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 .
Election/Restrictions
This application contains claims directed to the following patentably distinct species:
Figure 1 (a,b,c)
Figure 2 (a,b,c)
Figure 3
Figure 4
Figure 5
Figure 6
Figure 7 (a, b, c, d)
Figure 8 (a, b, c)
Figure 9 (a, b, c)
Figure 10
The species are independent or distinct because the claims to the different species recite the mutually exclusive characteristics of such species. In addition, these species are not obvious variants of each other based on the current record.
Applicant is required under 35 U.S.C. 121 to elect a single disclosed species, or a single grouping of patentably indistinct species, for prosecution on the merits to which the claims shall be restricted if no generic claim is finally held to be allowable. Currently, claims 1-5 are generic.
There is a serious search and/or examination burden for the patentably distinct species as set forth above because at least the following reason(s) apply: the species or groupings of patentably indistinct species require a different field of search (e.g., searching different classes/subclasses or electronic resources, or employing different search strategies or search queries).
Applicant is advised that the reply to this requirement to be complete must include (i) an election of a species to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected species or grouping of patentably indistinct species, including any claims subsequently added. An argument that a claim is allowable or that all claims are generic is considered nonresponsive unless accompanied by an election.
The election may be made with or without traverse. To preserve a right to petition, the election must be made with traverse. If the reply does not distinctly and specifically point out supposed errors in the election of species requirement, the election shall be treated as an election without traverse. Traversal must be presented at the time of election in order to be considered timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are added after the election, applicant must indicate which of these claims are readable on the elected species or grouping of patentably indistinct species.
Should applicant traverse on the ground that the species, or groupings of patentably indistinct species from which election is required, are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing them to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the species unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other species.
Upon the allowance of a generic claim, applicant will be entitled to consideration of claims to additional species which depend from or otherwise require all the limitations of an allowable generic claim as provided by 37 CFR 1.141.
During a telephone conversation with Laurence P. Colton on 12/8/2025 a provisional election was made without traverse to prosecute the invention of species A Figures 1 (a,b,c), claims 1-7. Affirmation of this election must be made by applicant in replying to this Office action. Claims 8-19 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
Claim Objections
Claims 1-7 objected to because of the following informalities:
Claim 1 recites “an elongated stem”. The claim later refers back to the elongated stem as “the elongated stem” and “the stem”. It is recommended for clarity to utilize the same language “the elongated stem” to provide proper antecedent basis for the claim. Appropriate correction is required.
Claim 1 additionally recites “one or more food items” in the preamble of the claim. The claim later refers back to the “one or more food items as “the food item”, “the food” and “a food item”. It is recommended for clarity to utilize the same language “one or more food items” to provide proper antecedent basis for the claim. Appropriate correction is required.
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.
Claim 3 is 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 3 contains the trademark/trade name Nylon. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe a polyamide material and, accordingly, the identification/description is indefinite.
Claim Rejections - 35 USC § 102
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 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.
Claims 1-2 and 4-7 are rejected under 35 U.S.C. 102(a1) as being anticipated by Volk (PGPub# US 2004/0239131 A1).
Regarding claim 1, Volk teaches a skewer 10 for holding one or more food items 101, the skewer comprising: a finger grip 12 (figures 1 and 10a both have a finger grip 12 with corresponding finger gripping portions between the proximal and distal end.) having a proximal end, a distal end, and a finger-gripping portion disposed in between the proximal end and the distal end, the finger grip comprising a plastic material that can be subjected to a range of food heating temperatures without melting (par. 51-52); and an elongated stem 20 having a proximal end, a distal end, and an outer surface (figures 1 and 10a both show stem 20 with proximal, distal and outer surface), the proximal end of the stem being secured to the distal end of the finger grip (figures 1 and 10a), the distal end of the elongated stem 30 being configured to pierce a food item, and the elongated stem being configured to allow a desired length of the stem to be passed through the food to position the food item on the elongated stem (figure 2b), the stem having features (22 and 50, figures 4,5) formed in the outer surface of the stem that are configured to help prevent a food item being held on the stem from rotating on the stem or sliding in a lengthwise direction of the stem (par. 35), the stem comprising a plastic material that can be subjected to a range of food heating temperatures without melting. (par. 51-52)
Regarding claim 2, Volk teaches wherein the plastic material comprising the finger grip is the same as the plastic material comprising the elongated stem. (par. 51-52)
Regarding claim 4, Volk teaches wherein the features include breaks formed in the outer surface of the elongated stem by subjecting the stem to a roughening process that removes portions of the outer surface of the stem along a length of the stem to form the openings. (par. 50: Volk teaches forming a rough texture.)
Regarding claim 5, Volk teaches wherein the features comprise at least one structure projecting outwardly from the outer surface of the stem and extending along a length of the stem. (22 and 50, figures 4,5, par. 35)
Regarding claim 6, Volk teaches wherein said one or more structures comprise at least a first fin that projects outwardly from the outer surface of the stem and extends along the length of the stem. (22, figures 4,5, par. 35)
Regarding claim 7, Volk teaches wherein said one or more structures comprise at least a second fin that projects outwardly from the outer surface of the stem and extends along the length of the stem. (Opposing fins 22 would read on a first and second fin, figures 4,5, par. 35)
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.
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 3 is rejected under 35 U.S.C. 103 as being unpatentable over Volk (PGPub# US 2004/0239131 A1) in view of Akwei (US Pat# 4258617).
Regarding claim 3, Volk does not explicitly teach wherein the plastic material comprising the finger grip and the elongated stem is a NYLON material.
However, Akwei teaches a similar kabob skewer (abstract) as Volk. Akwei teaches that the entire skewer can be made of Nylon in order to withstand temperature of 450oF when cooking. (col. 2, lines 64-68 and figure 1)
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have used Nylon as the material for the Skewer of Volk, as Akwei teaches it is a known material for use in skewer manufacture capable of withstanding known cooking temperatures.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to IBRAHIME A ABRAHAM whose telephone number is (571)270-5569. The examiner can normally be reached 9AM-5PM EST M-F.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Marivelisse Santiago-Cordero can be reached at 571-272-7839. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/IBRAHIME A ABRAHAM/Supervisory Patent Examiner, Art Unit 3761