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 .
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 1-3, 5, 7, 9, 16-18, 21 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 food storage” lacks antecedent basis and it is unclear what it is referring to.
Regarding claim 16, “the foot storage area” lacks antecedent basis and it is unclear what it is referring to.
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.
Claim(s) 16-17, 21, as best understood, is/are rejected under 35 U.S.C. 103 as being unpatentable over US Patent No. 4,828,134 to Ferlanti in view of US Patent No. 8,871,285 to Markoulis et al. (Markoulis).
Regarding claim 16, Ferlanti discloses a food tray (12, 212) comprising a bottom wall, a sidewall extending from the bottom wall to a top edge (288, Fig 7), wherein the bottom wall and sidewall form a food storage area for receiving food (intended use) and the top edge of the sidewall forms an opening to facilitate access to the food storage area (Fig 1-2, 7), a first liner removable liner (10) overlaying a portion of a second removable liner (10, below the first liner) of the food storage area, the second removable liner (10, below the first liner) disposed between first liner and at least a portion of the bottom wall when the liners are disposed in the food storage area (Fig 2), the first liner having a tab (22) with an identifier thereon and the second liner (10) having a tab (18) with an identifier thereon different from the identifier of the first liner (col. 3, ll. 5-7), wherein the second liner has a size capable of being position to enclose the opening to the food storage area defining a volume between a bottom surface of the second removable liner (10) and the bottom wall when the second removable liner is removed from between the first removably liner and the bottom wall such that the bottom surface of the second removable liner is directly exposed to the bottom wall. In particular, Ferlanti discloses a plurality of liners, the second removable liner can be exposed to bottom, first removable liner directly above the second removable liner, first and second removable liners can then be removed, second liner placed on top edge of sidewall to enclose the opening and thus bottom surface of second removable liner would be exposed to bottom wall. Ferlanti does not teach the tabs positioned within the storage area. However, Markoulis discloses an arrangement (Figs 2-3) where tab (40) of a liner (18) is positioned within food storage area (4). One of ordinary skill in the art would have found it obvious to substitute the Ferlanti tabs with shorter tabs lying within the tray such that it was within the food storage area as suggested by Markoulis in order to facilitate removal of the liner and have a smaller footprint since it has been held that simple substitution of one known element for another to obtain predictable results would have been obvious. In re Fout, 675 F.2d 297, 213 USPQ 532 (CCPA 1982).
Regarding claim 17, Ferlanti further discloses first and second liners (10) correspond to the shape of the foot tray (Fig 2).
Regarding claim 21, Ferlanti further discloses the tabs (22) sized and positioned to facilitate the removal of the first and second liners (10) (col. 3, ll. 44-47).
Claim(s) 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ferlanti in view of Markoulis and US 2005/0061819 to Cheng.
Regarding claim 18, the modified Ferlanti discloses the tray of claim 16 but does not teach identifier to be colors. However, Cheng discloses a food container (Fig 1) with liners (2-6) of different colors (¶0009). One of ordinary skill in the art would have found it obvious to use different color liners of Ferlanti as suggested by Cheng for aesthetic purposes.
Claim(s) 1-3, 7, 9, 16-18, 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2005/0061819 to Cheng in view of Markoulis.
Regarding claim 1, Cheng discloses a food tray (Fig 1) comprising a bottom wall (11), a sidewall (12) extending from the bottom wall to a top edge, wherein the bottom wall (11) and the sidewall (12) form a food storage area (7) for receiving food (intended use); a first liner (2) overlaying a second liner (6); the second liner (6) disposed between the first liner and at least a portion of the bottom wall, the second liner covering the bottom wall; wherein the top edge of the sidewall (12) defines an opening (at the top) to facilitate access to the food storage area (7), wherein the second liner (6) is sized to at least partially enclose the food storage area (7) when the first liner (2) is removed from the food storage area (7) since the second liner has a greater surface area that can cover part of the opening, the first liner having an integral tab (21) with an identifier (color) thereon and the second liner having an integral tab (61) with an identifier (color) thereon different from the identifier of the first liner (¶0009). Cheng does not teach the tabs positioned within the food storage area. However, Markoulis discloses an arrangement (Figs 2-3) where tab (40) of a liner (18) is positioned within food storage area (4). One of ordinary skill in the art would have found it obvious to substitute the Cheng tabs with shorter tabs lying within the tray such that it was within the food storage area as suggested by Markoulis in order to facilitate removal of the liner and have a smaller footprint since it has been held that simple substitution of one known element for another to obtain predictable results would have been obvious. In re Fout, 675 F.2d 297, 213 USPQ 532 (CCPA 1982). The modification would have resulted in the tabs positioned within the food storage area when the liners cover the bottom wall since the tabs would be shortened to be within the food storage area.
Regarding claim 2, Cheng further discloses first and second liners (2, 6) correspond to the shape of the food tray (Fig 1) in that they have similar shape.
Regarding claim 3, Cheng further teaches the identifiers being colors (¶0009).
Regarding claim 7, Cheng further discloses bottom wall (11) having a surface area and second liner (6) overlaying all of the surface area of the bottom wall (Fig 1).
Regarding claim 9, Cheng further discloses tabs (21, 61) sized and positioned to facilitate removal of the first (2) and second liners (6) since it has the structure as recited.
Regarding claim 16, Cheng discloses a food tray (1) comprising a bottom wall (11), a sidewall (12) extending from the bottom wall to a top edge, wherein the bottom wall and sidewall form a food storage area (7) and the top edge of the sidewall (12) forms an opening (at the top) to facilitate access to the food storage area (Fig 1) for receiving food (intended use), a first removable liner (2) overlaying a portion of a second removable liner (6), the second removable liner (6) disposed between first liner and at least a portion of the bottom wall when the liners are disposed in the food storage area (7), the first liner having a tab (21) with an identifier (color) thereon and the second liner (6) having a tab (61) with an identifier (color) thereon different from the identifier of the first liner (¶0009), wherein the second liner (6) has a size capable of being position to enclose the opening to the food storage area (since it has a greater surface area) and defining a volume between a bottom surface of the second removable liner and bottom wall when the second removable liner (6) is removed from between the first removable liner (2) and the bottom wall (11) such a bottom surface of the second removable liner (6) is directly exposed to the bottom wall (Fig 1). In particular, Cheng discloses a plurality of liners, the second removable liner can be exposed to bottom, first removable liner directly above the second removable liner, first and second removable liners can then be removed, second liner placed on top edge of sidewall to enclose the opening and thus bottom surface of second removable liner would be directly exposed to bottom wall. Cheng does not teach the tabs positioned within the storage area. However, Markoulis discloses an arrangement (Figs 2-3) where tab (40) of a liner (18) is positioned within food storage area (4). One of ordinary skill in the art would have found it obvious to substitute the Ferlanti tabs with shorter tabs lying within the tray such that it was within the food storage area as suggested by Markoulis in order to facilitate removal of the liner and have a smaller footprint since it has been held that simple substitution of one known element for another to obtain predictable results would have been obvious. In re Fout, 675 F.2d 297, 213 USPQ 532 (CCPA 1982).
Regarding claim 17, Cheng further discloses first and second liners (2, 6) correspond to the shape of the bottom wall (Fig 1) in that they have similar shape.
Regarding claim 18, Cheng further teaches the identifiers being colors (¶0009).
Regarding claim 21, Cheng further discloses tabs (21, 61) sized and positioned to facilitate removal of the first (2) and second liners (6) since it has the structure as recited.
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cheng in view of Markoulis and US Patent No. 4,828,134 to Ferlanti.
Regarding claim 5, the modified Cheng teaches the tray of claim 1 but does no teach the liners of the material as recited. However, Ferlanti discloses a food tray (12) and in particular discloses liners (10) having tabs (22) with different identifiers (col. 3, ll. 5-7), the liners formed of aluminum (col. 5, ll. 5-10) and one of ordinary skill in the art would have found it obvious to change the material of the Cheng liner to aluminum as suggested by Ferlanti in order to provide better insulation since it has been held that selection of a known material to make a container of a type made of the material prior to the invention was held to be obvious. In re Leshin, 277 F.2d 197, 125 USPQ 416 (CCPA 1960).
Response to Arguments
Applicant's arguments filed 7/28/2025 have been fully considered but they are not persuasive. Initially, it is noted that applicant does not argue the rejection of the dependent claims. Applicant does not address the rejection under 35 USC 112, second paragraph and thus the rejection is maintained.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
In response to applicant's argument that Markoulis does not teach a plurality of tabs within the food storage area, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
Applicant argues that the prior art, in particular, Markoulis does not teach a plurality of tabs within the food storage area. However, Markoulis suggests a teaching of having a tab being positioned within the containment area as an alternate means to grip and remove a liner. Markoulis only discloses a single liner; however, both Cheng and Ferlanti already provides a teaching of multiple liners in a containment area with the tabs of each liner positioned adjacent and lying next to the adjacent tab of the adjacent liner. Modifying the liners of Cheng and Ferlanti such that the tabs of the liner were positioned within the containment area and not outside as suggested by Markoulis would have resulted in all the tabs being positioned within the containment area and not outside since the tabs should all be positioned and lying adjacent the next tab of the next liner.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/ROBERT POON/Examiner, Art Unit 3735