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examination under 37 CFR 1.114 and the fee set forth in 37 CFR 1.17(e) has been timely paid, the appeal has been withdrawn pursuant to 37 CFR 1.114 and prosecution in this application has been reopened pursuant to 37 CFR 1.114.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), 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. 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 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, 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, 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”), 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. 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).
Further regarding Claim 28, 200 Top Bar Hives modified with 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 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”), 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. 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). 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 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, 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, 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 Arguments
Applicant’s arguments on Pages 11-13 of the Remarks with respect to the Decision on Appeal that previously took official notice that it was conventional in the art to enclose a single serve confection product’s container with a food grade wrapping for sanitation purposes that previously taught the limitations of Claims 1 and 17 that recites a food grade wrapping material around at least some of the rigid protective structure have been considered but are moot because the new ground of rejection does not this particular rationale. The current rejection does not refer to a confection product, which was argued by applicant. The current rejection relies upon the secondary references of Long and Johnson et al. to teach the limitations regarding a food grade wrapping material around at least some of the rigid protective structure. Long explicitly discloses the food grade wrapping material wrapping around honeycomb (Long, Page 9). The wrapper disclosed by Long and Johnson et al. are added to the combination of prior art for sanitation purposes. Furthermore, it is noted that Russell L. US 2004/0115311 discloses crispy chip garnish individually packaged in a fold over type single ply sealing wrap plastic film packaging wherein individual packaging of the crispy chip garnishes enables sanitary grabbing or dispensing from a multipack unit or bulk packaging to ensure that the individual crisp chip garnishes stays fresh when purchased in such quantity packaging after the package has been opened to enable the infrequent home or small quantity user to purchase a multi-unit pack without concern that the unused crispy chip garnishes will become prematurely stale after the pack is opened and the diner opens one garnish package for each sandwich and returns the unused, individually sealed garnishes to storage for later use (‘311,. Paragraph [0036]). Pasetti US 6,722,526 discloses a cracker dispenser loaded with a cracker roll comprising an outer plastic wrapper containing a plurality of individual crackers wherein the crackers are sealed within the wrapper in a sanitary condition. Both Russell L. and Pasetti teach that it was known in the food packaging art that wrapping individual food packages enables sanitary grabbing of the food products disposed within the wrapper. It is noted that neither independent Claim 1 nor independent Claim 21 nor independent Claim 27 requires a wrapper. Claim 2 recites “a wrapper wrapped around the single serve portion of honeycomb and the rigid protective support structure such that both the single serve portion of honeycomb and the rigid protective support structure are contained within the wrapper. Claim 17 also recites “wrapping by a wrapper that is water resistant and/or oil resistant around at least some of the rigid protective support structure wherein the wrapper includes one or more of a second food grade plastic based material.
Applicant's arguments filed November 4, 2025 with respect to the arguments that the previously filed evidence of secondary considerations shows alleged nonobviousness have been fully considered but they are not persuasive.
Applicant argues that the previous evidence of secondary considerations of nonobviousness by the four expert declarations have allegedly not been given any probative weight based on the previous arguments by the Board. Applicant argues on Page 14 of the Remarks that the Board previously implied that there is not sufficient nexus between the commercial product and an alleged unique combination of the claim limitations and the Board theorized that the commercial success might be due to a function of marketing, e.g. labeling or the online appearance and description of the product. Applicant argues that the approach or analysis of a nexus is deficient because (a) applicant is entitled to the presumption of a nexus as the four expert declarations discuss the reasons for commercial success, (b) the Board theories regarding commercial success fail to rebut the presumption of a nexus, and (c) the expert declarations found that commercial success was due to the claimed features.
Regarding applicant’s comments on Page 14 of the Remarks that Pages 5-6 of the Decision on Appeal dated June 5, 2024 that Paragraph 24 of the Craven affidavit states that the price per weight of the individual food packages as sold is typically between 3-5x higher than the typical price points per weight for larger portions of honeycomb of about 7-16 oz. portions of honeycomb appears to be a characteristic of single serve packages generally, Examiner notes 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 merely discusses a known marketing strategy and does not provide any objective evidence pertaining to the claimed amount of honeycomb recited in the claims, which applicant alleges is critical to the commercial success of the claimed invention.
With respect to item (a) pertaining to applicant being entitled to the presumption of a nexus, applicant argues on Pages 15-17 of the Remarks that the Expert Declarations filed in the Response dated June 1, 2021 allegedly contains objective evidence of non-obviousness, e.g. commercial success. Applicant contends that the Expert Declaration of Paris Daniell states customers report that the single serve packaging of honeycomb provides the benefits (culinary, health, etc.) of honeycomb with convenience unmatched by other honeycomb products. The Expert Declaration of Robert Craven states that individual food packages sold provide a more convenient way to enjoy honeycomb compared to food packages containing larger portions of honeycomb and the level of commercial success for this commercial product indicates that single serve portions of honeycomb is classified as a new category of product in the market for honeycomb. The Expert Declaration of Dwight Richmond states that the commercial product is innovative for customers because the single serve portion size is suitable and convenient for the preferred way in which customers use honeycomb, customers enjoy the convenience provided by the single serve packaging, a packaging with a larger portion size fails to provide this convenience, and packaging honeycomb requires care as it can be fragile and that once the honeycomb is broken it loses its appeal to buyers and careful packaging is important. Applicant concludes that the experts have declared both the commercial product has been successful and further that the commercial product is innovative and appears to create a new niche in honey related products. Applicant alleges that the applicant has presented objective evidence through the Expert Declarations that the size of the portion of honeycomb as packaged is relevant to its commercial success. Applicant continues that the Board theorizing that the commercial success might be due to a function of marketing, e.g. labelling, or the online appearance and description of the product fails to allege that the evidence of commercial success is not commensurate in scope with the claims.
Examiner argues that not all claims recite the same amount of honeycomb in the single serve portion of honeycomb. Independent Claims 1, 17, and 21 recites the amount of honeycomb in the single serve portion of honeycomb weighing about 30 grams or less whereas independent Claims 28-29 recites the amount of honeycomb in the single serve portion of honeycomb weighing between about 20 grams and about 30 grams. It is unclear what sizes applicant refers to when arguing “food packages containing larger portions of honeycomb” since not all claims are drawn to the same amount of honeycomb, e.g. Claims 1, 17, and 21 encompass single serve portion amounts of honeycomb of between more than 0 grams and less than about 20 grams, which range of honeycomb amounts is not encompassed by independent Claims 28-29. Furthermore, none of the Experts Declarations filed June 1, 2021 indicates the weight of the honeycomb sold in the food package. Each of the four declarations filed June 1, 2021 state “The individual food packages as sold embody the food package described in the current claims.” However, the declarations do not explicitly state the amount of honeycomb disposed in the food package that was sold. It is again noted that not all of the independent claims recite the same amount of honeycomb in the food package. Given that applicant attempts to attribute criticality of the claimed amount of honeycomb towards commercial success (and that not all independent claims even recite the same amount of honeycomb in the food package), applicant’s declarations submitted in the affidavit filed on June 1, 2021 are not commensurate in scope with the claimed invention since none of the affidavits filed on June 1, 2021 indicates the amount of honeycomb disposed in the food packages relied upon in these affidavits. Additionally, a plurality of the affidavits filed June 1, 2021 reference Thomas, which is not currently relied upon in the current rejection. Changes in proportions of agents used in combinations…in order to be patentable, must be critical as compared with the proportions of the prior processes in view of In re Wells, 56 F.2d 674, 675, 12 USPQ 430 (CCPA 1932) (MPEP § 2144.05.III.A.). Furthermore, the secondary reference of Honey 12 Gram Portion Control already teaches a single serving portion of a honey food product disposed in a food package wherein the single serving portion weight of honey food product is 12 grams, which falls within the claimed amount of single serving portion, and is individually portioned (Honey 12 Gram Portion Control, Page 2). Dickinson’s Pure Honey .5 oz Portion Cup also teaches a single serving portion of a honey food product disposed in a food package wherein the single serving portion weight of honey food product is 0.5 oz., which also falls within the claimed amount of single serving portion, and is individually portioned (Dickinson’s Pure Honey .5 oz Portion Cup, Page 2). Honey Mustard Sauce 1 oz. Portion Cup also teaches a single serving portion of a honey food product disposed in a food package wherein the single serving portion weight of honey food product is 1 oz., which also falls within the claimed amount of single serving portion and is individually portioned (Honey Mustard Sauce 1 oz., Page 1). 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.
With respect to item (b) pertaining to the Board theories regarding the commercial success fail to rebut the presumption of a nexus, applicant argues on Pages 17-18 of the Remarks that providing competing theories regarding the commercial success does not rebut the presumption of a nexus. Applicant asserts that a rational argument must be provided that the commercial product does not embody the claimed features or that the commercial product is not coextensive with the claimed features and alleges that no such arguments are provided. Applicant contends that the labeling of the commercial product does not cause the commercial product to no longer embody the claimed features and that labeling of the commercial product causes the commercial product to no longer be coextensive with the claimed features. Applicant also argues that the online appearance and description of the product does not cause the commercial product to no longer embody the claimed features and does not cause the commercial product to no longer be coextensive with the claimed features. Applicant continues that Paragraph 34 of the Expert Declaration by Paris Daniell states that customers report that the single serve packaging provides convenience that a packaging with a larger portion would not offer. Applicant continues that the Expert Declaration of Robert Craven states that the individual food packages as sold provide a more convenient way to enjoy honeycomb compared to food packages containing larger portions of honeycomb. Applicant continues that the Expert Declaration of Dwight Richmond states that the commercial product is innovative for customers because the single serve portion size is suitable and convenient for the preferred way in which customers use honeycomb, the customers enjoy the convenience provided by the single serve packaging, and a packaging with a larger portion size fails to provide this convenience. Applicant asserts that the analysis should use and reply on statement in the Expert Declarations that specifically mention larger potions of honeycomb and that it would be unreasonable and unfair burden on the applicant to be required to disprove any theory for success that labeling is not a reason for success.
Examiner again notes that not all claims recite the same amount of honeycomb in the single serve portion of honeycomb. Independent Claims 1, 17, and 21 recites the amount of honeycomb in the single serve portion of honeycomb weighing about 30 grams or less whereas independent Claims 28-29 recites the amount of honeycomb in the single serve portion of honeycomb weighing between about 20 grams and about 30 grams. It is unclear what sizes applicant refers to when arguing “food packages containing larger portions of honeycomb” since not all claims are drawn to the same amount of honeycomb, e.g. Claims 1, 17, and 21 encompass single serve portion amounts of honeycomb of between more than 0 grams and less than about 20 grams, which range of honeycomb amounts is not encompassed by independent Claims 28-29. Furthermore, none of the Experts Declarations filed June 1, 2021 indicates the weight of the honeycomb sold in the food package. Each of the four declarations filed June 1, 2021 state “The individual food packages as sold embody the food package described in the current claims.” However, the declarations do not explicitly state the amount of honeycomb disposed in the food package that was sold. It is again noted that not all of the independent claims recite the same amount of honeycomb in the food package. Given that applicant attempts to attribute criticality of the claimed amount of honeycomb towards commercial success (and that not all independent claims even recite the same amount of honeycomb in the food package), applicant’s declarations submitted in the affidavit filed on June 1, 2021 are not commensurate in scope with the claimed invention since none of the affidavits filed on June 1, 2021 indicates the amount of honeycomb disposed in the food packages relied upon in these affidavits. Furthermore, Examiner maintains the Board’s arguments that labelling distinguishing the product by its quality is a reason for commercial success other than the features recited in Claims 1 and 21. Daniell does not establish that there are no other labeling or package appearance characteristics that would have led online consumers to try the product out after seeing it advertised online. Daniell states that the product’s 4% online conversion rate is higher than the typical online conversion rate of about 1-1.8% (Daniell Declaration, Paragraph 30) but does not establish that the relatively high rate is due to the recited claim features and not the online appearance and description of the product. Daniell states that the sales during the product’s first month of sales (November 2019) were much lower than the sales during the same month of the following year (Daniell Declaration, Paragraphs 24-26), but Daniell does not establish that more customers bought the product in November 2020 than in November 2019 due to the characteristics of the product recited in the independent claims. Daniell states that the return on ad spend (ROAS) for the online sales was consistently greater than 1 (Daniell Declaration, Paragraphs 27-28) but does not establish that the high ROAS is due to the product features recited in the claims rather than due to the sales being online sales having relatively low advertising cost. Daniell states that since November 2019 the return rate for customers increased month over month (Daniell Declaration, Paragraph 37) but provides not data showing the magnitude of the increase or establish that the increase was due to the product features recited in the claims. 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.
With respect to item (c) pertaining to the declarations explicitly found that commercial success was due to the claimed features, applicant argues on Page 18 of the Remarks that the commercial success was due to the claimed features and that the statements in the Expert Declarations are objective evidence that the size of the portion of honeycomb as packaged is relevant to its commercial success. Applicant continues that the Expert Declaration of Dwight Richmond states that packaging honeycomb requires care as it can be quite fragile and once the honeycomb is broken it loses its appeal to buyers so careful packaging is important. Applicant contends that this statement is objective evidence that protecting the structure of the single serve honeycomb is relevant to its commercial success.
Examiner argues the combination of prior art teaches packaging honeycomb in a condiment like container in view of the primary reference of 200 Top Bar Hives in condiment like containers storing the claimed weight of honey product of Claim 1 in view of the secondary references of Honey 12 Gram Portion Control, Dickinson’s Pure Honey .5oz Portion Cup, and Honey Mustard Sauce 1 oz. Portion Cup. Furthermore, Examiner again argues none of the Experts Declarations filed June 1, 2021 indicates the weight of the honeycomb sold in the food package. Each of the four declarations filed June 1, 2021 state “The individual food packages as sold embody the food package described in the current claims.” However, the declarations do not explicitly state the amount of honeycomb disposed in the food package that was sold. It is again noted that not all of the independent claims recite the same amount of honeycomb in the food package. Given that applicant attempts to attribute criticality of the claimed amount of honeycomb towards commercial success (and that not all independent claims even recite the same amount of honeycomb in the food package), applicant’s declarations submitted in the affidavit filed on June 1, 2021 are not commensurate in scope with the claimed invention since none of the affidavits filed on June 1, 2021 indicates the amount of honeycomb disposed in the food packages relied upon in these affidavits. It is noted that not all claims are drawn to the same amount of honeycomb, e.g. Claim 1 recites the honeycomb weighing about 30 grams or less, which is a different range of amount of honeycomb that Claim 28 recites a honeycomb weight of between about 20 grams and about 30 grams.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Conway Jr. US 6,520,339 discloses individually wraps or packages of candy sticks for reasons of cleanliness and sanitation.
Kobayashi US 4,854,842 discloses a wrapped and sealed confection of jelly beans that are sanitary.
Phallen US 5,878,796 discloses a plastic container shaped like a bear containing twenty ounces of honey.
Kanayama US 5,356,650 discloses a heat resistant plastic package contains used as a forming mold for forming solid honey whereby operation from forming the solid honey to packaging is carried out consistently so that workability is improved and productivity increased wherein edible fats and oils are applied homogeneously to inside of the forming mold whereby old release character is of solid honey wherein the opening side of the package container is in which solid honey is formed is sealed up with a cover of aluminum foil or a non-hygroscopic sheet after cooling so that rapid and clean production of solid honey is realized.
Arndt US 4,481,687 discloses a device for cleaning bee hive frames.
Croan US 3,840,925 discloses a method of recovering honey from artificial honeycombs wherein the new comb is manufactured from strong, rigid, durable, lightweight plastic material readily cleaned and sterilized for repeated use wherein the depth of the individual wells varies but in a preferred embodiment are equal to three quarters of the depth of natural honey cells with the result that the bees expend a maximum of their time collecting and depositing honey.
Anderson US 2018/0035651 discloses a bee benign artificial honeycomb
Ogilby US 3,619,828 discloses a honey extracting method and apparatus
Covington US 3,088,135 discloses a frame and plastic comb foundation for beehives.
Jeong US 2020/0120902 discloses a bee comb and beehive using the same.
Avant US 890,397 discloses an apparatus for extracting honey.
Hogg US 4,435,865 discloses a frame for comb honey.
Schmidt US 3,864,196 discloses a molded plastic honeycomb wherein a considerable saving in weight of the honeycomb is achieved because the frame of the honeycomb is omitted.
Catani et al. US 2007/0059409 discloses an individually packaged sealed pouch or sleeve made from plastic film or paper wherein individually packaged containers are useful in situations where hygiene are compromised (‘409, Paragraph [0088]).
Monica US 2018/0229901 discloses a container lid that snaps over the top of a typical aluminum can containing potable liquids wherein the lids come individually wrapped (‘901, Paragraph [0045]).
Willat et al. US 2011/0132781 discloses an assembly comprising a wine bottle nestled substantially within the volume of a wine glass by snap fit engagement of the glass rim within the bottle groove wherein the assembled commercial unit is encased within an external seal means of a plastic shrink wrap film or the like to keep the glass clean and ready for use when the package is opened (‘781, Paragraph [0020]).
Aranoz US 2017/0283164 discloses tea leaf and stevia leaf containment structures that are individually wrapped for sanitary distribution (‘164, Paragraph [0048]).
Watson US 2017/0105559 discloses a sanitary drinking straw dispensing assembly comprising a plurality of drinking straws each enclosed in an individually sanitized wrapper made of paper, plastic, or other suitable material (‘559, FIG. 1) (‘559, Paragraph [0018]).
Dietz US 2013/0247387 discloses a single utensil item provided in individually wrapped packaging for sanitary reasons using a shrink wrap packaging or similar individualized packaging (‘387, Paragraph [0030]).
Li et al. US 2012/0219636 discloses produce packaged in individual plastic wrappers (‘636, Paragraph [0055]).
Malkin et al. US 2009/0287144 discloses a cup including a candy coating (‘144, Paragraph [0031]) wherein cups are loaded onto trays wherein individual trays are wrapped in plastic such that they remain sanitary (‘144, Paragraph [0073]).
Gavino Nadal US 2007/0131690 discloses a beverage can containing a hygienic closure means (‘690, Paragraph [0027]).
Farris US 5,215,319 discloses a single rolled sheet of semi rigid plastic to facilitate placement of the cover onto a shopping cart handle which handle cover is individually wrapped to further maintain its sanitary state until the time of use.
Crye US 2012/0205372 discloses a standard half ounce condiment cup (condiment cup 945) (‘372, FIGS. 9A, 9C) (‘372, Paragraph [0064]).
May US 2010/0119686 discloses a food condiment including clover honey in a pure form or in a raw form in any amount such as one fourth cup (‘686, Paragraph [0020]).
Marquez et al. US 2005/0194396 discloses a standard flanged condiment package (condiment packet 290) substantially similar to the one ounce cup which is similar to the type of packet used in fast food restaurants for dipping sauce type condiments such as honey mustard sauce (‘396, FIG. 2) (‘396, Paragraph [0026]).
Jackets et al. US 2004/0202753 discloses an assembly having a series of separable sauce cups for use in providing a condiment for a food product.
Van Damme US 2018/0303120 discloses honeycomb is a type of confectionery product (‘120, Paragraph [0046]).
Naidu-Husband et al. US 2017/0119010 discloses a confectionery item including malted honeycomb which may be whole or broken into small pieces.
Pearson US 2012/0164268 discloses a confectionery composition having porous honeycomb cavities (‘268, Paragraph [0084]).
Warnock et al. US 5,871,095 discloses a food product overwrapped with a heat shrink film before insertion into a container to seal the food product and form a unitary, sanitary package.
Chalifoux US 2014/0339227 discloses food containers are sold individually in stores in different sizes and shapes and that people require different sizes and shapes to store different amounts to transport food (‘227, Paragraph [0018]).
Teys US 2011/0290800 discloses packaging contents of various types in a wide range of shapes and sizes for packaging a single serving of food (‘800, Paragraphs [0002]-[0003]).
Seline et al. US 2011/0265891 discloses a packaging system used in packaging food in a receptacle that is filled with a desired amount of product (‘891, Paragraph [0041]).
Hynes US 2006/0034986 discloses a food container sized to accommodate a desired amount of food product (‘986, Paragraph [0036]). Cook et al. US 2004/0226989 discloses containers accommodating whatever amount of food is desired (‘989, Paragraph [0043]).
Nance US 2002/0007902 discloses a plastic molded condiment container that is generally rectangular in shape but can be constructed of almost any shape (‘902, Paragraph [0060]).
Kuze US 2018/0257818 discloses a packaged food stack comprising a stack entirely covered by a shrink film wrapper for reducing the risk of contamination of the packaged food material by a foreign substance (‘818, FIG. 6) (‘818, Paragraph [0066]).
Gibbs US 2018/0235183 discloses a single portion outer package made of traditional stock paper for maintaining the nesting of food and water container disposed therein wherein the outer package packs efficiently multiple meals for shipping wherein the nested food and water containers are shrink wrapped and sealed for more durable air tight closure of the food package (‘183, FIG. 3) (‘183, Paragraph [0059]).
Graves et al. US 2018/0201429 discloses a food packaging assembly (packaging assembly 100”) enclosed in a transparent plastic shrink wrap material (enclosure 16) (‘429, FIGS. 13A-13B) (‘429, Paragraph [0087]) wherein the shrink wrap material (enclosure 16) protects the food container and the packaging portion from being contaminated by germs and/or bacteria in the surrounding atmosphere (‘429, Paragraph [0088]) wherein the food packaging assembly comprises a plurality of food containers functioning as packaging portions (‘429, Paragraph [0099]) wherein the food packaging assembly comprises a label (‘429, FIG. 16) (‘429, Paragraph [0100]).
Brady et al. US 2015/0225119 discloses a nestable food package (bundle 300 of nested food packages 200) comprising a packaging sleeve (packaging sleeve 302) surrounding at least a portion of four nested food packages (nested food packages 200) wherein the packaging sleeves is made of a paperboard of polymer film sheet or a shrink wrap polymer material that is transparent and has graphics or text printed thereon (‘119, FIG. 3) (‘119, Paragraph [0030]) wherein the food package is any food packaging containing a food product (‘119, Paragraph [0021]).
Cassens et al. US 2014/0099410 discloses a plurality of food packaged comprising a shrink band wrapped around the packages to maintain the packages in the folded position during transport or display (‘410, FIGS. 2A-2B) (‘410, Paragraph [0023]).
Urushidani et al. US 2014/0001183 discloses a container system for foods comprising a container comprising at least one protuberance that projects form the container to hold a shrink wrap in place wherein the shrink wrap is positioned over at least a portion of the container and a portion of the lid wherein the container, the lid, and/or the shrink wrap is made of transparent material and has printed or graphic information contained thereon (‘183, Paragraph [0037]).
Vinseiro et al. US 2010/0219150 discloses a closure system for use on food containers wherein the closure system includes a cap or lid and an outer wrap or overwrap such as a shrink band engaged tightly around the cap and at least the neck portion of the container to provide both tamper resistance and evidence (‘150, Paragraph [0002]).
Adams et al. US 2007/0264395 discloses an apparatus (apparatus 40) comprising a bag (bag 43) storing food (animal food and novelty item 45) wherein the apparatus (apparatus 40) is wrapped with a shrink wrap film (‘395, FIG. 5) (‘395, Paragraph [0019]).
Da Silva “A/B Testing: How Retailers Can Optimize Their Sales With Experimentation” <https://www.shopify.com/retail/ab-testing-how-retailers-can-optimize-their-sales-with-experimentation> (published February 16, 2017) discloses A/B testing is a method of comparing two versions (A and B) of a variable such as a landing page to determine which performs better which process helps identify the most effective option based on metrics like user engagement or conversion rates wherein A/B testing can help retailers boost sales wherein online retailers gauge how their site performs to increase traffic and conversions into sales and that comparable environments to run tests should be found before performing A/B testing wherein external factors and extraneous circumstances can cause detrimental impacts and influences on A/B tests wherein online and physical retailers can use A/B testing when it comes to their digital marketing efforts.
Simon “Business is Good! (Or Is It?): Ways to Measure Sales” <https://www.cpgdatainsights.com/measure-sales/3-sales-measures/> (published May 29, 2013) discloses taking a look at unit and EQ volume sales trends tells you if dollars are up because people are buying more product or because prices have gone up.
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).
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ERICSON M LACHICA/Examiner, Art Unit 1792
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