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 § 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.
Claims 1, 6, 8, and 27-28 are rejected under 35 U.S.C. 103 as being unpatentable over Pillsbury NPL in view of Huang et al. (US 4,935,252), Feldmeier et al. (US 6,048,558), Waffle Pops NPL, and McCumber et al. (US 2007/0278122 A1).
Regarding claim 1, Pillsbury NPL teaches a container box comprising at least one precooked waffle and a plurality of “dippin’ cups” (packets) as labeled on the box, each packet containing a condiment, or “topping”, each packet sized to allow the precooked waffle to be dipped therein (timestamp 0:29). The waffle, packets, and container are construed to form a “kit”. The waffle is of an elongated non-circular shape. The claim does not require the first and second toppings to be different, and therefore the plurality of packets taught by Pillsbury NPL is construed to read on the claim.
Pillsbury NPL does not teach the container defining a single receiving area, the topping packets placed within the single receiving area.
Huang et al. teaches a package comprising a waffle 107 and sausage 109 placed into a single receiving area of container 101 (figure 1; column 5 lines 45-49).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the packaging of Pillsbury NPL such that the container defines a single receiving area into which the precooked waffle and topping packets are placed since the feature is recognized by the prior art for packaging waffles with additional components, and therefore to combine prior art elements according to known methods to yield predictable results, see MPEP 2143 I.(A), to minimize packaging material and cost, to maintain the waffles and toppings together during handling and transport, and as a matter of manufacturing preference based on known packaging features.
Pillsbury NPL does not teach the precooked waffle is not frozen.
However, the claims are directed to a product, where the waffles of Pillsbury NPL are capable of being thawed and therefore “not frozen”. One of ordinary skill in the art would have recognized that the waffles of Pillsbury NPL can be thawed for multiple reasons e.g., transport in a warm environment, unintentionally leaving in a non-cooled environment, etc. The waffles would therefore read on the claimed limitation.
Further, Huang et al. teaches the waffle can be heated in a microwave oven when “frozen or unfrozen” (column 3 lines 5-6).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the product of Pillsbury NPL such that the waffles are not frozen as since there is no evidence of unexpected results associated with the claimed feature, to minimize cooling energy use when storage and transport are not needed (e.g., a local bakery selling freshly made kits directly to consumers), and to expedite the reheating process.
Pillsbury NPL does not teach a packet containing the precooked waffle, and the precooked waffle packet within the single receiving area of the container.
Feldmeier et al. teaches a packaged meal in the form of a kit arrangement (abstract), where the packaged food can be a precooked waffle i.e., “baked from a dough” (column 2 lines 30-33) held in a container such as tray 20 (figure 1; column 3 lines 42-43). The baked component 13 is contained within a sealed film packet 14 which provides barrier properties (figure 2; column 3 lines 45-49).
Huang et al. teaches a precooked waffle in the single receiving area of a container as stated above.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the kit of Pillsbury NPL such that the waffles are contained within a packet and placed in the single receiving area of the container in order to similarly provide a sealed barrier between the waffles and any contaminants, and to allow multiple waffles to be held together during transport and handling, thereby minimizing the risk of damage and providing convenience for the user.
Pillsbury NPL does not teach the precooked waffle is affixed on a stick.
Waffle Pops NPL teaches placing sticks into precooked waffles (figures).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the waffles of Pillsbury NPL to be affixed on a stick since the feature is recognized by the prior art, since the feature is understood to facilitate manipulation of the waffle e.g., dipping into condiments, without touching the waffle itself, and thus for user convenience.
Pillsbury NPL does not explicitly teach the topping packets are sealed.
McCumber et al. teaches a container comprising two food elements (abstract; figure 6) such as bread sticks and dip (paragraph 18), where dip 24 comprises a conventionally sized dip cup 28 sealed with a film 92 to preserve freshness (paragraphs 22 and 28; the film is shown as “82” in figure 6).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the topping packets of Pillsbury NPL to be sealed since the prior art recognizes such a feature for condiment dipping packets, to preserve freshness of the toppings, and to prevent contamination and/or undesired egress of the toppings from the packets prior to use.
Regarding claim 6, the combination applied to claim 1 teaches the waffle packet is a sealed bag.
Regarding claim 8, the topping of Pillsbury NPL is a liquid.
Regarding claim 27, the combination applied to claim 1 teaches affixing a precooked waffle on a stick, and placing a precooked waffle in a sealed bag.
While the feature of the waffle and stick being in the bag is not explicitly taught, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify Pillsbury NPL to do so for the same advantages taught by Feldmeier et al., and further to ensure the barrier seal is maintained until use.
Regarding claim 28, Pillsbury NPL teaches multiple topping packets, but does not teach three topping packets as claimed.
However, there does not appear to be any criticality or unexpected results 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 Pillsbury to include at least three topping packets as a matter of manufacturing choice, as a duplication of parts, see MPEP 2144.04 VI.B., and to ensure a sufficient amount of topping is available for the amount of waffle within the kit and/or for multiple servings.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Pillsbury NPL in view of Huang et al., Feldmeier et al., Waffle Pops NPL, and McCumber et al. as applied to claims 1, 6, 8, and 27-28 above, and further in view of Dzieduszycki (US 2015/0024107 A1).
Regarding claim 7, the combination applied to claims 1 and 6 teaches a sealed bag as stated for said claims, but does not teach the sealed bag is cellophane.
Dzieduszycki teaches waffles can be packaged into cellophane wrappers (paragraphs 12, 14 and 24).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the sealed bag to be made of cellophane since Feldmeier et al. already teaches pouch 14 is a polymer bag (column 3 lines 47-50), but does not otherwise limit the material, since cellophane is a known and commonly used packaging material, and therefore to combine prior art elements according to known methods to yield predictable results in packaging and preserving foods.
Claims 9 and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Pillsbury NPL in view of Huang et al., Feldmeier et al., Waffle Pops NPL, and McCumber et al. as applied to claims 1, 6, 8, and 27-28 above, and further in view of Insanely Good NPL.
Regarding claim 9, Pillsbury NPL does not teach the second topping is a solid.
Insanely Good NPL teaches waffles can have a variety of liquid and solid toppings such as a number of different types of syrup, peaches, honey, chopped nuts, blueberries, yogurt, peanut butter, jelly, cinnamon sugar, etc. (pages 1-10).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify Pillsbury NPL to include a solid as the topping since the reference already suggests condiments associated with the waffle can be included in the container, since the prior art acknowledges a variety of toppings can be used with waffles, as a matter of preference for flavors, texture, and nutritional profile, and since applicant has not shown sufficient evidence that the claimed ingredients produce new, unexpected, and useful function, see In re Levin, 84 U.S.P.Q. 232, 234 (C.C.P.A. 1950). Id. at 7. The following passage is quoted from Levin.
“This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function. In re White, 39 F.2d 974, 17 C.C.P.A., Patents, 956; In re Mason et al., 156 F.2d 189, 33 C.C.P.A., Patents, 1144.”
Regarding claim 29, Pillsbury NPL teaches multiple topping packets i.e., “dippin’ cups” as stated for claim 1, but does not teach different toppings within the packets.
The combination applied to claim 9 teaches a variety of liquid and solid toppings as stated for said claim. The same combination is applied to claim 29 and would have been obvious for the same reasons.
Claims 10 and 13-15 are rejected under 35 U.S.C. 103 as being unpatentable over Pillsbury NPL in view of Huang et al., Feldmeier et al., Waffle Pops NPL, McCumber et al., Dzieduszycki, and Insanely Good NPL.
Regarding claim 10, the combination applied to claim 1 teaches a kit for presenting a precooked waffle as stated for said claim. The same combination is applied to claim 10 and would have been obvious for the same reasons. The difference between claims 1 and 10 is that the latter further recites the container is a box, the precooked waffle packet is a sealed bag manufactured of cellophane, the first topping packet containing a liquid topping and the second topping packet containing a solid topping.
Pillsbury NPL teaches the container is a box (timestamp 0:29).
The combination applied to claim 7 teaches the sealed waffle packet is cellophane. The same combination is applied to claim 10 and would have been obvious for the same reasons.
The combination applied to claim 9 teaches a variety of liquid and solid toppings. The same combination is applied to claim 10 and would have been obvious for the same reasons.
Regarding claim 13, Pillsbury NPL does not teach the waffle is of a trapezoidal shape. However, there is no evidence that the shape is critical or yields unexpected results.
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 waffle to be trapezoidal since it is well known in the art that waffle cooking devices can have various mold shapes, or that waffles can be cut to a desired shape, and as a matter of manufacturing or aesthetic preference, see MPEP 2144.04 I. and 2144.04 IV.B.
Regarding claim 14, the combination applied to claim 10 does not teach the solid topping is granulated.
However, Insanely Good NPL teaches the toppings can include granulated substances such as chopped nuts (page 4) and cinnamon sugar (page 10).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the solid topping to be granulated for the same reasons stated for claim 9, particularly as a matter of texture.
Regarding claim 15, Pillsbury NPL teaches the topping packet is an elongated shape.
Claims 18-19 and 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over Pillsbury NPL in view of Huang et al., Feldmeier et al., and Waffle Pops NPL.
Regarding claim 18, the combination of Pillsbury NPL, Huang et al., Feldmeier et al., and Waffle Pops NPL applied to claim 1 teaches a kit comprising a container defining a single receiving area, a precooked waffle packet containing the precooked waffle, wherein the precooked waffle is affixed on a stick, the precooked waffle packet within the single receiving area of the container, wherein the precooked waffle is of an elongated shape, wherein the precooked waffle is not frozen; and a topping packet containing a topping for the precooked waffle, the topping packet within the single receiving area of the container, the topping packet sized to allow the precooked waffle to be dipped therein. The same respective combination is applied to claim 18 and would have been obvious for the same reasons.
The instant claim further recites the container is a box, and the topping packet is an elongated shape. These features are taught by Pillsbury NPL (timestamp 0:29).
Regarding claim 19, the topping of Pillsbury NPL is a liquid.
Regarding claim 21, Pillsbury NPL does not teach the waffle is of a trapezoidal shape. However, there is no evidence that the shape is critical or yields unexpected results.
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 waffle to be trapezoidal for the same reasons stated for claim 13 above.
Regarding claim 22, Feldmeier et al. as applied to claim 1 teaches the waffle packet is a sealed bag. The same respective combination is applied to claim 18 as stated above, and therefore the combination reads on the same feature of claim 22.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Pillsbury NPL in view of Huang et al., Feldmeier et al., and Waffle Pops NPL as applied to claims 18-19 and 21-22 above, and further in view of Insanely Good NPL.
Regarding claim 20, the combination applied to claim 18 does not teach a solid topping.
However, Insanely Good NPL teaches waffles can have a variety of liquid and solid toppings as stated for claim 9 above.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the topping of Pillsbury NPL to be a solid and/or to include a solid topping packet within the kit for the same reasons stated for claim 9.
Claim 23 is rejected under 35 U.S.C. 103 as being unpatentable over Pillsbury NPL in view of Huang et al., Feldmeier et al., and Waffle Pops NPL as applied to claims 18-19 and 21-22 above, and further in view of Dzieduszycki.
Regarding claim 23, Pillsbury NPL does not specify the sealed bag is cellophane.
The combination applied to claim 7 renders obvious the claimed feature. The same modification is applied to claim 23 and would have been obvious for the same reasons.
Response to Arguments
Applicant’s amendments to claims 1 and 10 necessitated new grounds of rejection. McCumber et al. is now relied on to teach the first and second topping packets are sealed. The reference has been incorporated into the rejections of claims 1, 6-10, 13-15, and 27-29.
Claims 18-23 have not been amended. Therefore, the rejections of claims 18-23 have been separated from those of claims 1, 6-10, 13-15, and 27-29. The rejections of claims 18-23 under 35 USC 103 are maintained.
Applicant's arguments filed 12/12/2025 have been fully considered but they are not persuasive.
Applicant argues on page 5 that Pillsbury NPL discloses only a single topping packet, whereas claims 1 and 10 require multiple packets.
This is not persuasive since the packaging of Pillsbury NPL explicitly states “dippin’ cups” i.e., multiple “cups” (timestamp 0:29). While the reference shows a single topping packet, one of ordinary skill would have readily understood that the kit itself contains at least two packets as disclosed on the box. Further, there is no evidence of new or unexpected results associated with multiple topping packets. Claim 1 does not require that the toppings are different, and therefore including multiple packets of the same topping would have been prima facie obvious in order to provide sufficient toppings relative to the amount of waffle and/or to allow for multiple consumers to apply their own topping simultaneously. Regarding claim 10, the combination applied to said claim includes Insanely Good NPL, which teaches and motivates one of ordinary skill to include multiple different toppings. It is noted that claim 18 only requires a single topping packet.
Applicant argues on page 6 that modifying Pillsbury NPL to include non-frozen waffles would destroy the fundamental purpose of the product which is providing a frozen, ready-to-prepare food item, where the waffles must remain frozen until immediately prior to heating, otherwise they would spoil and could not be safely consumed, and states various factors as to why the reference does not disclose a waffle that is not frozen.
This is not persuasive since there is nothing in Pillsbury NPL that would indicate the waffles must remain frozen until immediately prior to use, nor that the waffles are frozen at all. Likewise, the reference does not indicate that the various factors argued by Applicant are required by the product. Applicant has not shown evidence to support the arguments. Regardless, Huang et al. teaches the waffle can be heated in a microwave oven when “frozen or unfrozen” (column 3 lines 5-6) as stated for claim 1. One of ordinary skill readily understands that a frozen product that has been thawed does not immediately spoil. Thus, the feature is prima facie obvious for the reasons stated for claim 1.
Applicant argues on pages 6-7 that the combination of Pillsbury NPL with Huang and Feldmeier does not teach a waffle that is not frozen and a plurality of packets within a single receiving area of the container as recited by claim 1 since Pillsbury NPL requires the waffle and dipping cups to remain frozen.
This is not persuasive since Pillsbury NPL does not teach or otherwise require the waffle and topping packets to be frozen, and a non-frozen packaged waffle is prima facie obvious as stated above. Further, the reference does not teach or otherwise indicate that the kit must have more than a single receiving area. Huang is relied on to show that the prior art recognizes a single receiving area for waffles packaged with other items. Likewise, Feldmeier is relied on to show that a precooked waffle can be contained in a sealed film packet which provides barrier properties, the sealed waffle packaged in a container such as a tray. There is no evidence that the claimed features yield new and unexpected results, and therefore are obvious for the reasons stated for claim 1.
Applicant argues on pages 7-8 that Pillsbury NPL does not teach a waffle that is not frozen and Insanely Good NPL does not cure the deficiencies of Pillsbury NPL, Huang, and Feldmeier.
This is not persuasive for the same reasons stated for the arguments addressed above. Pillsbury NPL does not teach or otherwise require the kit to remain frozen until use, and Huang shows that precooked waffles can be heated in a microwave from an unfrozen state. Insanely Good NPL is relied on to show that the prior art recognizes different types of toppings can be added to precooked waffles, where modification of the kit of Pillsbury NPL to include different types of sealed topping packets would have been obvious for the reasons stated for the respective claims.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
Applicant’s arguments against the dependent claims and their respective references are not persuasive for the same reasons stated above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Edwards et al. (US 7,939,786 B2) teaches a meal kit comprising a container 10 defining a single receiving area holding ingredients 112, 114, and 116, separately packaged in 102, 104, and 106 (figure 1; column 3 lines 50-64)
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/BRYAN KIM/Examiner, Art Unit 1792