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
Those objections and rejections not repeated in this Office Action have been withdrawn.
Claims 1-19 are currently pending and rejected.
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 12 and 14-15 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.
Claim 12 recites the limitation, “further including at least one additional food ingredient comprising icing.” It is not clear in light of applicant’s specification whether “at least one additional food ingredient comprising icing” is intending to be a different ingredient from “at least one food ingredient within the cup,” both of which are within the cup (which the claim does not recite) or whether the claim is intending to specify that “the at least one food ingredient within the cup” comprises icing. For example, paragraph 3 of Applicant’s specification as filed refers to “additional ingredients” including icing within a separate cup. Paragraph 5-6 discuss that the cup can be pre-filled with icing while a wide range of additional ingredients could be employed, thus disclosing that icing or a wide range of additional ingredients can be pre-filled within the cup, which in turn is placed within the container. The claim, however, appears to recite icing as an additional food ingredient within the packaged food product (and not necessarily the cup) without making it clear whether the additional food ingredient is within the cup of claim 1. Paragraph 24 does recite one or more additional food ingredients such as icing within the cup. This rejection can be overcome by amending claim 12 to recite, “the at least one food ingredient comprises icing.”
Claim 14 recites, “after closing an end of the container and closing an opposing end of the container.” This limitation is unclear as to whether “an end” and “an opposing end” are the same as those already recited in claim 13 or some other ends. This rejection can be overcome by amending claim 14 to recite, “after the closing of the end of the container and the closing of the opposing end of the container.”
Claim 15 is rejected based on its dependence to a rejected 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 1-4, 6, 7 and 9-18 are rejected under 35 U.S.C. 103 as being unpatentable over Zoeller (US 2949369) in view of Sicopal (FR2303725) and Kim (KR 2019115842) or in view of KR200351885 (referred to as KR885).
Regarding claim 1, Zoeller (US 2949369) teaches a packaged food product comprising:
a container including at least one sidewall (figure 2, item 10), closed ends (figure 1, item 24 and 25) and an interior cavity (23);
a cup within the container (figure 6, item 30), wherein the cup includes at least one sidewall (see figure 6, item 31), a bottom wall (see figure 6, item 32) and an upper rim defining an opening (figure 6, near item 19), opposite the bottom wall, leading to an interior storage cavity of the cup;
at least one food ingredient within the cup (figure 6, item 33);
at least one dough product within the interior cavity of the container (Figure 1, item 22; see at least column 2, lines 30-35); and a separator (figure 6, item 18) interposed between the cup and the at least one dough product, said separator would obviously have had a main body portion positioned upon the upper rim of the cup (see figure 6 near item 19).
Claim 1 differs from Zoeller in specifically reciting, a column support extending from the main body portion and abutting the bottom wall of the cup.
Sicopal (FR2303725) teaches a support extending from a main body portion of a “separator” (see figure 1 and 2, item 6), which support increases the crush resistance of the container (see page 2, lines 9-14 of the machine translation) and abuts the bottom wall of the cup (see figure 1, near item 1 and 3).
Kim (KR 2019115842) also teaches a food containing cup that comprises a support extending from a main body portion of a separator (see figure 2, item 12, when viewed upside down), which support is useful for preventing deformation of the container when pressure is applied to the container, such as in a stacking configuration (see paragraph 1 and the abstract).
KR200351885 teaches food containers comprising a cup (figure 5a, item 10) and a separator (figure 5a, item 16), which separator has a main body portion positioned upon the upper rim of the cup (see figure 5b) and which further includes a column support extending from the main body portion and abutting the bottom wall of the cup (see figure 5a, 5b, item 12, 14). KR885 teaches that such a column support can be useful for providing auxiliary storage of food products (see at least paragraph 20).
To therefore modify Zoeller and to provide the separator with a column support extending from the main body portion and abutting the bottom wall of Zoeller’s cup, as taught by Sicopal and Kim, would have been obvious to one having ordinary skill in the art for the purpose of further strengthening the separator such that when the dough products pressurize the container, Zoeller’s separator would have added support and strength.
Additionally, to modify Zoeller in view of KR885 would have been obvious to one having ordinary skill in the art, for the purpose of providing multiple food products within Zoeller’s cup.
Regarding claim 2, Sicopal, Kim and KR’885 teach that the column support extends from a central portion of the main body portion.
Regarding claim 3, Sicopal teaches a hollow column support (figure 1), as does Kim (see figure 3). KR’885 teaches that the column support, can be hollow as shown in figure 5b, item 12.
Regarding claim 4, Sicopal and Kim teach that the main body portion includes an opening leading into the hollow column support.
KR’885 teaches that there is an opening at 24, in figure 5a, which can be construed as leading into the hollow column support. That is, the claim does not limit the hollow column support to be completely hollow. See annotated figure 5b:
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Regarding claim 6, Zoeller teaches a peripheral side surface of the main body portion of the separator that is in frictional engagement with the at least one sidewall of the container (see figure 5 and 6, item 19 which is in frictional engagement with the sidewall; see column 3, lines 16-30).
Regarding claim 7, Zoeller teaches that the main body portion of the separator has an upper surface leading to a raised circumferential edge, which defines the peripheral side surface (see figure 6, item 18 and 19).
Regarding claim 9, Zoeller’s bottom wall of the cup directly engages one of the closed ends of the container (see figure 6, item 32 and 24), with the at least one dough product being located between another one of the closed ends of the container and the separator (see figure 1, item 12)
Regarding claim 10, Zoeller teaches that both the container and the cup are substantially cylindrical in shape (see figure 1 and 6)
Regarding claim 11, Zoeller teaches that the container has a spirally-wound construction of an inner liner layer, an outer label layer and one or more intermediate layers of composite material (see figure 2 which shows a spiral wound construction and figure 5, items 11-15 which shows an inner layer, an outer label layer and one or more intermediate layers of composite material). The layers 13 and 14 can be construed as a composite material for the intermediate layer.
Regarding claim 12, in light of the rejection under 35 U.S.C. 112b, if the claim is intending to further specify that “the at least one ingredient within the cup” as recited in claim 1 comprises icing, then Zoeller teaches that the at least one dough product comprises a plurality of cinnamon rolls, and the at least one additional food ingredient comprises icing (see column 4, lines 32-35), therefore making it obvious to one having ordinary skill in the art to have used cinnamon roll dough and icing.
Regarding claim 13, Zoeller teaches a method of packaging a food product comprising: inserting a cup, having an internal cavity for at least one additional food ingredient, within an interior of a container (see figure 3 which teaches that the contents 17 are within the packaging and then the separator 18 has been inserted; in combination with figure 6 which teaches a separate cup onto which the separator is applied); closing an end of the container (see figure 3, item 24); positioning a main body portion of a separator atop the cup (see figure 6, item 18); depositing at least one dough product into the container (it would have been obvious in light of figure 3 that after the separator 18 has been put into position, the dough is placed thereon), with the separator being located between the at least one dough product and the cup (see figure 6); and closing an opposing end of the container (see figure 1, item 25; column 3, lines 62-66)
Claim 13 differs from Zoeller in specifically reciting that there is a column support extending from the main body portion and abutting a bottom of the cup.
The combination as applied to claim 1 in view of Sicopal, Kim and KR885 has been incorporated herein to teach the use of a main body portion of a separator atop a cup, which main body portion comprises a column support abutting a bottom of the cup for the purpose of providing added support and for providing multiple compartments for added ingredients.
Regarding claim 14, Zoeller teaches allowing the at least one dough product to proof and increase a pressure within the container after closing the first end (i.e. an end) and the second end (i.e. an opposing end) of the container (see column 1, line 67 to column 2, line 2; column 3, line 30-40).
Regarding claim 15, since the combination is teaching that the separator that contacts the dough also contacts the bottom of the cup through the column support, it would have been obvious to one having ordinary skill in the art that the pressure generated by the dough would have been transferred to the bottom of the cup through the column support.
Regarding claims 16 and 17, Zoeller teaches frictionally fitting the main body portion of the separator against a sidewall of the container (see figure 5 and 6, item 19 which is in frictional engagement with the sidewall; see column 3, lines 16-30) and the main body portion of the separator has an upper surface leading to a raised circumferential edge portion which defines, in part, a peripheral side surface of the main body portion, with the peripheral side surface frictionally engaging the sidewall of the container (see figure 6, item 18 and 19)
Regarding claim 18, Zoeller teaches that the cup can comprise icing when the dough is used for cinnamon rolls (see column 4, lines 32-35) thus teaching and suggesting that at least one dough product into the container includes depositing a plurality of cinnamon rolls, and inserting the cup into the container includes adding icing within the container.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Zoeller (US 2949369) in view of Sicopal (FR2303725), Kim (KR 2019115842) and KR200351885 (referred to as KR885); or Zoeller (US 2949369) in view of KR200351885.
Regarding claim 5, Sicopal teaches a frustoconical shape to the column support (see figure 3). Kim also teaches a frustoconical shape, as does KR885.
Claim 5 differs from Sicopal and Kim in specifically reciting that “the hollow column support is frustoconical in shape that tapers in a direction away from the main body portion.
KR885 for instance, teaches an frustoconical shape that would have tapered in a direction away from the main body portion (see figure 5a and figure 5b, item 12). KR885 also teaches that the combined structure of the lid (16) and the column support (12) can also help to reinforce the lid (see paragraph 65 of the machine translation). That is, at paragraphs 63-65, KR885 teaches that the column support 12 together with the lid can help to reinforce the sealed lid against the container rim (see paragraph 65: “Meanwhile, another function and effect is expected to be achieved by sharing the above-mentioned sealed lid (16), which includes material reduction, reinforcement of the sealed lid…”).
To therefore modify the Zoeller/Sicopal/Kim combination which already teaches that a column support that has been useful for preventing deformation of the container and to position the column support such that it is frustoconical in shape that tapers in a direction away from the main body portion would have been obvious to one having ordinary skill in the art, as an obvious matter of engineering and/or design based on another orientation of a frustoconical hollow column support which can serve a similar purpose of providing support to the container.
Further regarding claim 5, Zoeller in view of KR885 teaches a hollow column support that is frustoconical in shape that tapers in a direction away from the main body portion.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, and in further view of Parlour (US 3506459) and Miltz (US 4919949).
Regarding claim 8, the claim differs from Zoeller in specifically reciting that the separator is made entirely of plastic.
However, Parlour teaches a separator disc (see figure 3, item 52 and figure 4, item 100) which is entirely made from plastic (see column 5, lines 1-3 and lines 15-18). Miltz also teaches a separator for a package containing pressurized dough, which separator can be made entirely of plastic (see figure 3, item 37 and column 3, lines 17-22).
It is further noted that Sicopal teaches that the container and therefore closure can be made entirely of plastic (see page 2 of the machine translation, “single piece of plastic”).
Therefore, it would have been obvious to one having ordinary skill in the art to have modified Zoeller and to have used a separator made entirely of plastic, based on conventional materials used for a similar purpose of closing a cup and for separating a dough product from a cup.
Claims 12 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claims 10 and 13, and in further view of Thornton (US 20160107817).
Regarding claim 12, it is initially noted that the claim is unclear in light of the rejection under 35 U.S.C. 112b. That is, it is not clear whether the claim is intending to include “at least one food ingredient within the cup and additionally, another “at least one additional food ingredient comprising icing” or whether claim 12 is intending to further limit “the at least one food ingredient within the cup” to further comprise icing.
Regarding claims 12 and 18, if it could have been construed that Zoeller did not specifically teach or suggest a plurality of cinnamon rolls and further including at least one additional food ingredient comprising icing, then it is noted that Thornton teaches it has been conventional in the art of packaging dough based products, to package a plurality of dough products as a plurality of cinnamon rolls (see paragraph 29, “cinnamon rolls dough nuggets”) together with a separate container that can comprise icing (see figure 1, item 16 and paragraph 29, “icing”). Thornton further teaches that there can be a third food product either in a separate product container (22) or not (see paragraph 16 and page 5, claim 23) and is therefore teaching and suggesting at least one food ingredient in the cup as well as an additional food ingredient comprising icing.
It would have been obvious to one having ordinary skill in the art to have modified Zoeller to package a plurality of cinnamon rolls and icing as at least one additional food ingredient, together with another food ingredient within the cup, as taught by Thornton, as an obvious substitution of one type of dough product and auxiliary ingredient in a separate container, for another recognized to be packaged in similar types of packaging.
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 13 above, and in further view of Ward (US 20130213841).
Regarding claim 19, the claim differs from the combination as applied to claim 13 in specifically reciting taking the separator from a stack of nested separators for positioning upon the cup.
However, Ward teaches a closure to a container, which closure comprises a support, which can be in a nested configuration (see figure 14) prior to placing the closure onto a cup (see figure 15a).
To therefore modify the combination and to arrange the closure as taught by the secondary references into a nested configuration and to then apply the closure to the cup from a nested stack would have been obvious to one having ordinary skill in the art, based on conventional expedients for how a closure can be arranged prior to use.
Response to Arguments
On page 6 of the response, Applicant urges that Zoeller teaches away from a column support by emphasizing the advantage of the separator being able to be positioned in any desired location dependent upon the size of the compartments including placing the dividing wall directly atop a small quantity of substance and that this functionality depends on freedom from a fixed structural support rather than reliance on a column support.
Thus urging has been considered but is not sufficient to overcome the rejection. It is noted that while Zoeller does discuss on column 4, lines 8-15 that the divider wall can be positioned in any desired location, Zoeller also additionally teaches a different embodiment in figure 6 (see column 2, lines 41-43), where a food ingredient such as icing can be positioned within a cup 30 that is then placed in the container defined by wall (11) and which cup has a separator positioned thereon (19). Therefore, Zoeller is not seen to teach away from a cup comprising a food ingredient and which cup can be covered by a separator.
Further on page 6 of the response, regarding Sicopal, Applicant urges that the central column is integrated with the bottom of the bucket and not the lid and therefore differs fundamentally from the claimed invention, because the central column in Sicopal does not extend from the main body portion of the lid downwardly to abut the bottom wall of the cup.
Thus urging is not seen to be sufficient to overcome the rejection. In figure 1 for example, Sicopal teaches that there is a structure that can be construed as analogous to Zoeller’s separator, which separator has a main body portion positioned on a rim of the container, and which separator has a column support extending from the main body portion and which abuts the bottom wall of the cup. See annotated figure 1 below:
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Therefore, Sicopal is teaching a separator and a column support as claimed. Sicopal is also teaching that the central column support is useful for preventing deformation of the container and therefore appears to be used for a similar purpose as the claimed column support (see Sicopal, page 2, lines 9-14 which discloses that a new one-piece container is economical with high crush resistance). On page 4, Sicopal further teaches that the central chimney does not show any settling under load and is therefore a key element in the container’s resistance to crushing (see the 7th paragraph). Paragraph 5 on page 3 of Applicant’s specification as filed appears to disclose a similar functionality to the separator and the column support.
On page 7 of the response, Applicant urges that there is not teaching or suggestion to invert the base of Kim so that it functions as a lid and the reference teaches away from inversion because the purpose of the lid is to allow visual inspection of the packaged strawberries without opening the container. Applicant also urges that Kim’s column support extends beyond the rim of the container body, which is in contrast to the claimed column support that is designed with a length corresponding to the distance between the rim and the bottom of the cup. Therefore, Applicant urges that Kim’s taller column teaches away from inversion and that if the lid is inverted and loaded with strawberries, the base cannot be attached because the strawberries would obstruct the column’s passage to the base.
These arguments have been considered but are not seen to be sufficient to overcome the rejection, because the claims do not provide any particular height limitation to the column support and because Kim has also been relied on to teach that it has been conventional to use a column support extending from a main body and abutting a bottom wall of a container, for the purpose of preventing deformation of the container when pressure is applied to the container. The reference has not been specifically relied on to teach the new claim limitation of the column support having a frustoconical shape that tapers in a direction away from the main body portion. Furthermore, since Kim’s portion 21 engages with the column support 16, this is not seen to teach away from positioning Kim’s container in an upside down configuration. That is, it would have been reasonable to expect that Kim’s container would still have allowed visual inspection even if the container was placed upside down, especially as the two halves are also locked in place at their rim via a catch (see figure 10, item 14b and paragraphs 43-44 of the machine translation). Further regarding the filling of Kim’s lid with food resulting in obstruction of the column’s passage to the base, this argument is not supported by sufficient evidence because this would also have been a function of the type of food and how much food was positioned in the container before engaging the lid with the column support. In this regard, Kim is open to various other types of foods (see at least, paragraph 51 of the machine translation). Additionally, Kim provides further evidence that positioning a frustoconical support between a lid and a base of a container has been recognized to prevent deformation of a container. The rejection is not relying on specifically changing the shape of Zoeller’s cup, but rather is relying on the concept of providing an additional structural element to Zoeller’s closed cup, such as a column support that extends from Zoeller’s separator to the bottom wall, because Sicopal and Kim teach that such a support can beneficially provide resistance against deformation.
On page 8 of the response, Applicant urges that KR885 teaches away from a column support extending from the lid because the alleged support 12 is detachable from the lid to access the food product. Applicant also urges that KR885 discloses attaching the alleged column support 12 to the base via a snap and does not disclose or suggest a column support extending from or being integral with the lid.
These arguments have been considered but are not commensurate in scope with the claims, which do not exclude KR885’s structure 12 from being construed as a column support and which abuts the bottom wall while also including additional structural elements to abut the bottom wall; and which even if detachable, still extend from the lid and tapers away from the main body.
Further on pages 8-9, Applicant urges that the KR885’s ring 24 does not constitute an opening to the column support. Applicant further urges that the opening in the main body leading into the hollow column support provides the advantage of relieving pressure from expanding dough by transferring the pressure through the opening and into the hollow column support, which advantages are not taught or suggested by the prior art.
These urgings are not seen to be sufficient to overcome the rejection, because the claims do not exclude KR885’s structure from reading on the claimed column support and main body portion. That is, the claim only recites that the main body portion includes an opening leading into the hollow support, and in this regard, KR885 can be construed as having an opening which also leads “into” the column support:
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Regarding the transferring of pressure, it is noted that the prior art already teaches a column support that is useful for preventing deformation of the container, via the positioning of a central column support, such that it would have been reasonable for one having ordinary skill in the art to have expected that forces applied against the container, as further taught by Sicopal, Kim and KR885 would also have transferred forces through the column support to relieve pressure. It is additionally noted that only claim 15 recites “transferring forces, developed from the increase in pressure,” which the prior art would also have been performing as a result of the increase in pressure in Zoeller’s package as well as since the secondary references teach that the column support is useful for preventing package deformation.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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/VIREN A THAKUR/Primary Examiner, Art Unit 1792