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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 10/6/2025 has been entered.
Claim Objections
Claim 1 is objected to because of the following informalities:
Before “to be folded upwards or downwards” delete “it” and insert “said grabbing latch” in order to place the claim in better form.
Appropriate correction is required.
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.
Claims 1-4, 13, 16-19 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Voeller (US 2014/0251864 A1) in view of Lloyd (WO 9835598 A1), Mahon (US 10,611,549 B1), Tognetti (US 2013/0224354 A1), and Junge (US 2011/0000956 A1).
Regarding claim 1, Voeller teaches a packaging system and method for separating components of a multi-component food item (abstract) comprising positioning a bottom component 14, placing the second half 48 of the barrier sheet 16 (first separator) on top of the bottom component, positioning interior component 12 on top of the first separator 48, folding first half 46 of the sheet 16 (second separator) over interior component 12, and positioning the top component 10 on top of the second separator 46 (figures 3-4 and 8-9; paragraph 24). The separator is removed prior to consumption (paragraph 18).
While Voeller does not explicitly recite a connection strip between the two separators and bending at a folding line between the separators and the connection strip, the reference teaches folding the sheet 16 such that it “sandwiches the at least one fixing 12”. Furthermore, the embodiment of figures 8-9 shows that the sheet can be folded twice to obtain separators 46 and 48, where the portion of the sheet 16 extending vertically between the folds forms the connection strip.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Voeller to place the folds as claimed since the reference already suggests multiple folds to form the separators and connection strip figures 8-9), and that modifications can be made (paragraph 28), to form creases in the sheet to maintain the separators in a desired orientation i.e., between the wet and dry components, and to adjust the distance between the separators as needed.
Voeller does not teach the connection strip is straight, narrow and long, being elongated along a vertical axis of the device for separating food components. It is noted that the limitation “straight, narrow and long, being elongated along a vertical axis” is given its broadest reasonable interpretation to mean that the connection strip is essentially shaped like a vertical rectangle that is narrower than the separators as shown by e.g., figure 1 of the application.
Mahon teaches a sandwich container (abstract), where compartments 20/54 and 26/40 of the container which accommodate various components of the sandwich can be connected to each other via elongated connection strip 46/56, the strip shaped to be “straight, narrow and long, being elongated along a vertical axis” (figure 6; column 4 lines 54-67).
Lloyd teaches a sandwich holder comprising a pair opposed portions to abut against a food substance such as a sandwich (abstract), the opposed portions 11 connected to each other by connection strip 12, where the reference teaches a further embodiment in which the connection strip 42 is elongated and narrower along a vertical axis compared to the first and second separators 41 (figures 7-8; page 5 lines 11-15). The connection strip is construed to be elongated since a first dimension (following lines 48 across the strip 42) is larger than a second dimension (between bend portions 47). This suggests to one of ordinary skill in the art that the zigzagged bends can be applied to a connecting portion that is narrower than the opposing surfaces defined by separators 41.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the sheet 16 of Voeller such that the connection strip between separators 46 and 48 is “straight, narrow and long, being elongated along a vertical axis” since the prior art recognizes such a structure for connecting food supporting surfaces, since there is no evidence of criticality or unexpected results associated with the claimed feature, and therefore as a matter of preference for shape or configuration, see MPEP 2144.04 IV.B., to minimize materials required for manufacture, and to combine prior art elements according to known methods to yield predictable results in forming a connection structure between two food supporting surfaces, see MPEP 2143 I.(A).
Regarding the device being formed by folding and cutting a flat sheet of material, the combination applied above teaches a device having the claimed features. Voeller teaches the barrier sheet is folded from a flat sheet such that the separators are placed between the food components.
While Voeller does not specify the flat sheet is formed by “cutting”, it would have been prima facie obvious to do so since the method of cutting blanks to form packaging components is well known and commonly practiced in the art, and since cutting is known to facilitate shaping/sizing sheets as desired.
Voeller does not teach the connection strip comprises a folded section serving as a grabbing latch for holding and withdrawing the device, the latch connected to the connection strip by a bending line allowing for folding onto the connection strip to create a single plane with the strip and the separators in an unfolded state, wherein said grabbing latch includes a finger hole cut out from the folded section of the connection strip for inserting a finger to withdraw the device from the food item.
Tognetti teaches a device for separating layers of food or other items in a box (abstract), where the separator is formed from a flexible material and comprises handle (grabbing latch) 60 to allow the separator to be pulled out of the box (figure 13; paragraph 27). The handle 60 is formed as a “fold in the piece of continuous paper” (paragraph 31) at a “bending line” which extends across the entire length of the handle as seen in figure 9. Further, the handle is connected to surface 50 of the separator which is analogous to Applicant’s “connection strip”. One of ordinary skill would have expected the handle 60 to be foldable upwards or downwards, where doing so would result in the handle being folded onto the connection strip 50 to create a single plane with said strip, as well as the unfolded separators 52 and 54. For example, the removed separator as shown in figure 13 would read on the claimed structure when separators 52 and 54 are folded upwards and downwards respectively, and latch 60 is folded either downwards or upwards to match the plane of connection strip 50.
Junge teaches a folding box for carrying (abstract), the box made of known materials including papers and plastics (paragraph 30), the box formed from a flat sheet of material 5 (figure 2) comprising a punch-out 17 for forming handle 12 (paragraph 34), where the handle 12 can be folded in opposing directions to be perpendicular to, or in the same plane as the rest of the surface (figures 3b-5b; paragraphs 34-37). The handling 12 being folded “upwards or downwards” would have been a matter of orientation within the overall materal.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the connection strip of Voeller to have a folded section serving as a grabbing latch, the latch connected to the connection strip by a bending line allowing for folding to a single plane as claimed, the latch including a finger hole cut out since the prior art acknowledges a fold out grabbing latch formed into the container material by known means such as pre-cutting, and therefore in order to similarly provide additional or auxiliary means for removing the separator in the case that the tabs 20 of Voeller are compromised, or to provide the user with multiple options for direction of separator removal based on preference or convenience, as a matter of preference for the configuration in which the latch folds (upwardly or downwardly), see MPEP 2144.04 VI.C., to facilitate engaging/pulling the tab such that the risk of slipping is minimized, or for individuals with weakened grip strength, and to combine prior art elements according to known methods to yield predictable results with respect to forming a grabbing latch within a material, see MPEP 2143 I.(A).
Regarding claim 2, the separators 46 and 48 are positioned parallel to each other (figures 8-9).
Regarding claim 3, Voeller teaches barrier sheet 16 (figures 1-4; paragraph 20), which would naturally require at least one layer of material.
Regarding claim 4, Voeller teaches the barrier sheet 16 is a non-permeable material (paragraph 20) which maintains wet component 12 isolated from dry components 10 and 14, thereby preventing the dry components from becoming soggy (paragraph 24). The feature is construed to be “blocking” migration of food related fluids from the wet component to the dry components.
Regarding claim 13, the separated components of the food item are packaged within container 52, construed to be a type of box (figures 6-9; paragraph 26).
Regarding claim 16, the shape of the separators can be a square or rectangle (figures 1-4).
Regarding claim 17, Voeller teaches dry components 10 and 14 can be bread (paragraph 24).
Regarding claim 18, the food item is a multi-component sandwich (paragraph 20).
Regarding claim 19, sheet 16 is configured to be withdrawn from the food item prior to eating (figures 5 and 10; paragraphs 25 and 27).
Regarding claim 21, Voeller does not teach shortening or lengthening the distance between the separators to accommodate various thickness of the one or more interior components, by the connection strip comprising multiple zigzagged bends, said bends connected to one another by folding lines.
Lloyd further teaches the strip 12 comprises a concertina of folded portions (zigzagged bends) enabling the holder to accommodate different thicknesses of sandwiches (figures 1 and 3; page 4 lines 20-23). The reference is construed to be analogous since it is directed to the same field of endeavor (utensils for use with foods) and reasonably pertinent to the problem with which inventor was concerned (expandability of the utensil to accommodate different thicknesses of food). Additionally, the structures of opposed portions 11 are analogous to the separators of the claimed process.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the sheet 16 of Voeller such that the portion connecting the separators comprises zigzagged bends since the prior art acknowledges that food related (particularly sandwich or burger related) utensils can have such a structure for adjusting the distance between the separators, and therefore to similarly allow the separators to accommodate different thicknesses of foods.
Claims 5-6 are rejected under 35 U.S.C. 103 as being unpatentable over Voeller in view of Lloyd, Mahon, Tognetti, and Junge as applied to claim 1 above, and further in view of Pierce (US 2017/0291737 A1).
Regarding claims 5-6, Voeller does not teach preventing fluids from reaching an edge of at least the first separator (claim 5), and does not teach a channel running near the edge of said at least first separator to form an enclosed area to prevent flow of fluids of the enclosed area (claim 6).
Pierce teaches a tray system for dividing food comprising a divider plate (abstract), where the divider plate 10 includes moat 23 (channel) internally offset from a perimeter of the plate 10 in order to retain juices or liquid that escapes the food in the second compartment, thereby preventing food in the second compartment from becoming soggy (figures 2-3 and 5-6; paragraph 20).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify at least the first separator of Voeller to have a channel as claimed since the reference also wants to prevent the dry components from becoming soggy, since the prior art acknowledges peripheral channels are used to prevent fluid from spilling over the edge of a separator, and therefore to provide a similar function to the separator of Voeller (see MPEP 2143 I), to prevent fluid movement when the food item is angled, and as an auxiliary or supporting structure to prevent the dry components from becoming soggy.
Examiner notes, while Voeller teaches the separator as a flexible film, it is well established in the art that properties of materials used for food packaging can be adjusted to obtain desired strength or rigidity e.g., using a thicker layer of plastic film or laminates having a structural layer. Thus, the modification to Voeller above includes modification to the rigidity of sheet 16 such that the channel can be formed, using known materials, while retaining the foldability of the sheet.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Voeller in view of Lloyd, Mahon, Tognetti, Junge, and Pierce as applied to claims 1-5 above, and further in view of Archie, JR. et al. (US 2011/0215097 A1), hereon referred to as “Archie”.
Regarding claim 7, Voeller does not teach at least the first separator comprises a fluid stopping edge or rim to prevent fluids from reaching the separator edge.
Archie teaches a divider for separating compartments of a container (abstract), where the divider 12 reduces migration of liquids between components of a food item (paragraph 43), the divider including recessed base 36, wall 40, and peripheral rim 38 (figure 1; paragraph 48).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify at least the first separator of Voeller to have fluid stopping edge or rim as claimed since the reference also wants to prevent the dry components from becoming soggy, since the prior art acknowledges such structures are used to prevent fluid and moisture migration, and therefore to provide a similar function in the separator of Voeller (see MPEP 2143 I), to prevent fluid movement when the food item is angled, as an auxiliary or supporting structure to prevent the dry components from becoming soggy, or as a substitution of art recognized equivalents for purpose of preventing migration of liquids between components of a food item.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Voeller in view of Lloyd, Mahon, Tognetti, Junge, and Pierce as applied to claims 1-5 above, and further in view of Farrell et al. (US 2017/0265502 A1).
Regarding claim 8, Voeller does not teach at least the first separator comprises a fluid absorption area to prevent fluids from reaching the edge of said at least first separator.
Farrell teaches a material for food contact applications in which the material includes an absorbent layer for absorbing and trapping liquids such as oil, grease, or water (abstract), where the material can be integrated into any type of food packaging and used for foods such as burgers (paragraph 67). The material 10 can be placed on either the lower surface of an upper portion of the container 20 (figure3) or an “up facing surface” of a “bottom most” component of the container (figure 4; paragraph 89).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the at least first separator of Voeller to include an absorbent material as claimed since Voeller is already concerned with maintaining the integrity the components by preventing migration of moisture from a wet component to a dry component, and therefore in order to provide a supporting/auxiliary means to absorb any grease, oil or moisture that may leak from the material between separators 12, thereby ensuring the separators and/or the lower most food from becoming soggy or messy. In the case that a greasy/oily food is used as the inner components of the food item, such as is well known for burgers, the combination would have been further obvious to provide convenience to the user by maintaining the lower bread/bun substantially grease/oil free such that the grease/oil is not transferred to the user’s hands during consumption.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Voeller in view of Lloyd, Mahon, Tognetti, and Junge as applied to claim 1 above, and further in view of Qian et al. (US 2018/0037366 A1).
Regarding claim 9, Voeller does not teach the surfaces of the separators are covered by a layer of heat insulating material.
Qian et al. teaches a container for maintaining sandwich components separated during storing and transporting (abstract) comprising removable barriers 20 between each component (figures 1A-C; paragraphs 15 and 17), where the barriers 20 can be modified to provide a function of maintaining a desired temperature environment for particular components (paragraph 21). The reference further teaches that temperature differences may be enhanced and/or retained for longer periods of time by using insulation between compartments (paragraph 21).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify separators to be covered by a layer of insulating material since Qian et al. suggests insulation can be used to prolong temperature differences between separated food components, where multi-component foods such as sandwiches/burgers are understood to have a hot component (e.g. cooked patty) within proximity to an ambient or cold component (e.g. lettuce), and thus in order to similarly maintain the proper temperature of desired components to maintain the components of the food item in optimal condition for consumption.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Voeller in view of Lloyd, Mahon, Tognetti, and Junge as applied to claim 1 above, and further in view of Chirnomas (US 7,722,937 B2).
Regarding claim 12, Voeller does not teach a third separator connected to the connection strip between the interior components and further between the first and second separators.
Chirnomas teaches a device to separate food elements packaged together (abstract) where the device 14 comprises separators 14, 24 and 26 (figure 1; column 4 lines 55-56) which separate individual components of a food such as a sandwich (column 3 lines 55-67).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the sheet 16 to include a separator in the middle of the connection strip in order to similarly separate multiple internal components from each other and the outer components, thereby minimizing heat/moisture/flavor migration between the components and maintaining the integrity of the components until consumption (Chirnomas column 1 lines 60-67), since Voeller teaches modification without departing from the spirit and scope of the invention, i.e. component separation (paragraph 28), and since a mere duplication of parts has no patentable significance unless a new an unexpected result is produced (MPEP 2144.04.VI.B.).
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Voeller in view of Lloyd, Mahon, Tognetti, and Junge as applied to claims 1 and 13 above, and further in view of Daswick (US 4,143,165).
Regarding claim 14, Voeller teaches the separators are placed inside the packaging box as recited for claim 13, where the separators comprise folding lines at the point of attachment to the connection strip as recite for claim 1.
Voeller does not teach the connection strip of the separators is connected to an inner side of the box, the connection strip including at least three bending lines, the third bending line at the middle of the connection strip overlapping an open and/or closing axis of the packaging box, enabling the strip to fold along a wall of the box as it is opened and/or closed.
Daswick teaches a device for separating components of a hamburger sandwich (abstract), comprising first separator 11 and second separator 16, where the separators are configured to be placed inside of a box, the separator structured such that the center of the portion connecting the separators aligns with the opening and closing axis of the box (figures 2-5).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the device and method of Voeller such that the separator is connected to the box in a manner that enables the middle of the connection strip to fold along a wall of the box as claimed since the structure is known in the art for packing foods having separators between the components, since there is no evidence of criticality or unexpected results associated with the claimed feature, and in order to retain the separator of Voeller in the box, on a known location, to minimize the risk of the separator becoming unintentionally displaced during transport and handling, and to facilitate discarding the overall container after use by minimizing the number of separate units to be discarded.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Voeller in view of Lloyd, Mahon, Tognetti, and Junge as applied to claim 1 above, and further in view of Bressi (US 5,052,559).
Regarding claim 15, Voeller does not teach folding foldable structures of the second separator for preventing said bottom facing surface of said separator from coming in contact with the top facing side of a food item.
Bressi teaches a package device for transporting heated food (abstract) comprising paper-board or cardboard box 12 having support tabs 28 which are formed of punch-outs of the box wall and support strips 30 (figures 2-3; column 3 lines 10-20). The support strips 30 are folded into a desired form, tabs 28 are pushed (folded) upwardly from the bottom of the box and the strips 30 are inserted thereunder to prevent the bottom of a sandwich or other from item from becoming soggy (figures 4-5; column 3 line 62 to column 4 line 3). The foldable structures 28/30 prevent the food surface from contacting the box surface (figure 4).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the second separator 46 of Voeller to include the foldable structures on the bottom facing surface since the reference already contemplates separating the wet components from dry components using a separator, and since the prior art acknowledges folding structures as means to enhance separation between components, therefore in order to similarly prevent contact between the bottom surface of the second separator and the upper surface of the food to mitigate migration of grease, oil, moisture or other fluid between the surfaces, and maintaining the integrity (e.g. preventing sogginess) of both the separator and separated food items during transport and storage.
Response to Arguments
Applicant’s arguments against Blake have been fully considered, but the reference is no longer relied upon in the instant Office Action.
Applicant's arguments filed 10/6/2025 have been fully considered but they are not persuasive.
Applicant argues that Mahon connects two independent containers and is not part of a flat sheet of material that is folded and cut to form the separators and narrow elongated connection strip, where combining Voeller and Mahon to form a connection strip would constitute hindsight.
This is not persuasive since modification of the sheet of Voeller such that the portion connecting top separator 46 and bottom separator 48 is a “straight, narrow and long” strip is prima facie obvious as a change in shape/configuration as stated in the rejection above. Mahon is cited to show that the prior art recognizes a “straight, narrow and long” connection strip between two compartments of a sandwich container, each compartment accommodating a component of the sandwich. Forming the connecting portion of Voeller into the claimed shape would have been similarly obvious since methods such as cutting a sheet of material is well known and commonly practiced in the art. Further, one of ordinary skill would have understood that removing excess material would provide advantages such as reduced transport weight, especially when a large number of the devices are transported simultaneously. Applicant has not shown evidence that the claimed shape of the connection strip is significant or yields unexpected results.
Applicant argues Tognetti’s handle is not located on a connection strip, but instead at the free end of a U-shaped sheet, projects permanently away from the divider, is not disclosed to be capable of folding, and is not part of a cut and folded flat sheet.
This is not persuasive since the handle 60 of Tognetti is located on surface 50, where said surface 50 is a strip that connects separators 52 and 54 (figures 9 and 13), and the handle can be a fold in a piece of paper (paragraph 31). The folded paper would have been capable of folding up or down, where the paper can be formed by folding and cutting as is known in the art.
Regardless, Junge as applied in the instant Office Action teaches the argued feature.
Applicant argues that the claimed grabbing latch structure is integral with the strip adds a structural synergy not taught or suggested by the cited references.
This is not persuasive since the claim does not indicate the latch is “integral”, only that the “grabbing latch is connected to the connection strip by a bending line, allowing it to be folded…and also to form a single plane with the…separator”. One would interpret the language to encompass a latch that is not integral, but connected (e.g., by adhesive) and having a folding line. See also Junge as applied above.
Applicant has not shown evidence to support the argument that the latch adds structural synergy, see MPEP 716.01(c).
Applicant argues none of the cited references teach or suggest a member having characteristics (i)-(iii), and argues each of the references independently.
This is not persuasive since 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).
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).
The teachings of the cited prior art suggest and motivate one of ordinary skill in the art to modify the method and device of Voller to have the claimed features for the reasons stated in the Office Action above.
Applicant argues that claim 1 recites the entire device is produced from one blank by reciting “folding and cutting a flat sheet”, and cites the specification to support one-piece fabrication.
This is not persuasive since the limitation in question i.e., “said device is formed by folding and cutting a flat sheet of material” does not exclude additional material added to said flat sheet, particularly since the claim recites the transitional phrase “comprising”. The language does not indicate that the device in its entirety must be made from the same blank of folded and cut material. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Regardless, Jung et al. teaches the grabbing latch can be formed into the blank material as stated above.
Applicant argues against Voeller, Lloyd, Mahon, and Tognetti with respect to the argument above.
The argument is not persuasive for the same reasons stated above.
Applicant’s argument with respect to the finger hole has been fully considered, but Junge as applied above teaches a punch-out hole can be placed within a handle formed into the blank material.
Applicant’s argument against the dependent claims and their respective refences are not persuasive for the same reasons stated above.
Conclusion
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/BRYAN KIM/Examiner, Art Unit 1792