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 Objections
Claim 7 is objected to because of the following informalities:
Claim 7 recites the limitation “the individually formed cells” in line 3. It appears the claim should recite “the plurality of individually formed cells” in order to maintain consistency with “a plurality of individually formed cells” recited in Claim 7, line 2.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-10 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 recites the limitation “providing a grain pod, the grain pod comprising a housing wherein the housing is at least partially enclosed to define an interior space” in lines 2-3 as well as the limitation “a heating chamber positioned in the interior space” in line 5. There was not adequate written description at the time of filing for the grain pod to have a heating chamber. Applicant discloses the heating chamber in the context of a heating element 602 positioned above a grain pod (Specification, Paragraph [0060]) or another embodiment wherein grain pod 3301 is inserted into grain popping machine 3300 comprising a heating chamber 3302 to apply heat to grain pod 3301 (Specification, Paragraph [0098]). However, the disclosure at the time of filing does not specify the heating chamber to be a structure of the actual grain pod itself. Therefore, this limitation constitutes new matter.
Claims 2-10 are rejected as being dependent on a rejected base claim.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-10 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Claim 1 recites the limitation “a grain pod” in line 9. It is unclear if this refers to “a grain pod” recited in Claim 1, line 2 or if this refers to an entirely different grain pod. For purposes of examination Examiner interprets the claim to refer to the same grain pod.
Claim 5 recites the limitation “the plurality of dells” in line 1. There is insufficient antecedent basis for this limitation in the claim. It appears the claim should recite “the plurality of cells.”
Clarification is required.
Claims 2-4 and 6-10 are rejected as being dependent on a rejected base claim.
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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 1-10 are rejected under 35 U.S.C. 103 as being unpatentable over Dysarz US 4,902,520 in view of Schwalb et al. US 2018/0037392.
Regarding Claim 1, Dysarz discloses a method of popping grains (popping pop corn) (‘520, Column 4, lines 51-54). The method comprises providing a grain pod (corn cassette 29). The grain pod (corn cassette 29) comprises a housing that is at least partially enclosed to define an interior space wherein the housing comprises a top (cover panel 39) and a bottom (burst panel 44) (‘520, Column 7, lines 61-68) (‘520, Column 8, lines 7-24). A heating chamber (heating element 38) is positioned in the interior space wherein the heating chamber (heating element 38) has a top and a bottom. The bottom of the heating chamber (heating element 38) is positioned toward the bottom of the housing and the top of the heating chamber (heating element 38) is positioned toward the top of the housing. The grain pod (corn cassette 29) comprises a cell (popcorn kernel chambers 41) having an open end and a closed end wherein the cell contains one or more grains (corn kernels 43) (‘520, Abstract) (‘520, Column 7, lines 61-68). The grain pod (corn cassette 29) has a bottom cover (cover panel 39) that seals the open end of the cell when attached to the grain pod (corn cassette 29). The bottom cover of the grain pod (corn cassette 29) faces the bottom of the housing when the cell is positioned in the bottom of the heating chamber wherein heating the grain pod (corn cassette 29) heats the one or more grains (corn kernels 43) in the cell thereby causing the one or more grains (corn kernels 43) to exit the grain pod (corn cassette 29) via the grain pod (corn cassette 29) (‘520, Column 7, lines 35-47).
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Dysarz is silent regarding a hole being formed through the bottom of the heating chamber wherein the hole is capable of receiving the cell therethrough and the bottom cover of the grain pod being pierced to cause the one or more grains to exit the grain pod.
Schwalb et al. discloses a method of popping grains (‘392, Paragraph [0204]). The method comprises providing a grain pod wherein the grain pod comprises a housing (‘392, Paragraph [0413]) and a heating chamber positioned in the interior space (‘392, Paragraph [0423]). The grain pod comprises a cell having an open end and a closed end, the cell containing one or more grains wherein a hole is formed through the bottom of the heating chamber and the hole is capable of receiving the cell therethrough wherein a bottom cover (foil or other covering) of the grain pod is pierced to cause the one or more grains to exit the grain pod (‘392, Paragraph [0081]).
Both Dysarz and Schwalb et al. are directed towards the same field of endeavor of methods of popping grains using a grain pod in a heating machine. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Dysarz and incorporate a hole formed through the bottom of the heating chamber wherein the hole is capable of receiving the cell therethrough and the bottom cover of the grain pod being pierced to cause the one or more grains to exit the grain pod since Schwalb et al. teaches that it was known and conventional in the popcorn grain popping art to pop popcorn grains in a heating machine by piercing/puncturing a cover of the grain pod holding the grains wherein the grain pod has holes.
Regarding Claim 2, Schwalb et al. discloses the bottom cover of the grain pod being positioned outside the heating chamber when the cell is positioned through the hole in the bottom of the heating chamber (‘392, Paragraph [0081]).
Further regarding Claim 2, it is noted that the limitations “wherein when the cell is positioned through the hole in the bottom of the heating chamber the bottom cover of the grain pod is positioned outside the heating chamber” does not positively recite the bottom cover of the grain pod being positioned outside the heating chamber by virtue of the term “when.”
Regarding Claim 3, Dysarz discloses the grain pod (corn cassette 29) comprising a plurality of cells (popcorn kernel chambers 41) (‘520, Column 8, lines 7-24).
Regarding Claim 4, Schwalb et al. discloses a plurality of holes being formed through the bottom of the heating chamber wherein each of the plurality of holes is capable of receiving one of the plurality of the cells therethrough (‘392, Paragraph [0081]).
Regarding Claim 5, Schwalb et al. discloses the bottom cover of the grain pod being positioned outside the heating chamber when the plurality of cells are positioned through the plurality of holes in the bottom of the heating chamber (‘392, Paragraph [0081]).
Further regarding Claim 5, it is noted that the limitations “wherein when the plurality of dells are positioned through the plurality of holes in the bottom of the heating chamber the bottom cover of the grain pod is positioned outside the heating chamber” does not positively recite the bottom cover of the grain pod to be positioned outside the heating chamber” by virtue of the term “when.”
Regarding Claim 6, Dysarz discloses the plurality of cells (popcorn kernel chambers 41) being individually formed wherein the plurality of cells (popcorn kernel chambers 41) is defined by cell walls having a top edge and a bottom edge wherein the plurality of cells (popcorn kernel chambers 41) have a first width between the top edge of the cell walls and a second width between the bottom edge of the cell walls (‘520, FIG. 15) (‘520, Column 8, lines 7-24).
Regarding Claim 7, Dysarz discloses the grain pod (corn cassette 29) comprising a docking tray (cassette slot 172) and a plurality of individually formed cells (popcorn kernel chambers 41) wherein the individually formed cells (popcorn kernel chambers 41) are attached to the docking tray (cassette slot 172) in an array (‘520, FIG. 13) (‘520, Column 7, lines 25-47).
Regarding Claim 8, Schwalb et al. discloses a plurality of holes being formed through the bottom of the heating chamber wherein each of the plurality of holes is capable of receiving one of the plurality of individually formed cells therethrough (‘392, Paragraph [0081]).
Regarding Claim 9, Schwalb et al. discloses the docking tray being positioned outside the heating chamber when the plurality of individually formed cells are positioned through the plurality of holes in the bottom of the heating chamber (‘392, Paragraph [0081]).
Further regarding Claim 9, the limitations “wherein when the plurality of individually formed cells are positioned through the plurality of holes in the bottom of the heating chamber the docking tray is positioned outside the heating chamber” does not positively recite the docking tray to be positioned outside the heating chamber by virtue of the term “when.”
Regarding Claim 10, Schwalb et al. discloses the plurality of cells being formed from aluminum foil (‘392, FIGS. 15A-15B) (‘392, Paragraphs [0349]-[0350]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the grain popping method of Dysarz and construct the plurality of cells out of an aluminum foil as taught by Schwalb et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Schwalb et al. teaches that there was known utility in the food art to construct a grain popping grain pod out of aluminum foil.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Lestage et al. US 2014/0065265 discloses a method of microwaving popcorn (‘265, Paragraph [0032]) from a food package having an aluminum oxide barrier layer (‘265, Paragraph [0028]).
Raughley US 2006/0289513 discloses a method of microwaving popcorn (‘513, Paragraph [0035]) from a container made from a sheet of aluminum foil (‘513, Paragraph [0022]).
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/ERICSON M LACHICA/Examiner, Art Unit 1792