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 .
Election/Restrictions
Applicant’s election without traverse of Group I claims 1-16 in the reply filed on 10/31/2025 is acknowledged. Claims 17-50 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected inventions, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 10/31/2025.
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.
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.
Claims 1-16 are rejected under 35 U.S.C. 103 as being unpatentable over Vogler (US 20170258098), OR Smietana (US 4915964) in view of NPL reference “Taco Bell is Finally Bringing Back Double Decker Tacos” by Dennis Lee, hereinafter Lee.
Regarding claims 1-16, Vogler entire document and Smietana teaches an edible container (see figure 10 and Col. 4, lines 63-68 of Smietana; or Figure 19 and para 28 of Vogler) having a body into which food items are disposable for consumption with the edible container comprising a tortilla (see abstract and Col. 4, lines 63-68 of Smietana; or Figure 19 and para 28 of Vogler), wherein, the body has a conical configuration (Col. 4, lines 63-68; see figure 5 and 10 of Smietana; or Figure 19 and para 28 of Vogler) in which food elements which include meltable food material like cheese may be placed (Col. 1, lines 13-18 of Smietana; OR Figure 19 - para 28 of Vogler). Vogler and Smietana further teach a generally circular tortilla formed of dough sheet being folded so that one side of the tortilla is folded over a second side of the tortilla with an edge of the one side extending from a front face to a rear face of the cross-section, the first and second sides of the tortilla continuing to the open mouth with both of the folded first and second sides forming an upper front lip of the mouth that is lower than a rear, elevated lip of the mouth and cooking (which makes a relatively hard outer skin or wall) to keep the cone shape (see Smietana figure 9, near item 31; see figure 10, item 21 and at least “closed apex” described in column 5, lines 1-5 and column 3, lines 54-56 of Smietana; OR para 31 of Vogler), and smaller closed end is closed by a portion of a periphery folded (see figure 10 of Smietana; OR Figure 19 of Vogler).
Smietana or Vogler do not teach “a filling food material” arranged between the first layer of food material and the second layer of food material (as recited in claim 1), wherein “the filling food material” (as recited in claim 14) occupies “substantially the entire space between” the first layer of food material and the second layer of food material, and (as recited in claim 15) “the filling food material is different from” the first layer of food material and the second layer of food material. Lee teaches reintroduction of a double decker taco that was on sale when it “first made its debut in 1995” (see 1st paragraph on page 1), with the photograph on page 2 disclosing that in a double decker taco, which has a filling food material such as “refried beans” (see page 2, 1st paragraph) between first layer of food material and a second layer of food material forming the taco; and also teaches the filling food material (i.e. refried beans) occupies substantially the entire space between the first layer of food material and the second layer of food material (see photo on page 2), and that the filling food material (i.e. refried beans) is different from the first layer of food material and the second layer of food material. Lee also teaches wherein upper peripheries of each of the first layer of food material and the second layer of food material are substantially aligned with each other. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to further include “a filling food material” arranged between the first layer of food material and the second layer of food material. The ordinary artisan would have been motivated to modify Smietana or Vogler at least for the purpose of creating multiple layers of distinct flavor fillings without mixing them with each other, and provide more popular choices to consumer.
Additionally, regarding claims 7-9, it is noted that a generally circular shape is taught (see for example, Figure 12 of Smietana and Figure 5 of Vogler); also tortillas a generally circular (see Lee photo on page 2). However, the above claims differ only in terms of shape and applicant has no support data, which convinces that the particular claimed configuration/shape is significant or is anything more than one of numerous configurations/shape a person of ordinary skill in the art would find obvious for the purpose of providing a recognizable shape. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). See also MPEP 2144.04 IV(B).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JYOTI CHAWLA whose telephone number is (571)272-8212. The examiner can normally be reached M-F 9:30- 5:30.
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/JYOTI CHAWLA/Primary Examiner, Art Unit 1791