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 .
It appears the inventor(s) filed the current application pro se (i.e., without the benefit of representation by a registered patent practitioner). While inventors named as applicants in a patent application may prosecute the application pro se, lack of familiarity with patent examination practice and procedure may result in missed opportunities in obtaining optimal protection for the invention disclosed. The inventor(s) may wish to secure the services of a registered patent practitioner to prosecute the application, because the value of a patent is largely dependent upon skilled preparation and prosecution. The Office cannot aid in selecting a patent practitioner.
A listing of registered patent practitioners is available at https://oedci.uspto.gov/OEDCI/. Applicants may also obtain a list of registered patent practitioners located in their area by writing to Mail Stop OED, Director of the U.S. Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450.
Response to Amendment
The amendment filed 01/17/2023 is objected to under 35 U.S.C. 132(a) because it introduces new matter into the disclosure. 35 U.S.C. 132(a) states that no amendment shall introduce new matter into the disclosure of the invention. The added material which is not supported by the original disclosure is as follows:
The Drawings filed on 01/17/2023 are fundamentally different from the Drawings submitted on 12/04/2022.
It’s suggested to cancel the 01/17/23 Drawings, or revert back to the 12/04/2022 Drawings, which have the original support.
Applicant is required to cancel the new matter in the reply to this Office Action.
Information Disclosure Statement
The listing of references in the specification is not a proper information disclosure statement. 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609.04(a) states, "the list may not be incorporated into the specification but must be submitted in a separate paper." Therefore, unless the references have been cited by the examiner on form PTO-892, they have not been considered.
The references are:
CN 2,036,47030
CN 1,046,27458
CN 2,033,54213U
CN 2,041,2075U
CN 2,032,63000U
Drawings / Specification
Per the requirements of “37 CFR 1.84 Standards for Drawings,” it appears that this item needs to be fulfilled per the 12/04/2022 set of Drawings (since the 01/17/2023 set isn’t acceptable and is new matter).
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Examiner note: it’s highly recommended to include reference characters (e.g. Arabic numerals) in the Specification and Drawings in order to clearly tie the claimed elements (e.g. spinning assembly, blade to perforate, and/or handle to drink from fruit as recited in claim 1) to the Specification and Drawings, so that the disclosed invention can be clearly identified in relation to what is claimed.
For example, looking at Figure 1, the examiner is left to guess that the handle in the limitation “handle to drink from fruit” is the handle depicted in Figure 2. If what looks like a handle in Figure 2, is in fact the handle as recited in claim 1 and mentioned in the written description, then assigning an Arabic numeral to this handle will help facilitate compact prosecution. The same goes for any other limitation throughout the claims that would benefit from an Arabic numeral.
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Claim Objections
Claims 1-5 are objected to because of the following informalities:
“[0029]” in the preamble of claim 1 should be removed, and some proposed amendments to the claims below are to address other minor issues, including lack of antecedent basis, and lack of numbering of claims 2-5 (note that per 37 CFR 1.75 (f) – “If there are several claims, they shall be numbered consecutively in Arabic numerals.”)
Appropriate correction is required. To help expedite prosecution, Examiner proposes amending the claims as follows, which will rectify all of the outstanding objections noted above. It’s noted that other amendments to the claims may be appropriate when taking the entire Office Action into consideration (e.g. potentially amending around prior art rejections, and/or amending the claims to overcome any rejections in the Office Action under 35 USC 112a and/or b). Guidance on amendments can be found in 37 CFR 1.121.
Claim 1: A fruit-flavored drinking cup mechanism wherein the structure includes: a spinning assembly;
a blade to perforate; and[,]
a handle to drink from fruit.
Claim 2: The fruit-flavored drinking cup mechanism as per claim 1, allows to drill a hole in the fruit or a vegetable[;].
Claim 3: The fruit-flavored drinking cup mechanism as per claim 1, allows liquid to be poured into the hole[;].
Claim 4: The fruit-flavored drinking cup mechanism as per claim 1, wherein the liquid can be of any type including but not limited to water, alcohol, tea, coffee, and so on;
Claim 5: The fruit-flavored drinking cup mechanism as per claim 1, wherein once the hole is being drilled a handle is placed so the fruit or vegetable is ready to be enjoyed as a cup with a handle.
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.
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.
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:
Spinning assembly in line 3 of claim 1.
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.
The corresponding structure for performing the claimed function (spinning), as described in the specification is not entirely clear since the Specification is lacking element numbers in the written description portion, as well as the Drawings. The lack of an element number, and an explicit mention of a “spinning assembly” in the written description portion, does not make it immediately apparent what the claimed spinning assembly is. At best, para. 0027 of the original specification states, (emphasis added) “The assembly as per its preferred embodiments provides an assembly to spin.” However, an assembly to spin is synonymous with a spinning assembly. In other words, there is no further structural details.
In light of the lack of sufficient written description in the written portion of the specification, and what Figure 1 shows in the original Drawings, it’s not clear what the corresponding structure of the claimed spinning assembly is.
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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.
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.
Claim limitation “spinning assembly (line 4 of claim 1)” invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function.
Further reasoning is clearly articulated in the Claim Interpretation section, above.
Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
Claims 3 and 5 recites the limitation "the hole" in line 1 of each claim. There is insufficient antecedent basis for this limitation in the claims.
Examiner note: There’s a lack of antecedent basis because claims 3 and 5 depend from claim 1, which doesn’t recite a hole. However, claim 2 does recite the “hole,” so amendment claims 3 and 5 to depend from claim 2 may overcome this rejection.
Regarding Claim 4, the limitation “and so on;” renders the claim indefinite, since it’s not clear what liquids constitute “and so on.” For example, is it soda, milk, smoothies, milkshakes, chicken broth, etc.? It’s recommended to remove “and so on” as a claim limitation in order to overcome this rejection.
Regarding Claim 5, “a handle” renders the claim indefinite, since it’s not clear if this handle introduced in claim 5, is the same handle already introduced in the last line of claim 1.
For the purpose of examination and following a review of the Applicant’s disclosure, it’s presumed that there’s only one handle, and the handle in claim 5 is the same as the one in claim 1. To overcome this rejection, “a handle” in claim 5 should be amended to read “the handle.”
Regarding Claim 5, the limitation “wherein one the hole is being drilled a handle is placed…” renders the claim indefinite, since it’s unclear if infringement of claim 5 occurs per creation of the claimed apparatus (which has the handle), or when the claimed apparatus is put into use, i.e. “wherein once the hole is being drilled a handle is placed” is a step limitation (for method claims).
To overcome this rejection, claim 5 should be amended so that there isn’t a step limitation, but rather a capability of the claimed structure. This amendment to this limitation of claim 5 is recommended to overcome this rejection:
“wherein once the hole is being drilled, the handle is capable of being placed so the fruit or a vegetable is ready to be enjoyed as a cup with the handle.”
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 1-5 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.
As set forth above, the limitation “spinning assembly” is interpreted under 35 USC 112(f). As already discussed above, the corresponding structure of the claimed spinning assembly, that is responsible for carrying out the claimed function (spinning), cannot be identified.
For these reasons, claim 1 has a lack of sufficient written description. Claims 2-5 inherit the same rejection since they depend from claim 1.
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.
Claim(s) 1-4 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Aharonovitch et al. (US 2011/0232507, hereinafter Aharonovitch).
Regarding Claim 1, Aharonovitch discloses: A fruit-flavored drinking cup mechanism (see the abstract; the mechanism or assembly of Figure 20) wherein the structure includes:
a spinning assembly (motor 7, Fig. 20; para. 0079);
a blade (juicing tree 14, Fig. 20 and 21; see para. 0080 – “the cutting tools of each branch…” i.e. blades.) to perforate (“cutting” is perforating); and,
a handle (for example, the post 104) to drink from fruit (fruit in the fruit mount or holder 112, Fig. 20; para. 0078).
Examiner note: the limitation “to drink from fruit” is a matter of the handle’s intended use. The broadest reasonable interpretation of a handle is any structure that can be physically grasped in order to mechanically or physically manipulate another structure that said handle is connected to. Post 104 (or any other structure of Figure 20 that can be grasped to move the assembly in Fig. 2), as shown in Figure 20, could be grasped by a user’s hand, and the entire assembly of Figure 20 could be moved. Any fruit juice, or a piece of fruit with juice therein, sitting in fruit mount or holder 112, could be consumed by a user like a cup via movement of 112 to a user’s mouth; or the juice could even poured into a separate cup for consumption via the “drain aperture” as mentioned in para. 0078.
Regarding Claim 2, Aharonovitch discloses the fruit juice cup as per claim 1, allows to drill hole in fruit or vegetable (the distal end of shaft 2 in Figure 21 would impart enough force to drill a hole in a fruit or vegetable, in addition to the cutting tools on the branches 1z; para. 0080).
Regarding Claim 3, Aharonovitch discloses the fruit juice cup as per claim 1, allows liquid to be poured into the hole (This is a functional limitation or an intended use limitation. Any type of liquid would be capable of being poured into the drilled hole of the fruit or vegetable).
Regarding Claim 4, Aharonovitch discloses the fruit juice cup as per claim 1, wherein the liquid can be of any type including but not limited to water, alcohol, tea, coffee, and so on. (the liquid would be capable of being any of these claimed type).
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.
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Aharonovitch et al. (US 2011/0232507, hereinafter Aharonovitch).
Regarding Claim 5, Aharonovitch discloses the fruit juice cup as per claim 1, but the embodiment relied on in Figures 20 and 21, does not disclose “wherein once the hole is being drilled a handle is placed so the fruit or vegetable is ready to be enjoyed as a cup with a handle.”
However, in another embodiment shown in Figure 9 and described in para. 0065, Aharanovitch discloses a cup (fruit holding base 28, Fig. 9. 28 holds the piece of fruit shown in Figure 9 like a cup, and can be considered a “cup”) with a handle (see the annotated figure, below – the fruit holding base 28 has handles given the broadest reasonable interpretation of what a handle is, akin to the explanation given in the rejection to claim 1, above).
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It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to incorporate or use the fruit holding base 28, which has handles, with the embodiment of Figures 20 and 21, for the benefit of conveniently holding a piece of fruit with juice therein for instant or later consumption.
With regards to the limitation “wherein once a hole is being drilled a handle is placed so the fruit or vegetable is ready to be enjoyed as a cup with a handle,” it would have been obvious to place the fruit holding base 28 (having a handle) in vicinity of the arrangement shown in Figures 20 and 21 during a drilling step, in order quickly move the drilled fruit with juice therein to the fruit holding base 28 for immediate and ready consumption. It’s the examiner’s position that one of ordinary skill in the art before the effective filing date would find it intuitive to get the fruit holding base 28 ready to use, while the drilling step is taking place, for quicker consumption.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
US 5445068 to Michelson discloses an apparatus for extracting juice from citrus.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL G HOANG whose telephone number is (571)272-6460. The examiner can normally be reached M-F 9AM-5PM EST.
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/MICHAEL G HOANG/Supervisory Patent Examiner, Art Unit 3762