 grams and about 30 grams or less and has a volume of about 1 cubic inch. 200 Top Bar Hives is also silent regarding the condiment cups like you get at restaurants that reads on the claimed rigid protective support structure being shaped as a rectangular prism and having at least three orthogonal sides that are orthogonal to each other wherein the rigid support structure has structural rigidity that protects the structure of the single serve portion of honeycomb from at least three orthogonal directions wherein the rigid protective support structure includes a food grade plastic based material that is water resistant.
Honey Mustard Sauce 1 oz. Portion Cup discloses a food package comprising a single serve portion of honey having a structure wherein an amount of honey in the single serve portion of honey weighs about 1 ounce (Honey Mustard Sauce 1 oz. Portion Cup, Page 1), which converts to about 28 grams, which falls within the claimed amount of honey weighing between about 20 grams and about 30 grams. The food package also comprises a rigid protective support structure being shaped as a rectangular prism and having at least three orthogonal sides that are orthogonal to each other wherein the rigid protective support structure has structural rigidity that protects the structure of the single serve portion of honey from at least three orthogonal directions wherein the rigid protective support structure includes a food grade plastic based material (Honey Mustard Sauce 1 oz. Portion Cup, Page 1). These portioned containers accompany menu items (Honey Mustard Sauce 1 oz., Page 40), which indicates that these honey food product containers are suitable for restaurant use (Honey Mustard Sauce 1 oz., Page 1).
200 Top Bar Hives discloses the single serve portion of honeycomb (scrap cut comb honey) being sold in a rigid protective support structure (condiment cups like you get at restaurants) (200 Top Bar Hives, Page 2). Honey Mustard Sauce 1 oz. Portion Cup discloses condiment cups like you get at restaurants having honey food products disposed therein having the claimed amount of single serve portion of honey product weight. Although Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5oz Portion Cup and Honey Mustard Sauce 1 oz. Portion Cup all disclose condiment cups like you get at restaurants having liquid honey food products disposed therein instead of a honeycomb structure, Honey Bee Suite discloses pieces of cut comb honey placed in a container wherein the container determines the size of the pieces or use a variety of containers that suit the shape of the comb wherein the cut comb honey can be covered with extracted honey (Honey Bee Suite, Pages 3 and 6). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the type of condiment cup like you get at restaurants in which the honeycomb is disposed in 200 Top Bar Hives to be shaped as a rectangular prism and having at least three orthogonal sides that are orthogonal to each other wherein the rigid support structure has structural rigidity that protects the structure of the single serve portion of honeycomb from at least three orthogonal directions wherein the rigid protective support structure includes a food grade plastic based material as taught by Honey Mustard Sauce 1 oz. Portion Cup since the configuration of the claimed disposable plastic container is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container storing the honey product was significant in view of In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (MPEP § 2144.04.IV.B.). Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the amount of the condiment cups like you get at restaurants that the honeycomb of 200 Top Bar Hives is disposed and provide the claimed amount of single serve portion of honey product weight of between about 20 grams and about 30 grams as taught by Honey Mustard Sauce 1 oz. Portion Cup since where the claimed honey single serve product weight range encompasses honey single serve product ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Additionally, differences in the amount of single serve honey product disposed in the food package will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such amount of single serve honey product is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Sprunk discloses honey is a natural food that is considered a type of added sugar when you eat it and is rich in probiotics and antioxidants (Sprunk, Page 1) and that portions of added sugars should be limited each day (Sprunk, Page 2). One of ordinary skill in the art would adjust the amount of honey product of the single serve portion of honey product disposed in the food package of 200 Top Bar Hives to be portioned to a small size since Sprunk teaches that American Heart Association guidelines recommends limiting added sugars such as honey (Sprunk, Page 2). Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the type of honey product disposed in the small single serve portion of honeycomb of modified 200 Top Bar Hives to have a honeycomb structure as taught by Honey Bee Suite based upon the desired texture of honey product as suggested by Hirsch (Hirsch, Page 3).
Further regarding Claim 28, 200 Top Bar Hives modified with Honey Mustard Sauce 1 oz. Portion Cup, Honey Bee Suite, Hirsch, and Sprunk is silent regarding the single serve portion of honeycomb having a volume of about 1 cubic inch.
Liske discloses packaging a moldable food product into a tray having a plurality of compartments (‘650, Paragraph [0006]) wherein each compartment has a volume of sufficient for containing the moldable food product in an amount in a range of from 7 g to 8 kg (‘650, Paragraph [0028]) and storing 5 mL to 4.5 L of the moldable food product (‘650, Paragraph [0048]). The moldable food product contained in the interior space of each compartment is molded to a shape of the interior space of each compartment (‘650, Paragraph [0023]) wherein the food product conforms to a shape of the interior space of the compartment (‘650, Paragraph [0045]). Noth discloses a foodstuff container having an internal volume of 5-80 mL (‘362, Paragraph [0024]), which converts to an internal volume of 0.305 cubic inches to 4.88 cubic inches, which encompasses the claimed volume of about 1 cubic inch. Since Liske teaches the food product contained in the compartment being molded to a shape of the interior space of each compartment and the food product conforming to a shape of the interior space of the compartment, the disclosure of the food container of Noth having an internal volume of 5 mL (0.305 cubic inches) to 80 mL (4.88 cubic inches) also corresponds to the volume of food disposed within the compartment.
Modified 200 Top Bar Hives, Liske, and Noth are all directed towards the same field of endeavor of food packages storing a foodstuff. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the volume of food disposed within the food container of modified 200 Top Bar Hives and dispose between 0.305 cubic inches to 4.88 cubic inches, which encompasses the claimed volume of about 1 cubic inch, as taught by the amount of food disposed within the food container of Noth since where the claimed volume ranges overlaps volume ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, claims directed to a food package of appreciable size is held unpatentable over prior art food packages because limitations relating to the size of the food package are not sufficient to patentably distinguish over the prior art in view of In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) (MPEP § 2144.04.IV.A.). One of ordinary skill in the art would package the desired quantity and volume of honeycomb into the food package of modified 200 Top Bar Hives based upon the particular amount of honeycomb desired to be eaten in a single individualized portion.
Further regarding Claim 28, 200 Top Bar Hives discloses the single serve portion of honeycomb being disposed in a rigid protective support structure in the form of condiment cups like you get at restaurants (200 Top Bar Hives, Page 2). Van Handel et al. provides evidence that it was known in the food packaging art that single serve portion of individual condiment containers are conventionally made to be substantially liquid proof (‘898, Paragraph [0015]), which reads on the condiment cup of 200 Top Bar Hives having a water resistant rigid protective support structure in the form of a substantially liquid proof condiment container as further evidenced by Van Handel et al.
Further regarding Claim 28, the limitations “wherein the rigid protective support structure has structural rigidity that protects the structure of the single serve portion of honeycomb from at least three orthogonal directions” are seen to be recitations regarding the intended use of the “food package.” In this regard, applicant’s attention is invited to MPEP § 2114.II. which states that [A]pparatus claims cover what a device is, not what a device does in view of Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). A claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” is the prior art apparatus teaches all the structural limitations of the claim in view of Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987) (MPEP § 2114.II.). Furthermore, if the prior art structure is capable of performing the intended use, then it meets the claim. The prior art reference of modified 200 Top Bar Hives is capable of performing the intended use limitations since modified 200 Top Bar Hives teaches a food container wherein the food container has a rectangular prism shape and is covered by a rectangular shaped lid. This structure is the same shape as the rigid protective support structure disclosed by FIG. 3G of applicant’s drawings (Specification, Paragraph (16)).
Claim 29 is rejected under 35 U.S.C. 103 as being unpatentable over “200 Top Bar Hives: The Low Cost Sustainable Way” <https://web.archive.org/web/20150428044709/https://www.tbhsbywam.com/products/> (archived April 28, 2015) (herein referred to as “200 Top Bar Hives”) in view of “Reviews for Salad Fresh Honey Mustard Sauce 1 oz. Portion Cup – 100/Case” <https://www.webstaurantstore.com/product-reviews/125PCHONMUST.html> (published August 12, 2009) (herein referred to as “Honey Mustard Sauce 1 oz. Portion Cup”), Honey Bee Suite “Making comb honey should be simple and fun” <https://www.honeybeesuite.com/making-comb-honey-should-be-simple-and-fun/> (published February 15, 2018) (herein referred to as “Honey Bee Suite”), Hirsch “Honeycomb best way to consume sweet stuff” <https://www.dispatch.com/story/lifestyle/food/2012/05/23/honeycomb-best-way-to-consume/23452177007/?gnt-cfr=1&gca-cat=p&gca-uir=true&gca-epti=z1197xxe1197xxv006475d--71--b--71--&gca-ft=150&gca-ds=sophi> (published May 23, 2012) (herein referred to as “Hirsch”), Sprunk “You Shouldn’t Be Eating More Than This Amount of Honey Every Week” <https://womenshealthsa.co.za/honey-healthy-sweetener/> (published October 25, 2017), Lisk US 2012/0183650, Noth US 2018/0110362, and Long “Photos: Beekeeping is sweet for Michael Martin” <https://www.ldnews.com/picture-gallery/news/2016/08/14/photos-beekeeping-is-sweet-for-michael-martin/88723036/> (published August 14, 2016) (herein referred to as “Long”) as further evidenced by Roberge “Common Shrink Wrap Problems and How to Solve Them” <https://www.packagingstrategies.com/blogs/14-packaging-strategies-blog/post/90137-common-shrink-wrap-problems-and-how-to-solve-them> (published December 27, 2017) in further view of Johnson et al. US 2008/0026114.
Regarding Claim 29, 200 Top Bar Hives discloses a method of packaging a food package comprising a single serve portion of honeycomb wherein the method comprises obtaining the single serve portion of honeycomb having a structure (scrap cut comb honey sold in condiment cups like you get at restaurants), containing the single serve portion of honeycomb in a rigid protective support structure (condiment cups like you get at restaurants) having structural rigidity that protects the structure of the single serve portion of honeycomb (scrap cut comb honey) and wherein the structure of the single serve portion of honeycomb (scarp cut comb honey) is protected by the rigid protective support structure (condiment cups like you get at restaurants) (200 Top Bar Hives, Page 2).
200 Top Bar Hives discloses the single serve portion of honeycomb (scrap cut comb honey) being sold in a rigid protective support structure (condiment cups like you get at restaurants) (200 Top Bar Hives, Page 2). However, 200 Top Bar Hives is silent regarding the condiment cups like you get at restaurants being sized such that an amount of honeycomb in the single serve portion of honeycomb weighs between about 20 grams and about 30 grams or less and has a volume of about 1 cubic inch. 200 Top Bar Hives is also silent regarding the condiment cups like you get at restaurants that reads on the claimed rigid protective support structure has structural rigidity that protects the structure of the single serve portion of honeycomb from at least three orthogonal directions wherein the rigid protective support structure is a unitary construction and wrapping by a food grade water resistant wrapper around at least some of the rigid protective support structure.
Honey Mustard Sauce 1 oz. Portion Cup discloses a food package comprising a single serve portion of honey having a structure wherein an amount of honey in the single serve portion of honey weighs about 1 ounce (Honey Mustard Sauce 1 oz. Portion Cup, Page 1), which converts to about 28 grams, which falls within the claimed amount of honey weighing between about 20 grams and about 30 grams. The food package also comprises a rigid protective support structure being shaped as a rectangular prism and having at least three orthogonal sides that are orthogonal to each other wherein the rigid protective support structure has structural rigidity that protects the structure of the single serve portion of honey from at least three orthogonal directions wherein the rigid protective support structure includes a food grade plastic based material (Honey Mustard Sauce 1 oz. Portion Cup, Page 1). These portioned containers accompany menu items (Honey Mustard Sauce 1 oz., Page 40), which indicates that these honey food product containers are suitable for restaurant use (Honey Mustard Sauce 1 oz., Page 1).
200 Top Bar Hives discloses the single serve portion of honeycomb (scrap cut comb honey) being sold in a rigid protective support structure (condiment cups like you get at restaurants) (200 Top Bar Hives, Page 2). Honey Mustard Sauce 1 oz. Portion Cup discloses condiment cups like you get at restaurants having honey food products disposed therein having the claimed amount of single serve portion of honey product weight. Although Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5oz Portion Cup and Honey Mustard Sauce 1 oz. Portion Cup all disclose condiment cups like you get at restaurants having liquid honey food products disposed therein instead of a honeycomb structure, Honey Bee Suite discloses pieces of cut comb honey placed in a container wherein the container determines the size of the pieces or use a variety of containers that suit the shape of the comb wherein the cut comb honey can be covered with extracted honey (Honey Bee Suite, Pages 3 and 6). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the type of condiment cup like you get at restaurants in which the honeycomb is disposed in 200 Top Bar Hives to be shaped as a rectangular prism and having at least three orthogonal sides that are orthogonal to each other wherein the rigid support structure has structural rigidity that protects the structure of the single serve portion of honeycomb from at least three orthogonal directions wherein the rigid protective support structure includes a food grade plastic based material as taught by Honey Mustard Sauce 1 oz. Portion Cup since the configuration of the claimed disposable plastic container is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container storing the honey product was significant in view of In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (MPEP § 2144.04.IV.B.). Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the amount of the condiment cups like you get at restaurants that the honeycomb of 200 Top Bar Hives is disposed and provide the claimed amount of single serve portion of honey product weight of between about 20 grams and about 30 grams as taught by Honey Mustard Sauce 1 oz. Portion Cup since where the claimed honey single serve product weight range encompasses honey single serve product ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Additionally, differences in the amount of single serve honey product disposed in the food package will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such amount of single serve honey product is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Sprunk discloses honey is a natural food that is considered a type of added sugar when you eat it and is rich in probiotics and antioxidants (Sprunk, Page 1) and that portions of added sugars should be limited each day (Sprunk, Page 2). One of ordinary skill in the art would adjust the amount of honey product of the single serve portion of honey product disposed in the food package of 200 Top Bar Hives to be portioned to a small size since Sprunk teaches that American Heart Association guidelines recommends limiting added sugars such as honey (Sprunk, Page 2). Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the type of honey product disposed in the small single serve portion of honeycomb of modified 200 Top Bar Hives to have a honeycomb structure as taught by Honey Bee Suite based upon the desired texture of honey product as suggested by Hirsch (Hirsch, Page 3).
Further regarding Claim 29 with respect to the limitations regarding the rigid protective support structure being a unitary construction, the use of a one piece construction instead of the structure disclosed by the prior art would be merely a matter of obvious engineering choice in view of In re Larson, 340 F.2d 965, 968, 144 USPQ 347, 349 (CCPA 1965) (MPEP § 2144.04.V.B.).
Further regarding Claim 29, 200 Top Bar Hives modified with Honey Mustard Sauce 1 oz. Portion Cup, Honey Bee Suite, Hirsch, and Sprunk is silent regarding the single serve portion of honeycomb having a volume of about 1 cubic inch.
Liske discloses packaging a moldable food product into a tray having a plurality of compartments (‘650, Paragraph [0006]) wherein each compartment has a volume of sufficient for containing the moldable food product in an amount in a range of from 7 g to 8 kg (‘650, Paragraph [0028]) and storing 5 mL to 4.5 L of the moldable food product (‘650, Paragraph [0048]). The moldable food product contained in the interior space of each compartment is molded to a shape of the interior space of each compartment (‘650, Paragraph [0023]) wherein the food product conforms to a shape of the interior space of the compartment (‘650, Paragraph [0045]). Noth discloses a foodstuff container having an internal volume of 5-80 mL (‘362, Paragraph [0024]), which converts to an internal volume of 0.305 cubic inches to 4.88 cubic inches, which encompasses the claimed volume of about 1 cubic inch. Since Liske teaches the food product contained in the compartment being molded to a shape of the interior space of each compartment and the food product conforming to a shape of the interior space of the compartment, the disclosure of the food container of Noth having an internal volume of 5 mL (0.305 cubic inches) to 80 mL (4.88 cubic inches) also corresponds to the volume of food disposed within the compartment.
Modified 200 Top Bar Hives, Liske, and Noth are all directed towards the same field of endeavor of food packages storing a foodstuff. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the volume of food disposed within the food container of modified 200 Top Bar Hives and dispose between 0.305 cubic inches to 4.88 cubic inches, which encompasses the claimed volume of about 1 cubic inch, as taught by the amount of food disposed within the food container of Noth since where the claimed volume ranges overlaps volume ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, claims directed to a food package of appreciable size is held unpatentable over prior art food packages because limitations relating to the size of the food package are not sufficient to patentably distinguish over the prior art in view of In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) (MPEP § 2144.04.IV.A.). One of ordinary skill in the art would package the desired quantity and volume of honeycomb into the food package of modified 200 Top Bar Hives based upon the particular amount of honeycomb desired to be eaten in a single individualized portion.
Further regarding Claim 29, 200 Top Bar Hives modified with Honey Mustard Sauce 1 oz. Portion Cup, Honey Bee Suite, Hirsch, Sprunk, Liske, and Noth is silent regarding wrapping by a water resistant and food grade plastic based wrapper around at least some of the rigid protective support structure.
Long discloses a food package comprising a wrapper (shrink wrap) wrapped around a single serve portion of honeycomb having a structure (Long, Page 9). The shrink wrap wrapper disclosed by Long is necessarily made of a food grade plastic based material and is water resistant as further evidenced by Roberge, which teaches that shrink wrap entails a plastic wrap that is waterproof (Roberge, Page 1).
Both modified 200 Top Bar Hives and Long are directed towards the same field of endeavor of food packages comprising single serve portions of honeycomb. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the food packaging method of modified 200 Top Bar Hives and incorporate a wrapper that wraps around a single serve portion of honeycomb as taught by Long for sanitation purposes.
Further regarding Claim 29, Long discloses the wrapper being wrapped around the single serve portion of honeycomb (Long, Page 9). However, 200 Top Bar Hives modified with Honey Mustard Sauce 1 oz. Portion Cup, Honey Bee Suite, Hirsch, Sprunk, Lisk, Noth, and Long is silent regarding the wrapper being wrapped around at least some of the rigid support structure.
Johnson et al. discloses a food package comprising a portion of a food product having a structure (food product 10) and a rigid protective support structure (package blank 30) having structural rigidity that protects the structure of the food product (food product 10) (‘114, Paragraphs [0032]-[0033]) wherein the structure of the food product (food product 10) is contained within the rigid protective support structure (package blank 30) and the structure of the portion of the food product (food product 10) is protected by the rigid protective support structure (package blank 30) (‘114, FIGS. 1-2) (‘114, Paragraph [0032]). Johnson et al. also discloses a wrapper wrapped around the portion of the food product (food product 10) and the rigid protective support structure (package blank 30) such that both the portion of the food product and the rigid protective support structure are contained within the wrapper (shrink wrap wraps the entire exterior of the package) wherein the food product (food product 10) is also wrapped within the wrapper (shrink wrap) (‘114, Paragraph [0034]). The wrapper (shrink wrap) is made of a second food grade plastic based material (plastic film overwrap) (‘114, Paragraph [0034]).
Both modified 200 Top Bar Hives and Johnson et al. are directed towards the same field of endeavor of food packages comprising a food product wrapped within a wrapper which food product is disposed within a rigid support structure in the form of a container (via Page 9 of Long). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the food package of modified 200 Top Bar Hives and also incorporate a wrapper that contains both the portion of food product and the rigid protective support structure as taught by Johnson et al. for imparting additional sanitation properties to both the single serve portion of honeycomb as well as the rigid protective support structure.
Further regarding Claim 29, the limitations “wherein the rigid protective support structure has structural rigidity that protects the structure of the single serve portion of honeycomb from at least three orthogonal directions wherein the rigid protective support structure is a unitary construction” are seen to be recitations regarding the intended use of the “food package.” In this regard, applicant’s attention is invited to MPEP § 2114.II. which states that [A]pparatus claims cover what a device is, not what a device does in view of Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). A claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” is the prior art apparatus teaches all the structural limitations of the claim in view of Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987) (MPEP § 2114.II.). Furthermore, if the prior art structure is capable of performing the intended use, then it meets the claim. The prior art reference of modified 200 Top Bar Hives is capable of performing the intended use limitations since modified 200 Top Bar Hives teaches a food container wherein the food container has a rectangular prism shape and is covered by a rectangular shaped lid. This structure is the same shape as the rigid protective support structure disclosed by FIG. 3G of applicant’s drawings (Specification, Paragraph (16)).
Response to Amendment
The affidavit under 37 CFR 1.132 filed June 2, 2026 is insufficient to overcome the rejection of Claims 1, 19, 21, and 28-29 based upon the obviousness rejections under 35 USC 103(a) as set forth in the last Office action because of the following:
Examiner notes that applicant’s submission of Exhibits A-F in the affidavit filed June 2, 2026 confirms that applicant’s previously submitted affidavit June 1, 2021 refers to the claimed amount of honeycomb in the single serve portion of honeycomb weighing about 30 grams or less as recited in Claims 1, 17, and 21 or between about 20 grams and about 30 grams as recited in Claims 28-29.
Examiner notes that the affidavit filed June 2, 2026 does not address other deficiencies of the previously filed affidavit filed June 1, 2021 as discussed below.
Response to Arguments
Examiner notes that the previous indefiniteness rejections under 35 USC 112(b) have been withdrawn in view of the amendments.
Examiner notes that the independent claims have all been amended to recite the new limitations “a single serve portion of honeycomb having a honeycomb structure.” The obviousness rejections have been amended to incorporate the secondary references of Honey Bee Suite and Hirsch wherein Honey Bee Suite teaches a portion of honeycomb having a honeycomb structure in the form of pieces of cut comb honey placed in a container wherein the container determines the size of the pieces or use a variety of containers that suit the shape of the comb wherein the cut comb honey can be covered with extracted honey (Honey Bee Suite, Pages 3 and 6). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the type of honey product disposed in the small single serve portion of honeycomb to have a honeycomb structure as taught by Honey Bee Suite based upon the desired texture of honey product as suggested by Hirsch (Hirsch, Page 3).
Applicant's arguments filed June 2, 2026 with respect to the previous combination of references relied upon in the previous obviousness rejections under 35 USC 103(a) have been fully considered but they are not persuasive.
Applicant argues on Pages 12-13 of the Remarks with respect to Claims 1, 17, 21, and 28-29 that 200 Top Bar Hives has a two sentence statement that scrap cut comb honey was sold in little round condiment cups does not disclose that a portion within one of the condiment cups is a “single serve portion” or what the capacity of the described condiment cups is. Applicant contends that scrap honeycomb, by definition, includes irregular bits and ends of processes honeycomb as well as damaged chunks of honeycomb and the cursory statement relied on in 200 Top Bar Hives provides no certainty as to how much of these odds and ends were included in the described sales. Applicant argues that there is no express description of the portion of honeycomb within the condiment cup as being a single serve portion and the Office Action allegedly provides no explanation or argument as to how this statement teaches such a portion given the absence of an express description. Applicant continues that the relied upon portion of 200 Top Bar Hives lacks an express teaching of a rigid protective support structure that contains and protects the honeycomb structure of the honeycomb. The description of little round condiment cups allegedly does not sufficiently establish material, rigidity, wall structure, dimensions, fill level, or protective function to serve as a prior art teaching of one or more of these cup properties and that 200 Top Bar Hives fails to expressly teach the sale of a single serve portion of honeycomb in a rigid protective support structure that protects the honeycomb structure of the single serve portion of honeycomb or how the little round condiment cups of 200 Top Bar Hives teaches a rigid support structure that protects the honeycomb structure of the single serve portion of honeycomb in the claimed features.
Examiner argues the rejection is based on the combination of the primary reference of 200 Top Bar Hives modified with multiple secondary references. The secondary references of Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5oz Portion Cup, and Honey Mustard Sauce 1 oz. Portion Cup are being relied upon to teach the honey product being a single serve portion that weighs about 30 grams or less or between about 20 grams and about 30 grams that represents a condiment cup like you get in restaurants in which the scrap honeycomb is disposed in the primary reference of 200 Top Bar Hives. With respect to applicant’s argument that the relied upon portion of 200 Top Bar Hives lacks an express teaching of a rigid protective support structure that contains and protects the honeycomb structure of the honeycomb, the condiment cup like you get in restaurants disclosed by the primary reference of 200 Top Bar Hives and expressly taught in the secondary references of Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5oz Portion Cup, and Honey Mustard Sauce 1 oz. Portion Cup shows condiment cups made of plastic that protects the honeycomb disposed in the condiment cups from the external environment. Applicant contends that the little round condiment cups does not sufficient establish rigidity, wall structure, dimensions, fill level or protective function. Examiner notes that none of the claims require any particular rigidity levels, wall structure other than the rigid protective support structure including a food plastic based material (which is taught by the secondary references of Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5oz Portion Cup, and Honey Mustard Sauce 1 oz. Portion Cup), dimensions, or fill level. Furthermore, the secondary references of Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5oz Portion Cup, and Honey Mustard Sauce 1 oz. Portion Cup show condiment containers that protect the contents disposed in the condiment cups from the external environment. 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). Therefore, these arguments are not found persuasive.
Applicant argues on Pages 14-16 of the Remarks with respect to Claim 1 that Honey 12 Gram, Dickinson, and Honey Mustard Sauce describes individual servings of a condiment that at least includes some portion of liquid honey within the claimed weight restriction but not honeycomb as claimed and that Sprunk provides a motivation for this modification to a small portion size. Applicant contends that the cited references do not disclose or suggest the claimed weight restriction for honeycomb and that Honey 12 Gram, Dickinson’s, and Honey Mustard Sauce relate to prepackaged servings of liquid honey or honey containing condiment products and that none of those references discloses a portion of honeycomb or a single serve portion of honeycomb having a honeycomb structure contained within and protected by a rigid support structure. Applicant argues that liquid honey and honey mustard sauce do not present the same structural packaging considerations as honeycomb, honeycomb has a fragile physical structure that may be crushed, deformed, or damaged during handling and a weight selected for a liquid or semiliquid condiment does not teach that the same weight would be suitable for a structurally fragile portion of honeycomb. Applicant continues that the general dietary discussion of Sprunk does not teach a packaged portion of honeycomb weighing about 30 grams or less and does not provide a reason to modify the scrap cut comb honey anecdote of 200 Top Bar Hives into the claimed honeycomb package and that Sprunk suggests that some consumers may wish to limit sugar intake and does not identify honeycomb package weight as a result effective variable, does not address the structural fragility of honeycomb, and does not explain why a person of ordinary skill would select about 30 grams or less for a honeycomb portion contained within a rigid protective support structure.
Examiner first notes that the independent claims have all been amended to recite a single serve portion of honeycomb having a honeycomb structure, i.e. “a honeycomb structure is newly presented.” The secondary references of Honey Bee Suite and Hirsch have been added in the combination of references to teach letting the container determine the size of the pieces of cut comb honey (Honey Bee Suite, Page 3) and Hirsch discloses honeycomb has a completely different texture than liquid honey (Hirsch, Page 3). The primary reference of 200 Top Bar Hives teaches storing scrap honey comb in condiment containers like you get in restaurants. The secondary references of Honey 12 Gram, Dickinson, and Honey Mustard Sauce discloses condiment cups like you get at restaurants having honey food products disposed therein having the claimed amount of single serve portion of honey product weight. Although Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5oz Portion Cup and Honey Mustard Sauce 1 oz. Portion Cup all disclose condiment cups like you get at restaurants having liquid honey food products disposed therein instead of a honeycomb structure, Honey Bee Suite discloses pieces of cut comb honey placed in a container wherein the container determines the size of the pieces or use a variety of containers that suit the shape of the comb wherein the cut comb honey can be covered with extracted honey (Honey Bee Suite, Pages 3 and 6). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the type of condiment cup like you get at restaurants in which the honeycomb is disposed in 200 Top Bar Hives to be shaped as a rectangular prism and having at least three orthogonal sides that are orthogonal to each other wherein the rigid support structure has structural rigidity that protects the structure of the single serve portion of honeycomb from at least three orthogonal directions wherein the rigid protective support structure includes a food grade plastic based material as taught by Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5oz Portion Cup, and Honey Mustard Sauce 1 oz. Portion Cup since the configuration of the claimed disposable plastic container is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container storing the honey product was significant in view of In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (MPEP § 2144.04.IV.B.). Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the amount of the condiment cups like you get at restaurants that the honeycomb of 200 Top Bar Hives is disposed and provide the claimed amount of single serve portion of honey product weight of about 30 grams or less as taught by Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5oz Portion Cup, and Honey Mustard Sauce 1 oz. Portion Cup since where the claimed honey single serve product weight range encompasses honey single serve product ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Additionally, Honey 12 Gram Portion Control discloses 12 grams of honey product are perfectly portioned control packs that deliver just the right amount of sweetness to food or beverage that make it easy for customers to grab and go and helps with portion control which prevents customers from taking excess amounts (Honey 12 Gram Portion Control, Page 2). Differences in the amount of single serve honey product disposed in the food package will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such amount of single serve honey product is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Sprunk discloses honey is a natural food that is considered a type of added sugar when you eat it and is rich in probiotics and antioxidants (Sprunk, Page 1) and that portions of added sugars should be limited each day (Sprunk, Page 2). One of ordinary skill in the art would adjust the amount of honey product of the single serve portion of honey product disposed in the food package of 200 Top Bar Hives to be portioned to a small size since Honey 12 Gram Portion Control discloses 12 grams of honey product are perfectly portioned control packs that deliver just the right amount of sweetness to food or beverage that make it easy for customers to grab and go and helps with portion control which prevents customers from taking excess amounts (Honey 12 Gram Portion Control, Page 2) and since Sprunk teaches that American Heart Association guidelines recommends limiting added sugars such as honey (Sprunk, Page 2). Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the type of honey product disposed in the small single serve portion of honeycomb of modified 200 Bar Hives to have a honeycomb structure as taught by Honey Bee Suite based upon the desired texture of honey product as suggested by Hirsch (Hirsch, Page 3). 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). Therefore, these arguments are not found persuasive.
Applicant argues on Pages 16-17 of the Remarks that the Office Action allegedly fails to demonstrate Liske and/or Noth would have made the volumetric restriction obvious for the honeycomb of 200 Top Bar Hives and that Liske and Noth do not disclose or suggest a single serve portion of honeycomb having a volume of about 1 cubic inch. Liske relates to packaging a moldable food product in tray compartments and Noth relates to a food container having an internal volume range and that neither references discloses honeycomb or addresses the structural fragility of honeycomb or that a volume of about 1 cubic inch is suitable for, desirable for, or result effective with respect to a portion of honeycomb contained within and protected by a rigid protective support structure. Applicant continues that the Office Action appears to conflate container volume with honeycomb volume and that the claim does not merely recite a container having an internal volume that could hold about 1 cubic inch of material and that a disclosure of a generic food container volume for moldable or non-honeycomb food products does not teach that a portion of honeycomb itself has the claimed volume or that no reason is provided why a person of ordinary skill would have selected the claimed honeycomb volume and that the assertion that the amount and volume of honeycomb could be selected based on the amount desired to be eaten merely restates the problem using applicant’s disclosure as a guide.
Examiner again notes that the rejection is based on a combination of the primary reference of 200 Top Bar Hives modified with several secondary references. The primary reference of 200 Top Bar Hives discloses scrap cut comb honey sold in condiment cups like you get are restaurants (200 Top Bar Hives, Page 2). Honey Bee Suite discloses the container in which the cut comb honey is disposed to determine the size of the pieces (Honey Bee Suite, Page 3). Liske discloses packaging a moldable food product into a tray having a plurality of compartments (‘650, Paragraph [0006]) wherein each compartment has a volume of sufficient for containing the moldable food product in an amount in a range of from 7 g to 8 kg (‘650, Paragraph [0028]) and storing 5 mL to 4.5 L of the moldable food product (‘650, Paragraph [0048]). The moldable food product contained in the interior space of each compartment is molded to a shape of the interior space of each compartment (‘650, Paragraph [0023]) wherein the food product conforms to a shape of the interior space of the compartment (‘650, Paragraph [0045]). Noth discloses a foodstuff container having an internal volume of 5-80 mL (‘362, Paragraph [0024]), which converts to an internal volume of 0.305 cubic inches to 4.88 cubic inches, which encompasses the claimed volume of about 1 cubic inch. Since Liske teaches the food product contained in the compartment being molded to a shape of the interior space of each compartment and the food product conforming to a shape of the interior space of the compartment, the disclosure of the food container of Noth having an internal volume of 5 mL (0.305 cubic inches) to 80 mL (4.88 cubic inches) also corresponds to the volume of food disposed within the compartment. Modified 200 Top Bar Hives, Liske, and Noth are all directed towards the same field of endeavor of food packages storing a foodstuff. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the volume of food disposed within the food container of modified 200 Top Bar Hives and dispose between 0.305 cubic inches to 4.88 cubic inches, which encompasses the claimed volume of about 1 cubic inch, as taught by the amount of food disposed within the food container of Noth since where the claimed volume ranges overlaps volume ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, claims directed to a food package of appreciable size is held unpatentable over prior art food packages because limitations relating to the size of the food package are not sufficient to patentably distinguish over the prior art in view of In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) (MPEP § 2144.04.IV.A.). One of ordinary skill in the art would package the desired quantity and volume of honeycomb into the food package of modified 200 Top Bar Hives based upon the particular amount of honeycomb desired to be eaten in a single individualized portion. 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). Also, Liske teaches the moldable food product having various units of measure depending on the particular recipe calling for a particular amount (‘650, Paragraph [0052]). One of ordinary skill in the art would adjust the volume amount of product disposed in the container based upon the desired amount of food to be packaged. Therefore, these arguments are not found persuasive.
Applicant argues on Pages 18-19 of the Remarks with respect to Claim 1 that a rigid protective support structure that protects the honeycomb structure form at least three orthogonal directions is not an intended use limitation. Applicant asserts that Claim 1 requires that the honeycomb structure is contained within the rigid protective support structure and is protected by that structure and requires that the rigid protective support structure protects the honeycomb structure from at least three orthogonal directions to define the claimed package structure including the relationship between the honeycomb and the support structure and not merely a future use of the package. Applicant continues that the cited secondary references discloses containers for liquid honey, honey mustard, moldable food products, or generic food product but do not provide a reason to repackage the scrap cut comb honey of 200 Top Bar Hives in the manner claimed.
Examiner argues the secondary references of Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5oz Portion Cup, and Honey Mustard Sauce 1 oz. Portion Cup all disclose condiment cups comprising a rigid protective support structure shaped as a rectangular prism made of plastic and having at least three orthogonal sides that are orthogonal to each other wherein the rigid support structure has structural rigidity. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the type of condiment cup like you get at restaurants in which the honeycomb is disposed in 200 Top Bar Hives to be shaped as a rectangular prism and having at least three orthogonal sides that are orthogonal to each other wherein the rigid support structure has structural rigidity that protects the structure of the single serve portion of honeycomb from at least three orthogonal directions wherein the rigid protective support structure includes a food grade plastic based material as taught by Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5oz Portion Cup, and Honey Mustard Sauce 1 oz. Portion Cup since the configuration of the claimed disposable plastic container is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container storing the honey product was significant in view of In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (MPEP § 2144.04.IV.B.). Therefore, these arguments are not found persuasive.
Applicant argues on Pages 19-20 of the Remarks with respect to Claim 17 that although Claim 17 is recited as a method, the Office Action must still establish why a person of ordinary skill in the art would have performed the claimed methods steps using the claimed honeycomb portion and rigid protective support structure. Applicant contends that the cited references do not provide a non-hindsight reason to modify the scrap cut comb honey sold in little round condiment cups in 200 Top Bar Hives to obtain and contain a single serve portion of honeycomb having the claimed weight and volume and being disposed within the recited protective support structure. Applicant contends that none of Long, Roberge, or Johnson provides a reason to modify the scrap cut comb honey of 200 Top Bar Hives to include the claimed rigid protective support structure and then wrap at least some of that support structure as recited in Claim 17.
Examiner argues it is noted that the claimed method for packaging steps of Claim 17 does not provide any specific method steps other than obtaining and providing the honeycomb package of the product Claims 1 and 2 in combination. The method of Claim 17 also requires the rigid protective support structure to include a food grade plastic based material and the rigid protective support structure to be a unitary construction. Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5oz Portion Cup, and Honey Mustard Sauce 1 oz. Portion Cup all disclose condiment cups like you get at restaurants having honey food products disposed therein wherein the condiment cups are rigid support structures including a food grade plastic material. Van Handel et al. also provides evidence that it was known in the food packaging art to construct the rigid support structure (plastic food container) out of a food grade plastic material (‘898, Paragraph [0016]). Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the food package of modified 200 Top Bar Hives and incorporate a wrapper that wraps around a single serve portion of honeycomb as taught by Long for sanitation purposes. Furthermore, Long discloses the wrapper being wrapped around the single serve portion of honeycomb (Long, Page 9). Johnson et al. discloses a food package comprising a portion of a food product having a structure (food product 10) and a rigid protective support structure (package blank 30) having structural rigidity that protects the structure of the food product (food product 10) (‘114, Paragraphs [0032]-[0033]) wherein the structure of the food product (food product 10) is contained within the rigid protective support structure (package blank 30) and the structure of the portion of the food product (food product 10) is protected by the rigid protective support structure (package blank 30) (‘114, FIGS. 1-2) (‘114, Paragraph [0032]). Johnson et al. also discloses a wrapper wrapped around the portion of the food product (food product 10) and the rigid protective support structure (package blank 30) such that both the portion of the food product and the rigid protective support structure are contained within the wrapper (shrink wrap wraps the entire exterior of the package) wherein the food product (food product 10) is also wrapped within the wrapper (shrink wrap) (‘114, Paragraph [0034]). The wrapper (shrink wrap) is made of a food grade plastic based material (plastic film overwrap) (‘114, Paragraph [0034]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the food package of modified 200 Top Bar Hives and also incorporate a wrapper that contains both the portion of food product and the rigid protective support structure as taught by Johnson et al. for imparting additional sanitation properties to both the single serve portion of honeycomb as well as the rigid protective support structure. Additionally, the remainder of the limitations of Claim 17 are rendered obvious for the same reasons as that discussed in the arguments against Claim1 discussed above. Therefore, these arguments are not found persuasive.
Applicant argues on Pages 20-21 of the Remarks with respect to Claim 21 that the alleged deficiencies with respect to Claim 1 that the Office Action has not established that it would have been obvious to modify the scrap cut comb honey sold in little round condiment cups in 200 Top Bar Hives to provide a single serve portion of honeycomb having the claimed weight and volume or to contain and protect the honeycomb structure using the claimed rigid protective support structure equally apply to Claim 21. Applicant comments on Malay as being cited for an oil resistant food tub or oil resistant food container material but allegedly does not resolve these same alleged deficiencies.
Examiner notes that applicant comments that Claim 21 has the same deficiencies as that discussed in the arguments to Claim 1. Similarly, Examiner maintains that these alleged deficiencies are rebutted in the arguments to Claim 1 provided above.
Applicant argues on Pages 21-22 of the Remarks with respect to Claims 28-29 that Honey Mustard Sauce relates to a 1 oz serving of honey mustard sauce and not a 1 oz portion of honeycomb. Honey mustard sauce is a liquid or semi-liquid condiment and does not have the fragile cellular structure of honeycomb. A serving size selected for honey mustard sauce does not teach that a corresponding weight would be suitable for a portion of natural honeycomb contained within and protected by a rigid protective support structure. Applicant continues that Sprunk does not disclose a packaged honeycomb, does not address the weight or volume of a single serve portion of honeycomb, and does not provide a reason to select a honeycomb portion weighing between about 20 grams and about 30 grams. Applicant continues that Liske and Noth does not supply the missing volume limitation. Liske relates to a packaging moldable food products in tray compartments and Noth relates to food containers having an internal volume range and neither reference discloses honeycomb, teaches that a portion of honeycomb itself should have a volume of about 1 cubic inch or provides a reason to modify the scrap cut comb honey described in 200 Top Bar Hives to provide a honeycomb portion having the claimed volume. Applicant contends that the Office Action does not establish why a POSITA would have modified 200 Top Bar Hives to provide a rigid protective support structure that protects the honeycomb structure from at least three orthogonal directions. Applicant continues that Honey Mustard Sauce concerns a 1 oz. portion cup for honey mustard sauce and not honeycomb and does not disclose a honeycomb structure, does not address the fragility of honeycomb and does not provide any reason to place the scrap cut comb honey of 200 Top Bar Hives into the honey mustard sauce container.
Examiner first notes that the independent claims have all been amended to recite a single serve portion of honeycomb having a honeycomb structure, i.e. “a honeycomb structure is newly presented.” The secondary references of Honey Bee Suite and Hirsch have been added in the combination of references to teach letting the container determine the size of the pieces of cut comb honey (Honey Bee Suite, Page 3) and Hirsch discloses honeycomb has a completely different texture than liquid honey (Hirsch, Page 3). The primary reference of 200 Top Bar Hives teaches storing scrap honey comb in condiment containers like you get in restaurants. The secondary references of Honey 12 Gram, Dickinson, and Honey Mustard Sauce discloses condiment cups like you get at restaurants having honey food products disposed therein having the claimed amount of single serve portion of honey product weight. Although Honey Mustard Sauce 1 oz. Portion Cup discloses condiment cups like you get at restaurants having liquid honey food products disposed therein instead of a honeycomb structure, Honey Bee Suite discloses pieces of cut comb honey placed in a container wherein the container determines the size of the pieces or use a variety of containers that suit the shape of the comb wherein the cut comb honey can be covered with extracted honey (Honey Bee Suite, Pages 3 and 6). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the type of condiment cup like you get at restaurants in which the honeycomb is disposed in 200 Top Bar Hives to be shaped as a rectangular prism and having at least three orthogonal sides that are orthogonal to each other wherein the rigid support structure has structural rigidity that protects the structure of the single serve portion of honeycomb from at least three orthogonal directions wherein the rigid protective support structure includes a food grade plastic based material as taught by Honey Mustard Sauce 1 oz. Portion Cup since the configuration of the claimed disposable plastic container is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container storing the honey product was significant in view of In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (MPEP § 2144.04.IV.B.). Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the amount of the condiment cups like you get at restaurants that the honeycomb of 200 Top Bar Hives is disposed and provide the claimed amount of single serve portion of honey product weight of about 30 grams or less as taught by Honey Mustard Sauce 1 oz. Portion Cup since where the claimed honey single serve product weight range encompasses honey single serve product ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Additionally, Honey 12 Gram Portion Control discloses 12 grams of honey product are perfectly portioned control packs that deliver just the right amount of sweetness to food or beverage that make it easy for customers to grab and go and helps with portion control which prevents customers from taking excess amounts (Honey 12 Gram Portion Control, Page 2). Differences in the amount of single serve honey product disposed in the food package will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such amount of single serve honey product is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Sprunk discloses honey is a natural food that is considered a type of added sugar when you eat it and is rich in probiotics and antioxidants (Sprunk, Page 1) and that portions of added sugars should be limited each day (Sprunk, Page 2) and since Sprunk teaches that American Heart Association guidelines recommends limiting added sugars such as honey (Sprunk, Page 2). Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the type of honey product disposed in the small single serve portion of honeycomb of modified 200 Bar Hives to have a honeycomb structure as taught by Honey Bee Suite based upon the desired texture of honey product as suggested by Hirsch (Hirsch, Page 3). Furthermore, the primary reference of 200 Top Bar Hives discloses scrap cut comb honey sold in condiment cups like you get are restaurants (200 Top Bar Hives, Page 2). Honey Bee Suite discloses the container in which the cut comb honey is disposed to determine the size of the pieces (Honey Bee Suite, Page 3). Liske discloses packaging a moldable food product into a tray having a plurality of compartments (‘650, Paragraph [0006]) wherein each compartment has a volume of sufficient for containing the moldable food product in an amount in a range of from 7 g to 8 kg (‘650, Paragraph [0028]) and storing 5 mL to 4.5 L of the moldable food product (‘650, Paragraph [0048]). The moldable food product contained in the interior space of each compartment is molded to a shape of the interior space of each compartment (‘650, Paragraph [0023]) wherein the food product conforms to a shape of the interior space of the compartment (‘650, Paragraph [0045]). Noth discloses a foodstuff container having an internal volume of 5-80 mL (‘362, Paragraph [0024]), which converts to an internal volume of 0.305 cubic inches to 4.88 cubic inches, which encompasses the claimed volume of about 1 cubic inch. Since Liske teaches the food product contained in the compartment being molded to a shape of the interior space of each compartment and the food product conforming to a shape of the interior space of the compartment, the disclosure of the food container of Noth having an internal volume of 5 mL (0.305 cubic inches) to 80 mL (4.88 cubic inches) also corresponds to the volume of food disposed within the compartment. Modified 200 Top Bar Hives, Liske, and Noth are all directed towards the same field of endeavor of food packages storing a foodstuff. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the volume of food disposed within the food container of modified 200 Top Bar Hives and dispose between 0.305 cubic inches to 4.88 cubic inches, which encompasses the claimed volume of about 1 cubic inch, as taught by the amount of food disposed within the food container of Noth since where the claimed volume ranges overlaps volume ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, claims directed to a food package of appreciable size is held unpatentable over prior art food packages because limitations relating to the size of the food package are not sufficient to patentably distinguish over the prior art in view of In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) (MPEP § 2144.04.IV.A.). One of ordinary skill in the art would package the desired quantity and volume of honeycomb into the food package of modified 200 Top Bar Hives based upon the particular amount of honeycomb desired to be eaten in a single individualized portion. 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). Also, Liske teaches the moldable food product having various units of measure depending on the particular recipe calling for a particular amount (‘650, Paragraph [0052]). One of ordinary skill in the art would adjust the volume amount of product disposed in the container based upon the desired amount of food to be packaged. Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the type of condiment cup like you get at restaurants in which the honeycomb is disposed in 200 Top Bar Hives to be shaped as a rectangular prism and having at least three orthogonal sides that are orthogonal to each other wherein the rigid support structure has structural rigidity that protects the structure of the single serve portion of honeycomb from at least three orthogonal directions wherein the rigid protective support structure includes a food grade plastic based material as taught by Honey Mustard Sauce 1 oz. Portion Cup since the configuration of the claimed disposable plastic container is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container storing the honey product was significant in view of In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (MPEP § 2144.04.IV.B.). 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). Therefore, these arguments are not found persuasive.
Applicant argues on Pages 24-26 of the Remarks with respect to the previously submitted objective evidence of non-obviousness should be given probative weight where the commercial product discussed in the Declaration embodies the claimed invention. Applicant contends that the Office may not disregard objective evidence by speculating that commercial success could have resulted from marketing, labeling, online presentation, or other unclaimed features. Applicant contends that once applicant allegedly shows that the commercial product embodies the claimed invention the burden is on the Office to provide a reasoned basis for concluding that the evidence is not reasonably tied to the claimed features. Applicant contends that a declaration from the inventor confirms that the commercial product addressed in the previously submitted Declarations include an individual portion of honeycomb of about 1 oz. per package and further confirms that each individual honeycomb portion was 25 grams and falls within the weight limitation of each independent claim. Applicant continues that the commercial product identified in the prior declarations further confirms that the commercial product identified in the prior declarations is the same commercial product reflected in the supporting product images, packaging materials, and SKU information submitted with the declaration to address the Office Action’s stated concern that the earlier declarations did not expressly recite the amount of honeycomb in the commercial product. The declaration does not present a new theory of commercial success or ley on later expanded sales evidence and instead clarifies the physical characteristics of the same commercial product already discussed in the previously submitted declarations. Applicant continues that the observations pointing to labeling, online appearance, marketing, and general honey market trends as possible alternative explanations for commercial success do not show that the commercia product fails to embody the claimed invention or show that the commercial product is not coextensive with the claimed features. Applicant contends that the previously submitted Declarations specifically tied the commercial product success and market acceptance to the claimed features, including the single serve honeycomb portion, the convenience of the portion size, and the importance of protecting the fragile honeycomb structure and that the Office Action’s speculation regarding alternative causes does not rebut the nexus between the objective evidence and the claimed invention. Applicant continues that applicant is not required to provide a comparative statistical study of commercial products having different honeycomb weights before the objective evidence can be considered. Applicant alleges that prior declarations identify commercial success and explain why customers valued the single serve honeycomb package including the convenience of the portion size and the protection of the honeycomb structure.
Examiner argues Honey Mustard Sauce is relied upon in each of the independent claim obviousness rejections as a secondary reference to render obvious the claimed weight of about 30 grams or less or between about 20 grams and about 30 grams by virtue of overlapping ranges. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the amount of the condiment cups like you get at restaurants that the honeycomb of 200 Top Bar Hives is disposed and provide the claimed amount of single serve portion of honey product weight of about 30 grams or less as taught by Honey Mustard Sauce 1 oz. Portion Cup since where the claimed honey single serve product weight range encompasses honey single serve product ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Evidence of unexpected properties may be in the form of a direct or indirect comparison of the claimed invention with the closest prior art which is commensurate in scope with the claims in view of In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980) (MPEP § 716.02(b).III.). Applicant has provided no such comparisons. Furthermore, Honey Mustard Sauce already teaches overlapping weight ranges of the claimed honey product. Although H Honey Mustard Sauce 1 oz. Portion Cup discloses condiment cups like you get at restaurants having liquid honey food products disposed therein instead of a honeycomb structure, Honey Bee Suite discloses pieces of cut comb honey placed in a container wherein the container determines the size of the pieces or use a variety of containers that suit the shape of the comb wherein the cut comb honey can be covered with extracted honey (Honey Bee Suite, Pages 3 and 6). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the type of honey product disposed in the small single serve portion of honeycomb of modified 200 Bar Hives to have a honeycomb structure as taught by Honey Bee Suite based upon the desired texture of honey product as suggested by Hirsch (Hirsch, Page 3).
With respect to applicant’s previous arguments in the previously filed affidavits regarding labeling, online appearance, marketing, and general honey market trends as possible alternative explanations for commercial success do not show that the commercia product fails to embody the claimed invention or show that the commercial product is not coextensive with the claimed features, Examiner argues that Vermeer et al. “Value for money or making the healthy choice: the impact of proportional pricing on consumers’ portion size choices” (published July 8, 2009) discloses value size pricing is a marketing strategy wherein people can purchase a larger portion size for only a small surplus, i.e. prices per gram are lower for large packages or portions than for small packages or portions (Vermeer et al., Page 65) and that value size pricing is standard in most point of purchase settings (Vermeer et al., Page 68). This statement made by Craven in the previous affidavit merely discusses a known marketing strategy. Additionally, Naseer A. from The Boardroom Restaurant posted on 05/17/2018 that the single serving portion of honey food product is a good quality portion control (Honey 12 Gram Portion Control, Page 6). Geraldine C. posted on 01/01/2014 that the single serving portion of honey food product prevents overuse of honey and makes clean up easier (Honey 12 Gram Portion Control, Page 9). Also, Daellion G. posted on 05/03/2018 that the single serving portion of honey food product is portioned out in individual containers (Dickinson’s Pure Honey 0.5 oz. Portion Cup, Page 6). Kim H. posted on 08/23/2017 that the single serving portion of honey food product is already portioned out into the containers (Honey Mustard Sauce 1 oz., Page 19). Beth C. posted on 08/12/2009 that the single serving portion of honey food product is already portioned out into the containers (Honey Mustard Sauce 1 oz., Page 40). The combination of prior art already recognizes food packages comprising honey based food products that weigh the claimed amount for individual portion sizes. The prior art combination already teaches a single serve portion of honey food product disposed in rigid protective support containers that store honey food product having the claimed amount of honey food product. Furthermore, Shaw “Contract Packagers Embrace The Benefits of Honey” <https://www.assemblies.com/honey-packaging/> (published July 13, 2018) discloses food products comprising honey have health and wellness benefits that boost sales of food and beverages containing honey and that honeys also help drive sales in personal care and pharmacy wherein honey packaging can be marketed in jars, bottles, tubs, tubes, and other creative package designs (Shaw, Page 4). Shaw already establishes that applicant’s purported packaging of honeycomb provides the benefits (culinary, health, etc.) of honeycomb with convenience unmatched by other honeycomb products are already known in honey packaged products. Furthermore, declarations of multiple persons skilled in the art offering opinion evidence praising the merits of the claimed invention is found to have little value because of a lack of factual support in view of In re Beattie, 974 F.2d 1309, 24 USPQ2d 1040 (Fed. Cir. 1992) (MPEP § 716.01(c).III.). Vandenbroele et al. “Curbing portion size effects by adding smaller portions at the point of purchase” (published March 2018) discloses adding smaller food portions to a default choice architecture can nudge consumers towards buying smaller sized items (Abstract) and provides a two sample experimental test for proportions exploring whether there is a significant shift in sales of the largest portion size and analyzing the relative impact on the total weight sold and compared the data from experimental store with the purchase records of customers in control stores without interventions and that with control data a test was conducted to ascertain whether the shift in purchase behavior in the experimental condition is due to other environmental factors (Vandenbroele et al., Page 84) and provides statistical analysis with data involving z scores and p values (Vandenbroele et al., Page 85) to show whether their studies on the effects of packaging size influencing sales was statistically significant. Applicant has not provided any data comparing the sales of the claimed package having the claimed honeycomb weight comparative to sales of a package having honeycomb weights outside the claimed weights with statistical tests indicating its conclusions that the package weight affects sales is statistically significant. Furthermore, Shaw “Contract Packagers Embrace the Benefits of Honey” <https://www.assemblies.com/honey-packaging/> (published July 13, 2018) discloses the global honey market was expected expand from 2018-2023 and sales of honey were projected to experience a compound annual growth rate of more than 7% during this period wherein honey packaging producers bring the goods to market in jars, bottles, tubs, tubes, and other creative package designs. Since Shaw teaches that the global honey market was projected to increase from the time of filing applicant’s invention in 2018 for several years, one of ordinary skill in the art would expect sales of honey packages to increase as well. Regarding applicant’s arguments pertaining to labeling, it is noted that the claims do not recite any labelling features and therefore applicant argues limitations that are not commensurate in scope with the claimed invention. Furthermore, Funderburg “How to Get Your Honey in the Jar” <https://beeculture.com/get-honey-jar/> (published June 27, 2016) discloses a beekeeper who sold more honey in labeled jars compared to unlabeled jars wherein the jars contain shrink wrap sleeves. Funderburg teaches that labeled honey packages sell more than unlabeled honey packages. Additionally, the combination of prior art already teaches incorporating honey food products in single serving portion containers in the claimed weights as discussed above. Additionally, Vandenbroele et al. “Curbing portion size effects by adding smaller portions at the point of purchase” (published March 2018) discloses adding smaller food portions to a default choice architecture can nudge consumers towards buying smaller sized items (Abstract) and provides a two sample experimental test for proportions exploring whether there is a significant shift in sales of the largest portion size and analyzing the relative impact on the total weight sold and compared the data from experimental store with the purchase records of customers in control stores without interventions and that with control data a test was conducted to ascertain whether the shift in purchase behavior in the experimental condition is due to other environmental factors (Vandenbroele et al., Page 84) and provides statistical analysis with data involving z scores and p values (Vandenbroele et al., Page 85) to show whether their studies on the effects of packaging size influencing sales was statistically significant. Applicant has not provided any data comparing the sales of the claimed package having the claimed honeycomb weight comparative to sales of a package having honeycomb weights outside the claimed weights with statistical tests indicating its conclusions that the package weight affects sales is statistically significant. Therefore, applicant’s allegations of unexpected results are not sufficient to overcome the obviousness rejections.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Isaac “Yes! Fer Cryin’ Out Loud, We Have Comb Honey!” <https://www.honeyrunfarm.com/honeyrunfarm/2015/08/yes-fer-cryin-out-loud-we-have-comb.html> (published August 4, 2015) discloses comb honey packaged in a rigid support structure shaped as a rectangular prism or cylinder (Isaac, Page 6) wherein the rigid support structure is configured to be stackable with other rigid protective support structures (Isaac, Pages 5-6).
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Johnathan “Comb Honey: Right From the Hive!” <https://hudsonvillehoney.com/2010/07/22/comb-honey-from-the-hive-to-your-table/?srsltid=AfmBOooPIBY-37i7kixg7HAFm8GlodcD1ja6PIJ8qxY8KW7TjrCEIgaS> (published July 22, 2010) discloses comb honey packaged in a rigid support structure shaped as a rectangular prism (Johnathan, Page 2).
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Roger “Cut Comb Honey Success?” <https://talkingwithbees.com/cut-comb-honey-success> (published July 30, 2017) discloses comb honey packaged in a rigid support structure shaped as a rectangular prism (Roger, Page 4).
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Roger “Cut Comb Honey Success?” <https://talkingwithbees.com/cut-comb-honey-success> (published July 30, 2017) discloses comb honey packaged in a rigid support structure shaped as a cylinder (Roger, Page 2).
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Koenigsberg et al. “Package Size Decisions” (published March 2010) discloses a model examining how a firm might choose the package size and price for a product that deteriorates over time wherein the model considers the factors of the usable life of the product, the rate at which consumers use the product, the relation between package size and variable cost of the product, and the minimum quantities consumers seek to consume for each dollar they spend wherein smaller packages reduce waste and allow consumers to more closely match their purchases with desired consumption to allow the firm to charge a higher unit price and also sell more unit volume wherein a market with multiple package sizes produced by the same or competing firms results in at least one of the packages having a smallest possible size provided the fixed cost of making the product is low (Abstract).
Tobin US 2011/0046991 discloses a system for comparing and improving sales performance over multiple heterogenous geographical sales regions (‘991, Paragraph [0016]) wherein relationships between sales parameter norms and revenue norms are investigated wherein targets for the sales parameters are adjusted to increase revenue based on sales parameter targets, realistic revenue targets that increase the sales performance for each sales region (‘991, Paragraph [0025]) which sales performance of multiple sales regions account for the effect of fixed characteristics such as population, number of households, geographic size, number of retail businesses, average income of residents, cost of living, number of competitors, and controllable sales parameters to provide a means to optimize the controllable sales parameters to improve sales performance (‘991, Paragraph [0026]).
Walker et al. US 6,138,105 discloses a method and apparatus for processing sales of multiple products at a single price based on sales performance data of the products (‘105, Column 1, lines 27-30) wherein a package offering system identifies the product identifiers of products that are complementary and verifies acceptable sales performance of the complementary products and determines a package price for those products and a status of the package is set to invalid upon expiration of a time interval in which the package is available (‘105, Column 2, lines 57-67) wherein demand rate and inventory availability levels are utilized for determining a package and related package criteria and other sales performance data is used including sales performance data including product profitability, product turnover, product cost or any combination thereof (‘105, Column 10, lines 56-65).
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERICSON M LACHICA whose telephone number is (571)270-0278. The examiner can normally be reached M-F, 8:30am-5pm, EST.
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/ERICSON M LACHICA/Examiner, Art Unit 1792
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