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
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 7 May 2025 has been entered.
Response to Amendment
All rejections not repeated in this Office Action have been withdrawn.
Claims 1-20 are currently pending in this Office Action.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Franger (FR 3008682-see ESPACENET translation) in view of Borst (US 5,038,936).
Regarding Claim 1, Franger discloses a container comprising: a primary compartment including a principle wall (bottom side wall, Fig. 1), a first lateral wall (left side wall, Fig. 1), and a primary compartment opening (top side, Fig. 1) opposite the principle wall; an auxiliary compartment including a first wall and a second wall extending away from each other (housing 4), and an auxiliary compartment opening extending between the first wall and the second wall; and a hinge rotatably coupling the primary compartment to the auxiliary compartment such that the auxiliary compartment is rotatable between an open position (Fig. 1 and 2) and a closed position (Fig. 3), wherein the lateral wall extends beyond all perimeter sides of the auxiliary compartment opening and is maintained outside of the auxiliary compartment (see Fig. 1 and 3), wherein the auxiliary compartment remains attached to the primary compartment via the hinge (folding element 5, see Fig. 1 and 2).
While Franger discloses an auxiliary compartment that is positioned immediately adjacent to the first lateral wall (see Fig. 3 where a wall of the auxiliary compartment 3 abuts against a wall of the primary compartment), Franger is silent to wherein the first lateral wall is larger in size than then the auxiliary compartment opening, and when the auxiliary compartment is in the closed position, the auxiliary compartment opening faces, is positioned immediately adjacent to, and is directly covered by the first lateral wall such that first lateral wall extends outwardly beyond all perimeter sides of the auxiliary compartment opening and is maintained outside of the auxiliary compartment. In this case, Franger’s auxiliary compartment faces the opposite direction and is used to store food and utensil while allowing the package to stand in an upright position (“presentation position, paragraph 3 and Fig. 3). Borst is relied on to teach similar tray packages comprising a hinge auxiliary compartment that comprises a first wall and a second wall extending away from each other (see cover 30, Fig. 6). In fact, cover 30 is seen to be analogous in structure to Franger’s housing 3 and merely differ in that the opening is facing the opposite direction (compare Fig. 1 of Franger to Fig. 6 of Borst). Therefore, since the container of Borst is also configured to rest on the analogous auxiliary compartment (i.e. cover 30) to be put in an upright position (see Fig. 5), it would have been obvious one of ordinary skill in the art to have the opening of the auxiliary compartment face the lateral wall as a matter of design choice and/or rearrangement of parts. Since the prior art recognizes both orientations to provide a standing package, the claimed invention is not seen to provide a patentable distinction or unexpected result over the prior art. A rearrangement of the auxiliary compartment taught by Franger to have the opening face the lateral wall as seen in the Borst reference would have resulted in an opening of the auxiliary compartment to be positioned adjacent to, and is directly covered by an exterior surface of the first lateral wall as required by the claim. As to the limitation of the auxiliary compartment opening faces being “immediately adjacent to” the first lateral wall, it is noted that Franger discloses a plastic film that covers opening 4 to store utensils or additional food ingredients (paragraph 11 and 13). Therefore, the limitation is met once a user removes the film that covers opening 4 to access the different food or utensil, thereby making the auxiliary compartment positioned immediately adjacent to, and is directly covered by the first wall when the auxiliary compartment is in the closed position. As to the limitation of the first lateral wall being larger in size than the auxiliary compartment, Franger necessarily meets this limitation since the side of the auxiliary compartment which abuts the lateral wall is clearly smaller (see Fig. 5 where the bottom of compartment 3 is smaller in size relative to the first lateral wall). Therefore, the modification in view of Borst would necessarily configure the size of the opening in a similar manner such that the profile and shape of package still allows the package to stand in an upright position as seen on Fig. 6. In any case, In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Since the prior art also achieves an auxiliary compartment that abuts a lateral wall to allow the package to stand in an upright position, the recited limitation of having a lateral wall being larger in size than the auxiliary compartment opening is not patentably distinct, and would have been obvious to one of ordinary skill in the art based on design choice.
Regarding Claim 2, Franger is silent to a locking tab extending away from the auxiliary compartment opposite the primary compartment, wherein the locking tab includes one of a locking indentation and a locking protrusion, the principle wall includes an other one of the locking indentation and the locking protrusion, and the locking indentation selectively receives the locking protrusion to frictionally maintain the auxiliary compartment in the closed position in direct communication with the first lateral side wall such that the first lateral side wall is positioned immediately adjacent the auxiliary compartment opening. Borst is relied on to teach this structure of a locking tab which includes a locking protrusion (projecting wedge 54) that is received into a locking indentation (wedge-shaped depression 56) such that the closed position is frictionally maintained (snap-fit) Col. 3, Ln. 53-60). Therefore, since both Franger and Borst are directed to hinged compartment that is closed when the hinged compartment is against the principle wall, it would have been obvious to one of ordinary skill in the art to provide a locking protrusion and a locking indentation to maintain a closed position of the hinged compartment.
Regarding Claim 3, Franger further teaches wherein the container is configured to be stood on a shelf in a display orientation such that the primary compartment is supported on top of the auxiliary compartment via the first lateral side wall positioned adjacent the hinge (Fig. 3 and paragraph 11).
Regarding Claim 4, the combination further teaches wherein when the container is in the display orientation, the container is configured such that only the hinge and the first wall of the auxiliary compartment contact the shelf and the remainder of the container extends upwardly from the hinge and the auxiliary compartment (Fig. 3, and paragraph 11 of Franger). That is, the first wall of Franger’s auxiliary compartment (bottom wall of the auxiliary compartment 3) has been modified to be where the opening 4 is currently in Fig. 1 as applied by the Borst reference in the rejection of Claim 1.
Regarding Claim 5, the combination is silent to the particular angle of the lateral wall relative to the principle wall; however, since both Franger and Borst are directed to standing packages, the particular angle would have been a matter of design choice. Also, since Franger recognizes the ability to adjust the inclination of the presentation position (paragraph 17), it would have been obvious to one of ordinary skill in the art to adjust the angle of the lateral wall to achieve the desired presentation position of the package when standing upright.
Regarding Claim 6, Franger further teaches wherein the first wall and the second wall border one another opposite the auxiliary compartment opening (see housing 3), the auxiliary compartment opening is defined in a plane extending from and including an edge of each of the first wall and the second wall opposite a border between of the first wall and the second wall (housing 3). Borst similarly teaches an auxiliary compartment having the claimed structures above (cover 30, see Fig. 6) and in view of Borst the combination teaches wherein the plane is angled relative to the second wall at an angle that is supplementary to the angle at which the first lateral wall of the primary container is angled at relative to the principle wall (see Fig. 7 and 8 where the principle wall is analogous to inclined top face 218), and the first wall is adjacent the hinge (the first wall of Franger’s auxiliary compartment, i.e. bottom wall of the auxiliary compartment 3, has been modified to be where the opening 4 is currently in Fig. 1 as applied by the Borst reference in the rejection of Claim 1).
Regarding Claim 7, Borst further teaches wherein the first wall and the second wall of the auxiliary compartment extend substantially perpendicularly relative to each other (see near 34 of Fig. 6).
Regarding Claim 8, Borst further teaches wherein the first lateral wall of the primary compartment is angled relative to the principle wall at a first angle, the auxiliary compartment opening is defined in a plane, and the plane is angled relative to the second wall at a second angle that is supplementary to the first angle (see Fig. 7 and 8 where top inclined face 218 is supplementary to the opening of 232).
Regarding Claim 9, Franger further teaches a lid (closure mean 6) selectively couplable to the primary compartment about the primary compartment opening.
Regarding Claim 10, as discussed in Claim 1, the combination of Franger and Borst suggest:
A container comprising: a primary compartment including a principle wall, a first lateral wall, and a primary compartment opening opposite the principle wall;
an auxiliary compartment including a first wall and a second wall extending away from each other, and an auxiliary compartment opening extending between the first wall and the second wall;
a hinge rotatably coupling the first lateral wall of the primary compartment to the first wall of the auxiliary compartment such that the auxiliary compartment is rotatable between an open position and a closed position (see rejection of Claim 1); and
a lid selectively couplable to the primary compartment about the primary compartment opening (closure mean 6 of Franger); wherein: when the auxiliary compartment is in the closed position, the auxiliary compartment opening faces, directly abuts, and is substantially covered by an exterior surface of the first lateral wall (modified by Borst, Fig. 7).
Franger further teaches when the lid is rotated away from the primary compartment opening,
the lid is coupled to and extends away from the primary compartment opposite the auxiliary compartment (see Fig. 4) and is formed of a single piece of material (Fig. 4). Franger does not specifically recite that the container is formed of substantially transparent material; however, Borst also teaches a single material made of transparent material (clear plastic thermoformed bubble, Col. 1, Ln. 16-19). Since both Franger and Borst are directed to sealed receptacles, it would have been obvious to one of ordinary skill in the art to similarly provide clear material based on design choice.
Regarding Claim 11, the combination further teaches wherein the container is configured to be stood on a shelf in a display orientation such that the primary compartment is supported on top of the second wall of the auxiliary compartment (paragraph 11 of Franger, the second wall is construed to be the wall where “3” is directed to in Fig. 1), and the lid is positioned along a plane less than about 25 degrees from vertical (see Fig. 3); that is, Franger appears to be substantially upright and the lid is construed to be in a plane close to vertical. It is further noted that Franger allows adjustment of the inclination of the upright position and therefore would have been obvious to adjust the angle of the lid for the purpose of achieving the desired display position (paragraph 17).
Regarding Claim 12, Franger further comprises: an adhesive label applied to each of the lid, the auxiliary compartment and the principle wall of the primary compartment (see Fig. 6).
Regarding Claim 13, Franger further teaches wherein when the container is in the display orientation, both the primary compartment and the auxiliary compartment are positioned behind the lid of the container such that the primary compartment and the auxiliary compartment are positioned substantially entirely behind the lid when the container is viewed from a position in front of the lid of the container (see Fig. 3 and 6).
Regarding Claim 14, Franger further teaches wherein the container is formed of a single piece of material (Fig. 4) but does not specifically recite that the container is formed of substantially transparent material; however, Borst also teaches a single material made of transparent material (clear plastic thermoformed bubble, Col. 1, Ln. 16-19). Since both Franger and Borst are directed to sealed receptacles, it would have been obvious to one of ordinary skill in the art to similarly provide clear material based on design choice.
Regarding Claim 15, Franger further teaches the container of claim 1, in combination with a consumable product (food, paragraph 10) stored in the primary compartment and accessory items (utensil, paragraph 13) stored in the auxiliary compartment.
Regarding Claim 16, Franger further teaches the container of Claim 1, in combination with a consumable product (food, paragraph 10) stored in the primary compartment and silverware (utensil, paragraph 13) stored in the auxiliary compartment.
Regarding Claim 17, the claim is rejected for reasons discussed in Claims 1, 6, 8, and 15.
Regarding Claim 18, Franger further teaches a lid selectively couplable to the primary compartment about the primary compartment opening, the lid being formed as part of the single piece of material rotatably coupled to the primary compartment opposite the auxiliary compartment (see Fig. 4 and lid 6 of Fig. 5). Franger does not specifically recite that the container is formed of substantially transparent material; however, Borst also teaches a single material made of transparent material (clear plastic thermoformed bubble, Col. 1, Ln. 16-19). Since both Franger and Borst are directed to sealed receptacles, it would have been obvious to one of ordinary skill in the art to similarly provide clear material based on design choice.
Regarding Claim 19, Franger is silent to a locking tab extends away from the auxiliary compartment opposite the primary compartment, the locking tab includes one of a locking indentation and a locking protrusion, the principle wall includes an other one of the locking indentation and the locking protrusion, and the locking indentation selectively receives the locking protrusion to frictionally maintain the auxiliary compartment in the closed position. Borst is relied on to teach this structure of a locking tab which includes a locking protrusion (projecting wedge 54) that is received into a locking indentation (wedge-shaped depression 56) such that the closed position is frictionally maintained (snap-fit) Col. 3, Ln. 53-60). Therefore, since both Franger and Borst are directed to hinged compartment that is closed when the hinged compartment is against the principle wall, it would have been obvious to one of ordinary skill in the art to provide a locking protrusion and a locking indentation to maintained a closed position of the hinged compartment.
Regarding Claim 20, as discussed in the rejection of Claim 1, the combination of Franger and Borst discloses a method of providing a container including:
a primary compartment including a principle wall, a first lateral wall, and a primary compartment opening opposite the principle wall;
an auxiliary compartment including a first wall and a second wall extending away from each other, and an auxiliary compartment opening extending between the first wall and the second wall;
a hinge rotatably coupling the first lateral wall of the primary compartment to the first wall of the auxiliary compartment such that the auxiliary compartment is rotatable between an open position and a closed position, wherein the first lateral wall is larger than the auxiliary compartment opening such that rotation of the auxiliary compartment toward the principle wall is stopped via the first lateral wall such that, in the closed position, the auxiliary compartment is maintained adjacent to and directly abuts an exterior surface of the first lateral wall, the lateral wall is maintained outside of the auxiliary compartment (package of Franger, see rejection of Claim 1), and the first lateral wall covers the auxiliary compartment opening (modified by Borst).
Franger further teaches the step of placing a consumable item in the primary compartment (food, paragraph 10); placing at least one accessory item in the auxiliary compartment (utensil, paragraph 13). Borst further teaches securing the auxiliary compartment in the closed position such that the auxiliary compartment opening faces and is substantially covered by the first lateral wall (see Fig. 8). Both Franger and Borst teaches standing the container on a support shelf independent of any additional support such that the primary compartment sits on top of the auxiliary compartment (see Fig. 3 and 6, and paragraph 11 of Franger, and Fig. 5 of Borst).
Response to Arguments
Applicant’s arguments in the response filed 7 May 2025 has been considered, but is found not persuasive over the prior art of record.
In response to Applicant’s argument regarding Borst not teaching a first lateral wall that is larger in size than the auxiliary compartment opening, the argument is rendered moot in view of the new grounds of rejection. That is, Franger necessarily meets this limitation since the side of the auxiliary compartment which abuts the lateral wall is clearly smaller (see Fig. 5 where the bottom of compartment 3 is smaller in size relative to the first lateral wall). Therefore, the modification in view of Borst would have configure the size of the opening in a similar manner such that the profile and shape of package still allows the package to stand in an upright position as seen on Fig. 6. In any case, In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Since the prior art also achieves an auxiliary compartment that abuts a lateral wall to allow the package to stand in an upright position, the recited limitation of having a lateral wall being larger in size than the auxiliary compartment opening is not patentably distinct, and would have been obvious to one of ordinary skill in the art based on design choice.
In response to Applicant’s argument that Borst teaches away from having a larger first lateral wall, the argument is not persuasive because Borst is merely relied on to reverse the configuration of the auxiliary compartment of Franger. Since Franger does not have a portion of the lateral wall that enters the space of the auxiliary compartment as seen in Borst, one of ordinary skill in the art would not be taught away from increasing the size of the first lateral wall relative to the auxiliary compartment opening within the Franger reference. For these reasons, the prior art combination is maintained.
In view of the response above, the rejections over Claims 2-20 are maintained.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THANH H NGUYEN whose telephone number is (571)270-0346. The examiner can normally be reached on 10am-6pm.
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/T.H.N/Examiner, Art Unit 1792
/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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