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 .
The amendment filed 7/7/2025 has been entered.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1 and 3-6 is/are rejected under 35 U.S.C. 103 as being unpatentable over US Patent No. 3,001,665 (Tomarin hereinafter) in view of US PG Pub No. 2020/0163474 (McCartney of record) and US PG Pub No. 2009/0250368 (Earl et al. hereinafter) and US Patent No. 10,336,504 (Prezecki II of record).
In re claim 1, with reference to Figs. 1, 2, and 5, Tomarin discloses: A food portions controlling device comprising: a hollow body defining a useful volume, the hollow body including a bottom (12) and an inner wall (20) connecting said bottom to a peripheral edge (22) of the hollow body, three vertical fixed walls (14, 16, 18) manufactured in one-piece with the body and rigidly fastened to the bottom and to the inner wall, dividing the useful volume into three compartments (A, B, and C below), a central axis from which said walls extend radially (see Fig. 1).
It has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed (i.e. “food portions controlling”) does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. See MPEP 2114, II.
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Tomarin fails to disclose a movable wall in a respective compartment, being mounted so as to slide along the central axis and to pivot about the central axis, authorizing translational movements of the vertical movable walls along said central axis, so as to vary a volume of use of each respective compartment alone without modifying the volumes of use of the other compartments.
However, with reference to Fig. 3 below, McCartney teaches the concept and motivation for adding movable walls to a compartment formed by at least a fixed wall (4), for the purposes of modifying the volume of the compartment to match the dietary requirements of a user by defining portion sizes (paragraphs 0039-0040), vertical movable walls being mounted so as to slide along a central axis (31) and to pivot about the central axis relative to the fixed wall.
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Further, with reference to Fig. 6, Earl et al. discloses a container with separate compartments, and a vertical movable wall (110) in a respective compartment (formed by fixed walls 210), so as to vary a volume of use of a respective compartment alone without modifying the volumes of use of the other compartments (“Since separators 110 are rotatable, an angular movement of separator 110 changes the volume of compartment 150. This self-adjusting feature permits storage of differing quantities and sizes of materials within compartments 150”, Earl et al. paragraph 0044).
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Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention to have modified Tomarin in view of McCartney to have included a movable wall in each fixed compartment of Tomarin as taught by Earl et al. for the purposes of providing a self-adjusting feature which permits storage of differing quantities and sizes of materials within compartments (Earl et al., paragraph 0044).
Tomarin in view of McCartney and Earl et al. fail to disclose wherein said central axis including at an upper end includes a locking means blocking or authorizing translational movements of the vertical movable walls along said central axis.
However, with reference to Figs. 1 and 4, Prezecki II teaches a storage device, wherein adjustable/rotatable walls (221-224) are rotatable about a center axis, wherein said central axis including at an upper end a locking means (50, and threaded shaft at 36) blocking or authorizing translational movements of the vertical movable walls along said central axis (column 4, lines 34-50).
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Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention to have provided a locking means to the shaft of Tomarin in view of McCartney and Earl et al. as taught by Prezecki II for the purposes of securing the storage divider system in position in order to maintain the new customized configuration of the storage device (Prezecki II column 4, lines 34-50).
In re claim 3, with reference to the Figs. noted above, Tomarin in view of McCartney and Earl et al. disclose the claimed invention including wherein the body has a frustoconical shape closed at a small base by the bottom and open at a large base by the peripheral edge (See Tomarin Fig. 5 above).
In re claim 4, with reference to the Figs. noted above, Tomarin in view of McCartney, Earl et al. and Prezecki II disclose the claimed invention including wherein the movable wall of each respective compartment is able to occupy different angular positions in each respective compartment, but not wherein angular positions of said wall being marked by indicators located on a peripheral edge of the body.
However, as in re claim 1 above, McCartney discloses marked indicators (6) located on a peripheral edge of the body (2), for assisting a user in locating angular positions of a rotatable compartment wall (paragraph 0046).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention to have modified the device of Tomarin in view of McCartney, Earl et al., and Prezecki II further to have included marked positions as further taught by McCartney for the purposes of assisting a user measuring out correct portions of food (paragraph 0046).
In re claim 5, with reference to Figs. noted above, Tomarin in view of McCartney, Earl et al., Prezecki II disclose the claimed invention including wherein the locking means comprises a threaded plug (50) sliding on a tapped portion (36) of the central axis (see Fig. 4 of Prezecki II above), closure and opening of the locking means corresponding respectively to a movement from top to bottom and from bottom to the top.
In re claim 6, with reference to the Figs. noted above, Tomarin in view of McCartney, Earl et al. and Prezecki II disclose the claimed invention including a cover able to hermetically close the body (column 2, lines 25-30, and column 3, lines 4-8, noting that Tomarin requires push-out plugs 70 in order to release air/steam, and thereby prior to the opening of such plugs, the cover is interpreted as to not allow for the release of air/steam, and thereby meet the requirements of a hermetic cover).
Response to Arguments
Applicant’s arguments with respect to the pending claim(s) have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW T KIRSCH whose telephone number is (571)270-5723. The examiner can normally be reached Mon-Fri, 9a-5p EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nathan Jenness can be reached at 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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/ANDREW T KIRSCH/Primary Examiner, Art Unit 3733
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