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, 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 9/8/2025 has been entered.
Claim Objections
Claim 21 is objected to because of the following informalities:
In line 2 before “flow temperature” delete “a” and amend to instead recite “the” since “a flow temperature” was already recited in claim 2.
In line 2 after “flowable coating” delete “125oF” as the temperature is already recited in claim 2, and appears to have been added in error.
Appropriate correction is required.
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 1-9, 11, 13-15, 17 and 19-21 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 1, the limitation “when the animal feed composition deposited within the container remains at a temperature between about 125oF and about 200oF” lacks antecedent basis and therefore renders the claim indefinite. The term “remains” suggests that the animal feed composition had previously obtained a temperature within the claimed range, but the claim does not previously recite or otherwise indicate such a temperature increase. The rejection can be overcome by including preceding language that establishes proper antecedent basis for the feed composition obtaining a temperature within the claimed range.
Claims 2-9, 11, 13-15, 17 and 19-21 are rejected by virtue of their dependence 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 (i.e., changing from AIA to pre-AIA ) 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, 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 7-9, 11, 13, and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Mabee (US 1,807,043) in view of Sanders (US 2,465,755), Smith (US 2,682,475), and Butler (US 3,025,167).
Regarding claim 1, Mabee teaches a livestock feed (page 1 lines 1-3) comprising roughage, converter composition, and water which are mixed together and placed into a suitable container (page 2 lines 121-129). The roughage mixture undergoes conversion reactions wherein the temperature of the feed increases to 175oF (page 3 lines 8-13). The feed in the container would have necessarily included an exposed surface at an end of the container to allow the feed to be inserted therein.
Regarding the mixture of feed components “that settles within the container and an overlying layer of feed components defining an exposed surface…having irregular surface structures due to a composition and viscosity of the overlying layer”, the feed and container of Mabee is construed to read on the limitation. Since conversion includes adding converter material with water to the roughage (page 2 lines 121-128), and since the roughage in the container is subjected to the conversion reaction over a prolonged period of time (page 3 lines 3-13), one of ordinary skill in the art would have reasonably expected some degree of “settling” to occur in the wetted roughage. Further, the reference teaches that the roughage is formed by comminuting by clipping the roughage into short lengths based on the desired coarseness (page 2 lines 105-120). The roughage is formed from substances such as hay, straws, clover, cornstalks, etc. (page 1 lines 58-60), which are known to form irregular surfaces. Therefore, absent evidence to the contrary, one of ordinary skill would have expected an overlying layer of irregular surface structures of the feed components, necessarily due to “a composition and viscosity of the overlying layer of feed components”.
Mabee does not teach a removable cover arranged within an interior of the container and covering the exposed surface of the animal feed composition, the cover comprising a flexible film, a flowable coating arranged on one side of the film and a rigid or semi-rigid layer joined to an opposite side of the film relative to the flowable coating, the rigid or semi-rigid layer more rigid than the film, the film and rigid or semi-rigid layer concentrically arranged, the film having a larger size than the rigid or semi-rigid layer, the outer circumference of the film abuts, is directly adjacent to, or rests against an internal sidewall of the container proximate the upper end thereof, and at least a central portion of the flowable coating and the film conforms to and seals against the irregular surface structures of the animal feed composition.
Sanders teaches a cover for a container which seals the container contents and reduces exposure of the contents to the atmosphere (column 1 lines 1-5), the cover being removable and comprising a flexible film 6, a coating on at least one side of the film to prevent loose fibers from the paper from contaminating the contained product (column 2 lines 11-15 and 36), a rigid or semi-rigid layer 5 joined to a side of the film, the rigid or semi-rigid layer more rigid than the film (column 1 line 59 to column 2 line 3), the film and layer being concentrically arranged (figure 1), the film having a larger size relative to the size of the rigid or semi-rigid layer (figures 1-2), the cover configured to be arranged within an interior of the container such that an outer circumferential edge 7 of the film abuts, is directly adjacent to, or rests against an internal sidewall of the container proximate an upper end thereof (figures 3-5; column 2 lines 19-31), at least central portion of the film being conformable to a surface of the material 12 within the container (figures 3-5; column 3 lines 2-5). The rigid or semi-rigid layer 5 prevents buckling of the sealer if the container is shifted from its vertical position, sheet 6 protects the surface of the contents from the atmosphere, skirt 7 prevents the contents from flowing around the edges of the sealer, and the sealer can be easily removed and replaced during use (column 2 line 68 to column 3 line 18). The reference is analogous since it is directed to covers for sealing containers that hold materials sensitive to their environment.
Smith teaches packaging for commodities such as cheeses (column 1 lines 1-5), where the cheese 8 is covered with molten wax which solidifies into a flexible and tenacious hermetically sealed coating 9 (figure 1; column 2 lines 49-58). The composition of the wax coating can be adjusted with waxes having different melting points starting at e.g., 130oF (column 3 lines 4-8), and the solidified coating is further wrapped in sheet 10 with adhesive 11 to form the packaging (figures 3-5; column 3 lines 23-55).
Butler teaches a heat sealable sheet material seal to be used with food packaging (figures 2-3; column 1 lines 9-20), where the sheet comprises base sheet 10 having a coating 11 of a thermoplastic adhesive composition that softens at elevated temperatures (figure 5; column 3 lines 65-73). The sheet can be applied to an uneven surface such as the overlapping layers of the packaging 12 (figures 2-3). The reference is relied on to show that flowable coatings to can applied to food packages by way of a backing carrier such as the base sheet of Butler.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the animal feed product of Mabee to include a cover having the claimed features since the reference does not particularly limit the features of the container (page 3 lines 23-24), for the advantages taught by Sanders, in order to obtain a flexible and tenacious seal using the heat of the conversion reaction process, thereby providing a packaged product which is protected against contamination prior to use, since the prior art recognizes that flowable coatings can be applied using a carrier, and therefore to combine prior art elements according to known methods to yield predictable results, and to use a known technique to improve similar products in the same way, see MPEP 2143 I.(A) and (C).
It is noted the combination relies on a layer of the flowable wax coating extending across a central area of the carrier. That is, a layer of the wax is disposed on the side of the film 6 of Sanders that faces the animal feed, where said layer of wax extends across the central portion of the film as shown by Butler figure 5. In use, the cover would be placed (wax layer facing down) onto the exposed surface of the animal feed of Mabee while its temperature is elevated during the conversion reaction. Due to the temperature of the feed exceeding that of the melting temperature of the wax, one of ordinary skill in the art would have reasonably expected the wax layer of the prior art combination above, including the central portion of the layer, to conform and seal against the irregular surface structures of the animal feed composition.
Regarding the removable cover “configured to prevent mechanical damage to the animal feed composition upon staking a separate container atop…remains at a temperature between about 125oF and about 200oF”, Mabee teaches the temperature of the feed increases to 175oF during the conversion reaction (page 3 lines 8-13). The combination applied above teaches and renders obvious the features of the removable cover.
While the combination does not teach preventing mechanical damage while stacking a separate container atop the removable cover, the limitation is directed to an intended use of the claimed product. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
In this case, one of ordinary skill would have reasonably expected the covered feed of the prior art combination above to be capable of having another container placed atop thereof without mechanical damage. This is particularly since Mabee teaches the packed feed can be “tramped on” (page 3 lines 1-2), and therefore suggests that the packed feed can be subjected to compression forces without mechanical damage.
Further, it would have been obvious to modify the cover to be structurally capable of having another container stacked over said cover since mechanical damage to food products is well-known to be undesirable, since stacking packages is well known in the art for advantages such as reduced footprint for storage and transport, and therefore to allow a plurality of the animal feed products to be stacked while preventing the risk of separation and/or failure of the cover, thereby ensuring a seal is maintained until use, and since one of ordinary skill would have known to adjust the amount of feed in the separate container to prevent undesirable damage when stacking.
Regarding claim 7, Sanders as applied to claim 1 does not teach or otherwise indicate that the film is heat-shrinkable (see whole document, particularly column 2 lines 11-15). Examples of the film include paper, which one skilled in the art understands is generally not-heat-shrinkable.
Regarding claim 8, Sanders as applied to claim 1 teaches the outer circumference of the film is substantially similar to an inner circumference of an open end of the container (figures 3-5; column 2 lines 26-31). The area of skirt 7 is construed to be “substantially similar” since the particular structure encompassed by this limitation is not defined by Applicant’s specification, and since the skirt outer circumference remains within the vicinity of the container wall as shown in Sanders.
Regarding claim 9, Sanders as applied to claim 1 teaches that the film can be a waxed or similarly treated paper or fabric (column 2 lines 11-15). The material with which the paper or fabric is treated is construed to be a type of “primer” since Applicant’s specification states said “primer” can include waxes, and does not require any feature other than to “facilitate bonding or adhering…” (paragraph 32). It is generally understood that waxes are capable of bonding/adhering (e.g., as disclosed in Smith and Butler). Said treatment would have naturally been located between the film and the wax coating of the combination applied to claim 1. Further, Sanders does not state or otherwise indicate that the wax is intended to be separated from the paper (see whole document). One of ordinary skill in the art would have reasonably expected the flowable coating to be adapted to be carried with the rigid or semi-rigid layer upon removal of the cover from the container due to the wax-on-wax adhesion between the film of Sanders and the solidified wax coating of the combination. Additionally, Smith teaches removal of the packaging material retains the wax layer thereon (figures 4-5; column 3 lines 68-74).
Regarding claim 11, the combination applied to claim 1 above teaches the same structures and materials as that of Applicant’s claimed invention. Similarly, the cover of the combination teaches a “primer layer” as explained for claim 9. Since there does not appear to be any difference in said structures or materials, the primer and coating of the prior art combination are construed to be the same as or substantially similar to those of the claimed invention. As such, absent convincing evidence to the contrary, one of ordinary skill in the art would have reasonably expected some degree of retention between the flowable coating and the primer at the claimed temperature.
Regarding claim 13, Sanders as applied to claim 1 does not specifically teach the thickness of the rigid or semi-rigid layer.
However, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cover to have the claimed range of thickness since Sanders already contemplates using a wide variety of materials and shapes as needed (column 1 line 57 to column 2 lines 3 and 7-15), and thus as a matter of manufacturing choice, since there is no evidence of record that the thicknesses are critical or yield unexpected results, and since the claimed values would have been used during the course of normal experimentation and optimization procedures due to factors such as durability, desired rigidity or flexibility, the type of material being covered, and the type of container.
Regarding claim 19, Sanders as applied to claim 1 does not specifically teach the thickness of the film.
However, it would have been obvious to one of ordinary skill in the art to use the claimed range of thickness for the same reasons stated for claim 13 above.
Regarding claim 20, Sanders as applied to claim 1 does not specify the diameter of the rigid or semi-rigid layer is 2-4 inches smaller than the diameter of the film. However, the reference teaches skirt 7 of film 6 extends beyond the periphery of the stiff member 5 (column 2 lines 24-27), where the skirt engages the wall of the container to prevent material from flowing around the edges of the cover (column 3 lines 5-9).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cover the combination such that the rigid or semi-rigid layer is 2-4 inches smaller than the diameter of the film in order to ensure the skirt 7 can properly engage the wall of the container, including a variety of container sizes as taught by Sanders (column 3 lines 19-23), since there is no evidence of criticality or unexpected results associated with the claimed feature, and since the claimed values would have been used during the course of normal experimentation and optimization procedures due to factors such as type of container/material to be covered, desired degree of sidewall engagement, and desired degree of protection between the material and atmosphere.
Furthermore, “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” 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).
Claims 2-3 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Mabee in view of Sanders, Smith, and Butler as applied to claim 1 above, and further in view of Albertus (US 3,230,093).
Regarding claim 2, Smith as relied upon for claim 1 teaches the coating can include blends of wax having temperatures of e.g., 130 and 145oF (column 3 lines 6-8), but does not specify a flow temperature of 125oF.
Albertus teaches a food container having a lid comprising a foil and a sealing member (column 1 lines 51-54), where the sealing member can be a coating 24 by which an air tight seal is effectively provided (figure 3; column 1 lines 23-25), where the coating can be wax which melts (flows) at an elevated temperature of about 120oF, which is the approximate temperature at which the cheese is filled into the cup (column 2 lines 54-62; column 3 lines 17-22). The coating is placed under foil closure 14 (figure 3).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the wax to have the claimed melt temperature since Smith already suggests controlling flow temperature by controlling the type of wax in the coating, since the prior art acknowledges using waxes having the claimed melting temperature to form a seal between container and closure, to allow said sealing to be performed simultaneously with filling, or by the temperature given off by the contents itself, and since the claimed values would have been used during the course of normal experimentation and optimization procedures due to factors such as type of contained material, desired working conditions, and to use a wax having a sufficiently high melting temperature such that the seal remains intact until use (e.g., does not prematurely melt in hot weather).
Regarding claim 3, the combination applied to claims 1-2 teaches wax.
Regarding claim 21, Mabee teaches the animal feed has a temperature of 150-175oF when undergoing the conversion reaction in the container (page 3 lines 9-11), where the flowable wax coating of the prior art combination has a flow temperature of about 125oF as applied to claim 2.
Claims 4-6 are rejected under 35 U.S.C. 103 as being unpatentable over Mabee in view of Sanders, Smith, and Butler as applied to claim 1 above, and further in view of Rees (US 2011/0185922 A1).
Regarding claim 4, Sanders as applied to claim 1 does not teach the film 6 comprises a plurality of radial slits or notches arranged along the outer circumferential edge such that the film defines a circumferential notched portion surrounding the central portion.
Rees teaches a member insertable into a container such as a wine bottle (abstract), the member comprising film 11 having rigid or semi-rigid layer 20 of plastic material 14 (figures 1 and 2A-2B; paragraphs 36-37 and 39). The film 11 includes flexible zone 16 comprising a plurality of radial slits 17, where the slits enhances the flexible nature of the flexible zone (paragraph 41; the slits are designated “63” and the flexible zone “61” in this embodiment).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the film to include radial slits since the Sanders already suggests modifications to the structure and materials of the sealer (column 3 lines 20-22), since the prior art acknowledges the structural advantage of radial slits and thus in order to similarly enhance flexibility to facilitate the film conforming to any irregularities in the container sidewall and/or the contained material, thereby facilitating formation of a hermetic seal.
Regarding claim 5, the combination applied to claim 4 teaches the slits 17 but does not teach said slits extending to the boundary where an external circumference of the rigid or semi-rigid layer couples to the film.
Rees further teaches slits 17 can extend inwardly and may extend fully through outer flexible zone 16, i.e. to the circumference of rigid or semi-rigid layer 20 (figures 1 and 2A-2B; paragraph 36).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the film as claimed for the same reasons stated for claim 4 i.e., to increase/control the flexibility of the film as needed.
Regarding claim 6, the combination applied to claim 4 teaches placing slits along the periphery of the film. The combination is applied to claim 6 and would have been obvious for the same reasons stated above. Thus, it would have been reasonable to expect that the slits would impart at least some degree of moisture/gas permeability across the film. Furthermore, films commonly used in the food art are understood to naturally exhibit at least some degree of moisture or gas permeability.
Claims 14-15 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Mabee in view of Sanders, Smith, and Butler as applied to claim 1 above, and in view of Young (US 2,141,833).
Regarding claim 14, Sanders as applied to claim 1 does not teach an adhesive between the film and the rigid or semi-rigid layer.
Young teaches a cover (cap) for a food container (page 1 left column lines 1-5), where the cap comprises a flexible film 10, a plug cap (rigid or semi-rigid layer) 38 adhered to one side of the film, and a wax seal coating 40 on the opposite side of the film (figures 5-6 and 9; page 4 left column lines 26-43). The cap further comprises an adhesive layer between the rigid or semi-rigid layer and the film (page 4 left column lines 26-31).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cover of the combination to include an adhesive between the layers since the prior art acknowledges attaching similar layers by adhesive, since Sanders does not specify a particular type of attachment means, and therefore to apply said attachment means to similarly facilitate retaining the film on the rigid or semi-rigid layer.
Regarding claim 15, Examiner notes that the limitation “facilitating removal” is not defined by the specification to require any particular structure/material. Therefore, the limitation is given its broadest reasonable interpretation to mean that the rigid or semi-rigid layer is simply capable of being separated from the film at the adhesive layer. To this end, since the adhesive of the prior art combination applied to claim 14 similarly attaches film 6 to rigid or semi-rigid layer 5, it would have been reasonable to expect that the two layers could also be separated at the location of said adhesive.
Regarding claim 17, Sanders as applied to claim 1 does not teach the film comprises one or more food grade components including starch.
Young further teaches the cover can include starch to prevent multiple covers from sticking to each other when stacked or exposed to abnormally high temperatures (page 4 right column lines 8-15). The starch coating is disclosed to be a “harmless material”, where food-grade starches are well known in the art.
It would have been obvious to one of ordinary skill in the art at the time of the invention to include a coating of starch on the film of the prior art combination cover in order to similarly prevent the flowable layers of each cover from sticking to another when stacked or exposed to abnormal temperatures as taught by Young, where the use of a food-grade starch would have been further obvious to minimize consumer risk.
Response to Arguments
Applicant's arguments filed 9/8/2025 have been fully considered but they are not persuasive.
Applicant argues Mabee does not teach the amended limitations of claim 1.
This is not persuasive since one of ordinary skill in the art would have reasonably expected the feed of Mabee to “settle within the container and an overlying layer of feed components defining an exposed surface… having irregular surface structures due to a composition and viscosity of the overlying layer”, particularly since conversion includes adding converter material with water to the roughage (page 2 lines 121-128), and since the roughage in the container is subjected to the conversion reaction over a prolonged period of time (page 3 lines 3-13). Further, the reference teaches that the roughage is formed by comminuting by clipping the roughage into short lengths based on the desired coarseness (page 2 lines 105-120). The roughage is formed from substances such as hay, straws, clover, cornstalks, etc. (page 1 lines 58-60), which are known to form irregular surfaces. Therefore, absent evidence to the contrary, one of ordinary skill would have expected an overlying layer of irregular surface structures of the feed components, necessarily due to “a composition and viscosity of the overlying layer of feed components”.
Applicant argues Mabee does not teach preventing mechanical damage during stacking as claimed.
This is not persuasive since the limitation is directed to an intended use of the claimed product. The cover of the prior art combination applied to claim 1 teaches a cover that would have been capable of supporting a separate (e.g., empty) container without mechanical damage to the feed, and/or one of ordinary skill in the art would have modified the cover to be capable of the claimed intended use for the reasons stated for claim 1.
Applicant argues Sanders, Smith, and Butler do not teach the amended limitations.
This is not persuasive for the same reasons stated for Mabee above.
Applicant’s arguments against the dependent claims and their respective prior art are not persuasive for the same reasons stated above.
Conclusion
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/BRYAN KIM/Examiner, Art Unit 1792