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
Restriction to one of the following inventions is required under 35 U.S.C. 121:
I. Claims 1-10 and 20, drawn to an apparatus for producing a layered food product, classified in A21C3/022.
II. Claims 11-19, drawn to a system for producing a layered food product, classified in A21C9/045.
Restriction for examination purposes as indicated is proper because all the inventions listed in this action are independent or distinct for the reasons given above and there would be a serious search and/or examination burden if restriction were not required because one or more of the following reasons apply:
Invention I is directed towards a handheld food pressing apparatus while invention II is directed towards a machine capable of pressing food into a shape in a different manner than that of invention I.
The inventions have acquired separate status in the art due to their divergent subject matter. There would be a serious search burden (i.e. searching different CPC listings, and/or different search queries and terms, etc.) if the distinct limitations, as detailed above, of the different inventions were examined together. Each of the CPC listings above contains thousands of prior art references, which must be reviewed according to the chosen embodiment. Even if there is overlap in the CPC listings to be searched, focus on more than one of the above groups would render the search overly burdensome. Further, searches in other databases, such as WIPO, ip.com and Google Patents, as well as text modified searches in PE2E-Search, would each require distinct search terms and would produce additional prior art listings which need to be reviewed.
Applicant is advised that the reply to this requirement to be complete must include (i) an election of an invention to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected invention.
The election of an invention may be made with or without traverse. To reserve 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 restriction 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 upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions 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 inventions 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 invention.
During a telephone conversation with LIKOUREZOS, GEORGE on 1/30/2026 a provisional election was made without traverse to prosecute the invention of I, claims 1-10 and 20. Affirmation of this election must be made by applicant in replying to this Office action. Claims 11-19 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
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
“a grip”
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.
The applicant can claim "the rod includes a horizontal portion that can be used as a grip" to overcome the drawing objection.
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 1-10 and 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, 2, 3, 4, 9, 10, and 20, the recitation of “a plurality of food layers” is unclear because the specification discloses one or more layers of dough (par. 34) but also discloses placing multiple sheets of dough together (par. 42) while the drawings of the specification disclose a folded piece of dough in fig. 6a. The examiner is unclear which of the 3 aforementioned options the applicant is meaning as a plurality of food layers. In one application the dough is multiple pieces kept separately, on another application several pieces are placed together to form a layer, and in the third application a continuous piece of dough is folded and set into the press.
Regarding claims 1, 2, 3, 11, 13, 14, 15, and 20, the examiner is unclear what the applicant means by “sealing” and how item 130 of the instant application accomplishes sealing. The BRI for sealing is "to fasten or close securely" which would imply that to seal it needs to fasten. This device has no bottom so it’s unclear how it fastens/seals.
Claims 2-10 are also rejected due to their dependence to one or more of the above rejected independent claims.
Regarding Claim 3, the recitation of ““wherein sealing the plurality of food layers includes sealing a filling inside of the layered food product” is unclear because the applicant is functionally claiming a sealing being performed by an apparatus and is not clear how the filling got inside the layered food product nor how the structure is related to seal a filling, see the 112(b) rejection above for of claim 1 and sealing. Further, the examiner is unclear how this limitation changes the apparatus structurally, and as such the scope of the limitation is unclear.
Regarding claim 8, the recitation of “wherein the handle assembly is attached to the external, upper walls by at least one of welding, crimping, gluing, or fastening” is unclear how the applicant intends to attach the external, upper walls and handle in the situation where more than one of welding, crimping, gluing, or fastening is chosen. The examiner interprets “at least one of” to mean “one of”.
The term “about” in claim 9 is a relative term which renders the claim indefinite. The term “about” 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. The language wherein the plurality of external, lower walls each have a length ranging from about 8.5 centimeters to 10.5 centimeters is unclear if 8.5 and 10.5 centimeters are inclusive in the range disclosed.
The term “about” in claim 10 is a relative term which renders the claim indefinite. The term “about” 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. The language wherein the plurality of external, lower walls each have a height ranging from about 0.5 centimeters to 2.5 centimeters is unclear if 0.5 and 2.5 centimeters are inclusive in the range disclosed.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 4 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 4 is directed towards a work product and as such does not further limit claim 1 of which claim 4 depends. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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)(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, 2, 6, 7, 8, and 20 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by D1015065 Monk.
Regarding claim 1,
Monk teaches:
An apparatus for producing a layered food product (the apparatus of figs. 1-8 are capable of being used as a mold to produce a layered food product)( The preamble is not a limitation on the claims if it merely states the purpose or intended use, and the remainder of the claim completely defines invention independent of preamble. On the other hand, if claims cannot be read independently of preamble, and preamble must be read to give meaning to claim or is essential to point out the invention, it constitutes a claim limitation), the apparatus comprising:
a handle assembly (see annotated fig. 8 below) configured to apply pressure to a plurality of food layers, the handle assembly including: a rod (see annotated fig. 8 below) configured for grasping by a user (the rod of Monk is capable of being grasped by a user, Expressions relating the apparatus to contents thereof (e.g., applying pressure and forming a workpiece) during an intended operation are of no significance in determining patentability of the apparatus claim. Furthermore, inclusion of material or article worked upon (e.g., the formed plurality of food layers) by a structure being claimed does not impart patentability to the claims. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function);
and a crossbar (see annotated fig. 8 below) operably connected to the rod (fig. 8);
a body (see annotated fig. 8 below) configured to move relative to the handle assembly (fig. 8)( The body and handle assembly are connected, therefore, they are inherently configured to move relative to each other. Expressions relating the apparatus to contents thereof (e.g., applying pressure and forming a workpiece) during an intended operation are of no significance in determining patentability of the apparatus claim. Furthermore, inclusion of material or article worked upon (e.g., the formed plurality of food layers) by a structure being claimed does not impart patentability to the claims. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function), the body including: an external surface including: a plurality of external, upper walls (see annotated fig. 8 below) tapering to an uppermost surface (fig. 8), the uppermost surface maintaining contact with the crossbar (fig. 8), wherein the plurality of external, upper walls connect to form a pyramid (fig. 8 the body apparatus is pyramid shaped);
and a plurality of external, lower walls (see annotated fig. 8 below);
an internal surface including: a plurality of internal, upper walls having a first lining (see annotated fig. 8 below) configured to shape the plurality of food layers (the apparatus of Monk is a cutter for food products, Monk’s apparatus is capable of shaping a food product placed inside. Expressions relating the apparatus to contents thereof (e.g., applying pressure and forming a workpiece) during an intended operation are of no significance in determining patentability of the apparatus claim. Furthermore, inclusion of material or article worked upon (e.g., the formed plurality of food layers) by a structure being claimed does not impart patentability to the claims. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function) and a second lining (see annotated fig. 8 below) configured to seal the plurality of food layers (second lining portion is a flat portion that is capable of making contact with a table or other flat surface to close or seal the interior of the apparatus of Monk. Expressions relating the apparatus to contents thereof (e.g., applying pressure and forming a workpiece) during an intended operation are of no significance in determining patentability of the apparatus claim. Furthermore, inclusion of material or article worked upon (e.g., the formed plurality of food layers) by a structure being claimed does not impart patentability to the claims. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function);
and a plurality of internal, lower walls (see annotated fig. 8 below) terminating at a geometric edge (see annotated fig. 8 below), the geometric edge configured to cut the plurality of food layers in a shape corresponding to the geometric edge (the geometric edge is a flat portion that is capable of making contact with a table or other flat surface to close or seal the interior of the apparatus of Monk and with enough force to cut any food products between the apparatus of Monk and a table or other flat surface. Expressions relating the apparatus to contents thereof (e.g., applying pressure and forming a workpiece) during an intended operation are of no significance in determining patentability of the apparatus claim. Furthermore, inclusion of material or article worked upon (e.g., the formed plurality of food layers) by a structure being claimed does not impart patentability to the claims. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function).
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Regarding claim 2,
Monk teaches:
The apparatus of claim 1 (as discussed above), wherein applying pressure to the handle assembly enables the body to:
shape the plurality of food layers into a pyramid (as discussed in the rejection of claim 1);
seal the plurality of food layers (as discussed in the rejection of claim 1);
and cut the plurality of food layers, producing the layered food product (as discussed in the rejection of claim 1).
Expressions relating the apparatus to contents thereof (e.g., applying pressure and forming a workpiece) during an intended operation are of no significance in determining patentability of the apparatus claim. Furthermore, inclusion of material or article worked upon (e.g., the formed plurality of food layers) by a structure being claimed does not impart patentability to the claims. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function.
Regarding claim 6,
Monk teaches:
The apparatus of claim 1 (as discussed above),
wherein the rod includes a grip (see annotated fig. 8 below).
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Regarding claim 7,
Monk teaches:
The apparatus of claim 1 (as discussed above),
wherein the handle assembly is attached to the external, upper walls in a fixed manner (per the cross section of fig. 8, the handle and external upper walls are part of the same piece of metal and are therefore attached in a fixed manner).
Regarding claim 8,
Monk teaches:
The apparatus of claim 7 (as discussed above),
wherein the handle assembly is attached to the external, upper walls by at least one of welding, crimping, gluing, or fastening (per the cross section of fig. 8, the handle and external upper walls are part of the same piece of metal and are therefore attached as being fastened to each other by the same piece of metal).
Regarding claim 20,
Monk teaches:
An apparatus for producing a layered food product (the apparatus of figs. 1-8 are capable of being used as a mold to produce a layered food product)( The preamble is not a limitation on the claims if it merely states the purpose or intended use, and the remainder of the claim completely defines invention independent of preamble. On the other hand, if claims cannot be read independently of preamble, and preamble must be read to give meaning to claim or is essential to point out the invention, it constitutes a claim limitation), the apparatus comprising:
a handle assembly (see annotated fig. 8 below) configured to apply pressure to a plurality of food layers, the handle assembly including: a U-shaped rod (see annotated fig. 8 below) configured for grasping by a user (the rod of Monk is capable of being grasped by a user, Expressions relating the apparatus to contents thereof (e.g., applying pressure and forming a workpiece) during an intended operation are of no significance in determining patentability of the apparatus claim. Furthermore, inclusion of material or article worked upon (e.g., the formed plurality of food layers) by a structure being claimed does not impart patentability to the claims. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function);
and a crossbar (see annotated fig. 8 below) operably connected to the rod (fig. 8);
a body (see annotated fig. 8 below) configured to move relative to the handle assembly (fig. 8)( The body and handle assembly are connected, therefore, they are inherently configured to move relative to each other. Expressions relating the apparatus to contents thereof (e.g., applying pressure and forming a workpiece) during an intended operation are of no significance in determining patentability of the apparatus claim. Furthermore, inclusion of material or article worked upon (e.g., the formed plurality of food layers) by a structure being claimed does not impart patentability to the claims. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function), the body including: an external surface including:
a plurality of external, upper walls (see annotated fig. 8 below) tapering at a peak (see annotated fig. 8 below), the peak maintaining contact with the crossbar (fig. 8), wherein the plurality of external, upper walls connect to form a pyramid (fig. 8 the body apparatus is pyramid shaped);
and a plurality of external, lower walls (see annotated fig. 8 below) forming sloped sides (fig. 8);
an internal surface including:
a plurality of internal, upper walls having a first lining (see annotated fig. 8 below) configured to shape the plurality of food layers (the apparatus of Monk is a cutter for food products, Monk’s apparatus is capable of shaping a food product placed inside. Expressions relating the apparatus to contents thereof (e.g., applying pressure and forming a workpiece) during an intended operation are of no significance in determining patentability of the apparatus claim. Furthermore, inclusion of material or article worked upon (e.g., the formed plurality of food layers) by a structure being claimed does not impart patentability to the claims. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function) and a second lining (see annotated fig. 8 below) configured to seal the plurality of food layers (second lining portion is a flat portion that is capable of making contact with a table or other flat surface to close or seal the interior of the apparatus of Monk. Expressions relating the apparatus to contents thereof (e.g., applying pressure and forming a workpiece) during an intended operation are of no significance in determining patentability of the apparatus claim. Furthermore, inclusion of material or article worked upon (e.g., the formed plurality of food layers) by a structure being claimed does not impart patentability to the claims. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function);
and a plurality of internal, lower walls (see annotated fig. 8 below) terminating at a square edge, the square edge configured to cut the plurality of food layers in a shape corresponding to the geometric edge (the square edge is a flat portion that is capable of making contact with a table or other flat surface to close or seal the interior of the apparatus of Monk and with enough force to cut any food products between the apparatus of Monk and a table or other flat surface. Expressions relating the apparatus to contents thereof (e.g., applying pressure and forming a workpiece) during an intended operation are of no significance in determining patentability of the apparatus claim. Furthermore, inclusion of material or article worked upon (e.g., the formed plurality of food layers) by a structure being claimed does not impart patentability to the claims. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function), wherein applying pressure to the handle assembly enables the body to:
shape the plurality of food layers into a pyramid (previously discussed);
seal the plurality of food layers (previously discussed);
and cut the plurality of food layers, producing the layered food product (previously discussed)
Expressions relating the apparatus to contents thereof (e.g., applying pressure and forming a workpiece) during an intended operation are of no significance in determining patentability of the apparatus claim. Furthermore, inclusion of material or article worked upon (e.g., the formed plurality of food layers) by a structure being claimed does not impart patentability to the claims. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function.
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(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over D1015065 Monk in view of US20080241326A1 Ekberg.
Regarding claim 3,
Monk teaches The apparatus of claim 2 (as discussed above).
The difference between the prior art and the claimed invention is that Monk does not teach: wherein sealing the plurality of food layers includes sealing a filling inside of the layered food product.
Ekberg teaches a known technique that is applicable to the base device of Monk to add filling into a food product being compressed. This is because Ekberg teaches a method of cutting, sealing and/or shaping food products including bread slices or layers, cakes, pasta, dough products, pizza, pizza pockets, brownies, cookies, etc. (Ekberg par. 8) that allows for sealing a filling (edible filling material 115) inside of the layered food product (bread 106)(par. 65 fig. 11a).
One of ordinary skill in the art would have been capable of applying this known technique of sealing a filling inside of the layered food product to a known device (method, or product) of Monk that was ready for improvement and the results would have been predictable to one of ordinary skill in the art.
Therefore, it would have been obvious to one of ordinary skill in the art as of the effective filing date of the claimed invention to apply a filling material while making food.
The results would have been predictable for the purpose of adding a stuffing or filling material to a food product for the user’s desired food making preferences.
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over D1015065 Monk in view of US6126977A Bubar.
Regarding claim 4,
Monk teaches The apparatus of claim 1 (as discussed above).
The difference between the prior art and the claimed invention is that Monk does not teach: the plurality of food layers include at least two layers of laminated dough.
Bubar teaches a method of making a laminated pizza crust (abstract).
Before the effective filing date of the claimed invention, there had been a recognized problem or need in the art to solve the problem of creating a pizza crust with improved texture, flakiness, and flavor (Bubar column 2 lines 21 to 25)
There were a finite number of identified and predictable potential solutions to the recognized need or problem evidenced by Bubar teaching a plurality of food layers include at least two layers of laminated dough because Bubar teaches a method of making laminated pizza dough (claims 1-8 and column 1 lines 64 to 67 and column 2 lines 1 to 5) that can be substituted for the dough ball 146 of Monk.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to try the method of Bubar to create laminated pizza dough that can be used in the invention of Monk.
The results would have been predictable, since Bubar teaches and improvement to pizza dough with improved texture, flakiness, and flavor (column 2 lines 33 to 34).
Therefore one of ordinary skill in the art would have pursued the known potential solutions with a reasonable expectation of success to improve the end food product of Monk.
The examiner wishes to point out that the limitation “the plurality of food layers include at least two layers of laminated dough” is interpreted as claiming structure of the substrate, or article worked upon. It is well known that "inclusion of the material or article worked upon by a structure being claimed does not impart patentability to the claims." In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963); see also In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935), see MPEP 2115.
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over D1015065 Monk in view of US 6010731A Kimpic.
Regarding claim 5,
Monk teaches The apparatus of claim 1 (as discussed above).
The difference between the prior art and the claimed invention is that Monk does not teach: wherein at least one of the handle assembly and the body are fabricated from stainless steel.
Some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention.
Further, there were design incentives for implementing the claimed variation. Specifically, Kimpic teaches a pizza pan 10 with a lid 12 and a handle 21 and further teaches that the at least one of the handle assembly and the body are fabricated from stainless steel (column 5 liens 55 to 63).
Therefore, one of ordinary skill in the art, before the effective filing date of the claimed invention, would have been motivated to modify the invention of Monk to be made of stainless steel as taught by Kimpic to withstand the temperatures at which pizza is baked…and…to be cleaned relatively easily (Kimpic column 5 lines 57 to 63).
Further, It would have been obvious to one of ordinary in the art at the time of the invention was made to choose stainless steel, since it has been held to be within the general skill to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Claim(s) 9 and 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over D1015065 Monk.
Regarding claim 9,
Monk teaches The apparatus of claim 1 (as discussed above)
Monk discloses the claimed invention but does not disclose expressly the wherein the plurality of external, lower walls each have a length ranging from about 8.5 centimeters to 10.5 centimeters. It would have been an obvious matter of design choice to a person of ordinary skill in the art to modify the apparatus as taught by Monk with the plurality of external, lower walls each have a length ranging from about 8.5 centimeters to 10.5 centimeters, because Applicant has not disclosed that having the plurality of external, lower walls each have a length ranging from about 8.5 centimeters to 10.5 centimeters provides an advantage, is used for a particular purpose, or solves a stated problem. One of ordinary skill in the art, furthermore, would have expected Applicant' s invention to perform equally well with plurality of external, lower walls as taught by Monk, because it provides a user desired height of the apparatus and since it appears to be an arbitrary design consideration which fails to patentably distinguish over Monk.
Therefore, it would have been an obvious matter of design choice to modify Monk to obtain the invention as specified in the claim(s)
Regarding claim 10,
Monk teaches The apparatus of claim 1 (as discussed above)
Monk discloses the claimed invention but does not disclose expressly the wherein the plurality of external, lower walls each have a height ranging from about 0.5 centimeters to 2.5 centimeters. It would have been an obvious matter of design choice to a person of ordinary skill in the art to modify the apparatus as taught by Monk with the plurality of external, lower walls each have a height ranging from about 0.5 centimeters to 2.5 centimeters, because Applicant has not disclosed that having the plurality of external, lower walls each have a height ranging from about 0.5 centimeters to 2.5 centimeters provides an advantage, is used for a particular purpose, or solves a stated problem. One of ordinary skill in the art, furthermore, would have expected Applicant' s invention to perform equally well with plurality of external, lower walls as taught by Monk, because it provides a user desired height of the apparatus and since it appears to be an arbitrary design consideration which fails to patentably distinguish over Monk.
Therefore, it would have been an obvious matter of design choice to modify Monk to obtain the invention as specified in the claim(s)
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ADAM M ECKARDT whose telephone number is (313)446-6609. The examiner can normally be reached 6 a.m to 2:00 p.m EST Monday to Friday.
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, Edward Landrum can be reached at (571) 272-5567. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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ADAM MICHAEL. ECKARDT
Assistant Examiner
Art Unit 3761
/ADAM M ECKARDT/Examiner, Art Unit 3761
/EDWARD F LANDRUM/Supervisory Patent Examiner, Art Unit 3761