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 .
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 17 is rejected under 35 U.S.C. 112 (b) for being indefinite since it is not clear what is meant by the phrases “to facilitate easy removal of the mixing assembly form the container through the hole” and “to substantially reduce the risk of damage to the agitator when the mixing assembly is removed from the container.” Correction/clarification is required.
Claim 18 is rejected under 35 U.S.C. 112 (b) for being indefinite since claim 17 does not overcome the indefinite rejection of claim 17, from which claim 18 depends.
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 17 and 18 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Guilmart (WO2012080680 a machine translation is provided).
Regarding claim 17, Guilmart teaches a mixing assembly (stand mixer shown in figures 1, 2, and 5) comprising: a motor disposed within the housing (item 6 motor); a pressure switch for controlling the motor, the switch disposed on a lower end of the housing (control knob 12, which requires a rotational pressure to control the motor speed); and a mixing attachment directly or indirectly attached to the motor (item 5a which is indirectly connected to motor 6), the mixing attachment comprising at least one agitator (item 4 which is attached to item 5a); wherein the agitator is designed and dimensioned to be inserted into a container through a hole in a lid of the container (while the lid and container are considered intended use, item 6 extends into item 2 through opening in item 9), and to facilitate easy removal of the mixing assembly from the container through the hole (item 9 and 2 are considered capable of being easily removed from the mixing assembly shown in figure 1 and 2); wherein the mixing attachment is configured to substantially reduce the risk of damage to the agitator when the mixing assembly is removed from the container (when item 2 is removed from the base, item 4 agitator is considered substantially less likely to damage the overall mixing assembly since item 4 is not at risk of jamming the motor due to mixing materials in the container).
Regarding claim 18, Guilmart teaches further comprising a second switch for controlling the motor, wherein the motor is activated when both the pressure switch and the second switch are actuated (when the mixer is in the lifted position of figure 1, items 13 and 12 need to be actuated to allow for the top portion of the mixing assembly to be lowered and then activate the motor).
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.
Claims 1, 2, 3, 4, 5, 6, 7, 8, 10, 13, 14, 15, and 16, and are rejected under 35 U.S.C. 103 as being anticipated by Guilmart (WO2012080680 a machine translation is provided) in view of Wilson (U.S. Publication 2002/0186615).
Regarding claim 1, Guilmart teaches a mixing assembly (figures 1, 2 and 5 show a mixing assembly) comprising: a housing configured to interface with the hole in the lid (items 1, 3 and 4 interface with the opening in item 9); a motor disposed within the housing (item 6); a switch for controlling the motor, the switch disposed on the housing (item 13 is considered reading on a switch); and a mixing element directly or indirectly attached to the motor (item 4 which is attached to the motor via the shaft and gear assembly), wherein the mixing element is sized to fit through the hole in the lid (item 4 is considered capable of fitting through hole in item 9); wherein the switch is disposed on the housing in a location that causes the switch to be actuated when the mixing assembly interfaces with the hole in the lid and force is applied to the mixing assembly (item 13 is considered reading on a switch and when unlocked, arm 3 can be pushed down inherently having a component of a force which lowers the mixing assembly). Regarding claim 1, Guilmart is silent to a power source configured to provide power to the motor. Regarding claim 1, Wilson teaches a power source configured to provide power to the motor (paragraph 19 beater cord receives power from an electrical cord 34). Regarding claim 1, It would have been obvious to one of ordinary skill in the art prior to the effective filling date of the claimed invention to modify the stand mixer of Guilmart with the power cable of Wilson in order to allow for extended operation near an electrical outlet inside a house.
Regarding claim 2, Guilmart is silent to the cylindrical shape. Regarding claim 2, absent any unexpected results, it would have been obvious to change the shape of the bowl in order to accommodate for the desired volume of food since it is well settled that it is an obvious matter of design choice to change the general shape or size of a known element in the absence of a disclosed non-obvious advantage associated with the change. Gardner vs. TEC Systems Inc., 725 F.2d 1338, 1349-50 (Fed. Cir. 1984); In re Kuhle, 526 F.2d 553, 555 (CCPA 1975); In re Dailey, 357 F.2d 669, 672 (CCPA 1966).
Regarding claim 3, Guilmart teaches wherein the housing comprises a top (figure 1 item 3 surface is considered reading on a top) and the top of the housing is substantially flat (figure 1 surface proximate item 3 is substantially flat).
Regarding claim 4, Guilmart teaches wherein the top of the housing comprises a connector (opening covered by cap 32 which is used to mixing bowl 20 to be attached as shown in the figure 10 configuration).
Regarding claim 5, Guilmart teaches wherein the housing comprises at least a first end (top end proximate item 3 is considered reading on a first end), wherein the first end is configured to interface with the hole in the lid (item 3 includes item 4 which interacts with lid item 9 opening proximate item 90), wherein the first end comprises a portion that interfaces with a side of the hole in the lid (the portion of item 3 proximate item 5 is considered a portion that interfaces with item 9 proximate item 90).
Regarding claim 6, Guilmart teaches a switch on a second end of the mixing assembly (switch with button item 13). Regarding claim 6, Guilmart is silent to the switch on the first end of the mixing assembly. Regarding claim 6, absent any unexpected results, it would have been obvious to one of ordinary skill in the art prior to the effective filling date to rearrange the location of the switch to allow for easier use by a user since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70.
Regarding claim 7, Guilmart teaches a push-button switch (button 13 is considered reading on a push-button switch).
Regarding claim 8, Guilmart teaches wherein the pressure required to actuate the push-button switch and the weight of the mixing assembly are configured so as to cause the switch to be actuated when the mixing assembly and the container are in an upright position (item 13 is used to lower item 3 when item 3 in the upright position as shown in figure 1), the first end of the mixing assembly is interfaced with the hole of the lid, and a small downward force is applied to the mixing assembly (first end proximate item 3 interfaces with the lid 9 via items 5a and 4 after a downward force is applied to item 3 to put the mixing assembly from an upright position shown in figure 1 to a downward position as shown in figure 5).
Regarding claim 9, Guilmart teaches wherein the switch is configured to be water-resistant (item 13 is considered having a degree of water resistance since liquid leaking in the base would lead to a short circuit).
Regarding claim 10, Guilmart teaches wherein the mixing element comprises a rod (figure 2 item 5a) and a mixing attachment (item 4), the rod comprising a first end and a second end (item 5a has a top first end and a bottom second end), the first end configured to directly or indirectly connect to the motor (the first top end indirectly connects to the motor in the housing), the second end configured to connect to the mixing attachment (item 5a bottom second end attaches to item 4).
Regarding claim 13, Guilmart teaches further comprising a second switch for controlling the motor (item 12) wherein the motor is activated both when both the switch and second switch are actuated (when the mixer is in the lifted position of figure 1, items 13 and 12 need to be actuated to allow for the top portion of the mixing assembly to be lowered and then activate the motor).
Regarding claim 14, Guilmart teaches wherein the second switch is actuated by rotation of at least a portion of the housing (item 12 which activates the motor after item 3 is rotated to its lower position via item 13).
Regarding claim 15, Guilmart teaches wherein the hole in the lid is sized to accommodate the passage of drink powders, pudding mixes, whipped topping and sprinkles (figure 2 item 9 opening proximate item 90 is considered capable having powders, pudding mixes, whipping topping and sprinkles passing through the opening into the bowl it covers).
Regarding claim 16, Guilmart teaches wherein the housing comprises at least a first end (figure 2 item 3 is considered reading on a first end) wherein the first end is considered to interface with the hole in the lid (item 3 proximate item 5 interfaces with the opening in the lid 9 proximate item 90). Regarding claim 16, Guilmart is silent to wherein the power source is disposed within the housing proximate the first end. Regarding claim 16, Wilson teaches wherein the power source is disposed within the housing proximate the first end (figure 1 item 34 which is proximate item 13 in a first end of the mixer). It would have been obvious to one of ordinary skill in the art prior to the effective filing date to modify the stand mixer of Guilmart with the power source configuration of Wilson in order to allow for providing power to control the speed of the motor (see Wilson paragraph 20).
Claim 11 is rejected under 35 U.S.C. 103 as being anticipated by Guilmart (WO2012080680 a machine translation is provided) in view of Wilson (U.S. Publication 2002/0186615) in further view of Camezon (U.S. Patent 5,899,565).
Regarding claim 11, Guilmart is silent to one or more blades.
Regarding claim 11, Camezon teaches a mixing blade for a mixing assembly (see figure 1 item 24).
Regarding claim 11, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to substitute the mixing attachment of Guilmart in view of Wilson with the mixing blade of Cameron in order to obtain the desired degree of agitation.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim 1 is provisionally rejected as being nonstatutory double patenting of claim 1 of U.S. Patent application 17/969,657. The difference of a container and lid in the parent claim are not considered patentably distinct from claim 1 of the parent application.
Claim 2 is provisionally rejected as being nonstatutory double patenting of claim 1 of U.S. Patent application 17/969,657. The shape of the housing is not considered patentably distinct from claim 1 of the parent application.
Claim 3 is provisionally rejected as being nonstatutory double patenting of claim 1 of U.S. Patent application 17/969,657. The shape of the housing is not considered patentably distinct from claim 1 of the parent application.
Claim 4 is provisionally rejected as being nonstatutory double patenting of claim 1 of U.S. Patent application 17/969,657. The connector of the instant application is not considered patentably distinct from claim 1 of the parent application.
Claim 5 is provisionally rejected as being nonstatutory double patenting of claim 1 of U.S. Patent application 17/969,657. The portion of the housing interfacing with the lid is not considered patentably distinct from claim 1 of the parent application.
Claim 6 is provisionally rejected as being nonstatutory double patenting of claim 1 of U.S. Patent application 17/969,657. The switch location is not considered patentably distinct from claim 1 of the parent application.
Claim 7 is provisionally rejected as being nonstatutory double patenting of claim 1 of U.S. Patent application 17/969,657. The switch is not considered patentably distinct from claim 1 of the parent application.
Claim 8 is provisionally rejected as being nonstatutory double patenting of claim 1 of U.S. Patent application 17/969,657. The operation of the switch is not considered patentably distinct from claim 1 of the parent application.
Claim 9 is provisionally rejected as being nonstatutory double patenting of claim 1 of U.S. Patent application 17/969,657. The switch being water-resistant is not considered patentably distinct from claim 1 of the parent application.
Claim 10 is provisionally rejected as being nonstatutory double patenting of claim 10 of U.S. Patent application 17/969,657 since the rod and mixing attachment are in both claims and therefore not considered patentably distinct.
Claim 11 is provisionally rejected as being nonstatutory double patenting of claim 10 of U.S. Patent application 17/969,657 since the type of mixing attachment is not considered patentably distinct from claim 10 of the parent application.
Claim 12 is provisionally rejected as being nonstatutory double patenting of claim 10 of U.S. Patent application 17/969,657 since the type of mixing attachment is not considered patentably distinct from claim 10 of the parent application.
Claim 13 is provisionally rejected as being nonstatutory double patenting of claim 1 of U.S. Patent application 17/969,657 since the switch configuration is not considered patentably distinct from claim 1 of the parent application.
Claim 14 is provisionally rejected as being nonstatutory double patenting of claim 1 of U.S. Patent application 17/969,657 since the switch configuration is not considered patentably distinct from claim 1 of the parent application.
Claim 15 is provisionally rejected as being nonstatutory double patenting of claim 16 of U.S. Patent application 17/969,657 since the lid configuration is not considered patentably distinct from claim 16 of the parent application.
Claim 16 is provisionally rejected as being nonstatutory double patenting of claim 17 of U.S. Patent application 17/969,657 since the housing configuration is not considered patentably distinct from claim 17 of the parent application.
Claim 17 is provisionally rejected as being nonstatutory double patenting of claim 6 of U.S. Patent application 17/969,657 since the removable mixing attachment is not considered patentably distinct from claim 1 of the parent application.
Claim 18 is provisionally rejected as being nonstatutory double patenting of claim 6 of U.S. Patent application 17/969,657 since the removable mixing attachment is not considered patentably distinct from claim 6 of the parent application.
Claim 19 is provisionally rejected as being nonstatutory double patenting of claim 20 of U.S. Patent application 17/969,657 since the lid shape is not considered patentably distinct from claim 20 of the parent application.
Claim 20 is provisionally rejected as being nonstatutory double patenting of claim 20 of U.S. Patent application 17/969,657 since the addition of mold is not considered patentably distinct from claim 20 of the parent application.
Allowable Subject Matter
Claim 12 would be allowable if written in independent form including all the limitations of the base claim and any intervening claim and if the above double patenting provisional rejection is overcome. Regarding claim 12, the prior art doesn not teach or fairly suggest the combination of the mixing assembly, the mixing attachment being one or more mixing blades, and the mixing attachment further comprising one or more fins specifically extending upwards from the one or more blades.
Claims 19 and 20 would be allowable if the above double patenting provisional rejection is overcome. Regarding claim 19, the prior art does not teach or fairly suggest the combination of the mixing assembly, container, lid, straw adapter, and measuring spoon sized to fit in the lid of the container as claimed in independent claim 19.
Conclusion
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/ANSHU BHATIA/Primary Examiner, Art Unit 1774