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 .
Election/Restriction
1. Applicant’s election without traverse of Group I: Claims 1-5 in the reply filed on 10/28/2025 is acknowledged.
Claim Objections
2. Claim 5 is objected to because of the following informalities:
Claim 5 line 2 reads “without using vacuum between” and should read “without using a vacuum between” for better grammar.
Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
3. Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
“means of a/the pulling device” in claim 2 line 2 and claim 2 line 3. Structure is found in [0034] and Figure 2 of Applicant’s Specification, which notes a movable clamp and will be interpreted as such and equivalents.
“means of a heating device” in claim 3 line 5 as well as the restated “heating device” in claim 3 lines 5-6. Structure is found in Figure 3 of Applicant’s Specification, which shows an integrated heating coil and will be interpreted as such and equivalents. This interpretation will also apply to the phrases “means of the heat” and “means of heating” in claim 5 line 5.
“means of a holding device” in claim 3 line 2 and restated as a “holding device” in claim 3 line 6 as well as claim 4 line 2 and restated as a “holding device” in claim 4 line 3. The holding device is noted as element 28 of Figure 3 in [0036] of Applicant’s Specification, which shows a suction chuck and will be interpreted as such and equivalents.
4. This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
“heating device” in claim 2 lines 3-4. “heating” is a function, “Device” is a generic placeholder, and there is insufficient structure in the claims to perform such a function. Structure is found in Figure 3 of Applicant’s Specification, which shows an integrated heating coil and will be interpreted as such and equivalents.
5. Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112
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.
6. Claims 1-5 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 1, claim 1 uses the term “preferably” in line 1. This is an example of Exemplary Claim Language, which MPEP 2173.05(d) states- “Description of examples or preferences is properly set forth in the specification rather than the claims. If stated in the claims, examples and preferences may lead to confusion over the intended scope of a claim. In those instances where it is not clear whether the claimed narrower range is a limitation, a rejection under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph should be made.” Since the term “preferably” is directly a preference, this leads to uncertainty to the intended scope claim, and therefore claim 1 is indefinite and a 112(b) rejection is necessary.
Regarding claim 2, claim 2 uses the term “preferably” in line 3. For the same reasons as claim 1, this makes a 112(b)-rejection necessary.
Regarding claim 3, claim 3 uses the term “preferably” in lines 2, 3, 4, and 5. For the same reasons as claim 1, this makes a 112(b)-rejection necessary.
Further for claim 3, Claim 3 recites the limitation “heating device according to the preceding claim” in line 4. There is insufficient antecedent basis for this limitation in the claim. Claim 3 depends on claim 1, so the preceding claim would be claim 1, which does not teach a heating device. For the sake of compact prosecution, the Examiner will interpret this phrase as “a heating device” and eliminate the “according to the preceding claim” phrase.
Regarding claim 4, claim 4 uses the term “preferably” in line 3. For the same reasons as claim 1, this makes a 112(b)-rejection necessary.
Regarding claim 5, claim 5 uses the term “preferably” in line 4. For the same reasons as claim 1, this makes a 112(b)-rejection necessary.
Further for claim 5, claim 5 teaches the limitation “the lateral wall is laminated to the tray only by means of the heat introduced into the foil by means of heating”. As established in claim 1, when the tray is formed, it is formed with the lateral wall (claim 1 lines 3-4), which establishes the lateral wall as being a subpart of the tray. The Examiner is unsure what was meant to be claimed as the tray is at no point laminated to itself. Since the Examiner is unable to parse what was intended for this claim limitation, this claim limitation will be excluded for this Office Action.
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.
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.
7. Claims 1-5 are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Tye et al. (US 2011/0259784; hereafter known as Tye) in view of Zwaga et al. (US 2015/0217884; hereafter known as Zwaga).
Regarding claim 1, Tye teaches a method for producing a tray lined with a foil, in particular a tray for receiving food (Abstract) comprising the steps of erecting an unfolded sheet of paper fiber-based material in order to form a tray (cardboard; shape described [0007]; erecting step described in [0043]), positioning the foil (plastics film- 51; [0008]; defined in [0043]; Applicant’s foil is plastic as noted in [0034] of their Specification), heating the foil ([0009]), fixing the foil on the collar (initial forcing for contact- [0011]), and supplying compressed air in order to laminate the base and the lateral wall with the foil ([0014]-[0015]). The tray is shown in Figure 2 (described in [0043]), which shows a base (bottom) a lateral wall (side walls) that has adjacent lateral wall parts that overlap each other (“glued at tabs”- [0043]) and an upper edge that extends into a circumferential collar (lip- 36). The collar defines an access opening (recess- 36). As seen in Figure 1, during the positioning step the foil is placed above the entire tray, which includes the access opening. The supply of compressed air comes from ducts- 62, which are to a side of the foil facing away from the tray in order to blow the foil into the access opening ([0039]). As seen in Figure 2 the foil (plastics film- 51) is applied to the entirety of the tray including the collar (lip- 36) and therefore during the fixing step the foil is fixed on the collar.
In the case that Applicant disagrees with the Examiner’s assertion that the plastic film of Tye cannot be interpreted under the broadest reasonable interpretation as the foil of claim, the prior art of Zwaga teaches the use of a foil (plastic tray foil- 7) being applied to a tray, the foil being made of plastic ([0047]; see Figures 1C and 1D). The advantage of such a foil is that it allows for easy bonding of the central zone due to deformation, while not deforming the outer edge ([0047]) which allows for easy trimming ([0049]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the proposed invention to use the foil suggestion of Zwaga in the method of Tye for the ease of bonding of the central zone while allowing for easy trimming on the outer edge.
Regarding claim 2, Tye further teaches that the foil is positioned above the access opening by means of a pulling device (“reel fed sheet”- [0037]; the reels and rollers shown pulling foil- 50 and used foil- 52 in Figure 1 can be interpreted as an equivalent of a pulling device as required by the 112(f) interpretation). As seen in Figure 1, the foil is pulled underneath the heating device (heater place surface- 64; [0038]) which is positioned on a side of the foil facing away from the access opening.
Regarding claim 3, Tye further teaches of a holding device that is positioned on the side of the foil facing away from the collar (upper die- 60; see Figure 1) that suctions the foil ([0038]). Tye’s heating device (heater plate surface- 64) is integrally part of the holding device ([0038]), which is in the same shape as the recess ([0022]), which is the points of the foil corresponding to a geometry of the collar and consequentially heats the region of the foil located within the geometry of the collar.
Regarding claim 4, Tye further teaches of a holding device (upper die- 60; [0038]; see Figure 1), that then presses the foil onto tray ([0039]). This foil pressing can also be applied to the collar (collar noted as “lip- 36”; [0045]).
Regarding claim 5, Tye does not teach that there is a vacuum between the tray and a lower tool representing a negative mold of the tray (lower die- 40; [0037]), nor that there is adhesive during lamination therefore Tye is not excluded by the negative limitations of claim 5 and therefore Tye teaches all the limitations of claim 5.
Conclusion
8. Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALEXANDER S WRIGHT whose telephone number is (571) 272-8343. The examiner can normally be reached Monday- Friday 8:30am-5:00 pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Philip Tucker can be reached on 571-273-1095. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALEXANDER S WRIGHT/Examiner, Art Unit 1745
/ALEX B EFTA/Primary Examiner, Art Unit 1745