DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 119(e) as follows:
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994)
The disclosure of the prior-filed applications, Application No. 63/110,582, 63/110,587, 63/110,578, 63/126,157, 63/139,341, 63/169,302, 63/178,116, 63/169,418, 63/128,418, fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application. The prior-filed applications do not disclose the elected embodiment of Species 1 (Figs 1-5) and in particular does not disclose denesting features as recited. Accordingly, claims 1, 3-7, 38 are not entitled to the benefit of the prior application(s).
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “denesting tab is coupled to the bottom panel” in claim 46 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered. It is noted that the drawings do not show any coupling of the denesting tab to the bottom panel.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1, 3-7, 46 rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Regarding claim 1, there is no support in the original disclosure for a plurality of reinforcement tabs, each foldably connected to a respective one of the end flaps that cooperate to form a rim and thus it constitutes new matter. In particular, the disclosure is silent regarding this combination of reinforcement tabs in relation to end flaps that form a rim. Regarding claim 46, there is no support in the original disclosure for the denesting tab coupled to the bottom panel and thus it constitute new matter.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 3-7, 41-46 rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 1, 41, the scope of the claims is unclear because it recites a plurality of end flaps cooperating to form a rim extending outwardly from the plurality of panels; however, the plurality of panels also includes a bottom panel and it is not clear how the rim would extend outwardly from the bottom panel. Furthermore, the disclosure describes end flaps that cooperate to form a rim being connected to the plurality of panels and thus it is not clear how there would be reinforcement tabs also foldably connected to the end flaps. This is not consistent with the disclosure which describes reinforcement tabs foldably connected to side end flaps. However, these side end flaps do not cooperate to form a rim as required in claim 1. Due to the inconsistency of the claims in relation to the disclosure, the scope of the claims is unclear.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1, 3-6, as best understood, is/are rejected under 35 U.S.C. 103 as being unpatentable over US Patent No. 2,279,670 to Ford et al (Ford) in view of US Patent No. 3,623,651 to Marcan.
Regarding claim 1, Ford discloses a tray (Fig 2) for holding at least one food product, the tray comprising a plurality of panels extending at least partially around an interior of the tray, the plurality of panels comprising a bottom panel (2), a front panel (3), a back panel (3), a first side panel (4) foldably connected to the bottom panel (2), a second side panel (4) foldably connected to the bottom panel (2) and opposite the first side panel (4), wherein at least one opening (19) in the tray is defined by a combination of the bottom panel (2), front panel (3), and first side panel (4), a plurality of end flaps (13) cooperating to form a rim extending outwardly from the plurality of panels, a plurality of reinforcement tabs (17), each of the reinforcement tabs (17) foldably connected to a respective one of the end flaps (13). In particular, Ford teaches the panels connected by adhesive (23). Ford does not teach denesting features as recited. However, Marcan discloses a tray (Fig 1) and in particular discloses denesting features comprising at least one denesting tab (tongue 15) foldably connected to a first side panel (2) and extending at least partially across a bottom panel (1) into an interior of the tray, the at least one denesting tab (15) extends toward a front panel (3) and spaced away from a second side panel (4), the denesting feature keeping the panels connected and erect. One of ordinary skill in the art would have found it obvious to substitute the adhesive with an interlocking tongue as suggested by Ford in order to keeps the panels connected and erect. The modification would have resulted in the denesting tab located proximate the at least one opening in the tray and furthermore, the tongue can be considered a denesting tab since it has the structure as recited.
Regarding claim 3, the modified Ford further discloses denesting tab (15, Marcan) spaced above bottom panel (1) (Fig 6, Marcan).
Regarding claim 4, the modified Ford further discloses denesting tab (15, Marcan) at least partially formed by a cut (16) in the first side panel (2).
Regarding claim 5, the modified Ford further discloses first and second denesting tabs (15) foldably connected to the first side panel (2, Fig 1).
Regarding claim 6, the modified Ford further discloses denesting features (15, Marcan) further comprise a third denesting tab and a fourth denesting tab each foldably connected to the second side panel and extending into interior of the tray (Marcan, col 2, ll. 55-60).
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ford in view of Marcan and US 2022/0048672 to Bevier.
Regarding claim 7, Ford further discloses front top end flap (13) foldably connected to front panel (3), back top end flap (13) foldably connected to back panel 3), side top end flap (13) foldably connected to first side panel (4), but does not teach side top end flap foldably connected to first side panel, the side top end flap overlaps respective portions of the front and back top end flap. However, Bevier discloses a tray (8, Fig 2) comprising a plurality of panels extending at least partially around an interior of the tray (Fig 3), the plurality of panel comprising a bottom panel (24), a front panel (34a), a back panel (34b) and at least one side panel (36a). In particular, Bevier discloses a plurality of end flaps (56a-d) foldably connected to a respective panel of the plurality of panels and cooperating to form a rim extending outwardly from the plurality of panels (Fig 2), side top end flap (13) overlaps respective portion of front top end flap (56a, Bevier) and back top end flap (56b, Bevier) (Figs 2, 4-5, ¶0053). One of ordinary skill in the art would have found it obvious to overlap the top end flaps of Ford as suggested by Bevier in order to strengthen the rim.
Claim(s) 41-46 is/are rejected under 35 U.S.C. 103 as being unpatentable over Marcan in view of Bevier.
Regarding claim 41, Marcan discloses a tray (Fig 1) for holding at least one food product, the tray comprising a plurality of panels (1-5) extending at least partially around an interior of the tray, the plurality of panels comprising a bottom panel (1), a front panel (3), a back panel (5), a first side panel (2) foldably connected to bottom panel, a second side panel (4) foldably connected to bottom panel and opposite the first side panel, denesting features comprising at least one denesting tab (tongue 15) foldably connected to the first side panel (2) and extending at least partially across the bottom panel (1) into interior of the tray and toward the front panel (3), the at least one denesting tab (15) configured to support a bottom panel of a nested tray inserted into the tray since it has the structure as recited. Marcan does not teach a plurality of end flaps cooperating to form a rim extending outwardly from the plurality of panels. However, Bevier discloses a tray (Fig 2) and in particular discloses a plurality of panels (34a, 34b, 36a, 36b) having end flaps (56a-56d) cooperating to form a rim extending outwardly from the plurality of panels (Fig 2). One of ordinary skill in the art would have found it obvious to incorporate end flaps to the plurality of Marcan panels as suggested by Bevier in order to form a flange at the top of the tray to facilitate handling.
Regarding claim 42, Marcan further discloses the denesting tab (15) spaced above the bottom panel (1) (Fig 6).
Regarding claim 43, Marcan further discloses the denesting tab (15) at least partially formed by a cut (16) in the first side panel (2).
Regarding claim 44, Marcan further discloses first and second denesting tabs (15) foldably connected to the first side panel (2, Fig 1).
Regarding claim 45, the modified Marcan further teaches plurality of end flaps comprising a front top end flap (56a, Bevier) foldably connected to front panel (34a, Bevier), back top end flap (56b) foldably connected to back panel (34b, Bevier), side top end flap (56c, Bevier) foldably connected to first side panel (36a, Bevier), wherein the side top end flap (56c, Bevier) overlaps respective portions of the front top end flap (56a, Bevier) and back top end flap (56b, Bevier) (Fig 2, Bevier).
Regarding claim 46, Marcan further discloses the at least one denesting tab (15) coupled to the bottom panel (1) (Fig 5).
Response to Arguments
Applicant's arguments filed 7/21/2025 have been fully considered but they are not persuasive. Initially, it is noted that applicant does not argue the rejection of the dependent claims. Applicant argues that prior art does not teach a plurality of reinforcement tabs, each of the tabs being foldably connected to a respective one of the end flaps. Assuming arguendo that applicant has support for such tabs, applicant’s argument is not persuasive because Ford discloses reinforcement tabs (17) foldably connected to respective end flaps (13).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 ROBERT POON whose telephone number is (571)270-7425. The examiner can normally be reached Monday thru Friday, 8:30 am to 6:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anthony Stashick can be reached at (571)272-4561. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ROBERT POON/Examiner, Art Unit 3735