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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114 was filed in this application after a decision by the Patent Trial and Appeal Board, but before the filing of a Notice of Appeal to the Court of Appeals for the Federal Circuit or the commencement of a civil action. Since this application is eligible for continued examination under 37 CFR 1.114 and the fee set forth in 37 CFR 1.17(e) has been timely paid, the appeal has been withdrawn pursuant to 37 CFR 1.114 and prosecution in this application has been reopened pursuant to 37 CFR 1.114. Applicant’s submission filed on November 4, 2025 has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-4, 10-12, 14-17, and 19-29 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Claim 1 recites the limitation “a rigid protective support structure” in line 5. It is unclear if this refers to “a structure” recited in Claim 1, line 2 or to an entirely different structure. For purposes of examination Examiner interprets “a rigid protective support structure” to refer to something different than “a structure.”
Claim 2 recites the limitation “a second food grade plastic based material” in line 5. It is unclear if this refers to “a food grade plastic based material” recited in Claim 1, line 9 or to an entirely different food grade plastic based material.
Claim 2 recites the limitation “a second food grade paper based material” in lines 5-6. It is unclear if this refers to “a food grade paper based material” recited in Claim 1, lines 9-10 or to an entirely different food grade paper based material.
Claim 17 recites the limitation “a rigid protective support structure” in lines 6-7. It is unclear if this refers to “a structure” recited in Claim 17, line 3 or to an entirely different structure. For purposes of examination Examiner interprets “a rigid protective support structure” to refer to something different than “a structure.”
Claim 17 recites the limitation “a second food grade plastic based material” in line 15. It is unclear if this refers to “a food grade plastic based material” recited in Claim 17, line 11 or to an entirely different food grade plastic based material.
Claim 17 recites the limitation “a second food grade paper based material” in line 15. Claim 17 does not recite a first food grade paper based material. It is unclear if the method of Claim 17 requires a first food grade paper based material as well as a second food grade paper based material.
Claim 21 recites the limitation “a rigid protective support structure” in line 5. It is unclear if this refers to “a structure” recited in Claim 21, line 2 or to an entirely different structure. For purposes of examination Examiner interprets “a rigid protective support structure” to refer to something different than “a structure.”
Claim 28 recites the limitation “a rigid protective support structure” in line 5. It is unclear if this refers to “a structure” recited in Claim 28, line 2 or to an entirely different structure. For purposes of examination Examiner interprets “a rigid protective support structure” to refer to something different than “a structure.”
Claim 29 recites the limitation “a rigid protective support structure” in lines 6-7. It is unclear if this refers to “a structure” recited in Claim 29, line 3 or to an entirely different structure. For purposes of examination Examiner interprets “a rigid protective support structure” to refer to something different than “a structure.”
Claim 29 recites the limitation “wherein the rigid protective support structure has structural rigidity to protect the structure of the single serve portion of honeycomb from at least three orthogonal directions” in lines 8-9. Claim 29 does not require any particular shape of the claimed rigid protective support structure. It is unclear what shape(s) are required to meet this limitation. For purposes of examination Examiner interprets a rigid protect support structure that is in the shape of a rectangular prism to read on the claimed protection of the structure of the single serve portion of honeycomb from at least three orthogonal directions in view of FIG. 4D of applicant’s disclosure showing a rectangular prism shaped support structure for packaging portions of honeycomb that protects the honeycomb from three directions (Specification, Paragraph (18)).
Clarification is required.
Claims 3-4, 10-12, 14-16, 19-20, and 22-27 are rejected as being dependent on a rejected base claim.
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”), 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 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 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 includes 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 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).
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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 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).
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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 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. 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).
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, 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”), 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, 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 includes a second food grade plastic and is water resistant.
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 second 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).
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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, 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 second 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”), 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, 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”), 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, 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”), 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, 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”), 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”), 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, 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”), 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”), 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), Lis