Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
DETAILED ACTION
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102 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.
Claims 1, 4, 6-10, 13-14, 17, 21, 23 and 26-30, are rejected under 35 U.S.C. 103 as being unpatentable over USPN 1435890, Bothe as evidenced by US Design patent D705604, Ng, and further in view of recognized legal precedent.
Regarding claim 1, Bothe discloses a cutlery utensil comprising:
a functional section (see annotated fig’s 1 and 2 below);
a handle 1 having a first end and a second end, the second end terminating at the functional section (see annotated fig’s 1 and 2 below), the handle further comprising:
a raised spine (valley, combination of the handle part 1, 4 and 5) disposed on a first surface (see annotated fig’s 1 and 2 below) of the handle (see annotated fig’s 1 and 2 below), the raised spine having a varying height that generally increases from the first end of the handle (at 6) toward the second end of the handle (at 4) that is adjacent the functional section (fig 2 which shows the spine rising in height from the first end, rear, to the first end, front of the utensil) wherein a crown of the raised spine is defined at a maximum height of the raised spine (highest portion of spine 4, closest to functional region, see annotated fig 1-2 below which shows portion of recess that corresponds to crown of the spine), a first side surface (see annotated figs 1-2 below) and a second side surface (see annotated fig 1 below), wherein the first side surface and second side surface extend at an upward angle from the first surface to the top surface (see annotated fig 1 below), and the top surface extends at least partially into the functional section (fig 1) and
at least one recessed channel (“hollow ridge” which forms the valley 1, 4, and 5), formed in a second surface (surface that is opposite to the top surface, see annotated figures below) of the handle, the second surface of the handle being opposite the first surface of the handle (since the bottom surface, shown in the annotated figure is opposite to the top surface), wherein the at least one recessed channel has a varying depth that increases from proximate the first end of the handle (rear, near portion 6) toward the second end of the handle (front, since the depth increases in correspondence to the increase height of the raised spine), wherein the at least one recessed channel formed in the second surface of the handle is configured to receive therein a raised spine of an identical cutlery utensil stacked adjacent to the cutlery utensil (since the channel is shaped to receive a top of an adjacent identically shaped cutlery utensil, because it is hollow and shaped correspondent to the valley),
at least one fixed shaped extension 7 that extends laterally away from at least one side of the handle in a plane defined by the first surface of the handle (see fig. 1, lines 40-50), wherein a first end of the at least one fixed, shaped extension furthest from the functional section extends a first distance from the at least one side of the handle (see annotated fig 1), and wherein the at least one fixed, shaped extension tapers toward the handle proximate the functional section (annotated figure 1).
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Bothe lacks wherein a cross-section taken perpendicular to a length between the first end and the second end through the handle proximate the crown of the raised spine defines a flat top surface thereof.
Ng discloses an ornamental spoon with a raised spine in the same field of endeavor as the ornamental spoon having a raised spine of the present invention and includes wherein a cross-section taken perpendicular to a length between the first end and the second end through the handle proximate the crown of the raised spine defines a flat top surface thereof.
It would have been obvious as a matter of design choice to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Bothe by having wherein a cross-section taken perpendicular to a length between the first end and the second end through the handle proximate the crown of the raised spine defines a flat top surface thereof, since the changing of a shape of an element of an invention was held to be in the realm of design choice to one of ordinary skill in the art, see In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966), and MPEP 2144.04-IV.B, and since a flat top is a known shape of a top of a raised spine section of a spoon in the art as shown in Ng.
Regarding Claim 4, in Bothe the varying height of the raised spine generally increases from proximate the first end of the handle that is furthest from the functional section (e.g. at part 6) toward a second end of the handle that is adjacent to the functional section and wherein the height of the raised spine is greatest at a crown formed proximate a first end of the functional section (see annotated and fig’s 1 and 2, below).
Regarding Claim 6, in Bothe the raised spine has a varying height that generally increases from the first end of the handle that is furthest from the functional section (e.g. at part 6) toward the second end of the handle that is adjacent the functional section (fig 1-2), and the raised spine has a crown at the highest point of the raised spine where the varying height of the raised spine then decreases from the crown in a direction of the functional section (see fig 1-2 annotated below).
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Regarding Claim 7, in Bothe the at least one shaped extension is (at least partially) triangular in shape (see annotated fig 1 below).
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Regarding Claim 8, in Bothe the at least one shaped extension comprises a first shaped extension extends laterally away from a first lateral side of the handle, and a second shaped extension extends laterally away from an opposite, second lateral side of the handle; where a total width across the first shaped extension and the second shaped extension is less than a width of the functional section thereof in the same direction (see annotated fig 1, show below).
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Regarding Claim 9, in Bothe wherein the first shaped extension is coplanar with the second shaped extension (compare figs 3 and 1).
Regarding Claim 10, in Bothe the functional section has an end, furthest from the handle, that has a scoop (3, “bowl”).
Regarding Claim 13, in Bothe the raised spine has a varying width that generally decreases from beginning proximate the first end of the handle toward the functional section, wherein the varying width of the raised spine generally decreases from proximate the first end of the handle that is furthest from the functional section toward the second end of the handle that is adjacent the functional section (annotated fig below).
Regarding Claim 21, in Bothe the varying height of the raised spine decreases from the crown toward the functional section (see fig 1-2).
Regarding Claim 23, in Bothe, the at least one shaped extension is located proximal to the highest point of the raised spine (see annotated fig 1: shown below).
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Regarding Claim 26, in Bothe, the utensil further comprises a stop (point 2) is extending into the at least one recessed channel (as best understood) since the point 2 is a portion of the channel/valley), wherein the stop engages the identical cutlery utensil to create a clearance between the functional section of the cutlery utensil and a functional section of the identical cutlery utensil stacked adjacent to the cutlery utensil (since the risen portion 2 would contact adjacent utensils during a stacking thereof, and thereby creates a clearance between a top surface of an adjacent utensil and the channel of the top utensil).
Regarding Claim 27, in Bothe, the raised spine has a first height relative to the handle at the first end of the handle and a second height relative to the handle at the second end of the handle, wherein the second height is greater than the first height. (Fig 2).
Regarding Claim 28, in Bothe, the raised spine tapers from the second height at the second end to the first height at the first end (Fig 2).
Regarding Claim 29, in Bothe the raised spine defines a first width at the first end and a second width at the second end, wherein the first width is greater than the second width See: (annotated fig 1 below).
Regarding Claim 30, in Bothe the raised spine tapers from the first width at the first end to the second width at the second end (annotated fig 1 shown below).
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Regarding claim 14, Bothe discloses a cutlery utensil comprising:
a functional section (see annotated fig’s 1 and 2 below); and
a handle (“handle”) comprising:
a raised spine (valley, combination of the handle part 1, 4-5) disposed on a first surface of the handle (see annotated fig’s 1 and 2 below), the raised spine having a varying height that increases from a first end of the raised spine proximate a first end of the handle (at portion 6) to a second end of the raised spine proximate a second end of the handle in a direction of the functional section (fig 1-2 which show the spine rising in height from the first end, rear, at 6 to the first end at parts 4, front of the utensil)
wherein a crown of the raised spine is defined at a maximum height of the raised spine (highest portion of spine 4, closest to functional region, see annotated fig 2 below which shows portion of recess that corresponds to crown of the spine),
wherein a cross-section taken through the handle perpendicular to a length between the first end of the handle and the second end of the handle proximate the crown of the raised spine defines a top surface (figs 1-3 and see pg. 1, 35-37, where it is noted that “the fiber spoon is provided with a central corrugation, hollow ridge or valley 1 which starts from a 55 point 2 midway of the length of the bowl 3) , a first side surface and a second side surface (see annotated fig 6 below), wherein the first side surface and second side surface extend at an upward angle from the first surface to the top surface (see annotated fig 6 below),
and the raised spine and top surface thereof extend at least partially into the functional section (part 5, shown in the figures to extend partially into the functional section)
a first recessed channel formed in a second surface of the handle (hollow ridge on bottom of handle, formed by the spine being raised), the first surface of the handle being opposite the second surface of the handle (since the bottom surface, shown in fig 6 is opposite to the top surface), and a second recessed surface (recesses formed between ribs 2) formed within the first recessed channel (fig 3 and 4), wherein the first recessed channel is configured to receive a raised spine of a second utensil (since the channel is shaped to receive a top of an identical adjacent cutlery utensil), the first recessed channel engages the raised spine of the second utensil to permit relative movement in a first direction along which the handle extends, and preclude relative movement in a second direction, opposite the first direction,
since the channel is shaped to receive a top of an adjacent identically shaped cutlery utensil, because it is hollow and shaped correspondent to the valley; also, the at least one recessed channel is configured to engage a raised spine of the identical cutlery utensil [due again, to the complementary shape of the identical utensils]; also the shape of the Bothe utensil permits relative movement in a first direction [direction shown as arrow “1” in second annotated fig 1 below] along which the handle extends, and preclude relative movement in a second direction, opposite the first direction; Also, The term “wherein the at least one recessed channel engages the raised spine of the identical cutlery utensil to permit relative movement in a first direction along which the handle extends, and preclude relative movement in a second direction, opposite the first direction” is considered a statement of intended use. It has been held that 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 satisfying the claimed structural limitations. The only requirement is that the prior art reference be capable of said intended use. See MPEP 2114. In this case, the Bothe device is capable of engaging a raised spine of an identical cutlery utensil to permit relative movement in a first direction along which the handle extends, and preclude relative movement in a second direction, opposite the first direction due to the shape of the recess as described previously in the rejection of this limitation above)
and a first fixed shaped extension extends laterally away from a first lateral side of the handle, and a second fixed shaped extension extends laterally away from an opposite, second lateral side of the handle, wherein the first shaped extension is co-planar with the second shaped extension (see annotated figure 1).
Bothe lacks the top surface being a flat top surface.
Ng discloses an ornamental spoon with a raised spine in the same field of endeavor as the ornamental spoon having a raised spine of the present invention and includes wherein a top surface of the spine defines a flat top surface thereof.
It would have been obvious as a matter of design choice to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Bothe by having a top surface of the spine defines a flat top surface thereof, since the changing of a shape of an element of an invention was held to be in the realm of design choice to one of ordinary skill in the art, see In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966), and MPEP 2144.04-IV.B, and since a flat top is a known shape of a top of a raised spine section of a spoon in the art as shown in Ng.
Regarding Claim 17, in Bothe the raised spine has a varying width that generally decreases from beginning proximate the first end of the handle toward the functional section, wherein the varying width of the raised spine generally decreases from proximate the first end of the handle that is furthest from the functional section toward the second end of the handle that is adjacent the functional section (annotated fig below).
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Claim 32, is rejected under 35 U.S.C. 103 as being unpatentable over Bothe as evidenced by Ng, and further in view of recognized legal precedent and in view of USPN 90836, Gilroy.
Regarding Claim 32, Bothe discloses a cutlery utensil comprising: a functional section (valley, combination of the handle part 1, 4-5);
a handle (“handle comprising the parts 1, 5, 6) having a first end and a second end (valley, combination of the handle part 1, 4-5), the second end terminating at the functional section (valley, combination of the handle part 1, 4-5), the handle further comprising:
a raised spine (valley, combination of the handle part(s) 1, 4-5),
disposed on a first surface of the handle (see annotated fig’s 1 and 2, below), the raised spine having a varying height that generally increases from the first end of the handle (portion 6) toward the second end of the handle that is adjacent the functional section (at part 4), the raised spine and top surface thereof at least partially in the functional section; (figs 1-3 and “flat” part of spine 4, see pg. 1, 35-37, where it is noted that “the fiber spoon is provided with a central corrugation, hollow ridge or valley 1 which starts from a 55 point 2 midway of the length of the bowl 3 and expands sidewise and flatwise as at 4 along the rear half of the bowl and extends along the handle as at 5, and shown in the figures to extend partially into the functional section)(emphasis added);
a recessed channel (hollowed portion which forms valley) formed in a second surface of the handle (see annotated fig’s 1 and 2, below), the second surface of the handle being opposite the first surface of the handle (See fig’s 1 and 3), wherein the recessed channel has a varying depth that increases from proximate the first end of the handle toward the second end of the handle (since the depth of the channel corresponds to the height of the spine see figs. 1-3),
wherein the at least one recessed channel formed in the second surface of the handle is configured to receive therein a raised spine of an identical cutlery utensil stacked adjacent to the cutlery
utensil (since the channel is shaped to receive a top of an identical adjacent cutlery utensil),
Bothe lacks Feature I: a stop extending into the recessed channel, wherein the stop engages the identical cutlery utensil to create a clearance between the cutlery utensil and the identical cutlery utensil stacked adjacent to the cutlery utensils and Feature II: the top surface being a flat top surface.
Gilroy discloses a Ng discloses a utensil with a recessed channel, in the same field of endeavor as the utensil having a recessed channel of the present invention and includes a stop extending into the recessed channel. (see annotated fig 1 below).
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It would have been obvious as a matter of design choice to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Bothe by having a stop extending into the recessed channel of Bothe, since the changing of a shape of an element of an invention was held to be in the realm of design choice to one of ordinary skill in the art, see In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966), and MPEP 2144.04-IV.B, and since a stop protrusion extending into a recessed channel is a known shape of a top of a raised spine section of a spoon in the art as shown in Gilroy.
Regarding Feature II, Ng discloses an ornamental spoon with a raised spine in the same field of endeavor as the ornamental spoon having a raised spine of the present invention and includes wherein a top surface of the spine defines a flat top surface thereof.
It would have been obvious as a matter of design choice to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Bothe by having a top surface of the spine defines a flat top surface thereof, since the changing of a shape of an element of an invention was held to be in the realm of design choice to one of ordinary skill in the art, see In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966), and MPEP 2144.04-IV.B, and since a flat top is a known shape of a top of a raised spine section of a spoon in the art as shown in Ng.
Response to Arguments
Applicant’s arguments/remarks filed 4/9/2026 with regard to the Claim objections and 35 U.S.C. 112 rejections, as the claims have now been amended, have been fully considered and are persuasive. Applicant has amended the claims in a manner which obviates the claim objections and indefinite rejections made in the previous action, thus rendering those rejections and objections moot.
Applicant’s arguments/remarks filed 4/9/2026 with regard to the prior art rejections, , have been fully considered and are persuasive. Applicant persuasively argued that Bothe lacks the top surface being flat, per Claim 1, and that Bothe lacks a stop s claimed in claim 32. Thus, a new rejection is made over Bother as modified in view of Ng and in view of Gilmore.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. USPNs/PGPUBs D705604, D334118, D851466, D241302, 20210123782, D241302 D600511 and D608602, each disclose state of the art utensils with shaped recesses, and thus each disclose elements of the current application.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Fernando Ayala whose telephone number is (571) 270-5336. The examiner can normally be reached on Monday through Friday between the hours of 9 a.m. to 5 p.m. EST. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Adam Eiseman can be reached on 571-270-3818. The fax number for the organization where this application is assigned is (571) 273-8300.
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/FERNANDO AYALA/
Examiner, Art Unit 3724
/BOYER D ASHLEY/Supervisory Patent Examiner, Art Unit 3724
