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 .
DETAILED ACTION
Response to Amendment
The prior art has been maintained. See Response to Arguments below.
Claims 1, 3-18 are pending in this Office Action. Claims 11-18 have been withdrawn due to being drawn to the non-elect invention.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1, 3-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Holcomb et al (US 2011/0191974) in view of Olson (US D440,810).
Regarding Claim 1, Holcomb discloses a mix-in tool (mix, fold, stir, spread, lift, or otherwise manipulate food, see abstract) for use with processed food comprising: a handle (110, Fig. 1), wherein the handle includes a first concave surface and a second concave surface (front and back side of the handle); a shaft having a proximal end (140, Fig. 1), a distal end (276, Fig. 4), and a longitudinal axis extending therebetween, the proximal end coupled to the handle (see Fig. 1); a first wing member having a first end coupled to a first side of the shaft, the first end of the first wing member extending between the proximal and distal ends of the shaft (230, Fig. 4); and a second wing member having a first end coupled to a second side of the shaft opposite the first side, the first end of the second wing member extending between the proximal and distal ends of the shaft (240, Fig. 4).
Holcomb is silent to wherein the first and second concave surfaces defining a cavity between ends of the first and second concave surfaces configured to hold ingredients, and wherein the shaft defines a cannulation in communication with the cavity of the handle to transfer the ingredients from the cavity into the processed food. Olson is relied on to teach a combined drink straw with integral spoon (see title). The utensil of Olson similarly comprises a handle (top of the straw, Fig. 1), and a first and second wing extending from a first and second side of the shaft, respectively (spoon portion at bottom of straw, Fig. 1). The design of Olson is advantageous in that it combines the functionality of both a mixing utensil (hence spoon) and a drinking straw which is capable of holding ingredients therein and transferring ingredients from the handle to the processed food.
Therefore, since both Holcomb and Olson are directed to mixing utensils, it would have been obvious to one of ordinary skill in the art to configure the shaft to define a straw for the purpose of combining a drink straw functionality to the mixing utensil. The opening of the straw at the handle is construed to be a cavity, and the shaft with the straw structure is construed to be a cannulation that communicates with the cavity to the bottom of the utensil which is capable of transferring ingredients from the cavity into a processed food.
Regarding Claim 3-5, Holcomb further teaches wherein the first wing member defines a first concave surface extending between the first end and a second end of the first wing member (Claim 3), wherein the second wing member defines a second concave surface extending between the first end and a second end of the second wing member (Claim 4), and wherein the first concave surface of the first wing member and the second concave surface of the second wing member define a helical profile (see Fig. 13-15 and paragraph 55) of the first and second wing members extending between the second end of the first wing member and the second end of the second wing member on opposite sides of the shaft (Claim 5).
Regarding Claims 6, the limitation is directed to an intended use. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. Since Holcomb also teaches a helical profile that is used to manipulate food, Holcomb is construed to be capable of displacing processed food and form a cavity in the processed food when a user inserts the shaft into the processed food and rotates the handle.
Regarding Claims 7-8, the limitation is directed to an intended use. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. Since Holcomb also teaches a first and second wing that is used to scrape foodstuff (paragraph 33), Holcomb is construed to be capable for scraping processed food from a surface, wherein the surface is an interior surface of a vessel (mixing bowl, paragraph 49).
Regarding Claim 9, the limitation is directed to an intended use. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. Since Holcomb is directed to manipulating foodstuff (see abstract), Holcomb is construed to be capable of manipulating ice cream.
Regarding Claim 10, Holcomb further teaches wherein the handle is contoured to fit within a closed grasp of a user's hand (manually grip, paragraph 33).
Response to Arguments
Applicant’s arguments in the response filed 18 Sep 2025 has been considered, but is found not persuasive over the prior art for the following reasons:
Applicant argues that Holcomb and Olson fail to teach or suggest a shaft defining a cannulation in communication with a cavity of a handle to transfer ingredients from the cavity into process food as recited in Claim 1 (page 2 of the remarks). Specifically, Applicant submits that Olson fails to correct the deficiencies of Holcomb because Olsen is a design patent directed to a straw that includes a spoon head at one end thereof; therefore, Olson does not include a handle defining a cavity configured to hold ingredients. Further, the cannulation defined by the straw is used to draw ingredients out of a vessel, not to transfer ingredients through the cannulation into a vessel. Applicant’s arguments are not persuasive because Applicant’s arguments are directed to an intended use of the claimed invention. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. In this case, Olson discloses a straw that also functions as a spoon (see title ‘Combined Drink Straw with Integral Spoon’). Therefore, the portion in which a user would grasp the utensil to use as a spoon is construed as the claimed ‘handle’, and the cannulation that forms the straw is analogous to the claimed cannulation that is in communication with the cavity of the handle. While it is recognized that a straw is used to draw ingredients out of a vessel, the structure of the prior art is also capable of transferring ingredients into the vessel, such as pouring a liquid ingredient down the straw and into the container. Further. Applicant has not presented evidence that the structure of Holcomb in view of Olsen would not be capable of transferring ingredients from the handle and into a vessel. As stated above, if the prior art structure is capable of performing the intended use, then it meets the claim.
Applicant argues that one of ordinary skill in the art would not have considered the teaching of Olson at the time of the invention since Olson would have been considered non-analogous art to the presently-claimed invention (Page 3 of the remarks). However, the argument is not persuasive because the rejection is based on the combination of Holcomb and Olson which are both directed to utensils and therefore are analogous art. As outlined in the rejection, the combination of Holcomb and Olson are combined to arrive to the structure of the claimed invention. Since the claims are directed to a product, the prior art only needs to meet the structural limitations and therefore is not required to perform the intended use (i.e. transfer the ingredients from the cavity into the processed food). As stated above, if the prior art structure is capable of performing the intended use, then it meets the claim. In response to applicant's argument that the Olson is not analogous to Applicant’s function as a mix-in tool for delivering ingredients, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). For these reasons, the prior art has been maintained.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/T.H.N/Examiner, Art Unit 1792 /ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792