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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 August 13, 2025 has been entered.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on September 3, 2025 was filed after the mailing date of the Final Rejection mailed on June 26, 2023. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Objections
Claim 18 is objected to because of the following informalities:
Claim 18 recites the limitation “the sliced piece of bread” in line 5. It appears the claim should recite “the sliced piece of cylindrical bread” in order to maintain consistency with “a piece of cylindrical bread” recited in Claim 18, line 3.
Claim 18 recites the limitation “to assembly the assembled sandwich” in line 16. It appears the claim should recite “to assemble the assembled sandwich” for grammatical purposes.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1, 3-7, 9-11, and 18-20 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 recites the limitation “moving the top portion and the bottom portion of the piece of bread via a first platen of an automated conveyor” in lines 4-5 as well as the limitation “slicing one or more inputs for the piece of bread at input stations, loading said sliced one or more inputs on a second platen of the automated conveyor” in lines 6-8. There was not adequate written description support at the time of filing for the method to have an automated conveyor having a first platen and a second platen, i.e. the disclosure at the time of filing never discloses the automated conveyor having two platens. Therefore, these limitations constitute new matter.
Claim 18 recites the limitation “moving the first portion and the second portion of the sliced piece of bread via a first platen of an automated conveyor” in lines 5-6 as well as the limitation “slicing with an automated slicer a plurality of inputs each at an input location and loading said plurality of inputs sequentially on a second platen of the automated conveyor” in lines 7-8. There was not adequate written description support at the time of filing for the method to have an automated conveyor having a first platen and a second platen, i.e. the disclosure at the time of filing never discloses the automated conveyor having two platens. Therefore, these limitations constitute new matter.
Claims 3-7, 9-11, and 19-20 are rejected as being dependent on a rejected base claim.
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 19-20 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 pre-AIA the applicant regards as the invention.
Claim 19 recites the limitation “a type of sandwich” in line 2. It is unclear if this refers to “a sandwich” recited in Claim 18, line 1 or if “a type of sandwich” refers to an entirely different sandwich from Claim 18. For purposes of examination Examiner interprets the claim to refer to the same sandwich.
Clarification is required.
Claim 20 is rejected as being dependent 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 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 of this title, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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, 3, 5-6, and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Hyodo et al. US 2019/0071195 in view of Garcia Torres US 5,657,685, Mirkhaef et al. US 2019/0352028, Fischl US 2017/0050331, McDonald et al. US 2018/0259092 (cited on Information Disclosure Statement filed September 3, 2025), and Buchko US 2007/0214752.
Regarding Claim 1, Hyodo et al. discloses an automated sandwich assembly method (‘195, Paragraphs [0112]-[0113]). The method comprises moving a top portion (top slice of bread S1) and a bottom portion (bottom slice of bread S1) of a bread (bread S1) via an automated conveyor (conveyors 3) (‘195, Paragraphs [0043] and [0056]) towards an automated picker robot (sorting manipulator 51) (‘195, Paragraph [0048]). One or more inputs (food substances S2) are added to the second portion (bottom slice of bread S1) of the bread (bread S1) (‘195, Paragraph [0056] and [0112]) wherein the one or more inputs (food substances S2) comprise sandwich components to create an assembled sandwich (sandwich S) (‘195, Paragraph [0112]) and the top portion (top slice of bread S1) and the bottom portion (bottom slice of bread S1) with the plurality of inputs (food substances S2) positioned therebetween to assemble the assembled sandwich (‘195, Paragraphs [0056] and [0100]). The assembled sandwich (sandwich S) is moved to an automated packaging system (packager 4) via the automated conveyor (conveyors 3) and the assembled sandwich is packaged via the automated packaging system (packager 4) (‘195, Paragraphs [0111]-[0112]).
Hyodo et al. is silent regarding the top portion of the top slice of bread and the bottom portion of the bottom slice of bread being sliced with an automated slicer, the automated conveyor having a first platen that moves the top portion and the bottom portion of the sliced piece of bread, slicing the one or more inputs for the piece of bread at input stations and loading the sliced one or more inputs on a second platen of the automated conveyor, moving the one or more inputs via the second platen wherein the one or more inputs are added to the second platen sequentially to receive amounts of inputs from each of the input stations before reaching the automated picker robot, and moving the assembled sandwich via the first platen to the automated packaging system.
Garcia Torres discloses an automated sandwich assembly method (‘685, Column 1, lines 8-20). The method comprises slicing with an automated slicer a piece of bread (loaves 13) into a top portion (top slice 14) and a bottom portion (bottom slice 14) at input stations (cutting stations) (‘685, Column 2, lines 63-67), and moving the top portion (top slice 14) and the bottom portion (bottom slice 14) of the bread via an automated conveyor (conveyor belt 15) (‘685, Column 1, lines 22-24) (‘685, Column 6, lines 1-15).
Both Hyodo et al. and Garcia Torres are directed towards the same field of endeavor of automated sandwich assembly methods. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Hyodo et al. and make the two slices of bread of the sandwich by slicing with an automated slicer a piece of bread into a top portion and a bottom portion as taught by Garcia Torres since providing an automatic or mechanical means to replace a manual activity of slicing one larger piece of bread into two smaller pieces of a piece of bread having a top portion and a bottom portion which accomplished the same result is not sufficient to distinguish over the prior art in view of In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958) (MPEP § 2144.04.III.).
Further regarding Claim 1, Hyodo et al. modified with Garcia Torres is silent regarding moving the one or more inputs via a first platen of the automated conveyor, loading the sliced one or more inputs on a second platen of the automated conveyor, moving the one or more inputs via the second platen wherein the one or more inputs are added to the second platen sequentially, adding the one or more inputs with the automated picker robot, and moving the assembled sandwich via the first platen.
Mirkhaef et al. discloses an automated sandwich assembly method (system 200) (‘028, Paragraph [0054]) comprising adding one or more inputs (meat 10) to a bottom portion (bottom bun 14) of a sandwich (sandwich 12) with an automated picker robot (robotic arm 102) wherein the one or more inputs (meat 10) comprise sandwich components to create an assembled sandwich (sandwich 12), moving the assembled sandwich (sandwich 12) to an automated packaging system (wrapping assist device 204), and packaging the assembled sandwich (sandwich 12) via the automated packaging system (wrapping assist device 204) (‘028, Paragraphs [0066]-[0069]).
Both Hyodo et al. and Mirkhaef et al. are directed towards the same field of endeavor of methods of making a sandwich using an automated sandwich assembly. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the method of Hyodo et al. and use an automated picker robot to add the one or more inputs in the form of meat to the bottom portion of the bread as taught by Mirkhaef et al. since providing an automatic or mechanical means to replace a manual activity of placing one or more inputs on the bottom portion of the bread using an automated picker robot which accomplished the same result is not sufficient to distinguish over the prior art in view of In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958) (MPEP § 2144.04.III.).
Further regarding Claim 1, Hyodo et al. modified with Garcia Torres and Mirkhaef et al. is silent regarding moving the one or more inputs via a first platen of the automated conveyor, loading the sliced one or more inputs on a second platen of the automated conveyor, moving the one or more inputs via the second platen wherein the one or more inputs are added to the second platen sequentially, and moving the assembled sandwich via the first platen.
Fischl discloses a method for slicing one or more inputs (one or more food products) (‘331, Paragraph [0001]) wherein the one or more inputs (one or more food products) are moved via a conveyor (conveyor belt 4) (‘311, Paragraph [0030]). Fischl further discloses the one or more inputs (one or more food products) being added to the conveyor (conveyor belt 4) sequentially to receive amounts of inputs (food products) from each of the input stations (the tracks can be loaded one after another) (‘331, Paragraph [0013]) before reaching the automated picker robot (grippers) (‘331, Paragraph [0004]).
Both modified Hyodo et al. and Fischl are directed towards the same field of endeavor of processing food products using a slicer and moving the food products via a conveyor. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Hyodo et al. and add the one or more food product inputs of modified Hyodo et al. to the conveyor sequentially to receive amounts of inputs from each of the input stations before reaching the automated picker robot since Fischl teaches that it was known and conventional in the food conveyor art to add one or more food product inputs to the conveyor sequentially. Furthermore, the selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results in view of In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (MPEP § 2144.04.IV.C.).
Further regarding Claim 1, Hyodo et al. modified with Garcia Torres, Mirkhaef et al., and Fischl et al. is silent regarding moving the one or more inputs via a first platen of the automated conveyor, loading the sliced one or more inputs on a second platen of the automated conveyor, moving the one or more inputs via the second platen, and moving the assembled sandwich via the first platen.
McDonald et al. discloses an apparatus and method of vacuumizing and sealing a food package (‘092, Paragraph [0001]) wherein the apparatus comprises a conveying mechanism for conveying a plurality of platens around a single axis of rotation (‘092, Paragraph [0009]). Additionally, Buchko discloses a conveyor including a series of platens adapted to receive a vacuum packaged food product (‘752, Paragraphs [0053] and [0116]).
Hyodo et al. discloses the automated food processing method comprising using any conveyance system (‘195, Paragraph [0045]). Modified Hyodo et al., McDonald et al., and Buchko are all directed towards the same field of endeavor of automated food assembly methods for processing foods using automated conveyors. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Hyodo et al. that uses any conveyance system and incorporate a first platen and a second platen to the automated conveyor for moving pieces of food to different locations of the food assembly apparatus since McDonald et al. and Buchko teaches that it was known and conventional in the automated food assembly art to incorporate platens on an automated conveyor for moving food items on the conveyor to different locations of the automated food apparatus. Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Hyodo et al. and incorporate a first platen and a second platen on the automated conveyor as taught by McDonald et al. and Buchko since the mere duplication of parts has no patentable significance unless a new and unexpected result is produced in view of In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960) (MPEP § 2144.04.IV.B.). McDonald et al. and Buchko teaches that there was known utility in the food packaging art to incorporate a plurality of platens onto a conveyor system that moves food items. Additionally, loading packages onto platens avoids manual loading of packages (‘092, Paragraph [0007]).
Regarding Claim 3, Mirkhaef et al. discloses the step of combining the top portion (top bun 16) of the bread on the bottom portion (bottom bun 14) of the piece of bread and the one or more inputs (meat 10) comprising using the automated picker robot (robotic arm 202) to pick the top portion (top bun 16) of the bread and to place the top portion of the bread on the bottom portion (bottom bun 14) and the one or more input (meat 10) (‘028, Paragraphs [0068]-[0069]). Both Hyodo et al. and Mirkhaef et al. are directed towards the same field of endeavor of methods of making a sandwich using an automated sandwich assembly. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the method of Hyodo et al. and use an automated picker robot to pick the top portion of the bread and place on the bottom portion and the one or more inputs to assemble the sandwich as taught by Mirkhaef et al. since providing an automatic or mechanical means to replace a manual activity of placing one or more inputs on the bottom portion of the bread using an automated picker robot which accomplished the same result is not sufficient to distinguish over the prior art in view of In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958) (MPEP § 2144.04.III.).
Regarding Claim 5, Hyodo et al. discloses sensing with one or more sensors (weight sensor 57), a quality control of the assemble sandwich (sandwich S) before moving the assembled sandwich to the automated packaging system (‘195, Paragraph [0048]).
Regarding Claim 6, Hyodo et al. discloses redirecting a rejected assembled sandwich (sandwich S) that does not meet the quality control (acceptable sandwich weight range) sensed by the one or more sensors (weight sensor 57) to a reject line (disposal site) that bypasses the automated packaging system (‘195, Paragraph [0048]).
Regarding Claim 11, Hyodo et al. discloses the one or more inputs (food substance S2) comprising meats and vegetables (‘195, Paragraph [0056]).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Hyodo et al. US 2019/0071195 in view of Garcia Torres US 5,657,685, Mirkhaef et al. US 2019/0352028, Fischl US 2017/0050331, McDonald et al. US 2018/0259092 (cited on Information Disclosure Statement filed September 3, 2025), and Buchko US 2007/0214752 as applied to claim 1 above in further view of Kabumoto et al. US 2010/0202694 and Bailey et al. US 2013/0097975.
Regarding Claim 7, McDonald et al. discloses the conveyors containing a first platen (‘092, Paragraph [0007]). Hyodo et al. modified with Garcia Torres, Mirkhaef et al., Fischl, McDonald et al., and Buchko is silent regarding reintroducing the rejected assembled sandwich to the first platen after the quality has been corrected.
Kabumoto et al. discloses a quality control of food products before moving the food products to the automated packaging system (sealed bags) (‘694, Paragraph [0089]) with one or more sensors (‘694, Paragraph [0133]) and redirecting a rejected assembled sandwich that does not meet the quality control sensed by the sensor to a reject line (defective product storage conveyor 90) that bypasses the automated packaging system (via regular line conveyor 80) (‘694, Paragraphs [0065]-[0066]). Bailey et al. discloses a vision inspection system for quality control inspection of an object prior to packaging the object wherein any packages not meeting inspection requirements are automatically removed from the system for reprocessing (‘975, Paragraph [0018]).
Both modified Hyodo et al. and Kabumoto et al. are directed towards the same field of endeavor of food packaging methods. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Hyodo et al. and conduct a quality control of the assembled sandwich before moving the assembled sandwich to the automated packaging system with one or more sensors and redirecting a rejected assembled sandwich that does not meet the quality control sensed by the sensor to a reject line that bypasses the automated packaging system in order to only package quality sandwiches and to prevent packaging defective sandwiches. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Hyodo et al. and redirect a rejected sandwich that does not meet quality control to a reject line and reintroduce the rejected assembled sandwich to the automated conveyor after the quality has been corrected since Bailey et al. teaches that reprocessing any object that does not meet quality controls was known in the inspection art. One of ordinary skill in the art would reprocess any rejected quality objects in order to fix the defects of the sandwich of the Hyodo et al. prior to packaging.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Hyodo et al. US 2019/0071195 in view of Garcia Torres US 5,657,685, Mirkhaef et al. US 2019/0352028, Fischl US 2017/0050331, McDonald et al. US 2018/0259092 (cited on Information Disclosure Statement filed September 3, 2025), and Buchko US 2007/0214752 as applied to claim 1 above in further view of Fitzwater US 2011/0180594 and Sullivan et al. US 6,245,368.
Regarding Claim 9, Hyodo et al. discloses packaging the sandwich (via packager 4) to create a packaged sandwich (packaged sandwiches S) (‘195, Paragraph [0102]). However, Hyodo et al. modified with Garcia Torres, Mirkhaef et al., Fischl, McDonald et al., and Buchko is silent regarding adding one or more condiments into the packaging of the assembled sandwich to create a packaged sandwich and condiments.
Fitzwater discloses a packaged sandwich (package 200) comprising an assembled sandwich separated from one or more condiments (‘594, FIGS. 1D-1E) (‘594, Paragraphs [0032] and [0088]-[0089]).
Both modified Hyodo et al. and Fitzwater are directed towards the same field of endeavor of packaged sandwiches. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the package of modified Hyodo et al. and incorporate one or more condiments into the packaging of the assembled sandwich to create a packaged sandwich and condiments as taught by Fitzwater in order to conveniently provide condiments for the assembled package in one convenient package. Furthermore, Sullivan et al. discloses condiments are not placed on the sandwiches during the assembly process in order to preserve customer choice and to prevent the absorption of excess moisture by the bread portions of the sandwiches wherein packaged condiments may be provided (‘368, Column 4, lines 33-38). One of ordinary skill in the art would modify the packaging of modified Hyodo et al. and incorporate a separate packaged condiment within the same packaging as the sandwich as taught by Fitzwater in order to provide condiments for the assembled sandwich while preventing the absorption of excess moisture by bread portions of the sandwiches.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Hyodo et al. US 2019/0071195 in view of Garcia Torres US 5,657,685, Mirkhaef et al. US 2019/0352028, Fischl US 2017/0050331, McDonald et al. US 2018/0259092 (cited on Information Disclosure Statement filed September 3, 2025), Buchko US 2007/0214752, Fitzwater US 2011/0180594, and Sullivan et al. US 6,245,368 as applied to claim 9 above in further view of Magnusson et al. US 2020/0017287.
Regarding Claim 10, Mirkhaef et al. discloses placing the packaged sandwich (sandwich 12) into a container (wrapper 20) with an automated picker robot (robotic arm 202) (‘028, Paragraph [0066]). Fitzwater discloses a packaged sandwich (package 200) comprising an assembled sandwich separated from one or more condiments (‘594, FIGS. 1D-1E) (‘594, Paragraphs [0032] and [0088]-[0089]).
Hyodo et al. modified with Garcia Torres, Mirkhaef et al., Fischl, McDonald et al., Buchko, Fitzwater, and Sullivan et al. is silent regarding placing the packaged condiments into the container with a second automated picker robot.
Magnusson et al. discloses a prepackaged individual serving of condiments placed within a wrapper by picking up the condiment with an automated picker robot (robotic or other automatic arm) and depositing the prepackaged condiments into a container (wrapper) (‘287, Paragraphs [0003] and [0038]).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Mirkhaef et al. and place the packaged condiments into a container with a second automated picker robot as taught by Magnusson et al. since providing an automatic or mechanical means to replace a manual activity of placing the packaged condiments into a container using an automated picker robot which accomplished the same result is not sufficient to distinguish over the prior art in view of In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958) (MPEP § 2144.04.III.).
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Hyodo et al. US 2019/0071195 in view of Garcia Torres US 5,657,685, Mirkhaef et al. US 2019/0352028, Fitzwater US 2011/0180594, Sullivan et al. US 6,245,368, Fischl US 2017/0050331, McDonald et al. US 2018/0259092 (cited on Information Disclosure Statement filed September 3, 2025), and Buchko et al. US 2007/0214752.
Regarding Claim 18, Hyodo et al. discloses an automated sandwich assembly method (‘195, Paragraphs [0112]-[0113]). The method comprises moving a first portion (top slice of bread S1) and a second portion (bottom slice of bread S1) of a bread (bread S1) via an automated conveyor (conveyors 3) (‘195, Paragraphs [0043] and [0056]) towards an automated picker robot (sorting manipulator 51) (‘195, Paragraph [0048]). One or more inputs (food substances S2) are added to the second portion (bottom slice of bread S1) of the bread (bread S1) (‘195, Paragraph [0056] and [0112]) wherein the one or more inputs (food substances S2) comprise sandwich components to create an assembled sandwich (sandwich S) (‘195, Paragraph [0112]) and the first portion (top slice of bread S1) and the second portion (bottom slice of bread S1) with the plurality of inputs (food substances S2) positioned therebetween to assemble the assembled sandwich (‘195, Paragraphs [0056] and [0100]). The assembled sandwich (sandwich S) is moved to an automated packaging system (packager 4) via the automated conveyor (conveyors 3) and the assembled sandwich is packaged via the automated packaging system (packager 4) (‘195, Paragraphs [0111]-[0112]).
Hyodo et al. is silent regarding the first portion of the top slice of bread and the second portion of the bottom slice of bread being sliced with an automated slicer, the automated conveyor having a first platen that moves the top portion and the bottom portion of the sliced piece of bread, slicing the one or more inputs for the piece of bread at input stations and loading the sliced one or more inputs on a second platen of the automated conveyor, moving the one or more inputs via the second platen wherein the one or more inputs are added to the second platen sequentially to receive amounts of inputs from each of the input stations before reaching the automated picker robot, and moving the assembled sandwich via the first platen to the automated packaging system.
Garcia Torres discloses an automated sandwich assembly method (‘685, Column 1, lines 8-20). The method comprises slicing with an automated slicer a piece of bread (loaves 13) into a first portion (top slice 14) and a second portion (bottom slice 14) at input stations (cutting stations) (‘685, Column 2, lines 63-67), and moving the first portion (top slice 14) and the second portion (bottom slice 14) of the bread via an automated conveyor (conveyor belt 15) (‘685, Column 1, lines 22-24) (‘685, Column 6, lines 1-15).
Both Hyodo et al. and Garcia Torres are directed towards the same field of endeavor of automated sandwich assembly methods. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Hyodo et al. and make the two slices of bread of the sandwich by slicing with an automated slicer a piece of bread into a top portion and a bottom portion as taught by Garcia Torres since providing an automatic or mechanical means to replace a manual activity of slicing one larger piece of bread into two smaller pieces of a piece of bread having a top portion and a bottom portion which accomplished the same result is not sufficient to distinguish over the prior art in view of In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958) (MPEP § 2144.04.III.).
Further regarding Claim 18, Hyodo et al. modified with Garcia Torres is silent regarding moving the first portion and the second portion of the sliced piece of bread via a first platen of the automated conveyor towards an automated picker robot, loading the sliced plurality of inputs sequentially on a second platen of the automated conveyor, moving the second platen with the plurality of inputs one or more inputs via the second platen wherein the one or more inputs are added to the second platen sequentially, adding the one or more inputs with the automated picker robot, and moving the assembled sandwich via the first platen.
Mirkhaef et al. discloses an automated sandwich assembly method (system 200) (‘028, Paragraph [0054]) comprising adding one or more inputs (meat 10) to a bottom portion (bottom bun 14) of a sandwich (sandwich 12) with an automated picker robot (robotic arm 102) wherein the one or more inputs (meat 10) comprise sandwich components to create an assembled sandwich (sandwich 12), moving the assembled sandwich (sandwich 12) to an automated packaging system (wrapping assist device 204), and packaging the assembled sandwich (sandwich 12) via the automated packaging system (wrapping assist device 204) (‘028, Paragraphs [0066]-[0069]).
Both Hyodo et al. and Mirkhaef et al. are directed towards the same field of endeavor of methods of making a sandwich using an automated sandwich assembly. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the method of Hyodo et al. and use an automated picker robot to add the one or more inputs in the form of meat to the bottom portion of the bread as taught by Mirkhaef et al. since providing an automatic or mechanical means to replace a manual activity of placing one or more inputs on the bottom portion of the bread using an automated picker robot which accomplished the same result is not sufficient to distinguish over the prior art in view of In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958) (MPEP § 2144.04.III.).
Further regarding Claim 18, Hyodo et al. modified with Garcia Torres, and Mirkhaef et al. is silent regarding one or more inputs being loaded on a platen of the automated conveyor and moving the platen with the one or more inputs towards an automated picker robot and one or more condiments or utensils being placed into the packaging that contains the assembled sandwich.
Fitzwater discloses a packaged sandwich (package 200) comprising an assembled sandwich separated from one or more condiments (‘594, FIGS. 1D-1E) (‘594, Paragraphs [0032] and [0088]-[0089]).
Both Hyodo et al. and Fitzwater are directed towards the same field of endeavor of packaged sandwiches. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the package of Hyodo et al. and incorporate one or more condiments into the packaging of the assembled sandwich to create a packaged sandwich and condiments as taught by Fitzwater in order to conveniently provide condiments for the assembled package in one convenient package. Furthermore, Sullivan et al. discloses condiments are not placed on the sandwiches during the assembly process in order to preserve customer choice and to prevent the absorption of excess moisture by the bread portions of the sandwiches wherein packaged condiments may be provided (‘368, Column 4, lines 33-38). One of ordinary skill in the art would modify the packaging of Hyodo et al. and incorporate a separate packaged condiment within the same packaging as the sandwich as taught by Fitzwater in order to provide condiments for the assembled sandwich while preventing the absorption of excess moisture by bread portions of the sandwiches.
Further regarding Claim 18, Hyodo et al. modified with Garcia Torres, Mirkhaef et al., Fitzwater, and Sullivan et al. is silent regarding the plurality of inputs being loaded sequentially on the platen of the automated conveyor as the automated conveyor moves from one input location to the next as the automated conveyor moves from one input location to the next.
Fischl discloses a method for slicing one or more inputs (one or more food products) (‘331, Paragraph [0001]) wherein the one or more inputs (one or more food products) are moved via a conveyor (conveyor belt 4) (‘311, Paragraph [0030]). Fischl further discloses the plurality of inputs (one or more food products) being added to the conveyor (conveyor belt 4) sequentially to receive amounts of inputs (food products) from each of the input stations (the tracks can be loaded one after another) (‘331, Paragraph [0013]) at the automated conveyor moves from one input location to the next (conveyor belt 4 runs continuously) (‘331, Paragraph [0030]).
Both modified Hyodo et al. and Fischl are directed towards the same field of endeavor of processing food products using a slicer and moving the food products via a conveyor. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Hyodo et al. and add the one or more food product inputs of modified Hyodo et al. to the conveyor sequentially to receive amounts of inputs from each of the input stations before reaching the automated picker robot since Fischl teaches that it was known and conventional in the food conveyor art to add one or more food product inputs to the conveyor sequentially.
Further regarding Claim 18, Hyodo et al. modified with Garcia Torres, Mirkhaef et al., Fitzwater, Sullivan et al., and Fischl is silent regarding moving the one or more inputs via a first platen of the automated conveyor, loading the sliced one or more inputs on a second platen of the automated conveyor, moving the one or more inputs via the second platen, and moving the assembled sandwich via the first platen.
McDonald et al. discloses an apparatus and method of vacuumizing and sealing a food package (‘092, Paragraph [0001]) wherein the apparatus comprises a conveying mechanism for conveying a plurality of platens around a single axis of rotation (‘092, Paragraph [0009]). Additionally, Buchko discloses a conveyor including a series of platens adapted to receive a vacuum packaged food product (‘752, Paragraphs [0053] and [0116]).
Hyodo et al. discloses the automated food processing method comprising using any conveyance system (‘195, Paragraph [0045]). Modified Hyodo et al., McDonald et al., and Buchko are all directed towards the same field of endeavor of automated food assembly methods for processing foods using automated conveyors. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Hyodo et al. that uses any conveyance system and incorporate a first platen and a second platen to the automated conveyor for moving pieces of food to different locations of the food assembly apparatus since McDonald et al. and Buchko teaches that it was known and conventional in the automated food assembly art to incorporate platens on an automated conveyor for moving food items on the conveyor to different locations of the automated food apparatus. Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Hyodo et al. and incorporate a first platen and a second platen on the automated conveyor as taught by McDonald et al. and Buchko since the mere duplication of parts has no patentable significance unless a new and unexpected result is produced in view of In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960) (MPEP § 2144.04.IV.B.). McDonald et al. and Buchko teaches that there was known utility in the food packaging art to incorporate a plurality of platens onto a conveyor system that moves food items. Additionally, loading packages onto platens avoids manual loading of packages (‘092, Paragraph [0007]).
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Hyodo et al. US 2019/0071195 in view of Garcia Torres US 5,657,685, Mirkhaef et al. US 2019/0352028, Fitzwater US 2011/0180594, Sullivan et al. US 6,245,368, Fischl US 2017/0050331, McDonald et al. US 2018/0259092 (cited on Information Disclosure Statement filed September 3, 2025), and Buchko et al. US 2007/0214752 as applied to claim 18 above in further view of Vardakostas et al. US 2019/0261671.
Regarding Claim 19, Hyodo et al. modified with Garcia Torres, Mirkhaef et al., Fitzwater, Sullivan et al., Fischl, McDonald et al., and Buchko et al. is silent regarding determining via a set of electronic instructions a type of sandwich to assemble using a combination of the plurality of inputs.
Vardakostas et al. discloses an automated sandwich assembly method (‘671, Paragraph [0028]) comprising a processor configured to carry out a topping order to dispense topping servings to fulfill custom topping orders via a set of electronic instructions (‘671, Paragraph [0100]) wherein the processor receives a topping order from a patron through a customer touchscreen interface (‘6741, Paragraph [0102]), which reads on the claimed determining via a set of electronic instructions a type of sandwich to assemble using a combination of the one or more inputs.
Both Hyodo et al. and Vardakostas et al. are directed towards the same field of endeavor of methods of automatically assembling a sandwich. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the method of modified Hyodo et al. and determine via a set of electronic instructions a type of sandwich to assemble using a combination of one or more input toppings as taught by Vardakostas et al. since providing an automatic or mechanical means to replace a manual activity of determining via a set of electronic instructions a type of sandwich to assemble using a combination of the one or more inputs which accomplished the same result is not sufficient to distinguish over the prior art in view of In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958) (MPEP § 2144.04.III.).
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Hyodo et al. US 2019/0071195 in view of Garcia Torres US 5,657,685, Mirkhaef et al. US 2019/0352028, Fitzwater US 2011/0180594, Sullivan et al. US 6,245,368, Fischl US 2017/0050331, McDonald et al. US 2018/0259092 (cited on Information Disclosure Statement filed September 3, 2025), Buchko et al. US 2007/0214752 and Vardakostas et al. US 2019/0261671 as applied to claim 19 above in further view of Frehn et al. US 2017/0024789.
Regarding Claim 20, Hyodo et al. modified with Garcia Torres, Mirkhaef et al., Fitzwater, Sullivan et al., Fischl, McDonald et al., Buchko, and Vardakostas et al. is silent regarding the set of electronic instructions being stored in an electronic database.
Frehn et al. discloses a food assembly apparatus database (‘789, Paragraph [0027]) for toppings (‘789, Paragraph [0033]).
Both modified Hyodo et al. and Frehn et al. are directed towards the same field of endeavor of methods of automatically assembling a sandwich. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Hyodo et al. and store the set of electronic instructions in an electronic database since Frehn et al. teaches that it was known and conventional in the sandwich making art to store electronic instructions in an electronic database.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 3, 5-7, 9-11, and 18-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 1, 3-7, 9-11, and 18-20 of copending Application No. 17/247,236 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because of the following:
Regarding independent Claim 1, it is noted that Claim 1 of the instant application recites all of the same limitations as that of independent Claim 1 of the pending ‘236 application with the exception that independent Claim 1 of the pending ‘236 application recites the automated sandwich assembly being applied to more narrow automated sandwich assembly method for making a submarine sandwich. The more narrow method of making a submarine sandwich assembly of Claim 1 of pending ’236 application reads on the broader method of making a generic automated sandwich assembly method of the instant application.
Regarding independent Claim 18, it is noted that Claim 18 of the instant application recites all of the same limitations as that of independent Claim 18 of the pending ‘236 application with the exception that independent Claim 18 of the pending ‘236 application recites the automated sandwich assembly being applied to more narrow automated sandwich assembly method for making a submarine sandwich. The more narrow method of making a submarine sandwich assembly of Claim 18 of pending ’236 application reads on the broader method of making a generic automated sandwich assembly method of the instant application.
Regarding dependent Claims 3, 5-7, 9-11, and 19-20 it is noted that Claims 3, 5-7, 9-11, and 19-20 of the instant application recites all of the same limitations as that of dependent Claims 3-6, 9-11, and 19-20 respectively, of the pending ‘236 application with the exception that dependent Claims 3, 5, 7, 9-11, and 19-20 of the pending ‘236 application recites the automated sandwich assembly being applied to the more narrow automated sandwich assembly method for making a submarine sandwich. The more narrow method of making a submarine sandwich assembly of Claims 3, 5-7, 9-11, and 19-20 of the pending ‘236 application reads on the broader method of making a generic automated sandwich assembly method of the instant application
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Examiner notes that the previous Double Patenting rejections have been modified to reflect the updated amended limitations of the instant application and the updated amended limitations of the copending ‘236 application.
Examiner notes that the previous indefiniteness rejections under 35 USC 112(b) have been withdrawn in view of the amendments.
Examiner notes that new indefiniteness rejections under 35 USC 112(b) have been made.
Examiner notes that new Claim Objections have been made in view of the amendments.
Examiner notes that new new matter rejections under 35 USC 112(a) have been made in view of the amendments.
Applicant’s arguments with respect to the obviousness rejections of 1, 3, 5-7, 9-11, and 18-20 under 35 USC 103(a) have been considered but are moot because the new ground of rejection does not rely on the combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. The new combination of references was necessitated by amendment. It is noted that applicant’s arguments with respect to the obviousness rejections does not specifically and distinctly point out the supposed errors of the previous combination of references being relied upon.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Cohen et al. US 2020/0205461 discloses a conveyor advancing a topping vehicle wherein the conveyor comprises a support member including a platen that constrains the topping vehicle vertically (‘461, Paragraph [0096]).
Hjalmarsson et al. US 2019/0000094 discloses a food processing apparatus comprising a first conveyor, a second conveyor, and a third conveyor wherein a grading robot separates one or more portions of a food article from the remaining portions on the surface of the first conveyor such that the movement of the conveyor guides the separated portions onto the second conveyor while guiding the remaining portions onto the third conveyor (‘094, Paragraph [0027]) wherein a conveyor containing at least one cutting machine cuts out a portion of a food article (‘094, Paragraph [0014]).
Sekar et al. US 2016/0067866 discloses a cooking machine apparatus comprising multiple ingredient delivery capsules containing different toppings and ingredients dispensed on a food item (‘866, Paragraph [0231]) wherein a multiplicity of sliding valve and valve housing assemblies are mounted on a rotary platen (‘866, Paragraph [0160]).
Goldberg et al. US 2020/0397194 discloses dispensing robots for different ingredients are arranged along a dispensing system frame (‘194, Paragraph [0074]) wherein the robots include a transfer robot, a dispensing robot, a packaging/boxing robot, and a food slicing robot (‘194, Paragraph [0061]).
Hasmimoto et al. US 2019/0300212 discloses a plurality of robots wherein each robot dishes up a different food (‘212, Paragraph [0051]) wherein the robot is configure