DETAILED ACTION
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 present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Newly amended claim 18 is directed to an invention that is independent or distinct from the invention originally claimed for the following reasons:
Pursuant to a requirement for restriction mailed on 13 November 2023 applicant elected the claims of Group 1, claims 1 – 8 and 11 – 24 drawn to a package for retaining a food item without traverse. A species election was not made in the reply received 21 January 2024 but in a subsequent interview conducted on 23 January 2024 applicant elected Species “B”, where the package side wall can have a first portion having a first thickness and a second portion having a second thickness and the flange is configured to pivot from an initial position into a final position as shown in figures 4 – 8. Claims 1 – 8 were withdrawn at that time as being drawn to a non-elected species. In applicant’s response dated 09 July 2025 to the Non-Final Office Action dated 12 February 2025 claim 18 was amended to recite “wherein the flange is configured to pivot from an initial position located laterally outward of the side wall to a final position by pivoting toward the interior space about the second portion of the side wall, the hook portion defining a channel when the flange is in the final position, the channel being absent when the flange is in the initial position”.
A careful review of applicant’s specification (paragraph [0062]) clearly defines the portion of the package designated by reference sign (434) as a channel which is also clearly shown applicant’s figure 5, i.e., the package when the flange is in the initial position. Therefore a channel is always present in the species that was elected for prosecution and thus claim 18 as amended to claim “the channel being absent when the flange is in the initial position” is directed to a non-elected species.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 18, 20 – 24, and 32 – 35 a withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Claim Objections
Claim 30 is objected to because of the following informalities:
Claim 30 recites “an overall height of the package in the initial position is smaller than overall height of the package”. It would appear the claim should recite ‘an overall height of the package in the initial position is smaller than the overall height of the package’.
Appropriate correction is required.
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.
Claims 11 – 14, 16, 17, and 26 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Garwood US 2003/0185948.
Regarding claim 11, Garwood discloses a package (99) capable of retaining a food item (2832) which package comprises a base (2802) and a side wall (2804, 2806, 2808, 2810) extending away from the base and terminating at a flange (2834) which flange extends continuously around a periphery of the side wall (fig. 100) and is movable (2820, 2822, 2824, 2826) (constructed so as to inwardly rotate about a hinge) (paragraph [0675] and fig. 99 – 101). There is a sealing edge in that the movable flange portions comprise an upper edge and the base and the side wall bound an interior space (fig. 99). A first portion of the side wall has a first thickness (2804, 2806, 2808, 2810) and a second portion of the side wall has a second thickness (2834) (fig. 99/100). The flange (2834), as clearly seen in figure 100, extends continuously around a periphery of the sidewall, is movable (fig. 99/100), and is capable of pivoting (2820, 2822, 2824, 2826) from an initial position located laterally outward of the side wall (fig. 99/100) to a final position (fig.101) by pivoting toward the interior space about the second portion of the side wall.
Regarding claim 12 and 13, Garwood discloses the package would be wrapped with a film over wrap (paragraph [0037]) which would necessarily pivot the flange from the initial position (fig. 99) to the final position (fig. 101) and move the sealing edge upward and toward the interior space when the flange is pivoted from the initial position to the final position.
With respect to the remaining recitations beginning “a tensile force applied by a film wrap pivots the flange from the initial position to the final position” these are seen to be recitations regarding the intended use of the flange.
In this regard applicant’s attention is invited to MPEP 2114 which states that “an apparatus must be distinguished from the prior art in terms of structure rather than function”. That is to say, apparatus claims cover what a device is, not what a device does. If the body of a claim fully and intrinsically sets forth all the limitations of the claimed invention, and then further limitations merely state, for example, the purpose or intended use of the invention, rather than any distinct structural definition of any of the claimed invention’s structural limitations, then any limitations regarding the intended use of the device are of no significance to claim construction. A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claim which Garwood certainly does. Further, if the prior art structure is capable of performing the intended use, then it meets the claim.
It is The Office’s position that the further limitations do not state any distinct definition of any of the claimed invention’s limitations and further that the purpose or intended use, i.e. “a tensile force applied by the film wrap pivots the flange from the initial position to the final position”, recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art, that is Garwood and further that the prior art structure, which is identical and/or obvious in view of the prior art to that set forth in the present claims is capable of performing the recited purpose or intended use.
Regarding claim 14, where the sealing edge is the portion of the flange (2826) at the outer edge and resting on top of second portion (2834) it is seen that the sealing edge is disposed above the first portion of the side wall when the flange is in the final position (fig. 101).
Regarding claim 16, since Garwood discloses the top edges of the flange are in line with the perimeter of the package it is seen that the base (2802) is substantially parallel to the flange when the flange (2820, 2822, 2824, 2826, 2834) would be in the initial position (fig. 99).
Regarding claim 17, Garwood discloses the bottom of the base of a portion of the flange (2834) protrudes from the side wall of the package (fig. 101) and, as seen in figure 100, the flange has a portion (2830) that when folded as seen in figure 101 would clearly be in a vertical orientation therefore the base would be seen as substantially perpendicular to the flange when the flange would be in a final position (fig. 101).
Regarding claim 26, Garwood discloses the flange is biased toward the initial position (fig. 99) and is capable of being retained in the final position when a film wrap would be positioned around an exterior of the package (fig. 101).
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.
Claims 27 – 31 are rejected under 35 U.S.C. 103 as being unpatentable over Garwood US 2003/0185948 in view of Mander US 229,158 as further evidenced by Westerbeck US 1,138,268, Holdt US 4,308,970 and Bull US 4,513,872.
Claim 27 differs from Garwood in the end flange comprises a hook portion positioned on the opposite ends of the flange from the sealing lip defining a channel at a top of the side wall.
Mander discloses a package (dish/pan) that would be capable of retaining a food item (semi-liquid) which has a base and a side wall extending away from the base and where a first portion of the side wall has a first thickness, a second portion of the side wall has a second thickness, and the base and the side wall bound an interior space (fig. 2). Mander further discloses that it was notoriously old to provide the package capable of retaining a food item with a bend, i.e., a hook portion/channel between (b) and a sealing lip (a) each positioned on opposite ends of the flange where a channel is defined at a top of the side wall (ln 15 – 49 and fig. 2). Mander is providing a package capable of retaining a food item with a hook portion for the art recognized function of preventing the contents of said package from flowing or splashing over the edge thereof when in transit or when otherwise oscillated (ln 15 – 19) which is applicant’s disclosed reason for doing so as well. To therefore modify Garwood and provide the flange with a hook portion/sealing lip positioned on opposite ends of a flange as taught by Mander would have been an obvious matter of choice and/or design to the ordinarily skilled artisan. Westerbeck (fig. II.), Holdt (col. 4, ln 3 – 9 and fig. 3, reference sign 32), and Bull (annular bead 5, col. 3, ln 9 – 16 and fig. 6) all provide further evidence that it was old, conventional, and well established in the art to provide a flange with a hook portion positioned with a flange which would prevent the contents of a package from flowing or splashing over the edge thereof when the package would be in transit.
Regarding claim 28, once it was known to provide a channel to prevent the contents of the package from flowing or splashing over the edge thereof when in transit or when otherwise oscillated it is not seen that patentability would be predicated on the particular shape of the channel absent strong and compelling evidence to the contrary (MPEP § 2144.04 IV.B.). Nevertheless, Garwood in view of Mander as further evidenced by Westerbeck, Holdt, and Bull disclose the channel would have a concave shape (‘158, fig. 2 between reference sign a and b).
Regarding claim 29, Garwood in view of Mander as further evidenced by Westerbeck, Holdt, and Bull disclose the channel would be positioned below the sealing edge of the flange when said flange is in the final position (‘158, fig. 2 between reference sign a and b). Further, Garwood in view of Mander as further evidenced by Westerbeck, Holdt, and Bull disclose the side wall includes a smooth interior surface when the flange is in the initial position (‘948, fig. 99 reference sign 2820, 2822, 2824, 2826, 2834).
Regarding claim 30, Garwood in view of Mander as further evidenced by Westerbeck, Holdt, and Bull disclose the flange would have a length that is less than a length of the sidewall (‘948, fig. 99 - 101). Further it is not seen that patentability would be predicated on an overall height of the package in the initial position is smaller than the overall height of the package in the final position as this is merely a rearrangement of parts. Shifting the overall height of the package in the initial position such that in the initial position the overall height of the package would be smaller than the overall height of the package in the final position would not have modified the operation of the package and would therefore have been an obvious matter of design and/or choice to the ordinarily skilled artisan (MPEP § 2144.04 VI. C.).
Regarding claim 31, Garwood in view of Mander as further evidenced by Westerbeck, Holdt, and Bull disclose the flange would include a curved outer surface (2834) positioned between the sealing edge (tip of reference sign 2820, 2822, 2824, 2826, 2834) and the second portion of the side wall on a side of the flange that faces outward from the interior space when the flange is in the final position (‘948, fig. 101).
Response to Arguments
Applicant's arguments filed 09 July 2025 have been fully and carefully considered but they are not found persuasive.
Applicant urges that no substantive rejections were made of claims 20 – 23 and therefore should be allowed. This urging is not deemed persuasive as claims 20 – 23 depend from claim 18 which has been withdrawn from further consideration as now drawn to a non-elected species as set forth above.
Regarding claim 11, applicant urges that the office ignores that the flange is a movable flange and that the “separate flanges” are not a movable continuous flange around a periphery of the sidewall. These urgings are not deemed persuasive.
As clearly seen in figure 100 Garwood clearly shows the flange (2834) is continuous as it is seen going from one side of the package around a corner to the other side. Garwood then discloses the continuous flange has movable portions (2820, 2822, 2824, 2826) traversing along the continuous flange. Further, since the claims recite the “side wall” as a single side wall, i.e., in singular terms, all that is required is a single side wall along which a single flange would be required to travers continually and Garwood clearly discloses that to be the case.
Applicant urges that the claim language of claim 13 has not been addressed. This urging is not found persuasive.
As set forth above the claim language of claim 13 has been clearly addressed as an issue of intended use. Further, if the prior art structure is capable of performing the intended use, then it meets the claim and clearly the sealing edge of Garwood would move upward and toward the interior space when the flange would be pivoted from an initial position to a final position.
Applicant urges that the flange of Garwood is not biased toward an initial position. This urging is not deemed persuasive.
As seen in figure 100 the flange, in this case as shown by (2826) is clearly positioned in an initial position.
Regarding Mander applicant urges that since Garwood discloses the flange portions would include surfaces such as (2828) and (2830) positioned at oblique angles to impart strength to the flaps and therefore the modification of Garwood would remove this ability. This urging is not found persuasive.
In fact as seen in figures 99 and 100 of Garwood it appears that when folded into a final position the folded portions of the flange, that is portions (2820, 2822, 2824, 2826) would actually create a concave shaped channel as recited in claim 28 and a further curvature as shown by Mander would enhance the “flaps” of Garwood not remove any feature imparted thereby. Further, Mander was not brought to teach the specific package but to teach that the creation of a “hook” portion positioned inward of a side wall of a package that would enclose fluids would maintain said fluids in the interior of the package when moved.
Regarding applicant’s urging with respect to claim 31 applicant’s amendment to the claim and the rejection therefore have rendered applicant’s urging moot.
Regarding applicant’s urgings with respect to claims 32 and 35 since claim 18 and the claims that depend therefrom are withdrawn from further consideration based on election by original presentation these urgings are also rendered moot.
Conclusion
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHAIM A SMITH whose telephone number is (571)270-7369. The examiner can normally be reached Monday-Thursday 09:00-18:00.
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/C.S./
Chaim SmithExaminer, Art Unit 1791 11 October 2025
/VIREN A THAKUR/Primary Examiner, Art Unit 1792