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 “hooks being for coupling the one or more sides to the top and the hooks being for coupling the one or more sides to the cake pan” of claim 1 and the “top having a round shape” of claim 2 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.
Specification
The abstract of the disclosure is objected to because for discussing the purported merits of the invention. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Claim Objections
Claims 1-11 are objected to because of the following informalities: “the device” in each preamble and claim body should state “the cake saver device” in order to have antecedence with the “cake saver device” of the preamble. Appropriate correction is required.
In claim 5 “wherein the device being made of” should be “wherein the device is made of” or “wherein the device comprises”.
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 1-11 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. Applicant has failed to describe how the function “the hooks being for coupling the one or more sides to the top and the hooks being for coupling the one or more sides to the cake pan”. Each of the drawings show the hooks placed near the bottom of the sides and not attached in any manner to the top. Further, the Specification only describes the hooks removably coupled to the cake saver device and a cake pan “not shown” (see paragraph 21). How is this desired function achieved? By what means does Applicant have possession of a top capable of receiving and coupling with the removable sides? By what means is possession established such that both the cake pan and the top arranged to be coupled with the hooks at the same time?
While it is noted that there is a presumption of support on originally filed claims there must be support for claimed functions/results. Applicant has not provided such support for how the hooks are to be used in connecting with the two structures simultaneously or individually (see MPEP §2163.01 V). It is not sufficient to merely establish that the desired function/result would have been obvious (MPEP §2163).
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 1-11 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 and by dependency claims 2-11
“The cake pan” lacks antecedence. This rises to the level of indefiniteness as it is unclear if the cakepan is a required part of “the device” or merely something the cake saver device interfaces with outside the scope of the claim.
The limitation “each of the one or more sides having at least one of a plurality of hooks” is ambiguous as to how many hooks are required by the claim and as to whether one hook is a permissible interpretation of the claim. The claim admits to “one wall” and also “at least one hook” per wall and thus seemingly allows a single hook. However, there must also be a “plurality of hooks” and as such the claim is contradictory regarding the minimum permissible number of hooks.
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1 and 7 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by US 12059086 to Kay.
Kay teaches:
Regarding claim 1
A cake saver device (Figs. 2-7) for preventing contaminants from coming into contact with a cake when blowing out one or more candles (abstract), the device comprising: a top (annotated Fig. 2 – provided below), the top having a shape (rectangular shape), an outside wall (annotated Fig. 2), an inner wall (annotated Fig. 2) , a plurality of horizontal bars (annotated Fig. 2) and a plurality of vertical bars (annotated Fig. 2); and one or more sides (annotated Fig. 2), each of the one or more sides having at least one of a plurality of hooks (annotated Fig. 2), wherein the hooks being for coupling the one or more sides to the top and the hooks being for coupling (see functional language interpretation below) the one or more sides to the cake pan (156).
Regarding the hooks “being for coupling” the sides and top. Applicant discloses no structure beyond hooks as being required for this function. Applicant further discloses no particular detail as to how this function is achieved. As such it is believed that the only structure required by Applicant to perform this function and the broadest reasonable interpretation of this functional language is merely requiring “hooks”. Since Kay discloses “hooks” and these hooks can connect to any number of devices, i.e. they are capable of connecting to the top or cake pan they are capable of performing the function and thus the claim is properly anticipated (see MPEP §2114). Further, even if the language is read as limiting Kay still meets the claim language by the fact that the hooks provide rigidity to the sides which attach to both the pan 156 and the top (annotated Fig. 2) and thus allow for “coupling”.
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Regarding claim 7
Wherein the device has a rectangular shape (Fig. 2 is reasonably construed as “rectangular shape”)
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.
Claim(s) 2-4, 6 and 9-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kay.
Regarding claim 2
Kay in the embodiment of Figs. 2-7 fails to teach wherein the top has a round shape. However, Kay in other embodiments, namely that of Figs. 8 and 9, teaches that a round shape for the top is feasible. As such it would have been obvious to one of ordinary skill in the art before the effective filing date to modify the device of Kay as disclosed in Figs. 2-7 with the device of Kay as disclosed in the embodiments of Figs. 8 and 9 such that the top is round for the purpose of allowing for round cakes.
Regarding claims 3, 4, 6 and 9-11
Kay teaches all of the limitations as discussed above, but fails to teach wherein the top of the device is 4”x 8”,2”x 4” or 6” x 8” or wherein the height is 3/8” or the outside/inside wall having a thickness of 3/64” or 3/16”. These claimed dimensions are specific dimensions of the device, but are not stated as providing any unexpected or synergistic result. Nor are they stated to solve any particular problem. Further, it appears as if the device would work equally well and function in the same manner having any suitable size. As such one of ordinary skill in the art before the effective filing date would have found it an obvious matter of change in size to arrive at the specific dimensions claimed. It is noted that when the difference between the prior art and the claimed invention is merely the disclosure of the size of the object, where the size of the object does not provide any unexpected impact, a finding of prima facie obviousness is appropriate (see MPEP §2144.04).
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kay in view of WO 2009111821 to Ruttstein.
Kay teaches all of the limitations as discussed above, but fails to teach that the cake saver device is made of Poly vinyl Chloride (PVC). Ruttstein teaches a cake saver device made of PVC as it is a “self extinguishing plastic” (page 2, ll. 14-15). It thus would have been obvious to one of ordinary skill in the art prior to the effective filing date to make the device of Kay out of PVC, as taught by Ruttstein, for the purposes of fire safety.
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kay in view of US 2960770 to Valenta.
Kay teaches all of the limitations as discussed above, but fails to teach that the cake saver device is made of aluminum. Valenta teaches a cake saver device made of aluminum as it is a “suitable light weight material” (col. 2, ll. 19-21). It thus would have been obvious to one of ordinary skill in the art prior to the effective filing date to make the device of Kay out of aluminum, as taught by Valenta, in order to provide a light weight material suitable for food storage.
Allowable Subject Matter
The Examiner has not identified any specific allowable subject matter at this time.
Prior Art
While not utilized directly for a rejection herein US D446,083 is anticipatory of the claimed invention (at a minimum, claims 1 and 7). US D584,926 is not anticipatory but is only missing the “hooks”.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WOODY A LEE JR whose telephone number is (571)272-1051. The examiner can normally be reached Monday - Friday 0800-1630.
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/WOODY A LEE JR/ Primary Examiner, Art Unit 3761