DETAILED ACTION
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 present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Applicant’s reply dated 16 December 2025 to the restriction requirement mailed 08 July 2025 has been received. Applicant has elected Group II, claims 14 – 20, amended claims 2 – 13 to be inclusive to group II, and cancelled claim 1. Further with respect to the required species applicant has elected species A1, claim 3, and B1, claims 8 and 9. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 4, 5, 10, and 11 have been withdrawn from further prosecution and an action on the merits of claims 2, 3, 6 – 9, and 12 – 20 follows.
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.
Claims 2 – 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 claim 14, applicant has elected claims directed to a method however the elected claims appear to be directed to an apparatus. While claim 14 purports to be a method claim it is unclear what “providing” imparts to the method and no steps by which any method would actually be performed are recited in the claim making it unclear what applicant is attempting to claim.
Regarding claim 6, the term “flavored to complement” is a relative term which renders the claim indefinite. The term “”flavored to complement” 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. What one person might consider to be a complementary flavour another person may not thus the claim is indefinite.
Regarding claim 7, it is unclear if the flavour of the food is savory whether or not the edible material would need to be provided as a savory flavour or a sweet flavour to match the flavour of the food. Similarly regarding where the flavour of the food would be sweet, it is unclear if the flavour of the food is savory whether or not the edible material would need to be provided as a savory flavour or a sweet flavour to match the flavour of the food.
Regarding claim 9, since two faces would also constitute a plurality of faces it is unclear what is meant by the recitation “the body has a plurality of faces that include the platter engaging face, and at least two or the plurality of faces includes a concave region”. It would appear the claim should recite ‘the body has a plurality of faces that include the platter engaging face, and at least two of the plurality of faces includes a concave region’.
Regarding claims 12 and 13, it is not understood how the length of the temporary barrier would have a packaged length greater than the deployment length since the length of said barrier would be the same in or out of the package as well as when in either a roll or coil form.
Regarding claims 15 – 17, while the claims depend from claim 14, the claims ultimately depend from cancelled claim 1 making applicant’s intention with respect to the claims unknown. Claims 15 – 17 therefore have not been further examined on the merits at this time.
Claims 2, 3, 8, and 18 – 20 are rejected by virtue of their dependence on a rejected base claim.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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 14, 8, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Lucken et al. US 2017/0007048 as further evidenced by Daily Mail.
Regarding claim 14, Lucken discloses providing a temporary barrier (divider device 50) which barrier comprises a body that is elongated along a longitudinal axis (90) (paragraph [0076] – [0080]) and is flexible in at least one direction perpendicular to the longitudinal axis (pressed and flattened into contact with the surface) (paragraph [0083], fig. 5 and 6), wherein the body is designed to and capable of, when the temporary barrier is engaged with a platter, blocking the flow of an edible liquid through the temporary barrier (fluid tight interface) (paragraph [0014]). The temporary barrier has a platter engaging face (175) designed and configured to form a liquid tight seal with the platter (food plate surface 60) when the platter engaging face is engaged with the platter (paragraph [0083]). Further Lucken instructs that to use the temporary barrier a user would press said barrier to a platter surface (primary surface) so as to create food isolation zones on the platter, i.e., a suction to the platter (paragraph [0102] – [0105]). Daily Mail provides further evidence that the temporary barrier would be
provided with instructions that instruct a user to apply the temporary barrier (picture page 4) to the platter so as to create food isolation zones on the platter (picture page 2).
Regarding claim 8, Lucken discloses the platter engaging face has a concave region extending in a direction along the longitudinal axis which region is capable of providing a suction-type seal with the platter (paragraph [0014]).
Claim 18 is rejected over Lucken for the same reasons given above in the rejections of claims 14 and 8.
Claims 2, 3, 6, 7, 12 – 14 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over KAC Creative (KAC).
Regarding claims 14 and 20, KAC discloses a method comprising providing a temporary barrier (Flexible Ganache) which barrier comprises a body that is elongated along a longitudinal axis (page 19) and is flexible in at least one direction perpendicular to the longitudinal axis (page 20 and 21). The body is designed and would obviously be capable of, when the temporary barrier is engaged with a platter, blocking the flow of an edible liquid through the temporary barrier (page 2). The temporary barrier has a designed platter engaging face would be capable of forming a liquid tight seal with the platter (page 20) when the platter engaging face is engaged with the platter as seen (page 22). In that KAC clearly demonstrates applying the temporary barrier to a platter (page 20) it is seen that KAC the video clips and text are seen as obvious instructions being provided that instructs a user to apply the temporary barrier to the platter so as to create food isolation zones on the platter (page 22). Further regarding claim 20 since KAC discloses the temporary barrier to be made of an edible material, i.e., a flexible ganache, it would have been obvious to include instructions for a user to eat said barrier since said barrier is made of edible material.
Regarding claim 2, KAC discloses the body is made of a food-grade edible material (ganache) (page 1, text at bottom of the page), which is to say that the body is edible.
Regarding claim 3, KAC discloses the edible material is a gelatin based material (page 1, text at the bottom of the page, and page 7).
Regarding claims 6 and 7, KAC discloses the barrier is designed for use with a food having a flavour (marshmallow fluff, graham crackers, crumb) (page 1, text at the bottom of the page) and the edible material has been flavoured to complement the flavour of the food (chocolate) (page 8) which is to say that the edible material has been provided with a sweet flavour to match the flavour of the food.
Regarding claim 12, KAC discloses that the temporary barrier has a deployment length (shown on a platter) (page 20 and 21) and where the pan serves as the package length it is seen that the length of the packaged temporary barrier has a length greater that the deployment length as seen on the platter when in the package (page 17 and 19).
Regarding claim 13, with respect to the recitations beginning “wherein the temporary barrier is in roll form or coil form when at the packaged length” these are seen to be recitations regarding the intended use of the temporary barrier.
In this regard applicant’s attention is invited to MPEP 2114 which states that “an apparatus must be distinguished from the prior art in terms of structure rather than function”. That is to say, apparatus claims cover what a device is, not what a device does. If the body of a claim fully and intrinsically sets forth all the limitations of the claimed invention, and then further limitations merely state, for example, the purpose or intended use of the invention, rather than any distinct structural definition of any of the claimed invention’s structural limitations, then any limitations regarding the intended use of the device are of no significance to claim construction. A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claim which KAC obviously does. Further, if the prior art structure is capable of performing the intended use, then it meets the claim.
It is The Office’s position that the further limitations do not state any distinct definition of any of the claimed invention’s limitations and further that the purpose or intended use, i.e. “wherein the temporary barrier is in roll form or coil form when at the packaged length”, recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art, that is KAC and further that the prior art structure, which is identical and/or obvious in view of the prior art to that set forth in the present claims is capable of performing the recited purpose or intended use.
Claims 8, 9, 18, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over KAC Creative (KAC) in view of Lucken et al. US 2017/0007048.
Regarding claims 8 and 9, KAC discloses the body of the temporary barrier body has a plurality of faces that includes the platter engaging face.
Claims 8 and 9, differ from KAC in the temporary barrier having one or a plurality of faces respectively that include a concave region extending in a direction along the longitudinal axis being capable of providing a suction-type seal with the platter.
Lucken discloses a temporary barrier (divider device 50) which barrier comprises a body that is elongated along a longitudinal axis (90) (paragraph [0076] – [0080]) and is flexible in at least one direction perpendicular to the longitudinal axis (pressed and flattened into contact with the surface) (paragraph [0083], fig. 5 and 6). Further, Lucken discloses the body is designed to and capable of, when the temporary barrier is engaged with a platter, blocking the flow of an edible liquid through the temporary barrier (fluid tight interface) (paragraph [0014]) by including a concave region. Lucken is disclosing the temporary barrier has a concave region extending in a direction along a longitudinal axis platter engaging face in order to form a liquid tight seal with the platter (food plate surface 60) when the platter engaging face is engaged with the platter (paragraph [0083]) which would also serve to maintain placement of said barrier which is applicant’s reason for providing a concave region as well. To therefore modify KAC if necessary and provide a concave region to the longitudinal axis to hold the temporary barrier in position as taught by Lucken would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Further regarding claim 9 and at least two of the plurality of faces including a concave region, Lucken discloses the platter engaging face includes a concave region to form a liquid tight seal with the platter when the platter engaging face is engaged with the platter which would also serve to maintain placement of said barrier. Although Lucken does not disclose at least two of the plurality of faces include a concave region the mere duplication of parts has no patentable significance unless a new and unexpected result is produced (MPEP § 2144.04 VI.B.).
Claim 18 differs from KAC in the platter engaging face of the temporary barrier having a concave region extending in a direction along the longitudinal axis and providing instructions to engage the platter engaging face to the platter.
Lucken discloses a temporary barrier (divider device 50) which barrier comprises a body that is elongated along a longitudinal axis (90) (paragraph [0076] – [0080]) and is flexible in at least one direction perpendicular to the longitudinal axis (pressed and flattened into contact with the surface) (paragraph [0083], fig. 5 and 6). Lucken further discloses the body is designed to and capable of, when the temporary barrier is engaged with a platter, blocking the flow of an edible liquid through the temporary barrier (fluid tight interface) (paragraph [0014]) by including a concave region and provides instructions that instruct a user to apply the temporary barrier (paragraph [0103]) to the platter so as to create food isolation zones on the platter. Lucken is disclosing the temporary barrier has a concave region extending in a direction along a longitudinal axis platter engaging face and provides instruction as to the use thereof in order to form a liquid tight seal with the platter (food plate surface 60) when the platter engaging face is engaged with the platter (paragraph [0083]) which would also serve to maintain placement of said barrier which is applicant’s reason for providing a concave region as well. To therefore modify KAC if necessary and provide a concave region to the longitudinal axis as well as instructions to a user thereof as taught by Lucken would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Regarding claim 19, KAC discloses the barrier is designed for use with a food having a flavour (marshmallow fluff, graham crackers, crumb) (page 1, text at the bottom of the page) and the edible material has been flavoured to complement a food flavor (chocolate) (page 8).
Claim 19 differs from KAC in the platter engaging face having a concave region extending in a direction along the longitudinal axis and providing instructions to the user to use said barrier with one or more foods.
Lucken discloses a temporary barrier (divider device 50) which barrier comprises a body that is elongated along a longitudinal axis (90) (paragraph [0076] – [0080]) and is flexible in at least one direction perpendicular to the longitudinal axis (pressed and flattened into contact with the surface) (paragraph [0083], fig. 5 and 6), wherein the body is designed to and capable of, when the temporary barrier is engaged with a platter, blocking the flow of an edible liquid through the temporary barrier (liquid tight) (paragraph [0003]). The temporary barrier has a platter engaging face (175) designed and configured to form a liquid tight seal with the platter (food plate surface 60) when the platter engaging face is engaged with the platter (paragraph [0083]) and provides instructions that instruct a user to apply the temporary barrier (paragraph [0003]) to the platter so as to create food isolation zones on the platter (paragraph [0102] – [0105]).
Lucken is disclosing the temporary barrier has a concave region extending in a direction along a longitudinal axis platter engaging face and provides instruction as to the use thereof in order to form a liquid tight seal with the platter (food plate surface 60) when the platter engaging face is engaged with the platter (paragraph [0083]) and provides instructions for the use there of which would also serve to maintain placement of said barrier which is applicant’s reason for providing a concave region as well. To therefore modify KAC if necessary and provide a concave region to the longitudinal axis as well as providing instructions a user thereof as taught by Lucken would have been an obvious matter of choice and/or design to the ordinarily skilled artisan. Further, since KAC has disclosed the food as having a food flavour it is obvious that a user would be using the temporary barrier with one or more foods having a food flavour.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHAIM A SMITH whose telephone number is (571)270-7369. The examiner can normally be reached Monday-Thursday 09:00-18:00.
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/C.S./
Chaim SmithExaminer, Art Unit 1791 05 February 2026
/VIREN A THAKUR/Primary Examiner, Art Unit 1792