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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 1/12/2026 has been entered.
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.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 21 and 35 are rejected under 35 U.S.C. 103 as being unpatentable over Chung et al. (US 2014/0170291 A1) in view of (JP2011177168A), hereon referred to as “JP ‘168”, Mills et al. (US 2008/0008792 A1), Fink et al. (US 2008/0233320 A1), Fitzwater (US 2010/0193509 A1), and Thurk et al. (US 2012/0138670 A1).
Citations to JP ‘168 are taken from the EPO translation provided 9/11/2024.
Regarding claim 21, Chung et al. teaches a double-layer food product comprising a cereal sheet and a laver sheet to form an edible member (abstract), where cereal sheet forms a first skin and the laver sheet forms a second skin (figure 2; paragraph 35). The first skin comprising the cereal sheet is construed to be an “inner skin” and the second skin comprising the laver sheet is construed to be an “outer skin”. The product is roasted, where the cereal sheet is roasted with the laver sheet to “improve the crunchy texture” (paragraph 72). The final product is packaged (paragraph 57).
Chung et al. does not teach the edible member is conical with an interior space, and the inner skin has a circular shape in an unrolled state.
JP ‘168 teaches a food product comprising an edible member made from seaweed outer skin P and rice inner skin Q, where the edible member is rolled to form a cone shape with an interior space holding inner skin Q and optional toppings R (figures 3-4; paragraph 16). The inner skin Q is shown to have a generally circular shape before rolling, and therefore construed to have “a circumference”.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the product of Chung et al. such that the edible member is conical with an interior space and the inner skin has a circular shape in an unrolled state since the reference recites the cereal inner skin can be of “any shape” (paragraph 32) and the overall product can have any desired shape and size (paragraph 44), since the prior art recognizes that edible members having a cereal inner skin and seaweed outer skin can be formed into cones to facilitate holding food therein as taught by JP ‘168 (paragraphs 1-4), since there is no criticality or unexpected results associated with the claimed features, and therefore to combine prior art elements according to known methods to yield predictable results.
Chung et al. does not teach the outer skin has a screening part protruding from the inner skin so as to form a conical shape around a circumference of the inner skin. The “screening part” is interpreted in view of the specification to refer to portions of the outer skin that extend beyond the edge of the inner skin such that said outer skin portions overlap when the edible member is formed into a cone, as shown by items 2151 and 2152 in figures 9 and 13.
JP ‘168 further teaches the seaweed P extending beyond the outer edge of rice Q, construed to be “a screening part” as said portions of seaweed P overlap when the cone is formed (figures 5-6). A portion of the seaweed P at the position of a pressure indicator 4 is pressed against the rice Q to secure (fixing) the seaweed. The structure allows the seaweed P to be “wrapped around the sushi in a natural manner…and a nicely shaped inverted cone-shaped hand-rolled sushi is completed” (paragraphs 37 and 43).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the product of Chung et al. to include a screening part as claimed for the same reasons stated in the combination above, and further to facilitate maintaining the product in its final rolled state. Regarding the screening part configured to fill a valley formed by a circumference of the inner skin, JP ‘168 teaches a circular inner skin as explained above. One of ordinary skill in the art would have reasonably expected the same structure to be obtained when the edible member is rolled into a cone.
With respect to the inner skin having “a property for reinforcing the outer skin to maintain a conical shape of the edible member”, Chung et al. teaches the roasted cereal sheet attached to the laver sheet produces a product with “improved crunchiness” and “high preservative quality” (paragraphs 30 and 72). The “crunchiness” implies a certain degree of hardness or rigidity associated with the cereal sheet. Since the materials used in the inner and outer skins are the same as that of those disclosed in applicant’s specification, absent persuasive evidence to the contrary, one of ordinary skill in the art would have reasonably expected a similar reinforcing property as claimed.
Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Chung et al. does not teach a first packaging material disposed to cover at least a portion of an inner surface of the edible member, including a heat emitting layer configured to emit heat by using microwaves, a protrusion formed to be grippable by protruding from the heat emitting layer, and a second packaging material having a conical shape, surrounding the edible member, including a heat emitting layer configured to emit heat by using microwaves and a packaging material body part having a conical shape, the packaging body part comprises a cover piece and a lower cone piece, the cover piece is a piece located on an outer side of the heat emitting layer, and the lower cone piece is a piece located on an inner side of the heat emitting layer. The limitation “heat emitting layer configured to emit heat by using microwaves” is interpreted in view of the specification to mean the packaging material interacts with microwaves to emit heat as is understood in the art i.e., a susceptor (paragraph 60).
Mills et al. teaches microwave packaging for a food product (abstract), the packaging comprising a floating divider 112 operable to maintain contact with at least one surface of the food product contained therein, where said divider comprises microwave interactive materials (susceptor) that convert microwave energy into heat energy (figures 3-9; paragraphs 32 and 36). The floating divider further comprises a tab 144 (protrusion) capable of being gripped and used to manipulate the divider (paragraphs 48 and 64). The bottom panel 108 of the package further comprises a susceptor 128. A first food is placed into the packaging above bottom panel 108, the floating divider 112 is positioned over the first food, and a second food is placed over the floating divider (paragraphs 49-50 and 56). During microwaving, the bottom wall and the floating divider having the susceptors contact the first food resulting in browning and/or crisping of the food on multiple surfaces (paragraph 62). The package can have any shape (paragraph 35, 40, 74 and 106).
Fink et al. teaches a multilayer material for packaging food (abstract) comprising a first layer 10, a section layer 20, and a microwave susceptible material 30 positioned between said first and second layers (figure 1; paragraphs 34-35). The packaging can be shaped into a cone (figure 4A; paragraph 41). The outer and inner layers are made from known food packaging materials and selected for desirable features (paragraphs 8-10). Regarding “a cover piece and a lower cone piece…the cover piece is a piece located on an outer side of the heat emitting layer…the lower cone piece is…located…inner side of the heat emitting layer”, the packaging of Fink et al. reads on the claimed structure. The first layer 10 is construed to be a “cover piece” as the outside layer, the second layer 20 is construed to be a “lower cone piece” since the layer extends all the way down to the bottom of the cone (figure 4A), and said layers are located on respective outer and inner sides of the heat emitting layer 30.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the container of Chung et al. to include a first packaging material disposed to cover at least a portion of an inner surface of the edible member and including a heat emitting layer and a grippable protrusion, and a second packaging material comprising a packaging body part having a conical shape, a heat emitting layer, and the claimed structure since the prior art recognizes that such features for packages having susceptors and configured to heat foods when microwaved, to facilitate manipulation and/or removal of the first packaging material once heating is completed, in order to control heating to particular food surfaces to obtain desired characteristics of the food e.g., crisping and browning, in order to heat the food more uniformly from multiple surfaces, and to sandwich the heat emitting layer between two materials having desirable characteristics such as suitability for direct contact with foods, heat resistance, sealing capability, and durability.
Chung et al. does not teach a cutting line formed on a surface of the packaging material body part and having an arc shape that is concentric to a fan shape formed by the packaging material body part wherein the cutting line is formed in the packaging material body part to guide division of the packaging material body part, wherein an auxiliary cutting line is formed on an opposite surface of the packaging material body part and formed in the heat emitting layer to guide the division of the heat emitting layer when the packaging material body part is divided by the cutting line, and wherein one end of the auxiliary cutting line meets the cutting line along a circumferential direction. The limitation is interpreted in view of the specification to comprise the structure 3251 (cutting line) on one side of the body and 3252 (auxiliary cutting line) on the opposing side (figures 18-19; paragraphs 149-150 and 156).
Fitzwater teaches containers for receiving food items to be heated, browned, and crisped (abstract), the container formed from a body 100 having cutting line 160 extending across the entirety thereof (figure 1A; paragraph 57), the opposing side of the body comprising a susceptor 168 and cutting line 160 extending through the material of the susceptor (figure 1B; paragraph 58), where portion 158 of the container can be removed by tearing along line 160 (figure 1H). The container accommodates various irregular shaped food items (paragraph 65) and as the food is being consumed, the user removes portion 158 in order to gain access to more of the food (paragraph 66). The tear line includes weakening structures known in the art to extend through the entire thickness of a material e.g., score, cut, perforation (paragraph 67), thus providing a “cutting line” on both sides of the material. The line of disrupted material extending across the susceptor is construed to be an “auxiliary cutting line”. The cutting line and auxiliary cutting line meet at the overlapping portions thereof when the container is assembled (figures 1C and 1F-1H).
Thurk et al. teaches a conical packaging comprising cutting line 22 having an arc shape concentric with the outer edge 10a (figure 2). When the packaging body is formed into a cone, the cutting line extends about a circumference of the cone at a given height (figure 1).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the container of Chung et al. to include a cutting line and auxiliary cutting line as claimed since the prior art recognizes the structure for packaging food items intended to be heated in microwaves, and therefore to similarly facilitate consumption of the food of Chung et al. by allowing for incremental removal of the packaging as the food is consumed, since there is no evidence of criticality or unexpected results associated with the claimed features, and to combine prior art elements according to known methods to yield predictable results.
Regarding claim 35, the combination applied to claim 21 teaches the edible member is formed by rolling an unrolled edible member to a conical shape and fixing overlapping portions to each other as taught by JP ‘168.
Claims 28-32 are rejected under 35 U.S.C. 103 as being unpatentable over Chung et al. in view of JP ‘168, Mills et al., Fink et al., Fitzwater, and Thurk et al. as applied to claims 21 and 35 above, and further in view of (JPH04103496U), hereon referred to as “JP ‘496”, and Amend (US 8,840,943).
Citations to JP ‘496 are taken from the EPO translation provided 9/11/2024.
Regarding claim 28, the combination applied to claim 21 does not teach the profile of the outer skin includes, in an unrolled state, a curved first circumference, two second circumferences, two third circumferences, and a curved fourth circumference, where the screening part is defined by the two second circumferences, two third circumferences, and the circumference of the inner skin. The term “profile” is interpreted to be with respect to the shape of the edible member when viewing from a top-down position e.g., figure 9. Likewise, the limitation “extending…to an outer side of the inner skin with respect to a horizontal direction” is interpreted to mean that, when a horizontal line is drawn through the center of the circular inner skin, the two second circumferences (of the outer skin) extend to a point that lies farther long the horizontal direction than the outermost portion of the inner skin. The limitation “extending…to an inner side of the inner skin with respect to the horizonal direction” is similarly interpreted to mean the two third circumferences (of the outer skin) extend to a point that lies closer to the center of the inner skin along the horizontal direction. Figure 9 is annotated and provided below for clarity.
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JP ‘496 teaches a hollow cone made from seaweed having food insertion opening 2 and food storage section 3 (figure 1a; paragraph 11), where the seaweed can be formed into a fan shape (figure 1b) such that overlapping sides 14 of the seaweed are glued to ensure retention of the cone shape during consumption (paragraph 15). The portions 14 are analogous to the “screening part” of the claims.
Amend teaches a container to hold food (abstract), wherein the container comprises a conical edible member provided with an interior space and formed of an edible material (figure 1; column 3 lines 39-52; column 7 lines 23-30; claim 12). Amend teaches the edible member having an outer skin shaped as shown in figure 2. The outer skin has the same general shape as the claimed outer skin. The corresponding circumferences are illustrated below for clarity.
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It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the shape of the outer skin to have the claimed features Chung et al. does not particularly limit the size and shape of the edible material (paragraphs 44 and 52-53), since the prior art recognizes multi-layered edible members to be formed into cones having said features, where the shape is also recognized for seaweed to be formed into cones as taught by JP ‘496, since there is no evidence of criticality or unexpected results associated with the claimed features, and to provide portions of the outer skin which overlap when formed into the cone (screening parts), such that said portions can be adhered to each other, thereby ensuring the cone shape is maintained during handling and consumption.
Regarding claim 29, the “two second-first circumferences” and “two second-second circumferences” are interpreted further refer to portions of the “second circumferences” of claim 28. Amend teaches the two second circumferences, where said circumferences can be separated into further sections as desired. The each of the second circumferences are also shown to increase in angle, relative to the horizontal, progressing from the first circumference to the third circumference. The right half of Amend figure 2 is illustrated below for clarity.
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It would have been obvious to one of ordinary skill in the art to modify the outer skin to have the claimed features for the same reasons stated for claim 28, particularly since there is no evidence of criticality or unexpected results.
Regarding claim 30, the second-first circumferences (2-1) are tangential to the first circumference as shown above.
Regarding claim 31, the third circumferences are tangential to the fourth circumference as shown above.
Regarding claim 32, Amend as applied to the combination of claim 28 does not specify the corners at which the second and third circumferences meet are rounded. However, there is does not appear to be any criticality or unexpected result associated with the claimed feature.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the corners of the edible member to be rounded as a matter of manufacturing and/or design preference, and to optimize the amount of material used in the edible member.
Response to Arguments
Applicant's arguments filed 1/12/2026 have been fully considered but the amendment to claim 21 necessitated new grounds of rejection. Fink et al. is relied on to teach the claimed structure of the packaging body part as stated above. Resurrection, Jr. et al. is no longer relied upon.
Mills is not relied on to teach the features of the packaging body part, only the first packaging material. Likewise, Chung, JP ‘168, fitzwater and Thurk are not relied on to teach the argued features.
The functional features are not given weight since the structure taught by Fink et al. reads on the claimed structure, nor are said features recited in the claims.
Applicant’s argument against the dependent claims is not persuasive for the same reasons stated above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRYAN KIM whose telephone number is (571)270-0338. The examiner can normally be reached 9:30-6.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached on (571)-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BRYAN KIM/Examiner, Art Unit 1792