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 .
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the limitation
“rotational speed modifying gear or transmission” in claims 1,10, and 18
must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claims 2-9, and 11-20 are objected to because of the following informalities:
The preamble “A frozen food appliance” in claims 2-9, 11-17 and 19-20 should read “The frozen food appliance”.
The term “and/or” in claims 1, 8, 10, 16, and 18 should read “or”.
The term “rotational speed” in lines 22 and 29 in claims 1, 10, and 18 should read “rotation speed”.
Appropriate correction is required.
Claim 18 is objected to under 37 CFR 1.75 as being a substantial duplicate of claim 10. Claim 19 is objected to under 37 CFR 1.75 as being a substantial duplicate of claim 13. Claim 20 is objected to under 37 CFR 1.75 as being a substantial duplicate of claim 14. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
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:
“one or more connector components and/or seals for forming a connection to the opening of a frozen food container” in 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.
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 1-20 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 claims 1, 10, and 18, the limitation “a rotational drive motor having a first torque characteristic and a first power characteristic” is indefinite. The definition of the “first torque characteristic” and “first power characteristic” are unclear. It is unclear what properties constitute the characteristics and how the properties would have to be to determine infringement issues.
The limitation “first rotation speed being a predetermined speed that is greater than the second rotation speed wherein the difference between the first rotation speed and the second rotation speed is not achieved using a rotational speed modifying gear or transmission between the rotational drive motor and the blade element” is indefinite. It is unclear what constitute this claim limitation.
The limitation “a frozen food container” in lines 5, 19, and 20 are indefinite. It is unclear whether these frozen food containers are different containers or the same container in line 1. The metes and bounds of the limitation is unclear.
The limitation “a frozen food precursor” in lines 20 and 23 are indefinite. It is unclear whether these frozen food precursors are different precursors or the same precursor in line 1. The metes and bounds of the limitation is unclear.
The term “about 1,000 rpm to about 4,000 rpm” is a relative term which renders the claim indefinite. The term “about 1,000 rpm to about 4,000 rpm” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Regarding claim 3 and 11, The term “about 2,000 rpm to about 3,000 rpm” is a relative term which renders the claim indefinite. The term “about 2,000 rpm to about 3,000 rpm” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Regarding claim 4 and 12, The term “about 2,500 rpm to about 3,500 rpm” is a relative term which renders the claim indefinite. The term “about 2,500 rpm to about 3,500 rpm” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Regarding claim 5, 13, and 19, The term “about 3,000 rpm” is a relative term which renders the claim indefinite. The term “about 3,000 rpm” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Regarding claim 6, 14, and 20, The term “about 2,000 rpm” is a relative term which renders the claim indefinite. The term “about 2,000 rpm” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Regarding claim 8, the limitation “a frozen food precursor” in line 3 is indefinite. It is unclear whether the frozen food precursors are a different precursor or the same precursor in claim 1. The metes and bounds of the limitation is unclear.
Regarding claim 2-9, 11-17, and 19-20, these claims are rejected due to their dependency on an indefinite claim as shown above.
Allowable Subject Matter
Claims 1, 13, and 20 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
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Reference Neilson (US 2008/0279040) is the closest prior art. Neilson teaches a frozen food appliance (frozen drink mixer 100) for processing a frozen food precursor positioned in a frozen food container (mixing cup 117) into a frozen food product, the frozen food container (mixing cup 117) having an opening, the appliance comprising:
a container mount (cup support 102) having a container connector including one or more connector components and/or seals for forming a connection to the opening of a frozen food container (the connection between the container and cup support 102),
a rotational drive motor (electric mix motor 410) having a first torque characteristic and a first power characteristic;
a blade element (blade assembly 302);
a rotational drive shaft (motor output shaft 412) having a first end and a second end, the first end connected to the rotational drive motor (electric mix motor 410), the second end connected to the blade element, the rotational drive shaft (motor output shaft 412) configured to be driven by the rotational drive motor (electric mix motor 410) such that the blade element rotates (blade assembly 302) in a circular motion around a first axis formed by the rotational drive shaft, wherein the rotational drive motor (electric mix motor 410), rotational drive shaft (motor output shaft 412), and blade element (blade assembly 302) form a rotational drive assembly; and
a height adjustment motor (electric drive motor 403) connected to the rotational drive assembly (electric mix motor 410, motor output shaft 412, blade assembly 302), the height adjustment motor (electric drive motor 403) configured to move the rotational drive assembly axially along the first axis such that the blade element is movable through the opening of a frozen food container to come into contact with a frozen food precursor positioned in a frozen food container when the frozen food container is connected to the container connector (See para.[0071]-[0072] “Referring now to FIG. 3, the upper trolley 105 has been further lowered by rotation of the jack screw (not shown in this view), thereby causing a lower portion 301 of the non-rotating sleeve 106 and the enclosed, rotatable mixing shaft (not visible in this view) to slide through the center of the cleaning unit housing 109 and lid 108. A blade assembly 302 is attached to the lower end of the rotatable mixing shaft. Following maximum downward travel of the upper trolley 105, the blade assembly 302 is positioned near the bottom of the mixing cup 117…The reversible electric drive motor 403, which is visible in this view, is coupled to the jack screw 401 by a first toothed wheel 404 mounted on the motor output shaft 405, a second toothed wheel 406 mounted on the jack screw 401, and a toothed belt 407, which rotationally couples the first and second toothed wheels 404 and 406, respectively.”).
However, Neilson does not teach or suggest the limitation “the container mount includes a floating connector dividing a first portion of the container mount from a second portion of the container mount and allowing the first portion to move in a lateral direction with respect to the first axis”; “the rotational drive motor, rotational drive shaft, and blade element are positioned in axial alignment with each other”; and “the rotational drive assembly causes the blade element to rotate at a first rotational speed when the blade element is not in contact with a frozen food precursor, wherein when the frozen food container is connected to the container connector and the blade element is in contact with the frozen food precursor in the frozen food container, the blade element rotates around the first axis at a second rotation speed that is a speed in the range of about 1,000 rpm to about 4,000 rpm, first rotation speed being a predetermined speed that is greater than the second rotation speed wherein the difference between the first rotation speed and the second rotation speed is not achieved using a rotational speed modifying gear or transmission between the rotational drive motor and the blade element”. In addition, one of ordinary skill in the art would recognize that any modifications to Neilson to arrive at the claimed invention would be based on improper hindsight, and would render it inoperable for its intended purpose. Assuming arguendo, rearranging and/or replacing the shafts, transmissions, and linkages of Neilson would change the principles of operation thereof, since it would require completely redesigning the structure of the frozen food appliance, as currently described therein, most likely resulting in unexpected and/or unintended results, which is evidence against a prima facie case of obviousness. Thus, a preponderance of evidence supports the allowability of the claims.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRIS Q LIU whose telephone number is (571)272-8241. The examiner can normally be reached Mon-Fri 9:00-6:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ibrahime Abraham can be reached at (571) 270-5569. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHRIS Q LIU/Primary Examiner, Art Unit 3761