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
Claims 1 and 11 are objected to because of the following informalities: the last line of Claim 1 recites “when the vacuum is reduced to a level below that of the container”. It shall be amended as “ when the vacuum is reduced to a vacuum level below that of the container”. Appropriate correction is required.
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.
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 11, 13-16 are rejected under 35 U.S.C. 103 as being unpatentable over WO2007/106676 to Bergman.
In Reference to Claim 11
Bergman discloses a sealable tray, comprising: a container (Fig. 1, 110) having a shape for containing product; a seal (Fig. 17, 720); and a lid (Fig. 1, 104) configured to seal the tray via coupling with the seal and the container, wherein the container includes: a port (Fig. 1, 128) configured to, at least, introduce a vacuum for the sealable tray; and, a vacuum release (Paragraph 27, a button on the top of the valve to release the vacuum) located on a surface of the container, wherein the vacuum release is configured to release the vacuum for the sealable try, the sealable try configured for sealing by pressing together the container (Fig. 1, 11), the seal (Fig. 17, 720), and the lid (Fig. 1, 104) and creating the vacuum using the port thereby causing the container, the seal, and the lid to couple together to seal the sealable try.
The Office considers “upon sealing the sealable tray, the sealable tray is configured for replacement in a freeze drying apparatus, and upon being placed in the freeze drying apparatus, the container is configured to open when the vacuum is reduced to a level below that of the container” as intended use of the recited apparatus. The use of the function language only requires that apparatus is capable of performing the function, and does not add any specific structural limitations to the apparatus. Since the contain has the recited structure, it must meets the functional limitation. Furthermore, “apparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). (See MPEP 2114))
In Reference to Claim 13
Bergman discloses one or more fasteners (Fig. 1, 144) configured to maintain sealing of the sealable tray by fastening the lid (Fig. 1, 104) to the container (Fig. 1, 110)
In Reference to Claim 14
Bergman discloses the shape of the container is an elongated rectangle shape (As showed in Fig. 1)
In Reference to Claim 15
Bergman discloses the shape of the container is circular shape (As showed in Fig. 15)
In Reference to Claim 16
Bergman discloses container (Fig. 1, 110) having a shape for containing product; a seal (Fig. 17, 720) and a lid (Fig. 1, 104) configured to seal the tray via coupling with the seal and the container, wherein the container includes: a port (Fig. 1, 128) configured to at least introduce a vacuum for the sealable tray; and a mechanical latch (Fig. 1, 144), the sealable tray is configured for sealing by coupling together the container (Fig. 1, 110) the seal (Fig. 17, 720) and lid (Fig. 1, 104) and maintaining a sealed state of the sealable tray using the mechanical latch (Fig. 1, 144).
The Office considers “upon sealing the sealable tray, the sealable tray is configured for replacement in a freeze drying apparatus, and upon being placed in the freeze drying apparatus, the container is configured to open when the vacuum is reduced to a level below that of the container” as intended use of the recited apparatus. The use of the function language only requires that apparatus is capable of performing the function, and does not add any specific structural limitations to the apparatus. Since the contain has the recited structure, it must meets the functional limitation. Furthermore, “apparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). (See MPEP 2114))
In Reference to Claim 18
Bergman discloses one or more fastener (Fig. 1, 142) configured to maintain sealing of the sealable tray by fastening the lid to the container
In Reference to Claims 19 and 20
Bergman discloses the seal (Fig 17, 720)
Bergman does not teach the seal is integral with either tray or the lid.
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to the sealing being integral with either the tray or the lid , since it has been held that constructing a formerly integral structure in various elements involves only routine skill in the art.
Allowable Subject Matter
Claims 1-3, 5,7,9-10, and 21-23 are allowed.
Claims 12 and 17 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Response to Arguments
The amendment to Claim 1-3,5,7,9-10 filed on 11/6/25 is persuasive. Claims 1-3, 5, 7, 9-10 are allowed.
The argument to Claims 11 and 16 is based on the amended claim. The argument is moot in terms of the new ground of rejection.
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.
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DEMING . WAN
Examiner
Art Unit 3762
/DEMING WAN/Primary Examiner, Art Unit 3762 1/7/25