Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
DETAILED ACTION
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 1-14-26 has been entered.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102 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.
Claims 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over USD706586, Kestenbaum in view of US D667708, Stewart.
Regarding Claim 1, Kestenbaum discloses a disposable cutlery article compatible for dispensing by a no-touch utensil dispenser from a vertical stack of identical cutlery articles that are mutually aligned and identically oriented, said dispensing including inserting of an escapement finger between ends of adjacent handles in the stack, the plastic cutlery article comprising (since, as shown in fig 4 and 5, the cutlery article is stackable on an identical article, identically oriented, and since there is a space between the articles to allow an escapement finger to enter between the articles in said stack):
a handle extending from a proximal end of the handle to a distal end of the handle along a horizontal, longitudinal cutlery axis (see annotated fig 4 below);
a head immediately adjacent to and extending from the distal end of the handle substantially along said longitudinal axis, the head being configured for contacting and manipulating food (since the utensil is a salad server, and the head portion in such servers is configured to contact salad/food); and
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a chamfered surface extending distally from the proximal end of the handle, the chamfered surface being in a plane that is tilted from vertical about a horizontal tilt axis that is transverse to the longitudinal cutlery axis (see annotated fig 4 below);
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said cutlery article being configured such that when the said plastic cutlery article is included within the no-touch utensil dispenser in the vertical stack of identical plastic cutlery articles that are mutually aligned and identically oriented (as seen in fig 4, where the articles are mutually aligned and identically oriented, and can be placed in a no-touch dispenser in this configuration/orientation):
the chamfered surface extends distally from the proximal end of the handle to an upward-facing boundary of the handle (see annotated fig. 4 below), so that a proximal edge of the chamfered surface is located at the proximal end of the handle and a distal edge of the chamfered surface lies within the upward-facing boundary of the handle (see annotated fig. 4 below);
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the handle of the cutlery article rests upon a handle of a next lower cutlery article in the stack (fig 4);
the upward-facing boundary of the handle of the cutlery article is separated from an upward-facing boundary of the handle of the next lower cutlery article by a vertical stack spacing (see annotated fig 4 below); and
a handle gap is formed between the proximal end of the handle and the proximal end of the next lower cutlery article due to the chamfered surface, (see annotated fig. 4, below).
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Kestenbaum lacks Feature I a longitudinal depth of said handle gap being greater than the vertical stack spacing, and Feature II, the material of the utensils being plastic.
Regarding feature I: Stewart discloses a cutlery utensil having an elongated handle with a chamfer extending from the proximal end thereof, in the same field of endeavor as the: elongated handle with a chamfer extending from the proximal end thereof, as Kestenbaum, and discloses that in such a utensil a longitudinal depth of a vertical stack spacing/handle gap, e.g. the thickness of the handle, which when stacked would define the space of the upward-facing boundary of the handle of the cutlery article separated from an upward-facing boundary of a handle of a next lower cutlery article by a vertical stack spacing is greater than the vertical stack spacing of the handle, e.g. space formed between the proximal end of the handle and the proximal end of the next lower cutlery article due to the chamfered surface (See annotated fig 7 below).
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It would have been obvious matter of design choice to one of ordinary skill to modify Kestenbaum by making: the longitudinal depth of said handle gap being greater than the vertical stack spacing, as shown in Stewart, since such a configuration would be equally effective for allowing the utensils to be stacked relative to one another, and since Stewart shows that this design is an alternate design known in the art. The court has held, absent any statement of criticality as to the location of the switch recess, that rearrangement of parts require only ordinary skill in the art and hence are considered routine expedients. In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice).
Also, it would have been obvious as a matter of design choice to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Kestenbaum by making longitudinal depth of said handle gap be greater than the vertical stack spacing, since the changing of a shape of an element of an invention was held to be in the realm of design choice to one of ordinary skill in the art, see In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966), and MPEP 2144.04-IV.B.
Regarding Feature II: Lee discloses a plastic cutlery and tableware apparatus, and discloses in the background of the invention that the one piece tableware thereof in the same field of endeavor as the one piece table ware apparatus of the current invention and discloses that it is beneficial to create the one piece cutlery out of plastic material in order to save material while strengthening the cutlery utensils, per par 0013.
It would have been obvious to one having ordinary skill in the art at the time of the invention to modify Kestenbaum by making the cutlery out of plastic, in order to save material while strengthening the cutlery utensils as taught by Lee.
In addition, it would have been an obvious matter of design choice to a person of ordinary skill in the art to form the cutlery out of plastic, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416. Here, an artisan would be motivated to make the utensils out of plastic since it is well known in the material and mechanical arts that plastic is relatively cheaper material and is easy to shape in complex shapes compared to wood, metal and other similar materials.
Regarding Claim 2, in Kestenbaum the cutlery article is a spoon (fig 4).
Regarding Claim 3, in Kestenbaum the wherein the head is wider than the handle ( fig 3).
Regarding Claim 4, in Kestenbaum the said handle is at least partially hollow.
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Regarding Claim 5, Kestenbaum discloses a disposable cutlery article compatible for dispensing by a no-touch utensil dispenser from a vertical stack of identical cutlery articles that are mutually aligned and identically oriented, said dispensing including inserting of an escapement finger between ends of adjacent handles in the stack, the plastic cutlery article comprising (since, as shown in fig 4 and 5, the cutlery article is stackable on an identical article, identically oriented, and since there is a space between the articles to allow an escapement finger to enter between the articles in said stack):
a handle extending from a proximal end of the handle to a distal end of the handle along a horizontal, longitudinal cutlery axis (see annotated fig 4 below);
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a head immediately adjacent to and extending from the distal end of the handle substantially along said longitudinal axis, (see annotated fig 4 above) the head being configured for contacting and manipulating food (since the utensil is a salad server, and the head portion in such servers is configured to contact salad/food) and wherein the head has an escapement feature in an outer edge for facilitating controlled release from a bottom of a stack of utensils and the escapement feature is in a form of a notch (see annotated fig 1 below);
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and a chamfered surface extending distally from the proximal end of the handle, the chamfered surface being in a plane that is tilted from vertical about a horizontal tilt axis that is transverse to the longitudinal cutlery axis (see annotated fig 4 below);
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said cutlery article being configured such that when the said cutlery article is included within the no-touch utensil dispenser in the vertical stack of identical cutlery articles that are mutually aligned and identically oriented (as seen in fig 4, where the articles are mutually aligned and identically oriented, and can be placed in a no-touch dispenser in this configuration/orientation):
the chamfered surface extends distally from the proximal end of the handle to an upward-facing boundary of the handle, so that a proximal edge of the chamfered surface is located at the proximal end of the handle and a distal edge of the chamfered surface lies within the upward-facing boundary of the handle (see annotated fig. 4 below);
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the handle of the plastic article rests upon a handle of a next lower cutlery article in the stack (see fig 4);
the upward-facing boundary of the handle of the plastic cutlery article is separated from an upward-facing boundary of the handle of the next lower cutlery article by a vertical stack spacing; and a handle gap is formed between the proximal end of the handle and the proximal end of the next lower cutlery article due to the chamfered surface, see annotated fig 4 below.
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Kestenbaum lacks Feature I a longitudinal depth of said handle gap being greater than the vertical stack spacing, and Feature II, the material of the utensils being plastic.
Regarding feature I: Stewart discloses a cutlery utensil having an elongated handle with a chamfer extending from the proximal end thereof, in the same field of endeavor as the: elongated handle with a chamfer extending from the proximal end thereof, as Kestenbaum, and discloses that in such a utensil a longitudinal depth of a vertical stack spacing/handle gap, e.g. the thickness of the handle, which when stacked would define the space of the upward-facing boundary of the handle of the cutlery article separated from an upward-facing boundary of a handle of a next lower cutlery article by a vertical stack spacing is greater than the vertical stack spacing of the handle, e.g. space formed between the proximal end of the handle and the proximal end of the next lower cutlery article due to the chamfered surface (See annotated fig 7 below).
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It would have been obvious matter of design choice to one of ordinary skill to modify Kestenbaum by making: the longitudinal depth of said handle gap being greater than the vertical stack spacing, as shown in Stewart, since such a configuration would be equally effective for allowing the utensils to be stacked relative to one another, and since Stewart shows that this design is an alternate design known in the art. The court has held, absent any statement of criticality as to the location of the switch recess, that rearrangement of parts require only ordinary skill in the art and hence are considered routine expedients. In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice).
Also, it would have been obvious as a matter of design choice to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Kestenbaum by making longitudinal depth of said handle gap be greater than the vertical stack spacing, since the changing of a shape of an element of an invention was held to be in the realm of design choice to one of ordinary skill in the art, see In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966), and MPEP 2144.04-IV.B.
Regarding Feature II: Lee discloses a plastic cutlery and tableware apparatus, and discloses in the background of the invention that the one piece tableware thereof in the same field of endeavor as the one piece table ware apparatus of the current invention and discloses that it is beneficial to create the one piece cutlery out of plastic material in order to save material while strengthening the cutlery utensils, per par 0013.
It would have been obvious to one having ordinary skill in the art at the time of the invention to modify Kestenbaum by making the cutlery out of plastic, in order to save material while strengthening the cutlery utensils as taught by Lee.
In addition, it would have been an obvious matter of design choice to a person of ordinary skill in the art to form the cutlery out of plastic, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416. Here, an artisan would be motivated to make the utensils out of plastic since it is well known in the material and mechanical arts that plastic is relatively cheaper material and is easy to shape in complex shapes compared to wood, metal and other similar materials.
Regarding Claim 6, Kestenbaum discloses a disposable, cutlery article compatible for dispensing by a no-touch utensil dispenser from a vertical stack of identical cutlery articles that are mutually aligned and identically oriented, said dispensing including inserting of an escapement finger between ends of adjacent handles in the stack, the plastic cutlery article (since, as shown in fig 4 and 5, the cutlery article is stackable on an identical article, identically oriented, and since there is a space between the articles to allow an escapement finger to enter between the articles in said stack) comprising:
a handle extending from a proximal end of the handle to a distal end of the handle along a horizontal, longitudinal cutlery axis (See annotated fig 4, below);
a head immediately adjacent to and extending from the distal end of the handle substantially along said longitudinal axis, (See annotated fig 4, below) the head being configured for contacting and manipulating food (since the utensil is a salad server, and the head portion in such servers is configured to contact salad/food)
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and wherein the head has an escapement feature in its outer edge for facilitating controlled release from a bottom of a stack of utensils and the escapement feature is in a form of a predetermined release radius (see annotated fig 1 below, where notch is a predetermined release-radius);
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and a chamfered surface extending distally from the proximal end of the handle, the chamfered surface being in a plane that is tilted from vertical about a horizontal tilt axis that is transverse to the longitudinal cutlery axis (see annotated fig 4 below);
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said cutlery article being configured such that when the said plastic cutlery article is included within the no-touch utensil dispenser in the vertical stack of identical plastic cutlery articles that are mutually aligned and identically oriented (as seen in fig 4, where the articles are mutually aligned and identically oriented, and can be placed in a no-touch dispenser in this configuration/orientation):
the chamfered surface extends distally from the proximal end of the handle to an upward-facing boundary of the handle, so that a proximal edge of the chamfered surface is located at the proximal end of the handle and a distal edge of the chamfered surface lies within the upward-facing boundary of the handle (see annotated fig 4 below);
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the handle of the plastic cutlery article rests upon a handle of a next lower cutlery article in the stack (Fig 4);
the upward-facing boundary of the handle of the plastic cutlery article is separated from an upward-facing boundary of the handle of the next lower cutlery article by a vertical stack spacing (see annotated fig 4 below); and
a handle gap is formed between the proximal end of the handle and the proximal end of the next lower cutlery article due to the chamfered surface (see annotated fig 4 below).
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Kestenbaum lacks Feature I a longitudinal depth of said handle gap being greater than the vertical stack spacing, and Feature II, the material of the utensils being plastic.
Regarding feature I: Stewart discloses a cutlery utensil having an elongated handle with a chamfer extending from the proximal end thereof, in the same field of endeavor as the: elongated handle with a chamfer extending from the proximal end thereof, as Kestenbaum, and discloses that in such a utensil a longitudinal depth of a vertical stack spacing/handle gap, e.g. the thickness of the handle, which when stacked would define the space of the upward-facing boundary of the handle of the cutlery article separated from an upward-facing boundary of a handle of a next lower cutlery article by a vertical stack spacing is greater than the vertical stack spacing of the handle, e.g. space formed between the proximal end of the handle and the proximal end of the next lower cutlery article due to the chamfered surface (See annotated fig 7 below).
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It would have been obvious matter of design choice to one of ordinary skill to modify Kestenbaum by making: the longitudinal depth of said handle gap being greater than the vertical stack spacing, as shown in Stewart, since such a configuration would be equally effective for allowing the utensils to be stacked relative to one another, and since Stewart shows that this design is an alternate design known in the art. The court has held, absent any statement of criticality as to the location of the switch recess, that rearrangement of parts require only ordinary skill in the art and hence are considered routine expedients. In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice).
Also, it would have been obvious as a matter of design choice to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Kestenbaum by making longitudinal depth of said handle gap be greater than the vertical stack spacing, since the changing of a shape of an element of an invention was held to be in the realm of design choice to one of ordinary skill in the art, see In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966), and MPEP 2144.04-IV.B.
Regarding Feature II: Lee discloses a plastic cutlery and tableware apparatus, and discloses in the background of the invention that the one piece tableware thereof in the same field of endeavor as the one piece table ware apparatus of the current invention and discloses that it is beneficial to create the one piece cutlery out of plastic material in order to save material while strengthening the cutlery utensils, per par 0013.
It would have been obvious to one having ordinary skill in the art at the time of the invention to modify Kestenbaum by making the cutlery out of plastic, in order to save material while strengthening the cutlery utensils as taught by Lee.
In addition, it would have been an obvious matter of design choice to a person of ordinary skill in the art to form the cutlery out of plastic, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416. Here, an artisan would be motivated to make the utensils out of plastic since it is well known in the material and mechanical arts that plastic is relatively cheaper material and is easy to shape in complex shapes compared to wood, metal and other similar materials.
Regarding Claim 7, Kestenbaum discloses a: disposable cutlery article comprising: a handle extending from a proximal end of the handle to a distal end of the handle along a horizontal, longitudinal cutlery axis; (see annotated fig 4 below)
a head immediately adjacent to and extending from the distal end of the handle substantially along said longitudinal axis (see annotated fig 4 below), the head being configured for contacting and manipulating food; and
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a chamfered surface extending distally from the proximal end of the handle, the chamfered surface being in a plane that is tilted from vertical about a horizontal tilt axis that is transverse to the longitudinal cutlery axis (see annotated fig 4 below);
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and wherein the disposable cutlery article is in a vertical stack of identical cutlery articles that are mutually aligned and identically oriented in a no-touch utensil dispenser, (as seen in fig 4, where the articles are mutually aligned and identically oriented, and can be placed in a no-touch dispenser in this configuration/orientation) and
wherein the chamfered surface of the disposable plastic cutlery article extends distally from the proximal end of the handle to an upward-facing boundary of the handle, so that a proximal edge of the chamfered surface is located at the proximal end of the handle and a distal edge of the chamfered surface lies within the upward-facing boundary of the handle (see annotated fig 4 below);
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the handle of the cutlery article rests upon a handle of a next lower cutlery article in the stack (fig 4);
the upward-facing boundary of the handle of the cutlery article is separated from an upward-facing boundary of the handle of the next lower cutlery article by a vertical stack spacing; and a handle gap is formed between the proximal end of the handle and the proximal end of the next lower cutlery article due to the chamfered surface, (see annotated fig 4 below).
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Response to Arguments
Applicant’s arguments, see remarks, filed 1/14/26, with respect to the prior art rejections of the claims (as the claims have now been amended) have been fully considered and are persuasive. Therefore, the prior art rejections have been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Kestenbaum.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. USPNs/USPGPUBs 5904250 2752678 20190365127 D202926 20130152406 20170340152 D778120 D675869 9924816 D717112 3030812 4317284 2824369 3030812 disclose 20130152406 D625153 USD706586 D074863 0512162 4317284 D560443 D488394 D667708 D996925 disclose state of the art utensils with chamfers. Thus, each of these references disclose elements relevant to the present invention/application.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to FERNANDO A AYALA whose telephone number is (571)270-5336. The examiner can normally be reached Monday-Friday 9am-5pm Eastern standard.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Boyer Ashley can be reached on 571-272-4502. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/FERNANDO A AYALA/Examiner, Art Unit 3724
/BOYER D ASHLEY/Supervisory Patent Examiner, Art Unit 3724