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 .
Response to Amendment
The applicant is requested to withdraw claims 13-15 in accordance with the response to restriction, dated 2/4/20025, where the claims were withdrawn without traverse. The Applicant is requested to correct this status in future responses.
Response to Arguments
The Applicant is thanked for the corrections noted in the “Claims Objections” portion of the Office Action dated 3/25/2025. These Objections are withdrawn.
The clarification of the 35 U.S.C. 112 (a) rejections are acceptable. The related rejections are withdrawn.
Applicant's arguments filed 7/25/2025 have been fully considered but they are not persuasive for the following reasons.
At issue is the configuration of the score line that receives the condiment tub or cup without additional lid making features of “…a domed top, or a beveled recess bottom.” The instant application states that innovation revolves around a “a planar push-in for holding a condiment tub/cup for essentially hands free dipping of…” various food items.
There is no argument that the existence of planar lid tops with scores for various uses (adding condiments, inserting straws, inserting other items – including tea bags). The question becomes whether the scored planar top with the intended use of inserting a condiment cup is unique and offers an unexpected result. This broaches three patentability issues:
First, Per MPEP 707.07 (f), paragraph 7.37.09; in response to applicant's implied argument that Prueher in view of Weston is a recitation of the intended use of the claimed invention (Arguments, Page 6, Paragraph 3 where the intended use of “into which food product may be dipped.;”) must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. In this case, both Prueher and Weston show configurations of drinking lids with perforations for different uses but are capable of the claimed use. If the prior art structure is capable of performing the intended use, then it meets the claim.
Second, it has been held that where the claimed and prior art products are identical or substantially identical in structure or are produced by identical or a substantially identical processes, a prima facie case of either anticipation or obviousness will be considered to have been established over functional limitations that stem from the claimed structure. In re Best, 195 USPQ 430, 433 (CCPA 1977), In re Spada, 15 USPQ2d 1655, 1658 ( Fed. Cir. 1990). The prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed products. in re Best, 195 USPQ 430, 433 (CCPA 1977). As can be seen from the prior art applied and from the addition of Kicker (US 20200269740) and Sorenson et al. (US 6401927), the problem of holding “condiment cups” is not a new problem solved by inventors.
Thirdly and furthermore, the prior art can be applied under two tests per MPEP 2141.01(a.) Section I, where the claimed invention is: (1) the reference is in the same field of endeavor as the claimed invention or (2) the reference is reasonable pertinent to the problem faced by the inventor. In this case, previous efforts of inventors to hold “condiment cups” are shown by Buck (US 8381935) or Sorenson et al. (US 6401927) (for holding various fast food items, including condiment cups (See Figure 1, Item 16) or Klicker (US 20200269740) (See Figure 6 and Paragraph 0017). Both Sorenson and Klicker address the problem of holding a condiment cup in other devices in other settings that share the perforated, press through planar structure FOR HOLDING CONDIMENT CUPS claimed in the instant application.
In response to applicant's argument that Piper is unapplicable where “Piper is a dual use lid that has an integral reservoir – 38 – but it is not meant to hold and external condiment holder…” (Page 6 – third paragraph), the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art (Straw aperture configuration claimed in the instant application and the configurations of condiment holding lids.). See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
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.
Claim(s) 1, 3-12 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Prueher (US 4350260 – hereafter referred to as Prueher) in view of Weston (US 2918373 – hereafter referred to as Weston) and in further view of Sorensen et al. (US 6401927 – hereafter referred to as Sorensen). The Examiner’s Annotated Diagram A for Prueher follows:
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Examiner's Annotated Diagram A
In regards to Claim 1, Prueher teaches a container and container lid (Prueher, Lid -90) comprising: a side wall (Peripheral Ridge - 115), wherein the side wall (115) is generally annular (See Annotated Diagram A, Figure 13 where the lip is portrayed as annular.); a top wall (Central Reinforcing Ridge – 101), wherein the top wall (101) extends radially inward from the side wall (See Diagram A, Figures 10-13 where this is true); a rib (At Part 90), wherein the rib (At Part 90) is generally annular and emanates from the side wall (See In Figure 13 how the rib extends along the sidewall of the lid and couples with the Outer Ridge (skirt )– 115) and a skirt (Outer Ridge - 115), wherein the skirt (See Annotated Diagram A, Figure 12 and 13) is generally annular and emanates from the rib (90); the top wall (101) including a central planar region (Encompassed by Rib – at part 90 towards inner region – which is generally planar per Diagram A Figures 10-13) (NOT EXPLICITLY TAUGHT) {
Prueher– while teaching frangible structures on the central planar region – does not teach a pre-scored area adapted for being pushed in and downward to hold a condiment package (Read as CAPABLE OF BEING ABLE TO HOLD A FOOD CONDIMENT PACKAGE.).
Weston – in a similar disclosure on container lids with scored sections for receiving a container – does teach the missing concepts. See Examiner’s Annotated Diagram B for Weston follows:
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Examiner's Annotated Diagram B
Weston teaches: a similar lid that is prescored (Rectangular Resilient Fingers – 15) and adapted for being pushed in and downward to hold a reservoir (tea bag – 18 – where the reservoir is “…of sufficient width to easily receive a conventional tea bag – 18 therebetween…” – Column 2, Lines 1-4) for holding the previously taught food condiment (READ AS CAPABLE OF BEING ABLE TO HOLD A FOOD CONDIMENT PACKAGE.) (MOTIVATION – to yieldably grip the reservoir between the edges of the Resilient Fingers – 15 – Column 2, Lines 1-6.).
Weston also teaches: a polygonal score line structure (Items 16 and 17 and Figure 1 of Diagram B)
a polygonal score line structure with an H-Shape (Figure 1 of Diagram B)
It would have been obvious to one having ordinary skill in the art at the time the application was filed to modify the frangible lid and container of Prueher, providing the scored lid adapted to be pushed downward as taught by Weston (Resilient Fingers – 15 to hold a container to be inserted from the top as taught in Column 2, Lines 1-4), motivated by the benefit of a yieldable gripping surface on the container between the fingers – Column 2, Lines 1-6. Moreover, simple substitution of a known element for another (indentation for receiving condiment or container for condiment, with a scored element capable of receiving a reservoir - NOTE THAT: Prueher does teach a pre-scored region that is pushed in Annotated Diagram A, Figures 10 and 12 where the perforation – 97 can be and is taught to be pushed in.) with a predictable result (retaining reservoir on the lid) is rationale (B) of the rationales supporting a conclusion of obviousness issued by the Supreme Court in KSR v. Teleflex. See MPEP 2141(III).
Prueher as modified above does not specifically teach using the apertures taught as condiment containers for dipping foods during consumption.
Sorensen – in solving a similar problem of holding a small condiment container within a flat surface – teaches the missing functional limitations. See Annotated Diagram C for Sorensen:
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Examiner's Annotated Diagram C
Sorensen teaches the functional limitation of a surface that is: which is pre-scored and adapted for being pushed in (Sorensen, Column 7, Lines 50-56 describe the trap door – 16, and Annotated Diagram C, Figure 1) and downward to hold a reservoir (Peelable tubs – 62 – of “…barbecue sauce or other condiment) adapted for holding a food condiment (Column 7, Lines 50-53) into which food product may be dipped (Intended use met when holding the condiment cup.) (MOTIVATION: improving food packaging by providing a safe place to store multiple food items during transit. – Column 2, Lines 22-29.).
It would have been obvious to one having ordinary skill in the art at the time the application was filed to modify the frangible lid and container of Prueher/Weston, providing the Condiment Holder of Sorensen (Trap Door – 16, holding Peelable Tubs – 62, and Lines 50-56 describing the operation and interaction of the pushed in door with the tub.). Moreover, simple substitution of a known element for another (indentation and perforation for receiving condiment additives to a perforated surface for receiving a condiment container.) with a scored element capable of receiving a reservoir) with a predictable result (retaining reservoir on the lid) is rationale (B) of the rationales supporting a conclusion of obviousness issued by the Supreme Court in KSR v. Teleflex. See MPEP 2141(III).
In regards to Claim 3, Prueher teaches a container and container lid (Prueher, Lid -90) comprising: wherein the rib (90) is releasably connectable to the beverage container (This characteristic is inherent in the lid structure.)
In regards to Claim 4, Prueher teaches a container and container lid (Prueher, Lid -90) comprising: the skirt (115) is adapted to regulate vertical displacement of the lid when stacked with a plurality of other lids (See Annotated Diagram A, Figure 14 – where the stack height is controlled by the flare of the skirt.).
In regards to Claim 5, Prueher – as previously modified - teaches a container and container lid (Prueher, Lid -90) comprising: the pre-scored reservoir (103) is polygonal and includes a plurality of pre-score lines (See Annotated Diagram A, Figure 11 – where the shape is polygonal.) (See Modification and Motivation in parent claim above.). See In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (The court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.)
In regards to Claim 6, Prueher – as previously modified - teaches a container and container lid (Prueher, Lid -90) comprising: the reservoir (103) is substantially rectangular (See Annotated Diagram B, Figure 1 – rectangular reservoir.) (See Modification and Motivation in parent claim above.). See In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (The court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.)
In regards to Claim 7 and 8 (Similar Claims, Same Dependency Prueher – as previously modified - teaches a container and container lid (Prueher, Lid -90) comprising: wherein the reservoir is circular (or OVAL in Claim 8). NOTE THAT Per MPEP 2144.04, Section IV.B. Changes in shape must be of patentable significance. See In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (The court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.)
In regards to Claim 9, Prueher – as previously modified - teaches a container and container lid (Prueher, Lid -90) comprising: wherein the top wall (16) is pre-scored with an H shape (Weston - See Diagram B, Figure 1) to provide for push down access to hold a condiment tub (Weston – Column 2, Lines 2-4). (See Modification and Motivation in parent claim above.).
In regards to Claim 10, Prueher teaches a container and container lid (Prueher, Lid -90) comprising: wherein the top wall (101) is pre-scored with a plurality of V shapes (Per Annotated Diagram A, Figures 10-11 – each panel – 109 has V-shaped prescores that surround the centrally located opening) that meet in a centrally located aperture (Mouthpiece - 90) (NOTE: There are multiple V shapes on the top wall – 101 that surround openings for drinking – See Annotated Diagram 11, Parts 103, 104, 109 and 111.)
In regards to Claim 11, Prueher teaches a container and container lid (Prueher, Lid -90) comprising: which is adapted to have some beverage removed if filled too high before the pre-scored lines are pushed in and a condiment tub inserted therethrough. NOTE: Per MPEP 707.07 (f), paragraph 7.37.09; a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. In this case, a user would be able to monitor the filling of the device and make the decision to remove contents.
In regard to Claim 12, Prueher teaches a container and container lid (Prueher, Lid -90) comprising: wherein the lid (90) comprises a plastic or thermoplastic (Column 2, Lines 6-10 – states the object of the invention is to “..improve lids for plastic tumblers used in…industry.”)
Claim 2 and 16 is rejected under 35 U.S.C. 103 as being unpatentable over Prueher as modified by Weston and Sorenson and in further view of Piper (US 20150144628 – hereafter referred to as Piper.)
In regards to Claim 2, Prueher – as modified previously teaches a container and container lid (Prueher, Lid -90) comprising: teaches a top wall (101)
Prueher does not teach the use of a straw.
Piper – in a similar disclosure on condiment holding lids – does teach a straw opening. The Examiners Annotated Diagram C for Piper follows:
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Examiner's Annotated Diagram D
Piper teaches: further comprises an aperture (Aperture – 52) for receiving a straw (58) therethrough (MOTIVATION: to improve the dual purpose cup lid – Paragraph 0015).
It would have been obvious to one having ordinary skill in the art at the time the application was filed to modify the drinking container lid of Prueher, providing the straw aperture – 52 and Straw – 58 of Piper, motivated by the benefit of improving the dual use container lid art. Moreover, simple combination of prior art elements according to known methods to yield predictable results (adding a straw to a drinking lid structure) is Rationale (A) of the rationales supporting a conclusion of obviousness issued by the Supreme Court in KSR v. Teleflex. See MPEP 2141(III).
In regards to Claim 16, Prueher teaches a container and container lid (Prueher, Lid -90) comprising: a side wall (115), wherein the side wall 115) is generally annular (See Diagram A, Figures 11-13); a top wall (101), wherein the top wall (101) extends radially inward from the side wall (See Diagram A, Figures 11-13); a rib (90), wherein the rib (90) is generally annular and emanates from the side wall (See Diagram A, Figures 10-11); and a skirt (Diagram A, 115), wherein the skirt (115) is generally annular and emanates from the rib (90) (Diagram A, Figure 12); the top wall (101) including a central planar region (Encompassed by Rib – 90 and Shown in Figure 11) which is pre-scored (Valve Flap – 103, 104, 109 and 111)to be pushed downward to hold a third party's reservoir adapted to contain a food condiment (the Flaps are capable of holding a container); (b) pre-scoring into the lid a plurality of push-in lines (See Annotated Diagram A, Figure 11 for push in lines for Lid (90)) for the user to create a reservoir holding rejoin in the top wall when needed; (c) providing a container (Cup – 11) for holding at least some drinking beverage (Container is made for fluid – Column 2, Lines 14-24 – for chilled drinks), with or without ice (Capable of being used with ice.); (d) securing the lid (90) to the container (11);(e) if over-filled, removing a slight amount of beverage from the container through a straw inserted into an aperture in the lid (Beverage Capable of being drunk to lower fluid level.) (NOTE: See 112 b rejection above where an undefined fill standard requires a trained observer to assess.); (NOT EXPLICILTY TAUGHT) {(f) pushing in the pre-scored lines in the top wall; and (g) positioning a condiment container into the recess in the top wall created by pushing in at the pre-scored lines into which food product may be dipped.}
Prueher– while having the structures for a condiment holding area – does not have a straw opening.
Weston teaches: a similar lid that is prescored (Rectangular Resilient Fingers – 15) and adapted for being pushed in and downward to hold a reservoir (tea bag – 18 – where the reservoir is “…of sufficient width to easily receive a conventional tea bag – 18 therebetween…” – Column 2, Lines 1-4) for holding the previously taught food condiment (READ AS CAPABLE OF BEING ABLE TO HOLD A FOOD CONDIMENT PACKAGE.) (MOTIVATION – to yieldably grip the reservoir between the edges of the Resilient Fingers – 15 – Column 2, Lines 1-6.).
It would have been obvious to one having ordinary skill in the art at the time the application was filed to modify the condiment holding structure of Prueher, providing the scored lid adapted to be pushed downward as taught by Weston (Resilient Fingers – 15 to hold a container to be inserted from the top as taught in Column 2, Lines 1-4), motivated by the benefit of a yieldable gripping surface on the container between the fingers – Column 2, Lines 1-6. Moreover, simple substitution of a known element for another (indentation for receiving condiment or container for condiment, with a scored element capable of receiving a reservoir) with a predictable result (retaining reservoir on the lid) is rationale (B) of the rationales supporting a conclusion of obviousness issued by the Supreme Court in KSR v. Teleflex. See MPEP 2141(III).
Prueher or Weston do not explicitly lay out the filing and using method as claimed.
However, Piper does teach the use of the lid and container in paragraphs 0033 through 0036 describe the filling and use of a condiment bearing lid as claimed in the instant application (MOTIVATION: to improve the dual purpose cup lid – Paragraph 0015).
It would have been obvious to one having ordinary skill in the art at the time the application was filed use the drinking container lid of Prueher as modified by Weston, using the method of Piper, motivated by the benefit of improving the dual use container lid art – Paragraph 0015. Moreover, simple combination of prior art elements according to known methods (Method of use of a drinking container) to yield predictable results (proper use of a condiment bearing drinking container lid) is Rationale (A) of the rationales supporting a conclusion of obviousness issued by the Supreme Court in KSR v. Teleflex. See MPEP 2141(III).
Sorensen teaches the functional limitation of a surface that is: which is pre-scored and adapted for being pushed in (Sorensen, Column 7, Lines 50-56 describe the trap door – 16, and Annotated Diagram C, Figure 1) and downward to hold a reservoir (Peelable tubs – 62 – of “…barbecue sauce or other condiment) adapted for holding a food condiment (Column 7, Lines 50-53) into which food product may be dipped (Intended use met when holding the condiment cup.) (MOTIVATION: improving food packaging by providing a safe place to store multiple food items during transit. – Column 2, Lines 22-29.).
It would have been obvious to one having ordinary skill in the art at the time the application was filed to modify the frangible lid and container of Prueher/Weston, providing the Condiment Holder of Sorensen (Trap Door – 16, holding Peelable Tubs – 62, and Lines 50-56 describing the operation and interaction of the pushed in door with the tub.). Moreover, simple substitution of a known element for another (indentation and perforation for receiving condiment additives to a perforated surface for receiving a condiment container.) with a scored element capable of receiving a reservoir) with a predictable result (retaining reservoir on the lid) is rationale (B) of the rationales supporting a conclusion of obviousness issued by the Supreme Court in KSR v. Teleflex. See MPEP 2141(III).
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Buck (US 8381935) discloses Figures 1-34 and various configurations of drink through lids with condiment containers as well as general features relevant to the scope and structure of the claimed invention.
Portman (US 8651316) discloses various score line configurations in various lid configurations (See Figures 1A through 13B) as well as general features relevant to the scope and structure of the claimed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to John M. Hoppmann whose telephone number is (571)272-7344. The examiner can normally be reached from Monday-Friday 7:30 - 4:00.
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, Nathan Jenness can be reached on 571-270-5055. The fax phone number for the organization where this application or proceeding is assigned is (571) 273-8300.
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/JOHN MARTIN HOPPMANN/Examiner, Art Unit 3733
/NATHAN J JENNESS/Supervisory Patent Examiner, Art Unit 3733 19 November 2025