DETAILED ACTION
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 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 21 January 2026 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, 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, 2, 4, 6 – 11, 22– 24, 26 – 30, 32, and 33 are rejected under 35 U.S.C. 103 as being unpatentable over Foley US 2015/0166240 as further evidenced by Jorgensen US 3,561,594 and James US D610,919 in view of Lovatt GB 2 226 543 in view of Gics US 5,888,565.
Regarding claims 1, 2, and 22, Foley discloses a packaged food product assembly which comprises a first packaged food product (12) and a second packaged food product (12) stacked thereon (third food cup is disposed on the first food cup) and an outer sleeve surrounds the first packaged food product and the second packaged food product. Foley further discloses that when the packaged food products (12) are stacked one upon another the packaged food products would be wrapped in an outer sleeve and the bottom of the lower packaged food product, that is the first packaged food product, would not be covered and the top of the upper, that is the second packaged food product, would not be covered (paragraph [0043]). Whilst not shown in a figure it is seen that Foley strongly suggests the assembly would also comprise first and second food products stacked one upon the other and only a single outer sleeve disclosed as being part of said assembly (paragraph [0042]).
Jorgensen provides further evidence that it was well established and conventional in the art to enclose first and second food products stacked thereon in a single outer sleeve to prevent destacking where the sleeve surrounds only the without covering the bottom of the first packaged food product or the top of the second food product. James provides further evidence that it was conventional in the art to stack only two food products, that is a first food product and a second food product one on top of the other in a single sleeve.
Regarding the outer sleeve surrounding only a first packaged food product and a second packaged food product stacked one upon the other, once it was known to provide a packaged food product assembly where one packaged food product is stacked on another packaged food product it is not seen that patentability would be predicated on the specific number of food product assemblies that would be stacked together in said assembly. While Foley discloses that when stacked the food product package assembly (26) would comprise four packaged food products the elimination of an element, in this case a third packaged food product and a fourth packaged food product if it was only desired to sell the packaged food product assembly as an assembly of two packaged food products would have been an obvious matter of choice and/or design to the ordinarily skilled artisan if it was only desired to include only two of said packaged food products in the packaged food product assembly (MPEP § 2144.04 II.A.).
Foley further discloses a packaged food product (paragraph [0002]) which comprises a base cup (12) having a bottom wall (16), a peripheral wall structure extending upward from and about the perimeter of the bottom wall and cooperating with the bottom wall to define a generally cup-shaped interior of the base cup (paragraph [0036] and fig. 1). At least one base cup food item would be disposed in the base cup (paragraph [0018]), a sealing flange (seen at reference sign 14, fig. 7) extends outward about a top of the wall structure defining a sealing surface on a top of the sealing flange, and a flexible lid (impermeable seal 18) (paragraph [0036]) is peelably sealed (paragraph [0003]) to the top of the sealing flange.
There is an overcap (20) coupled to the base cup which overcap has a top wall that includes an outer peripheral portion (22) and a central recess (24) defining a socket shape (paragraph [0037] and fig. 1). The overcap further includes peripheral front, rear and side walls extending downward about the periphery of the top wall (fig. 1), an overcap closure (impermeable seal 54) is peelably sealed to the overcap, the overcap and the overcap closure define an enclosed overcap interior (50), and an overcap food item (56) is disposed within the overcap interior (paragraph [0041] and fig. 7).
Claim 1 differs from Foley as further evidenced by Jorgensen and James in the bottom wall including, a downwardly extending protrusion on an exterior surface, and a complementary corresponding recess in an interior surface.
Lovatt discloses a container designed for a packaged food product which has a base cup (tray 1) that has a bottom wall (base 3) (col. 3, ln 25 – 28). A peripheral wall structure extends upward from and about a perimeter of the bottom wall and cooperates with the bottom wall to define a generally cup-shaped interior of the base cup, and the peripheral wall structure defines a front wall, a rear wall (long opposed side walls 4), a right wall, and a left wall (shorter opposed end wall 5). A sealing flange (shoulder part 7) extends outward about a top of the wall structure which would define a sealing surface on a top surface of a top of the sealing flange and an overcap (lid 2) is coupled to the base cup which overcap includes a peripheral front, rear (long opposed side walls 10), left and right (short opposed end walls 11) side walls extending downward about a periphery of the top wall (page 2, ln 23 – page 3, ln 5 and fig. 1). At least one base cup food item is disposed in the base cup (page 1, ln 2) and a sealing flange extends outward about a top of the wall structure to define a sealing surface on a top of the sealing flange.
Lovatt further discloses the bottom wall of the base cup (3) includes a
Both Foley as further evidenced by Jorgensen and James and Lovat are providing packaged food products that allows for easier stacking and the storing of food products by providing a stable surface for said stacking. Once it was known to provide packaged food products with surfaces that allow for more stable stacking and storage of said products the substitution of one known base cup/overcap stacking structure, such as the base cup/overcap of Foley as further evidenced by Jorgensen and James, with another known base cup/overcap stacking structure such as the base cup/overcap stacking structure of Lovatt would have been an obvious matter of choice and/or design. An express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious (MPEP 2144.06 II.).
Further regarding claims 1 and 22, Foley as further evidenced by Jorgensen and James in view of Lovatt disclose the downwardly extending protrusion has an elongated generally symmetrical shape with a first rounded end, a second rounded end generally opposing the first rounded end, a front side extends between the first rounded end and the second rounded end, and a rear side generally opposing the front side extends between the first rounded end and the second rounded end, the front side and the rear side are longer than the first rounded end and the second rounded end (‘543, fig. 1 and 3) and the downwardly-extending protrusion includes an inclined side surface (‘543, fig. 1).
The first and second packaged food products each include a product front side, a product rear side generally opposing the product front side, a product right side extending between the product front side and the product rear side, and a product left side extending between the product front side and the product rear side and generally opposing the product right side. The product front and product rear sides are longer than the product right and product left sides to define an elongated shape of the first and second packaged food products (‘543, fig. 1 and 2).
The outer sleeve includes a first portion disposed adjacent and covering a length of the product front sides of the first packaged food product and the second packaged food product and a second portion disposed adjacent and covering a length of the product rear sides of the first packaged food product and the second packaged food product, and the outer sleeve defines a first opening adjacent to and exposing the product right sides of the first packaged food product and the second packaged food product and a second opening adjacent to and exposing the product left sides of the first packaged food product (‘240, fig. 1). Foley as further evidenced by Jorgensen and James in view of Lovatt also disclose the overcap includes a peripheral flange extending radially entirely around the overcap below the top wall (‘240, fig. 4 and 7).
Claim 1 differs from Foley as further evidenced by Jorgensen and James in view of Lovatt in the outer sleeve includes a top panel extending over an entirety of the peripheral flange of the overcap.
Gics discloses a packaged food product assembly (20) comprising a packaged food product and an outer sleeve (24). The packaged food product comprises a base cup (tray 22) having a bottom wall and a peripheral wall structure (fig. 1). The peripheral wall structure extends upward from and about a perimeter of the bottom wall to define a generally cup-shaped interior of the base cup, the peripheral wall defines a front wall, a rear wall, a right wall, a left wall (rectangular), at least one base cup food item would be disposed in the base cup, and a sealing flange extends outward about a top of the peripheral wall structure to define a sealing surface on top of the sealing flange. An overcap is coupled to the base cup, which overcap has a top wall. The overcap includes a peripheral flange extending radially entirely around the overcap below the top wall (snap fit) (fig. 2a) and the outer sleeve includes a top panel extending over an entirety of the peripheral flange of the overcap (fig. 4) (col. 2, ln 16 – col. 3, ln 10). Gics is disclosing the top panel extends over an entirety of the peripheral flange of the overcap in order to effectively mechanically retain the tray within the sleeve without the need for heat sealing or adhesives (col. 3, ln 11 – 20). Once it was known to provide an outer sleeve that includes a top panel that extends over an entirety of the peripheral flange of the overcap of a food product assembly the substitution of one known top panel, that is the top panel of Foley for the top panel of Gics that extends over an entirety of the peripheral flange of an overcap to obtain predictable results would have been obvious (MPEP § 2143 I.(B).).
Further regarding claims 1 and 22, Foley as further evidenced by Jorgensen and James in view of Lovatt in view of Gics disclose that the downwardly extending protrusion has an elongated generally symmetrical shape with rounded sides separated by a length of the downwardly extending protrusion and front and rear edges extend between the rounded sides and the downwardly extending protrusion includes an inclined side surface which is to say that the front, rear, left, and right walls of the base cup have a lower edge forming an inwardly stepped profile (‘543, fig. 1 and 2).
Whilst Foley as further evidenced by Jorgensen and James in view of Lovatt in view of Gics do not disclose a particular angle that a line extending from a bottom edge of the front or rear side of the downwardly-extending protrusion to a center of mass of respective packaged food products or the packaged food product assembly, projecting a line on figure 7 (‘240) of Foley as further evidenced by Jorgensen and James in view of Lovatt in view of Gics reasonably suggests a line extending from one of the front and rear edges to a center of mass of the packaged food product would intersect the flat bottom surface at an angle θ of less than 70° (‘852, fig. 7). Further, it is also seen that the angle as claimed would be dependent on the particular dimensions of the packaged food product’s base cup and overcap with respect to where the center mass of the food product would actually be.
With respect to the remaining recitations beginning “preventing destacking of the first packaged food product and the second packaged food product”, “to facilitate destacking”, and “such that the packaged food product may be stably conveyed on an automated high- speed production line”, these are seen to be recitations regarding the intended use of the packaged food product.
In this regard applicant’s attention is invited to MPEP 2114 which states that “an apparatus must be distinguished from the prior art in terms of structure rather than function”. That is to say, apparatus claims cover what a device is, not what a device does. If the body of a claim fully and intrinsically sets forth all the limitations of the claimed invention, and then further limitations merely state, for example, the purpose or intended use of the invention, rather than any distinct structural definition of any of the claimed invention’s structural limitations, then any limitations regarding the intended use of the device are of no significance to claim construction. A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claim which Foley as further evidenced by Jorgensen and James in view of Lovatt in view of Gics obviously does. Further, if the prior art structure is capable of performing the intended use, then it meets the claim.
It is The Office’s position that the further limitations do not state any distinct definition of any of the claimed invention’s limitations and further that the purpose or intended use, i.e. “preventing destacking of the first packaged food product and the second packaged food product”, “to facilitate destacking”, and “such that the packaged food product may be stably conveyed on an automated high- speed production line”, recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art, that is Foley as further evidenced by Jorgensen and James in view of Lovatt in view of Gics and further that the prior art structure, which is identical and/or obvious in view of the prior art to that set forth in the present claims is capable of performing the recited purpose or intended use.
Regarding claim 4, Foley as further evidenced by Jorgensen and James in view of Lovatt in view of Gics disclose two of the assemblies are stackable and thereby capable of defining an upper assembly and a lower assembly with a bottom of the upper assembly in a locking engagement with a top of the lower assembly (‘240, paragraph [0043]) (‘543, page 3, ln 4 – 5). Regarding the vertical dimension of the assembly, limitations relating to the size of the package are not sufficient to patentably distinguish over the prior art. The mere scaling up of a prior art packaged food product capable of being scaled up, if such were the case, would not establish patentability in a claim to an old packaged food product so scaled. Where the only difference between the prior art assembled packaged food product and the claimed assembled packaged food product is a recitation of relative dimensions of the claimed assembled packaged food product and an assembled packaged food product having the claimed relative dimensions would not perform differently than the prior art assembled packaged food product, the claimed assembled packaged food product would not be patentably distinct from the prior art assembled packaged food product.
Regarding claim 6, Foley as further evidenced by Jorgensen and James in view of Lovatt in view of Gics disclose the base cup would contain a food product (‘240, paragraph [0018]) and the overcap would contain a plurality of food pieces (additives 56), which pieces and food product represent first and second layers, which layers are stacked on top of one another (‘240, paragraph [0041] and fig. 7). Once it was known to provide a separate food product in a base cup and a plurality of food pieces in an overcap to be combined with said food product in said base cup it is not seen that patentability would be predicated on the particular food products one would choose to package in the packaged food product. The substitution of one known food component for another known food component would have been obvious. An express suggestion to substitute one known food component for another known food component is not necessary to render such substitution obvious (MPEP § 2144.06 I.)
With respect to the remaining recitations beginning “such that the packaged food product can be combined into an upside-down cheesecake food item by removing the cheesecake crust pieces from the overcap, and placing the cheesecake crust pieces on the at least one base cup food item” these are seen to be recitations regarding the intended use of the packaged food product and are rejected as such for the same reasons given above in the rejection of claim 1.
Regarding claims 7 and 8, Foley as further evidenced by Jorgensen and James, in view of Lovatt in view of Gics disclose the overcap having a central recess (12) defining a socket shape (‘543, fig. 1) sized to completely surround and receive a protrusion of a base cup in a close fit to facilitate stable stacking (‘543, page 3. Ln 4 – 5).
Whilst Foley as further evidenced by Jorgensen and James in view Lovatt in view of Gics are silent as to a particular angle of the inclined side surface of the protrusion it is seen that Foley as further evidenced by Jorgensen and James in view of Lovatt in view of Gics are applying an angle to the base area for the same reason as the applicant, which is to allow a stable platform to be formed when multiple packaged food products are stacked together, using the central recess defining a socket shaped and sized to completely surround and receive a bottom, i.e., a protrusion, of a base cup. Therefore, absent clear evidence to the contrary it is not seen that patentability would be predicated on the particular angle of the base cup protrusion (MPEP § 2144.04 IV.B.). Further, Foley as further evidenced by Jorgensen and James in view of Lovatt in view of Gics disclose that the base cup has an inclined side surface (‘543, fig. 1) and would fit in the recess of the overcap (‘543, page 3, ln 2 – 5).
Regarding claims 9 and 10, and the specific vertical dimensions of the protrusion and central recess, limitations relating to the vertical dimension and the width of the protrusion and central recess are not sufficient to patentably distinguish over the prior art. The mere scaling up of a prior art protrusion and central recess capable of being scaled up, if such were the case, would not establish patentability in a claim to an old protrusion and central recess so scaled. Where the only difference between the prior art protrusion and central recess and the claimed protrusion and central recess would be a recitation of relative dimensions of the claimed protrusion and central recess and a protrusion and central recess having the claimed relative dimensions would not perform differently than the prior art protrusion and central recess, the claimed protrusion and central recess would not be patentably distinct from the prior art protrusion and central recess. Further, it is noted that Foley as further evidenced by Jorgensen and James in view of Lovatt in view of Gics disclose the protrusion and central recess would have relative dimensions allowing the protrusion to matingly fit within the central recess to provide for a stable stacking relationship which is applicant’s reason for doing so as well (‘240, fig. 7) (‘543, page 3, ln 2 – 5).
Regarding claim 11, Foley as further evidenced by Jorgensen and James in view of Lovatt in view of Gics discloses the peripheral walls of the overcap have a stepped configuration comprising an upper portion that extends downward and outward, a stacking shoulder to facilitate separation of nested overcaps, a flange that extends outward to provide a sealing surface, a depending wall extending downward and inward about a periphery of the flange, and a lip extending outward about the bottom of the depending wall (‘240, fig. 7) (‘543, fig. 1).
PNG
media_image1.png
304
367
media_image1.png
Greyscale
Regarding the depending wall extending downward and inward Lovatt further discloses that that it was well established to provide a depending wall (dependent skirt 14) that extends downward and inward (indentation 16) to attach the overcap to the base cup (‘543, page 3, ln 6 - 16 and fig. 1).
With respect to the remaining recitations beginning “for manual engagement to facilitate application of an upward pressure on the overcap during removal from the base cup” these are seen to be recitations regarding the intended use of the packaged food product and are rejected as such for the same reasons given above in the rejection of claim 1.
Regarding claims 23 and 24, Foley discloses a packaged food product assembly which comprises a first packaged food product (12) and a second packaged food product (12) stacked thereon (third food cup is disposed on the first food cup) and an outer sleeve surrounds the first packaged food product and the second packaged food product. Foley further discloses that when the packaged food products (12) are stacked one upon another the packaged food products would be wrapped in a single outer sleeve and the bottom of the lower packaged food product, that is the first packaged food product, would not be covered and the top of the upper, that is the second packaged food product, would not be covered (‘240, paragraph [0043]). Whilst not shown in a figure it is seen that Foley strongly implies that the assembly would also comprise first and second food products stacked one upon the other with only a single outer sleeve as being present. Jorgensen and James provide further evidence that it would have been obvious to the ordinarily skilled artisan to have provided stacked food products with only a single sleeve.
Regarding the outer sleeve surrounding only a first packaged food product and a second packaged food product stacked one upon the other, once it was known to provide a packaged food product assembly where one packaged food product is stacked on another packaged food product it is not seen that patentability would be predicated on the specific number of food product assemblies that would stacked together in said assembly. While Foley discloses that when stacked the food product package assembly (26) would comprise four packaged food products the elimination of an element, in this case a third packaged food product and a fourth packaged food product if it was only desired to sell the packaged food product assembly as an assembly of two packaged food products would have been an obvious matter of choice and/or design to the ordinarily skilled artisan if it was only desired to include only two of said packaged food products in the packaged food product assembly (MPEP § 2144.04 II. A.). Foley as further evidenced by Jorgensen and James discloses a packaged food product (paragraph [002]) which comprises a base cup (12) having a bottom wall (16), and a peripheral wall structure including front, rear, left, and right walls extending upward from the bottom wall to define a generally cup-shaped interior (paragraph [0036] and fig. 1). At least one base cup food item would be disposed in the base cup (‘240, paragraph [0018]), a sealing flange (seen at reference sign 14, fig. 7) extends outward about a top of the peripheral wall structure defining a sealing surface on a top of the sealing flange, and a flexible lid (impermeable seal 18) (‘240, paragraph [0036]) is peelably sealed (‘240, paragraph [0003]) to the top of the sealing flange.
There is an overcap (20) coupled to the base cup which overcap has a top wall that forms an upward protrusion (22) and a central recess (24) that is sized to receive a second downward protrusion of another base cup (‘240, paragraph [0037] and fig. 1). Since any downward protrusion would necessarily have to fit into the central recess, the upward protrusion would be seen to be wider and longer than a received downward protrusion. The overcap further includes, an overcap closure (impermeable seal 54) peelably sealed to the overcap, the overcap and the overcap closure define an enclosed overcap interior (50), an overcap food item (56) is disposed within the overcap interior, and there is a downward protrusion with an inclined side surface (‘240, paragraph [0041] and fig. 7).
Claim 23 differs from Foley as further evidenced by Jorgensen and James in the base cup having front, rear, and side walls extending upward from the bottom wall, where the front, rear, and side walls have a lower wall ledge forming an inward step from the front, rear, and side walls to a downward protrusion on the bottom wall and a complementary corresponding recess or cavity in an interior surface with the downward protrusion.
Lovatt further discloses the front, rear, and side wall have a lower wall ledge forming an inward step from the front (4), rear (4), and side (5) walls to a downward elongated protrusion (3A) on the bottom wall (3), and obviously a complementary corresponding recess in an interior surface, wherein the downward protrusion has an elongated shape (page 2, ln 23 – page 3, ln 5 and fig. 1).
Both Foley as further evidenced by Jorgensen and James and Lovat are providing packaged food products that allows for easier stacking and the storing of food products by providing a stable surface for said stacking. Once it was known to provide packaged food products with surfaces that allow for more stable stacking and storage of said products the substitution of one known base cup/overcap stacking structure, such as the base cup/overcap of Foley as further evidenced by Jorgensen and James, with another known base cup/overcap stacking structure such as the base cup/overcap stacking structure of Lovatt would have been an obvious matter of choice and/or design. An express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious (MPEP 2144.06 II.).
Further regarding claims 23 and 24, Foley as further evidenced by Jorgensen and James in view of Lovatt disclose the downwardly extending protrusion has an elongated generally symmetrical shape with a first rounded end, a second rounded end generally opposing the first rounded end, a front side extends between the first rounded end and the second rounded end, and a rear side generally opposing the front side extends between the first rounded end and the second rounded end, the front side and the rear side are longer than the first rounded end and the second rounded end (‘543, fig. 1 and 3) and the downwardly-extending protrusion includes an inclined side surface (‘543, fig. 1).
The first and second packaged food products each include a product front side, a product rear side generally opposing the product front side, a product right side extending between the product front side and the product rear side, and a product left side extending between the product front side and the product rear side and generally opposing the product right side. The product front and product rear sides are longer than the product right and product left sides to define an elongated shape of the first and second food products (‘543, fig. 1 and 2).
The outer sleeve includes a first portion disposed adjacent and covering a length of the product front sides of the first packaged food product and the second packaged food product and a second portion disposed adjacent and covering a length of the product rear sides of the first packaged food product and the second packaged food product, and the outer sleeve defines a first opening adjacent to and exposing the product right sides of the first packaged food product and the second packaged food product and a second opening adjacent to and exposing the product left sides of the first packaged food product (‘240, fig. 1).
Claim 23 differs from Foley as further evidenced by Jorgensen and James in view of Lovatt in the outer sleeve includes a top panel extending over an entirety of the peripheral flange of the overcap.
Gics discloses a packaged food product assembly (20) comprising a packaged food product and an outer sleeve (24). The packaged food product comprises a base cup (tray 22) having a bottom wall and a peripheral wall structure (fig. 1). The peripheral wall structure extends upward from and about a perimeter of the bottom wall to define a generally cup-shaped interior of the base cup, the peripheral wall defines a front wall, a rear wall, a right wall, a left wall (rectangular), at least one base cup food item would be disposed in the base cup, and a sealing flange extends outward about a top of the peripheral wall structure to define a sealing surface on top of the sealing flange. An overcap is coupled to the base cup, which overcap has a top wall. The overcap includes a peripheral flange extending radially entirely around the overcap below the top wall (snap fit) (fig. 2a) and the outer sleeve includes a top panel extending over an entirety of the peripheral flange of the overcap (fig. 4) (col. 2, ln 16 – col. 3, ln 10). Gics is disclosing the top panel extends over an entirety of the peripheral flange of the overcap in order to effectively mechanically retain the tray within the sleeve without the need for heat sealing or adhesives (col. 3, ln 11 – 20). Once it was known to provide an outer sleeve that includes a top panel that extends over an entirety of the peripheral flange of the overcap of a food product assembly the substitution of one known top panel , that is the top panel of Foley for the top panel of Gics that extends over an entirety of the peripheral flange of an overcap to obtain predictable results would have been obvious (MPEP § 2143 I.(B).).
Further regarding claims 23 and 24, Foley as further evidenced by Jorgensen and James in view of Lovatt in view of Gics disclose that the downwardly extending protrusion has an elongated generally symmetrical shape with rounded sides separated by a length of the downwardly extending protrusion and front and rear edges extend between the rounded sides and the downwardly extending protrusion includes an inclined side surface which is to say that the front, rear, left, and right walls of the base cup have a lower edge forming an inwardly stepped profile (‘543, fig. 1 and 2).
Whilst Foley as further evidenced by Jorgensen and James in view of Lovatt in view of Gics do not disclose a particular angle that a line extending from a bottom edge of the front or rear side of the downwardly-extending protrusion to a center of mass of respective packaged food products or the packaged food product assembly, projecting a line on figure 7 (‘240) of Foley as further evidenced by Jorgensen and James in view of Lovatt in view of Gics reasonably suggests a line extending from one of the front and rear edges to a center of mass of the packaged food product would intersect the bottom surface of the downward protrusion at an angle θ of less than 70° (‘852, fig. 7). Further, it is also seen that the angle as claimed would be dependent on the particular dimensions of the packaged food product’s base cup and overcap with respect to where the center mass of the food product would actually be.
With respect to the remaining recitations beginning “preventing destacking of the first packaged food product and the second packaged food product”, “to facilitate destacking”, and “such that the packaged food product may be stably conveyed on an automated high- speed production line”, these are seen to be recitations regarding the intended use of the packaged food product.
In this regard applicant’s attention is invited to MPEP 2114 which states that “an apparatus must be distinguished from the prior art in terms of structure rather than function”. That is to say, apparatus claims cover what a device is, not what a device does. If the body of a claim fully and intrinsically sets forth all the limitations of the claimed invention, and then further limitations merely state, for example, the purpose or intended use of the invention, rather than any distinct structural definition of any of the claimed invention’s structural limitations, then any limitations regarding the intended use of the device are of no significance to claim construction. A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claim which Foley as further evidenced by Jorgensen and James in view of Lovatt in view of Gics obviously does. Further, if the prior art structure is capable of performing the intended use, then it meets the claim.
It is The Office’s position that the further limitations do not state any distinct definition of any of the claimed invention’s limitations and further that the purpose or intended use, i.e. “preventing destacking of the first packaged food product and the second packaged food product”, “to facilitate destacking”, and “such that the packaged food product may be stably conveyed on an automated high- speed production line”, recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art, that is Foley as further evidenced by Jorgensen and James in view of Lovatt in view of Gics and further that the prior art structure, which is identical and/or obvious in view of the prior art to that set forth in the present claims is capable of performing the recited purpose or intended use.
Claims 26 and 27 are rejected over Foley as further evidenced by Jorgensen and James in view of Lovatt in view of Gics for the same reasons given above in the rejections of claims 7 and 8.
Regarding claims 28, 29, 32, and 33, and the specific dimensions of the downwardly extending protrusion, that is the width and height as well as the width of the bottom surface thereof, limitations relating to the dimensions of said protrusion are not sufficient to patentably distinguish over the prior art. The mere scaling up of a prior art downwardly extending protrusion capable of being scaled up, if such were the case, would not establish patentability in a claim to an old downwardly protrusion so scaled. Where the only difference between the dimensions of the prior art downwardly extending protrusion and the claimed dimensions of the downwardly extending protrusion would be a recitation of relative dimensions of the claimed downwardly extending protrusion and a downwardly extending protrusion having the claimed relative dimensions would not perform differently than the prior art downwardly extending protrusion, the claimed downwardly extending protrusion would not be patentably distinct from the prior art downwardly extending protrusion. Further, it is noted that Foley as further evidenced by Jorgensen and James in view of Lovatt in view of Gics disclose the downwardly extending protrusion would have relative dimensions allowing said protrusion to matingly fit within the central recess of an overcap to provide for a stable stacking relationship which is applicant’s reason for doing so as well (‘240, fig. 7) (‘543, page 3, ln 2 – 5).
Claim 30 is rejected over Foley as further evidenced by Jorgensen and James in view of Lovatt in view of Gics for the same reasons given above in the rejection of claim 11.
Claims 5 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Foley US 2015/0166240 as further evidenced by Jorgensen US 3,561,594 and James US D610,919 in view of Lovatt GB 2 226 543 in view of Gics US 5,888,565 as further evidenced by Krueger et al. US 2007/0071852 .
Regarding claims 5 and 25, Foley as further evidenced by Jorgensen and James in view of Lovatt in view Gics disclose that the food product assembly would allow the displaying of food products (displaying fragile foodstuffs) (‘543, page 1, ln 16). In order for said food products to be “displayed”, i.e., visible to a potential consumer it would be obvious that the overcap would have to be at least partially transparent or translucent for said food item to be at least partially visible therethrough. Nevertheless, Krueger provides further evidence that it was well established in the art to provide an overcap that would be at least partially transparent or translucent which would allow the packaged food product to be visible therethrough (‘852, paragraph [0080]) making it obvious to do so.
Claims 12 and 31 are rejected under 35 U.S.C. 103 as being unpatentable over Foley US 2015/0166240 as further evidenced by Jorgensen US 3,561,594 and James US D610,919 in view of Lovatt GB 2 226 543 in view of Gics US 5,888,565 in view of Lee et al. US 6,068,865.
Regarding claims 12 and 31, Foley as further evidenced by Jorgensen and James in view of Lovatt in view of Gics provides the overcap closure and the flexible lid as removable gas impermeable seals (54 and 18 respectively) (‘240, paragraph [0036, [0041] and fig. 7). Claims 12 and 31 differ from Foley as further evidenced by Jorgensen and James in view of Lovatt in view of Gics, if at all, in the overcap closure and the flexible lid including at least one of the same material.
Lee provides further evidence that it was well established and conventional in the art to provide a packaged food product comprising a base cup (bottom portion 30) having a bottom wall and an overcap (top portion 20) having a top wall with a flexible lid (32) and an overcap closure (22) where the flexible lid and the overcap closure would include at least one of the same material (col. 6, 13 – 20) making it obvious to the ordinarily skilled artisan to have done so.
Claim 34 is rejected under 35 U.S.C. 103 as being unpatentable over Foley US 2015/0166240 as further evidenced by Jorgensen US 3,561,594 and James US D610,919 in view of Lovatt GB 2 226 543 in view of Lee et al. US 6,068,865 in view of Seaborne et al. US 4,874,618.
Regarding claim 34, Foley discloses a packaged food product comprising a first food product packaged in a base cup (paragraph [0003]) and a second packaged food product contained in an overcap and stacked on the first packaged food product in said base cup.
The base cup (12) includes a bottom wall (16) and a first peripheral wall structure extending upward from and about a perimeter of the bottom wall and cooperating with the bottom wall to define a generally cup-shaped interior of the base cup (paragraph [0036] and fig. 1). A sealing flange (seen at reference sign 14, fig. 7) extends outward about a top of the first peripheral wall structure to define a sealing surface on a top of the sealing flange.
The overcap (20) has a top wall with a central recess (24) defining a socket shaped and sized to completely surround and receive a bottom wall of another base cup in locking engagement (paragraph [0037] and fig. 1), the second bottom wall having substantially identical dimensions to the first bottom wall.
The overcap includes a second peripheral wall structure extending downward from a periphery of the top wall (fig. 7) and an overcap closure (impermeable seal 54) is peelably sealed to the overcap adjacent a bottom of the second peripheral wall structure to define the enclosed overcap interior (50) between the top wall and the overcap closure (paragraph [0041] and fig. 7).
Claim 34 differs from Foley in the base cup further including an elongated first protrusion projecting downwardly from an exterior surface of the bottom wall and forming a complementary corresponding recess in an interior surface of the bottom wall within the interior of the base cup.
Lovatt discloses a container designed for a packaged food product which has a base cup (tray 1) that has a bottom wall (base 3) (col. 3, ln 25 – 28). A peripheral wall structure extends upward from and about a perimeter of the bottom wall and cooperates with the bottom wall to define a generally cup-shaped interior of the base cup, and the peripheral wall structure defines a front wall, a rear wall (long opposed side walls 4), a right wall, and a left wall (shorter opposed end wall 5). A sealing flange (shoulder part 7) extends outward about a top of the wall structure which would define a sealing surface on a top surface of a top of the sealing flange and an overcap (lid 2) is coupled to the base cup which overcap includes a peripheral front, rear (long opposed side walls 10), left and right (short opposed end walls 11) side walls extending downward about a periphery of the top wall (page 2, ln 23 – page 3, ln 5 and fig. 1). At least one base cup food item is disposed in the base cup (page 1, ln 2) and a sealing flange extends outward about a top of the wall structure to define a sealing surface on a top of the sealing flange.
Lovatt further discloses the base cup (3) includes an elongated first protrusion projecting downwardly from an exterior surface of the bottom wall and forming a complementary corresponding recess in an interior surface (shoulder 3A) of the bottom wall within the interior of the base cup (when the containers are stacked the shoulder 3A is received within the recess 12) (page 3, ln 1 – 5).
Both Foley and Lovat are providing packaged food products that allows for easier stacking and the storing of food products by providing a stable surface for said stacking. Once it was known to provide packaged food products with surfaces that allow for more stable stacking and storage of said products the substitution of one known base cup/overcap stacking structure, such as the base cup/overcap of Foley, with another known base cup/overcap stacking structure such as the base cup/overcap stacking structure of Lovatt would have been an obvious matter of choice and/or design. An express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious (MPEP 2144.06 II.).
With respect to the remaining recitations beginning “to facilitate stacking” these are seen to be recitations regarding the intended use of the packaged food product and are rejected as such for the same reasons given above in the rejection of claim 1.
As set forth above in the rejection of claim 34, Foley in view of Lovatt disclose a packaged food product assembly comprising a base cup containing a first packaged food product (yogurt, ice cream) (‘240, paragraph [0003]) and second packaged food product, an overcap, which has an overcap interior that contains a further food product that would be suitable to comprise crust pieces (nuts, raisins, dried cherries, dried fruit, etc.) which crust pieces are to be added to the packaged food product in the base cup (‘240, paragraph [0041]). The second packaged food product is stacked upon the first packaged food product and an outer sleeve surrounds the first packaged food product and the second packaged food product. Foley further discloses that when the packaged food products (12) are stacked one upon another the packaged food products would be wrapped in an outer sleeve and the bottom of the lower packaged food product, that is the first packaged food product, would not be covered and the top of the upper, that is the second packaged food product, would not be covered (paragraph [0043]). Whilst not shown in a figure it is seen that Foley strongly suggests an assembly where first and second food products are stacked one upon the other and only a single outer sleeve is disclosed as being part of said assembly. Jorgensen provides further evidence that it was well established and conventional in the art to enclose first and second food products stacked thereon in a single outer sleeve to prevent destacking where the sleeve surrounds only the without covering the bottom of the first packaged food product or the top of the second food product. James provides further evidence that it was conventional in the art to stack only two food products, that is a first food product and a second food product one on top of the other in a single sleeve.
Further regarding the outer sleeve surrounding only a first packaged food product and a second packaged food product stacked one upon the other, once it was known to provide a packaged food product assembly where one packaged food product is stacked on another packaged food product it is not seen that patentability would be predicated on the specific number of food product assemblies that would be stacked together in said assembly. While Foley discloses that when stacked the food product package assembly (26) would comprise four packaged food products the elimination of an element, in this case a third packaged food product and a fourth packaged food product if it was only desired to sell the packaged food product assembly as an assembly of two packaged food products would have been an obvious matter of choice and/or design to the ordinarily skilled artisan if it was only desired to include only two of said packaged food products in the packaged food product assembly (MPEP § 2144.04 II.A.)
Regarding the packaged food product assembly being a first packaged cheesecake product and a second packaged cheesecake product, Seaborne discloses a packaged cheesecake product assembly which comprises a packaged cheesecake product that would be selected from cheesecake, fruit (example 22D), and graham crackers (example 14B) (claims 26 and 27). Once it was known to provide a food package assembly comprising a first packaged food product and a second packaged food product as disclosed by Foley as further evidenced by Jorgensen and James in view of Lovatt stacked one upon the other and surrounded by an outer sleeve and that a cheesecake product assembly would comprise a first packaged cheesecake product and a second packaged cheesecake product stacked in a food product assembly as taught by Seaborne the placement of one cheesecake product in the first packaged food product of Foley as further evidenced by Jorgensen and James in view of Lovatt and the placement of a second cheesecake product in the second food product of Foley in view of Lovatt to create a cheesecake product assembly it would have been an obvious matter of design and/or choice to the ordinarily skilled artisan to have substituted the first and second cheesecake products of Seaborne into the first and second food products of Foley in view of Lovatt to obtain predictable results (MPEP § 2143 B.).
Applicant’s attention is further directed to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in the fact situation of the instant case, and wherein the Court stated on page 234 as follows:
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function. In re Benjamin D. White, 17 C.C.P.A (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Response to Arguments
Applicant's arguments filed 21 January 2026 have been fully and carefully considered but they are not found persuasive.
Regarding claims 1 and 23 applicant urges that Foley does not disclose or suggest the overcap included a peripheral flange extending radially entirely around the overcap below the top wall. This urging is not deemed persuasive and here applicant’s attention is directed to figures 4 and 7 of Foley where it is clearly seen that the overcap includes a peripheral flange extending radially entirely around the overcap below the top wall.
Applicant urges that Foley does not suggest or disclose the outer sleeve includes a top panel extending over an entirety of the peripheral flange of the overcap and that to do so would prevent nesting, i.e., change the principle of operation of Foley, in that the food product assemblies would not be able to fit within the sleeve. These urging is not deemed persuasive.
One need but to view figures 6 and 7 to see that in no way would the ability of the food product assemblies to nest, that is to protrude from the cutouts in the top and bottom of the sleeve, be impeded whether or not the “cutouts” would or would not be present. In fact Jorgensen provides clear evidence in figures 2 and 3 where peripheral flanges of the lower containers are fully enclosed over an entirety of said flanges that it was quite old and conventional to have done so.
Applicant urges that both Jorgensen and James do not disclose the invention as claimed. This urging is not found persuasive.
Jorgensen and James were brought to provide further evidence that it was old, well established, and conventional in the art to stack two containers one on the other and enclose them in a sleeve. Had either Jorgensen and/or James taught the food product assembly as claimed a rejection under 35 U.S.C. 103 would not have been necessary as a rejection under 35 U.S.C. 102 would have ensued.
Applicant urges that the prior art taken as a whole fails to disclose or suggest a packaged food product assembly having first and second packaged food products stacked one upon the other and surrounded by an outer sleeve. That Foley alone fails to disclose or suggest two packaged food product vertically stacked with a sleeve around only those two products but that Foley does disclose that a single sleeve may enclose four products that would be in a stacked configuration. This urging is not deemed persuasive.
As set forth above in the rejections Foley clearly discloses that when the packaged food products would be stacked one upon another the packaged food products would be wrapped in a single outer sleeve and the bottom of the lower packaged food product, that is the first packaged food product, would not be covered and the top of the upper, that is the second packaged food product, would not be covered. Whilst not shown in a figure Foley is strongly suggesting that the assembly would also comprise first and second food products stacked one upon the other with only a single outer sleeve as being present. Limitations relating to the size of the package, here the number of items to be stacked and contained in a single sleeve, would not be sufficient to patentably distinguish over the prior art. The mere scaling up of a prior art food product assembly capable of being scaled up, if such were the case, would not establish patentability in a claim to an old food package assembly so scaled. Where the only difference between the prior art and the claims was a recitation of the number of said separate assemblies stacked in a single sleeve of the claimed food product assembly and a food product assembly having the claimed number of stacked assemblies in a single sleeve would not perform differently than the prior art food product assembly, the claimed assembly is not seen as patentably distinct from the prior art food product assembly (MPEP 2144.04 IV.A.).
Applicant urges that the since Jorgensen discloses there to be four food packages where two stacks are enclosed in a single sleeve the ordinarily skilled artisan would not think that said assembly could only contain two of said packages stacked. Again, Jorgensen and James were not brought to teach a specific number of food package assemblies in a single sleeve but to show that it was quite old and conventional to provide food product assemblies in a stacked and sleeved configuration.
Applicant urges that Lovatt does not disclose or suggest the invention as claimed in that Lovatt does not teach the stacked food product assembly would be further enclosed in a sleeve and that the base cup and the overcap do not each contain separate food items. These urging is not found persuasive.
Lovatt was brought to teach the bottom wall of the base cup would include adownwardly extending protrusion on an exterior surface, a complementary corresponding recess in an interior surface, and the overcap would a top wall that includes an outer peripheral portion and a central recess defining a socket shaped and sized to completely surround and receive a second downwardly extending protrusion of another base cup in locking engagement in a close fit was old, known, and conventional in the art and not to teach the entire invention as claimed. Had either Lovatt taught the food product assembly as claimed a rejection under 35 U.S.C. 103 would not have been necessary as a rejection under 35 U.S.C. 102 would have ensued.
Applicant urges that the ordinarily skilled artisan would not be motivated to modify Foley to include shoulder as taught by Lovatt. This urging is not deemed persuasive and here applicant’s attention is directed to MPEP 2143 I.(B) where the simple substitution of one known element, here the stacking components of Foley, with another known element, in this case the stacking components of Lovatt to obtain predictable results would have been prima facie obvious.
Regarding claim 34 applicant urges Seaborne does not disclose a package assembly as claimed that further contains a cheesecake filling disposed in a base cup directly on top of a first layer and an overcap coupled to the base cup where the overcap is enclosed to contain cheesecake crust pieces and that Seaborne teaches away from the claimed invention. These urgings are not found persuasive.
First it is noted that the base cup and overcap have been rejected over a combination of references and not Seaborne alone. Again, had Seaborne taught all the limitation of claim 34 a rejection under 35 U.S.C. 103 would not have been necessary as a rejection under 35 U.S.C. 102 would have ensued. With respect to the particular cheesecake components Seaborne clearly discloses a packaged cheesecake product assembly and that the specific edible components would include fruit, cookies, which in effect what cheesecake crust pieces are, and a cheesecake filling.
Further, teaching a way, i.e., a different way is not teaching away from the claimed invention when the references are taken as a whole.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHAIM A SMITH whose telephone number is (571)270-7369. The examiner can normally be reached Monday-Thursday 09:00-18:00.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to please telephone the Examiner.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/C.S./
Chaim SmithExaminer, Art Unit 1791 03 February 2026
/VIREN A THAKUR/Primary Examiner, Art Unit 1792