Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 11/19/2025 has been entered.
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, 5-8, 10-13, 17, 19 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention. Applicant now provides in claims 1, 13, 19 that “wherein each said serving device is stackable within another adjacent said serving device when each tapered cup is positioned within the respective cut-out to form a serving device stack of a plurality of said serving devices… wherein each said serving device is stackable another adjacent said serving device when each tapered cup is positioned within the respective cut-out to form a serving device stack of a plurality of said serving devices… wherein the plurality of serving devices are stackable when each tapered cup is positioned within the respective cut-out to form a serving device stack of the plurality of serving devices.”
With respect to the above Applicant merely provides figure 4 and “[0033] FIG. 4 illustrates a perspective view showing the serving device 100 of FIG. 1 in a stacked form for easy storage in accordance with the disclosed architecture. The serving devices of various embodiments of the present invention can be stacked in a manner, similar to stacking of conventional paper cups and plates for easy storage and carriage. More specifically, the serving device 100 can be stacked by placing the base of each device over each other with cups inserted in the cut-outs or with the cups being removed from the cut-outs of the individual bases to form a serving device stack 400. The stackable construction of the serving devices of various embodiments enables users to easily carry and store the devices in bulk without any physical damage.” Applicant required that element 100 is the entire serving device with elements 118, 104, 102, 112, 108, 106, 120, 114, 110, 126, etc. However, Applicant fails to provide anywhere in Applicant’s specification as to how multiple of the above element 100 stack like conventional paper cups and plates. Applicant includes additional features than paper cups and plates and Applicant fails to provide as to how they all interact to stack.
Claims 5-8, 10-12, 17 is/are rejected as being dependent on the above rejected claim(s).
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1, 5-8, 10-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lorence (20150274400) in view of Pugatch (US D420533 S) and Lim (7025199) and Holstein (2330585)
The claims are being treated as product-by-process limitations (such as with respect to “printed 3d”) and the determination of patentability in a product-by-process claim is based on the product itself, even though the claim may be limited and defined by the process. That is, the product in such a claim is unpatentable if it is the same as or obvious from the product of the prior art, even if the prior product was made by a different process. In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985). A product-by-process limitation adds no patentable distinction to the claim, and is unpatentable if the claimed product is the same as a product of the prior art. (Same cite as above).
The Office notes the significant 112 rejection above. Nevertheless, Lorence discloses:
1. A first cup holds cake and a second cup holds ice cream wherein said first cup is of a first size and said second cup is of a second size and said first size is different from said second size (figs 1-13; paragraph 55, paragraph 58). With respect to having multiple cups it is well within the skill of one ordinary skill in the art to provide multiple cups in order to provide multiple desired and related contents. Though not required, the Office notes that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the device because it has been held that the duplication of parts on the basis of its suitability for the intended use was an obvious extension of the prior teachings. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960) and it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the size/proportion because it has been held that a change in size proportion on the basis of its suitability for the intended use was an obvious extension of the prior teachings. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) In Gardnerv.TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. The Office notes that Applicant has included cylindrical in shape. Merriam Webster defines cylindrical as relating to or having the form or properties of a cylinder and the shape provided by Lorence is one of relating to or having the form or properties of a cylinder, and therefore by definition is cylindrical. The Office notes that modification to a cylinder would also assist in grasping and holding the device. Further, the Office notes that Lorence also discloses other shapes are possible (paragraph 40). Further, in order to expedite prosecution for Applicant, the Office notes that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the shape (such as to a cylinder) because it has been held that a change in shape on the basis of its suitability for the intended use was an obvious extension of the prior teaching. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
The Office notes that Applicant has provided a new amendment to a tapered shape. Lorence also discloses cups that are tapered (fig 1-7, paragraph 40). Though not required, the Office merely notes to expedite prosecution for Applicant that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the shape of a cup because it has been held that a change in shape on the basis of its suitability for the intended use was an obvious extension of the prior teaching. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
Pugatch discloses a stackable serving apparatus (figs 1-7) comprising: a serving device (such as the entire elements shown in fig 1 for example; the Office notes that Applicant has included “wherein said serving device is stackable within a second serving device when each cup is positioned within the respective cut-out” and the prior art is capable of performing the above intended use when cup is positioned of stacking with some other second device for serving, such as a device of a smaller size that fits within and rests on the cups) comprising a base having a top surface, a bottom surface, a front surface, rear surface (lower portion with top part, lower part, front part and part opposite front) and a pair of side surfaces (part between front and back); wherein said rear surface includes a wall vertically extending therefrom forming a backdrop for said serving device (as in fig 1 with shaped element with image); wherein said wall includes a printed 3D image (note the interpretation already provided above to Applicant; image that is created by the shapes that extend from wall); wherein said top surface of said base includes at least two cut-outs for insertion of cups therein (holes for elements adjacent round apertures). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify Lorence in view of Pugatch (by including the cups within the tray which thereby removable integrates the elements to the base) in order to provide desired contents to the user in the manner the protects the contents, while also providing careful transportation of such contents with display for advertising. With respect to the cup sizing the Office notes that providing cups of different sizes is well known such as to provide contents for humans of different sizes. Further, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the size/proportion because it has been held that a change in size proportion on the basis of its suitability for the intended use was an obvious extension of the prior teachings. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) In Gardnerv.TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Though also not required, the Office merely notes that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the shape of (such as of a cup) because it has been held that a change in shape on the basis of its suitability for the intended use was an obvious extension of the prior teaching. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). In order to expedite prosecution for Applicant the Office notes that with respect to the shape of the wall such as to cartoon, superhero, etc., it would have been obvious to one of ordinary skill in the art at the time the invention was made to provide a specific image such as a cartoon, superhero, etc. since it would only depend on the intended use of the assembly and the desired information to be displayed. Further, it has been held that when the claimed printed matter is not functionally related to the substrate it will not distinguish the invention from the prior art in terms of patentability. In re Gulack, 217 USPQ 401, (CAFC 1983).
With the exception of the following which is disclosed by Lim: spoon (col. 1: 40-45), at least one of said pair of side surfaces includes a utensil attachment element / spoon engaging slot within said side surface for removably storing an eating utensil/spoon (adjacent 22 of which extends from 14; capable of performing the above intended use). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the Combined Reference (by providing the above on a side) in order to accommodate desired utensils that are commonly associated and used with the intended contents in order to assist the user in eating and storage. The Office notes that the primary reference is a cup to hold ice cream. The Office notes that is common to eat ice cream with a spoon and also common to provide a container for such with a spoon in order to consume the desired contents.
With the exception of the following which is disclosed by de Holstein: fabric (page 1, right column: 27-40. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the Combined Reference in view of Holstein (by providing the above material) in order to provide a durable material to protect the device while accommodating desired contents, and material that is known to be suitable for display devices. Though not required, the Office notes that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the material because it has been held that selection of a known material on the basis of its suitability for the intended use was an obvious extension of the prior teaching. In re Leshin, 125 USPQ 416.
The Office notes Applicant’s amendment to the wall being square or rectangular. Inasmuch as the Applicant discloses generally square or rectangular, Lorence also discloses a square or rectangular shape (as shown in below).
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The Office again notes that in order to expedite prosecution for Applicant the Office notes that with respect to the shape of the wall such as to cartoon, superhero, etc., it would have been obvious to one of ordinary skill in the art at the time the invention was made to provide a specific image such as a cartoon, superhero, etc. since it would only depend on the intended use of the assembly and the desired information to be displayed. Further, it has been held that when the claimed printed matter is not functionally related to the substrate it will not distinguish the invention from the prior art in terms of patentability. In re Gulack, 217 USPQ 401, (CAFC 1983). Further with respect to the specific shape, though not required, the Office notes in order to expedite prosecution that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the shape because it has been held that a change in shape on the basis of its suitability for the intended use was an obvious extension of the prior teaching. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
With respect to the new limitation to being permanently integrated, the Office notes that the limitation merely required that the second cup remain the base, and the elements would remain if the user does not remove the elements from the base, and therefore the second cup is permanently integrated.
With respect to wherein each said serving device is stackable within another adjacent said serving device when each tapered cup is positioned within the respective cut-out to form a serving device stack of a plurality of said serving devices… wherein each said serving device is stackable another adjacent said serving device when each tapered cup is positioned within the respective cut-out to form a serving device stack of a plurality of said serving devices… wherein the plurality of serving devices are stackable when each tapered cup is positioned within the respective cut-out to form a serving device stack of the plurality of serving devices, the Office notes the 112 rejection above. Inasmuch as Applicant discloses the above, the prior art also discloses the above. The Office notes that that it is well within the skill of one or ordinary skill in the art to stack the above device as well, as for example for enhanced storage purposes. For example, the device could be modified so that the cups extend above the side wall elements and another said service device is placed on top.
The Combined Reference discloses:
5. The stackable serving device of claim 4, wherein said cups are paper cups (Lorence paragraph 38).
6. The stackable serving device of claim 5, wherein said cups include a volume from about 4 oz. to about 8 oz. It would have been obvious to one of ordinary skill in the art at the time of the invention to provide a specific range because it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges was an obvious extension of the prior teachings. In re Aller, 105 USPQ 233. And as already provided above, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the size/proportion because it has been held that a change in size proportion on the basis of its suitability for the intended use was an obvious extension of the prior teachings. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) In Gardnerv.TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.
7. The stackable serving device of claim 6, wherein said cups include a GSM from about 400 GSM to about 500 GSM. It would have been obvious to one of ordinary skill in the art at the time of the invention to provide a specific range because it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges was an obvious extension of the prior teachings.
8. The stackable serving device of claim 6, wherein said cups include a height from about 2" to about 5". It would have been obvious to one of ordinary skill in the art at the time of the invention to provide a specific range because it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges was an obvious extension of the prior teachings. And as already provided above, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the size/proportion because it has been held that a change in size proportion on the basis of its suitability for the intended use was an obvious extension of the prior teachings. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) In Gardnerv.TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.
10. The stackable serving device of claim 9, wherein said cups include lids for covering items held in said cups (Lorence elements adjacent 103).
11. The stackable serving device of claim 5, wherein said cups and said serving device are disposable (capable of performing the above intended use of being disposed of).
12. The stackable serving device of claim 4, wherein said serving device is reusable (capable of performing the above intended use of being reused more than once).
Claim(s) 13, 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lorence (20150274400) in view of Pugatch (US D420533 S) and Lim (7025199) and Holstein (2330585) and Rosen (1966734) and Powell (US 3386645 A).
Claims are being treated as product-by-process limitations (such as with respect to 3d printed) and the determination of patentability in a product-by-process claim is based on the product itself, even though the claim may be limited and defined by the process. That is, the product in such a claim is unpatentable if it is the same as or obvious from the product of the prior art, even if the prior product was made by a different process. In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985). A product-by-process limitation adds no patentable distinction to the claim, and is unpatentable if the claimed product is the same as a product of the prior art. (Same cite as above).
The Office notes the significant 112 rejection above. Nevertheless, Lorence discloses:
13. Three cups sized to hold an edible food or beverage therein; wherein a first cup is of a first size, a second cup is of a second size, and a third cup is of a third size; and further wherein said first size is different from said second size and different from said third size (figs 1-13; paragraph 55, paragraph 58). With respect to having multiple cups it is well within the skill of one ordinary skill in the art to provide multiple cups in order to provide multiple desired and related contents. Though not required, the Office notes that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the device because it has been held that the duplication of parts on the basis of its suitability for the intended use was an obvious extension of the prior teachings. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960) and it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the size/proportion because it has been held that a change in size proportion on the basis of its suitability for the intended use was an obvious extension of the prior teachings. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) In Gardnerv.TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. The Office notes that Applicant has included cylindrical in shape. Merriam Webster defines cylindrical as relating to or having the form or properties of a cylinder and the shape provided by Lorence is one of relating to or having the form or properties of a cylinder, and therefore by definition is cylindrical. The Office notes that modification to a cylinder would also assist in grasping and holding the device. Further, the Office notes that Lorence also discloses other shapes are possible (paragraph 40). Further, in order to expedite prosecution for Applicant, the Office notes that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the shape (such as to a cylinder) because it has been held that a change in shape on the basis of its suitability for the intended use was an obvious extension of the prior teaching. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
The Office notes that Applicant has provided a new amendment to a tapered shape. Lorence also discloses cups that are tapered (fig 1-7, paragraph 40). Though not required, the Office merely notes to expedite prosecution for Applicant that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the shape of a cup because it has been held that a change in shape on the basis of its suitability for the intended use was an obvious extension of the prior teaching. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
Pugatch discloses a stackable serving apparatus (figs 1-7 of which is capable of performing the intended uses of being stacked with another; the Office notes that Applicant has included “wherein said serving device is stackable within a second serving device when each cup is positioned within the respective cut-out” and the prior art is capable of performing the above intended use when cup is positioned of stacking with some other second device for serving, such as a device of a smaller size that fits within and rests on the cups) comprising: a serving device (such as the entire elements shown in fig 1 for example) comprising a base having a top surface, a bottom surface, a front surface, rear surface (lower portion with top part, lower part, front part and part opposite front) and a pair of side surfaces (part between front and back); wherein said rear surface includes a wall vertically extending therefrom forming a backdrop for said serving device (as in fig 1 with shaped element with image); wherein said wall includes a 3D image (image that is created by the shapes that extend from wall); wherein said top surface of said base includes at least two cut-outs for insertion of cups therein (holes for elements adjacent round apertures); wherein each of said three cut-outs are capable of holding cups therein. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify Lorence in view of Pugatch (by including the cups within the tray which thereby removable integrates the elements to the base) in order to provide desired contents to the user in the manner the protects the contents, while also providing careful transportation of such contents with display for advertising. With respect to the cup sizing the Office notes that providing cups of different sizes is well known such as to provide contents for humans of different sizes. Further, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the size/proportion because it has been held that a change in size proportion on the basis of its suitability for the intended use was an obvious extension of the prior teachings. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) In Gardnerv.TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Though also not required, the Office merely notes that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the shape of (such as of a cup) because it has been held that a change in shape on the basis of its suitability for the intended use was an obvious extension of the prior teaching. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). In order to expedite prosecution for Applicant the Office notes that with respect to the shape of the wall such as to cartoon, superhero, etc., it would have been obvious to one of ordinary skill in the art at the time the invention was made to provide a specific image such as a cartoon, superhero, etc. since it would only depend on the intended use of the assembly and the desired information to be displayed. Further, it has been held that when the claimed printed matter is not functionally related to the substrate it will not distinguish the invention from the prior art in terms of patentability. In re Gulack, 217 USPQ 401, (CAFC 1983).
With the exception of the following which is disclosed by Lim: spoon (col. 1: 40-45), at least one of said pair of side surfaces includes a utensil attachment element / spoon engaging slot within said side surface for removably storing an eating utensil/spoon (adjacent 22 of which extends from 14; capable of performing the above intended use). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the Combined Reference (by providing the above on a side) in order to accommodate desired utensils that are commonly associated and used with the intended contents in order to assist the user in eating and storage. The Office notes that the primary reference is a cup to hold ice cream. The Office notes that is common to eat ice cream with a spoon and also common to provide a container for such with a spoon in order to consume the desired contents.
With the exception of the following which is disclosed by de Holstein: fabric (page 1, right column: 27-40. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the Combined Reference in view of Holstein (by providing the above material) in order to provide a durable material to protect the device while accommodating desired contents, and material that is known to be suitable for display devices. Though not required, the Office notes that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the material because it has been held that selection of a known material on the basis of its suitability for the intended use was an obvious extension of the prior teaching. In re Leshin, 125 USPQ 416.
With the exception of the following which is disclosed by Rosen: text element (page 2: 50-60; It would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the indicia since it would only depend on the intended use of the assembly and the desired information to be displayed. Further, it has been held that when the claimed printed matter is not functionally related to the substrate it will not distinguish the invention from the prior art in terms of patentability. In re Gulack, 217 USPQ 401, (CAFC 1983)). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the Combined Reference in view of Rosen (by providing the above indicia such as a text message to a surface such as a front) in order to provide advertising and/or desired aesthetics and/or useful information for the user.
The Office notes Applicant’s amendment to the wall being square or rectangular. Inasmuch as the Applicant discloses generally square or rectangular, Lorence also discloses a square or rectangular shape (as shown in below).
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The Office again notes that in order to expedite prosecution for Applicant the Office notes that with respect to the shape of the wall such as to cartoon, superhero, etc., it would have been obvious to one of ordinary skill in the art at the time the invention was made to provide a specific image such as a cartoon, superhero, etc. since it would only depend on the intended use of the assembly and the desired information to be displayed. Further, it has been held that when the claimed printed matter is not functionally related to the substrate it will not distinguish the invention from the prior art in terms of patentability. In re Gulack, 217 USPQ 401, (CAFC 1983). Further with respect to the specific shape, though not required, the Office notes in order to expedite prosecution that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the shape because it has been held that a change in shape on the basis of its suitability for the intended use was an obvious extension of the prior teaching. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
With respect to glitter, the Office notes that Powell discloses a glitter element (col. 3:20-35). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the Combined Reference (by providing glitter to the wall) in order to enhance the decorative aspects of the invention in order to for example attract attention and improve sales.
With respect to wherein each said serving device is stackable within another adjacent said serving device when each tapered cup is positioned within the respective cut-out to form a serving device stack of a plurality of said serving devices… wherein each said serving device is stackable another adjacent said serving device when each tapered cup is positioned within the respective cut-out to form a serving device stack of a plurality of said serving devices… wherein the plurality of serving devices are stackable when each tapered cup is positioned within the respective cut-out to form a serving device stack of the plurality of serving devices, the Office notes the 112 rejection above. Inasmuch as Applicant discloses the above, the prior art also discloses the above. The Office notes that that it is well within the skill of one or ordinary skill in the art to stack the above device as well, as for example for enhanced storage purposes. For example, the device could be modified so that the cups extend above the side wall elements and another said service device is placed on top.
The Combined Reference discloses:
17. The stackable serving device of claim 16, wherein said cups are paper cups (Lorence paragraph 38).
Claim(s) 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lorence (20150274400) in view of Pugatch (US D420533 S) and Rosen (1966734) and Lim and Bryant and Powell.
The claims are being treated as product-by-process limitations (such as with respect to “printed 3d”) and the determination of patentability in a product-by-process claim is based on the product itself, even though the claim may be limited and defined by the process. That is, the product in such a claim is unpatentable if it is the same as or obvious from the product of the prior art, even if the prior product was made by a different process. In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985). A product-by-process limitation adds no patentable distinction to the claim, and is unpatentable if the claimed product is the same as a product of the prior art. (Same cite as above).
The Office notes the significant 112 rejection above. Nevertheless, Lorence discloses:
19. Three cups sized to hold an edible food or beverage therein; wherein a first cup is of a first size, a second cup is of a second size, and a third cup is of a third size; and further wherein said first size is different from said second size and different from said third size (figs 1-13; paragraph 55, paragraph 58). With respect to having multiple cups it is well within the skill of one ordinary skill in the art to provide multiple cups in order to provide multiple desired and related contents. Though not required, the Office notes that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the device because it has been held that the duplication of parts on the basis of its suitability for the intended use was an obvious extension of the prior teachings. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960) and it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the size/proportion because it has been held that a change in size proportion on the basis of its suitability for the intended use was an obvious extension of the prior teachings. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) In Gardnerv.TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. The Office notes that Applicant has included cylindrical in shape. Merriam Webster defines cylindrical as relating to or having the form or properties of a cylinder and the shape provided by Lorence is one of relating to or having the form or properties of a cylinder, and therefore by definition is cylindrical. The Office notes that modification to a cylinder would also assist in grasping and holding the device. Further, the Office notes that Lorence also discloses other shapes are possible (paragraph 40). Further, in order to expedite prosecution for Applicant, the Office notes that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the shape (such as to a cylinder) because it has been held that a change in shape on the basis of its suitability for the intended use was an obvious extension of the prior teaching. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
The Office notes that Applicant has provided a new amendment to a tapered shape. Lorence also discloses cups that are tapered (fig 1-7, paragraph 40). Though not required, the Office merely notes to expedite prosecution for Applicant that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the shape of a cup because it has been held that a change in shape on the basis of its suitability for the intended use was an obvious extension of the prior teaching. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
Pugatch discloses a plurality of stackable serving apparatus (figs 1-7; capable of the intended use of stacking; Though not required, the Office again notes that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the device because it has been held that the duplication of parts on the basis of its suitability for the intended use was an obvious extension of the prior teachings. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960) comprising: a serving device (such as the entire elements shown in fig 1 for example; the Office notes that Applicant has included wherein said serving device is stackable when each cup is positioned within the respective cut-out and the prior art is capable of performing the above intended use when cup is positioned of stacking with some other second device for serving, such as a device of a smaller size that fits within and rests on the cups) comprising a base having a top surface, a bottom surface, a front surface, rear surface (lower portion with top part, lower part, front part and part opposite front) and a pair of side surfaces (part between front and back); wherein said rear surface includes a wall vertically extending therefrom forming a backdrop for said serving device (as in fig 1 with shaped element with image); wherein said wall includes a 3D image (image that is created by the shapes that extend from wall); wherein said top surface of said base includes at least two cut-outs for insertion of cups therein (holes for elements adjacent round apertures). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify Lorence in view of Pugatch (by including the cups within the tray which thereby removable integrates the elements to the base) in order to provide desired contents to the user in the manner the protects the contents, while also providing careful transportation of such contents with display for advertising. With respect to the cup sizing the Office notes that providing cups of different sizes is well known such as to provide contents for humans of different sizes. Further, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the size/proportion because it has been held that a change in size proportion on the basis of its suitability for the intended use was an obvious extension of the prior teachings. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) In Gardnerv.TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Though also not required, the Office merely notes that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the shape of (such as of a cup) because it has been held that a change in shape on the basis of its suitability for the intended use was an obvious extension of the prior teaching. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). In order to expedite prosecution for Applicant the Office notes that with respect to the shape of the wall such as to cartoon, superhero, etc., it would have been obvious to one of ordinary skill in the art at the time the invention was made to provide a specific image such as a cartoon, superhero, etc. since it would only depend on the intended use of the assembly and the desired information to be displayed. Further, it has been held that when the claimed printed matter is not functionally related to the substrate it will not distinguish the invention from the prior art in terms of patentability. In re Gulack, 217 USPQ 401, (CAFC 1983). With the exception of the following which is disclosed by Rosen: text element (page 2: 50-60; It would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the indicia since it would only depend on the intended use of the assembly and the desired information to be displayed. Further, it has been held that when the claimed printed matter is not functionally related to the substrate it will not distinguish the invention from the prior art in terms of patentability. In re Gulack, 217 USPQ 401, (CAFC 1983)). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the Combined Reference in view of Rosen (by providing the above indicia such as a text message to a surface such as a front) in order to provide advertising and/or desired aesthetics and/or useful information for the user.
With the exception of the following which is disclosed by Lim: spoon (col. 1: 40-45), at least one of said pair of side surfaces includes a utensil attachment element / spoon engaging slot within said side surface for removably storing an eating utensil/spoon (adjacent 22 of which extends from 14; capable of performing the above intended use). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the Combined Reference (by providing the above on a side) in order to accommodate desired utensils that are commonly associated and used with the intended contents in order to assist the user in eating and storage. The Office notes that the primary reference is a cup to hold ice cream. The Office notes that is common to eat ice cream with a spoon and also common to provide a container for such with a spoon in order to consume the desired contents.
With the exception of the following which is disclosed by Bryant: cups each comprise an embroidery on an exterior (the Office notes that Merriam Webster defines the above term as the art or process of forming decorative designs with hand or machine needlework; therefore the above are being treated as product-by-process limitations and the determination of patentability in a product-by-process claim is based on the product itself, even though the claim may be limited and defined by the process. That is, the product in such a claim is unpatentable if it is the same as or obvious from the product of the prior art, even if the prior product was made by a different process. In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985). A product-by-process limitation adds no patentable distinction to the claim, and is unpatentable if the claimed product is the same as a product of the prior art. (Same cite as above). The Office notes that above is interpretated as indica of which is disclosed in figs 1-4 on each cup). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the Combined Reference in view of Bryant (by providing indicia to cups) in order to provide information to the user or aesthetic elements to attract the user. Though not required, in order to expedite prosecution for Applicant, the Office notes that it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the indicia since it would only depend on the intended use of the assembly and the desired information to be displayed. Further, it has been held that when the claimed printed matter is not functionally related to the substrate it will not distinguish the invention from the prior art in terms of patentability. In re Gulack, 217 USPQ 401, (CAFC 1983).
The Office notes Applicant’s amendment to the wall being square or rectangular. Inasmuch as the Applicant discloses generally square or rectangular, Lorence also discloses a square or rectangular shape (as shown in below).
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The Office again notes that in order to expedite prosecution for Applicant the Office notes that with respect to the shape of the wall such as to cartoon, superhero, etc., it would have been obvious to one of ordinary skill in the art at the time the invention was made to provide a specific image such as a cartoon, superhero, etc. since it would only depend on the intended use of the assembly and the desired information to be displayed. Further, it has been held that when the claimed printed matter is not functionally related to the substrate it will not distinguish the invention from the prior art in terms of patentability. In re Gulack, 217 USPQ 401, (CAFC 1983). Further with respect to the specific shape, though not required, the Office notes in order to expedite prosecution that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the shape because it has been held that a change in shape on the basis of its suitability for the intended use was an obvious extension of the prior teaching. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
With respect to a reflective element, the Office notes the 112 rejections above. Nevertheless, the Office notes that Powell discloses a reflective element (col. 3:20-35). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the Combined Reference (by providing glitter to the wall) in order to enhance the decorative aspects of the invention in order to for example attract attention and improve sales.
With respect to wherein each said serving device is stackable within another adjacent said serving device when each tapered cup is positioned within the respective cut-out to form a serving device stack of a plurality of said serving devices… wherein each said serving device is stackable another adjacent said serving device when each tapered cup is positioned within the respective cut-out to form a serving device stack of a plurality of said serving devices… wherein the plurality of serving devices are stackable when each tapered cup is positioned within the respective cut-out to form a serving device stack of the plurality of serving devices, the Office notes the 112 rejection above. Inasmuch as Applicant discloses the above, the prior art also discloses the above. The Office notes that that it is well within the skill of one or ordinary skill in the art to stack the above device as well, as for example for enhanced storage purposes. For example, the device could be modified so that the cups extend above the side wall elements and another said service device is placed on top.
Claim(s) 1, 5-8, 10-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lorence (20150274400) in view of Pugatch (US D420533 S) and Lim (7025199) and Holstein (2330585) and Applicant’s Admitted Prior Art (AAPA).
The claims are being treated as product-by-process limitations (such as with respect to “printed 3d”) and the determination of patentability in a product-by-process claim is based on the product itself, even though the claim may be limited and defined by the process. That is, the product in such a claim is unpatentable if it is the same as or obvious from the product of the prior art, even if the prior product was made by a different process. In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985). A product-by-process limitation adds no patentable distinction to the claim, and is unpatentable if the claimed product is the same as a product of the prior art. (Same cite as above).
The Office notes the significant 112 rejection above. Nevertheless, Lorence discloses:
1. A first cup holds cake and a second cup holds ice cream wherein said first cup is of a first size and said second cup is of a second size and said first size is different from said second size (figs 1-13; paragraph 55, paragraph 58). With respect to having multiple cups it is well within the skill of one ordinary skill in the art to provide multiple cups in order to provide multiple desired and related contents. Though not required, the Office notes that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the device b