Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 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, 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.
Claim 1 is rejected under 35 U.S.C. 103 as being unpatentable over Bennet (US 7,913,970) in view of Huye (US 1,683,192).
Regarding claim 1, Bennet (figs. 1-2) discloses an ovenable fold-flat baking container assemblable from a flat unassembled form into an assembled form, the container comprising a flat base 11 and at least one side wall member 12 wherein:
the base 11 comprises a main base portion and one base flap 18 which is hingedly connected to the main base portion, the base flap 18 being foldable about its hinge connection 20 between a first inactive position, in the unassembled form, in which the flap 18 is substantially co-planar with the main base portion and a second active position, in the assembled form, in which it overlies the main base portion;
the side wall member 12 has a main wall portion and which has along its bottom edge one or more tabs 25, each of said tabs 25 being capable of folding outwards relative to the main wall portion;
such that, when the main wall portion of the side wall 12 has its bottom edge in contact with the main base portion with the tabs 25 folded outwards, and the base flap 18 is folded into an active position, the tabs 25 are sandwiched between the base flap 18 and the main base portion with the main wall portion upstanding from the main base portion;
retaining means being provided to secure the one or more base flaps in their active position, such that the main base portion and the one or more main wall portions form an open-topped enclosed cavity (col. 2. Lines 19-22).
Bennet fails to disclose the retaining means or the mechanical fastening arrangement comprising at least one hinged push through tab in the base which, when in the engaged position, extends from the base through a corresponding aligned aperture in the overlying base flap.
However, Huye teaches a retaining means comprising at least one hinged push through tab 1 (figs. 1-6).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed, to substitute a retaining mechanism with at least one hinged push through tab as, for example, taught by the Huye reference for the retaining mechanism of Bennet, since it has been held that when a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result. KSR, 127 S.Ct. at 1740, 82 USPQ2d at 1395 (citing United States v. Adams, 383 U.S. 50-51, 148 USPQ 479, 483 (1966)).
Claims 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over Bennet (US 7,913,970) in view of Strasevicz (US 5,322,212).
Alternatively, regarding claims 1 and 6, Bennet (figs. 1-2) discloses an ovenable fold-flat baking container assemblable from a flat unassembled form into an assembled form, the container comprising a flat base 11 and at least one side wall member 12 wherein:
the base 11 comprises a main base portion and one base flap 18 which is hingedly connected to the main base portion, the base flap 18 being foldable about its hinge connection 20 between a first inactive position, in the unassembled form, in which the flap 18 is substantially co-planar with the main base portion and a second active position, in the assembled form, in which it overlies the main base portion;
the side wall member 12 has a main wall portion and which has along its bottom edge one or more tabs 25, each of said tabs 25 being capable of folding outwards relative to the main wall portion;
such that, when the main wall portion of the side wall 12 has its bottom edge in contact with the main base portion with the tabs 25 folded outwards, and the base flap 18 is folded into an active position, the tabs 25 are sandwiched between the base flap 18 and the main base portion with the main wall portion upstanding from the main base portion;
retaining means or mechanical fastening arrangement being provided to secure the one or more base flaps 18 in their active position, such that the main base portion and the one or more main wall portions form an open-topped enclosed cavity (col. 2. Lines 19-22 and col. 6, lines 28-34).
Bennet fails to disclose the retaining means or the mechanical fastening arrangement comprising at least one hinged push through tab in the base which, when in the engaged position, extends from the base through a corresponding aligned aperture in the overlying base flap, wherein the at least one hinged push thought tab has a bulbouts shoulder or mushroom shape adjacent to the hinge.
However, Strasevicz teaches rounded tabs 38 and 40, which register with one another, being pushed in together through the surrounding openings to lock a flap 34 in its folded overlapping position (fig. 3 and col. 5, lines 1-8).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed, to have made the mechanical fastening arrangement of Bennet, push through taps, to lock the flap 18 in its folded overlapping position, as taught by Strasevicz in col. 5, lines 1-8. It has been held that when a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result. KSR, 127 S.Ct. at 1740, 82 USPQ2d at 1395 (citing United States v. Adams, 383 U.S. 50-51, 148 USPQ 479, 483 (1966)).
Regarding claims 2-4, Bennet further discloses the hinge connection 20 for the base flap 18 is defined by a crease;
wherein the hinge connection 20 for the base flap 18 is defined by one or a combination of:
i) a crease,
ii) a pair of spaced creases, wherein the pair of spaced creases or other lines of weakness is reduced to a single crease or other line of weakness at one or more points along its length;
or iii) an alternative type of line or lines of weakness.
Regarding claim 5, Bennet further discloses the inwardly facing edge of the base flaps 25 is shaped such that, when the main wall portion of the side wall 12 has its bottom edge in contact with the main base portion with the tabs folded outwards, the one or more base flaps 25 are folded into an active position, and the tabs are sandwiched between the base flap 18 and the main base portion, the inwardly facing edge of the base flap or flaps forms a substantially continuous abutment with the side wall (fig. 1).
Regarding claim 7, Bennet further discloses the base and the side walls are made from corrugated cardboard (col. 2, lines 1-12).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Bennet (US 7,913,970) in view of Strasevicz (US 5,322,212) as applied to claim 7 above, further in view of Brooks (US 2,421,112).
Regarding claim 8, Bennet discloses all element of the claimed invention as applied to claim 7 above, but fails to disclose the corrugated cardboard comprises an outer layer, a middle layer and an inner layer, said inner layer comprising greaseproof or vegetable parchment paper.
However, Brooks teaches a pan lined interiorly with parchment paper and having an outer liner of thin cardboard (col. 2, lines 31-35).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed, to have made the device of Bennet of three layers, as taught by Brooks, to prevent baked goods from sticking to the pan and to provide a pan with good heat resistance.
Response to Arguments
Applicant's arguments have been fully considered but they are not persuasive.
In response to applicant's argument that Huye is nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, Huye is reasonably pertinent to the particular problem (i.e., using a mechanical fastening arrangement) with which the inventor was concerned.
Applicant further argues that the mere substitution of the retaining means used in Bennet with the locking tongue used in Huye would not lead to something falling within the scope of amended independent claim 1. Contrary to applicant’s argument, it has been held that when a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field (i.e., one known mechanical fastener for another known mechanical faster) , the combination must do more than yield a predictable result. KSR, 127 S.Ct. at 1740, 82 USPQ2d at 1395 (citing United States v. Adams, 383 U.S. 50-51, 148 USPQ 479, 483 (1966)).
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BLAINE GIRMA NEWAY whose telephone number is (571)270-5275. The examiner can normally be reached Monday - Friday 9:00 AM- 5:00PM.
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/BLAINE G NEWAY/Examiner, Art Unit 3735
/Anthony D Stashick/Supervisory Patent Examiner, Art Unit 3735