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 .
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim 54 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Orsman (GB 2450872).
Regarding claim 54, Orsman disclosed a molded part manufactured from biodegradable fiber material, the molded part comprising:
a receptacle for holding a consumable, wherein the receptacle is manufactured from the biodegradable fiber material (abstract);
a cover for closing the receptacle to produce a sealed volume within the molded part, wherein the cover is manufactured from the biodegradable fiber material (page 5, paragraph 4); and
a barrier layer applied to an inner surface of the receptacle, wherein the barrier layer includes a coating layer (abstract).
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 47-51 are rejected under 35 U.S.C. 103 as being unpatentable over Hilbish (US 8,741,443).
Regarding claim 47, Hilbish (fig. 1) discloses a portioning container constructed from biodegradable fiber material, the portioning container comprising:
a receptacle 22 for holding a consumable, wherein the receptacle is manufactured, from the biodegradable fiber material (col. 2, lines 22-30);
wherein the receptacle is provided with a barrier layer system that provides a barrier against penetration of one or more of moisture, water, aromatic substances, flavoring agents, odorants, or non-food-grade substances (col. 2, lines 32-36); and
a cover for closing the receptacle to produce a sealed volume within the portioning container (col. 4, lines 11-15).
Regarding the receptacle being manufactured using a pulp as a liquid solution containing the biodegradable fiber material, it has been held that 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.
Regarding claim 48, Hilbish further discloses the receptacle being formed from a first molded part made of a first fiber material, and a second molded part made from a second, different fiber material (col. 5, lines 51-53).
Regarding claim 49, Hilbish further discloses the barrier layer system 80 being applied to an inner surface of the receptacle (fig. 11).
Regarding claim 50, 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.
Regarding claim 51, Hilbish further discloses the receptacle is shaped such that one or more wall surfaces of the receptacle 22 have an angle of at least 3 degrees with respect to an axis of symmetry that is oriented perpendicularly to a bottom surface of the receptacle (fig. 1).
Claims 52-53 are rejected under 35 U.S.C. 103 as being unpatentable over Hilbish (US 8,741,443) in view of Sargent (US 6,758,130).
Regarding claims 52-53, Hilbish discloses all elements of the claimed invention except for the receptacle including a partition that divides the sealed volume into at least a first volume and a second volume, and wherein the cover includes at least one outlet for the consumable in the sealed volume; and
wherein the cover divides an incoming liquid flow into the sealed volume into at least a first liquid flow into the first volume and a second liquid flow into the second volume, and wherein a bottom surface of the portioning container includes at least one tap.
However, Sargent teaches a hot beverage capsule having two compartment and two separate taps (fig. 1).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed, to have made the container of Hilbish, a beverage capsule, as taught by Sargent, to provide a beverage capsule with the benefits of recyclability and reduced environmental impact.
Claims 55-56 are rejected under 35 U.S.C. 103 as being unpatentable over Orsman (GB 2450872) in view of Hilbish (US 8,741,443).
Regarding claim 55, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Regarding claim 56, Orsman discloses all elements of the claimed invention except for the receptacle being formed from a first molded part made of a first fiber material, and a second molded part made from a second, different fiber material.
However, Hilbish teaches a food tray made from different layers 74 having same or different compositions (col. 5, lines 45-51).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to have made the receptacle of Orsman of two layers of different molded fiber materials, to provide the desired strength.
Claims 57-58 are rejected under 35 U.S.C. 103 as being unpatentable over Orsman (GB 2450872) in view of Sargent (US 6,758,130).
Regarding claims 57-58, Orsman discloses all elements of the claimed invention except for the molded part being a portioning container, and wherein the cover has a resealable tap; and wherein the molded part is a hot-beverage capsule, wherein the cover is configured to divide an incoming liquid flow into at least two liquid flows into two separate volumes within the sealed volume, and wherein a bottom surface of the hot- beverage capsule includes at least two separate taps.
However, Sargent teaches a hot beverage capsule having two compartment and two separate taps (fig. 1).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed, to have made the container of Orsman a beverage capsule as taught by Sargent, to provide a beverage capsule with the benefits of recyclability and reduced environmental impact.
Claims 39-41 are rejected under 35 U.S.C. 103 as being unpatentable over Sargent (US 6,758,130) in view of Markus (EP 94113435).
Regarding claim 39, Sargent (fig. 1) discloses a portioning container 100, comprising:
a receptacle 102 for holding a consumable; and
a cover 120 for closing the receptacle 102 to produce a sealed volume within the portioning container 100.
Sargent fails to disclose the receptacle 102 being manufactured from a biodegradable fiber material, wherein the receptacle is formed from a first molded part made of a first fiber material and a second molded part made from a second, different fiber material, wherein the first and second molded parts are interconnected via their respective mutually facing surfaces by pre-compression pressure applied during a pre-forming process.
However, Markus teaches a packaging material manufactured from a biodegradable fiber material, wherein the material is formed from a first molded part made of a first fiber material and a second molded part made from a second, different fiber material, wherein the first and second molded parts are interconnected via their respective mutually facing surfaces by pre-compression pressure applied during a pre-forming process (fig. 1 and abstract).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed, to have made the portioning container of Sargent, from a biodegradable fiber-based material as taught by Markus, to provide the benefits of recyclability and reduced environmental impact.
Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Also, 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.
Regarding claim 40, Sargent further discloses the receptacle102 including a partition that divides the sealed volume into at least a first volume and a second volume (fig. 1 and col. 6, lines 18-22).
Regarding claim 41, Sargent further discloses the cover including a plurality of outlets 104 such that both the first volume and the second volume are associated with one or more of the plurality of outlets (fig. 4C).
Claims 39-46 are rejected under 35 U.S.C. 103 as being unpatentable over Sargent (US 6,758,130) in view of Hilbish (US 8,741,443).
Alternatively, regarding claim 39, Sargent (fig. 1) discloses a portioning container 100, comprising:
a receptacle 102 for holding a consumable; and
a cover 120 for closing the receptacle 102 to produce a sealed volume within the portioning container 100.
Sargent fails to disclose the receptacle 102 being manufactured from a biodegradable fiber material, wherein the receptacle is formed from a first molded part made of a first fiber material and a second molded part made from a second, different fiber material, wherein the first and second molded parts are interconnected via their respective mutually facing surfaces by pre-compression pressure applied during a pre-forming process.
However, Hilbish teaches a packaging material manufactured from a biodegradable fiber material, wherein the material is formed from a first molded part 76 made of a first fiber material and a second molded part 78 made from a second, different fiber material (fig. 11 and col. 5, lines 45-51).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed, to have made the portioning container of Sargent, from a biodegradable fiber-based material as taught by Hilbish, to provide the benefits of recyclability and reduced environmental impact.
Regarding the first and second molded parts being interconnected via their respective mutually facing surfaces by pre-compression pressure applied during a pre-forming process, 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.
Alternatively, regarding claim 40, Sargent further discloses the receptacle102 including a partition that divides the sealed volume into at least a first volume and a second volume (fig. 1 and col. 6, lines 18-22).
Alternatively, regarding claim 41, Sargent further discloses the cover including a plurality of outlets 104 such that both the first volume and the second volume are associated with one or more of the plurality of outlets (fig. 4C).
Regarding claim 42, the modified Sargent further discloses the portioning container further comprises:
a barrier layer 80 applied to at least one surface of the receptacle or the cover, wherein the barrier layer 80 prevents penetration of one or more of: moisture, water, aromatic substances, flavoring agents, odorants, or non-food-grade substances (fig. 11 and col. 5, lines 59-67 of Hilbish).
Regarding claim 43, the modified Sargent further discloses the barrier layer 80 includes a coating layer (col. 5, lines 59-67 of Hilbish).
Regarding claim 44, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416. Also, a change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
Regarding claim 45, the modified Sargent further discloses the barrier layer 80 being applied to an inner surface of the receptacle (fig. 11 of Hilbish) but fails to disclose the barrier layer being applied on an inner surface of the cover.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed, to have also applied a barrier layer on an inner surface of the cover of the modified Sargent, to prevent wicking to liquid into the cover.
Regarding claim 46, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BLAINE GIRMA NEWAY whose telephone number is (571)270-5275. The examiner can normally be reached Monday - Friday 9:00 AM- 5:00PM.
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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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/BLAINE G NEWAY/Examiner, Art Unit 3735
/Anthony D Stashick/Supervisory Patent Examiner, Art Unit 3735
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