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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on March 20, 2026 has been entered.
Response to Amendment
Those objections and rejections that are not repeated in this Office Action have been withdrawn.
It is noted that Applicant’s remarks have not addressed the objections to the drawings and therefore, these objections have been maintained as restated below.
Claims 1-20 are currently pending and rejected.
Drawings
The drawings are objected to under 37 CFR 1.83(a) because they fail to show elements as described in the specification. Any structural detail that is essential for a proper understanding of the disclosed invention should be shown in the drawing. MPEP § 608.02(d).
Specifically, paragraph 98 as filed refers to Figure 2A introducing a push button release, which cannot be found in the figures.
“Interior threads 817” as discussed at paragraph 116 of the specification also cannot be seen in the figures.
Additionally, “the upper connection assembly” as described at paragraph 117 does not appear to be shown in the figures.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description:
“700” (paragraph 96); “750” (paragraph 97); “141” (paragraph 98); “152” (paragraph 106)3.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because:
Additionally, it appears that reference character “821” and “814” are pointing to the same structure (see paragraph 115 and figure 13)
Figure 11 is unclear as to what reference character “748” is pointing to. It appears to be pointing to the same structure as “730” as shown in figure 10. Clarification is required.
The drawings are objected to because:
Paragraph 115 refers to “aperture 819” which is not clearly shown.
Paragraph 115 also refers the lower tube 814 which may have a plurality of exterior threads 823, however reference character 823 is not associated with lower tube 814, as shown in figure 13
Paragraph 117 discloses that “tube 909 may include a track “931” however, in figures 20-26, reference character 931 does not appear to be associated with tube 909 (see figure 23 and 26).
Paragraph 117 refers to “rod 943” when discussing figures 20-26 however, “943” cannot be found in these figures.
Paragraph 117 refers to “folds 933” however figure 20 does not appear to be using reference character 933 as pointing to folds.
As per MPEP 608.02(VII)(B), “[b]lack and white photographs, including photocopies of photographs, are not ordinarily permitted in utility and design patent applications. Photographs or photomicrograph printed on sensitized paper are acceptable as drawings, in lieu of India ink drawings, as are photographic images submitted via the USPTO patent electronic filing system, to illustrate inventions which are incapable of being accurately or adequately depicted by India ink drawings, e.g., electrophoresis gels, blots, (e.g., immunological, western, Southern, and northern), autoradiographs, cell cultures (stained and unstained), histological tissue cross sections (stained and unstained), animals, plants, in vivo imaging, thin layer chromatography plates, crystalline structures, metallurgical microstructures, textile fabrics, grain structures and, in a design patent application, ornamental effects. The photographs or photomicrographs must show the invention more clearly than they can be done by India ink drawings and otherwise comply with the rules concerning such drawings.
Black and white photographs submitted in lieu of ink drawings must comply with 37 CFR 1.84(b). There is no requirement for a petition or petition fee, and only one set of photographs is required. See 37 CFR 1.84(b)(1).
In this instance, it is noted that the photographs (figures 12-32a) are unclear with respect to the clarity of the reference characters used as well as what the reference characters are attempting to be pointing to.
In addition, while figures 1-11 are line drawings, the clarity of the reference characters is not clear. For instance, the reference characters as shown in figures 1 and 1A are not of sufficient quality. This is also the case with figure 2, 2A, 3D, 4C, 4D, 7 and 9.
In light of the lack of clarity in the figures, as presented above, it is not clear as to what portion of which figures points to “a shuttle portion” as recited in claim 4.
Claim 5 recites that “said shuttle comprises an upper connection assembly” however said “upper connection assembly” cannot be clearly found in the figures.
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “upper connection assembly” must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claims 1, 6, 10 and 17 are objected to because of the following informalities:
Claim 1 recites the limitation, “a device to deliver a concealed article about food item.” In light of the specification (see at least the abstract), it appears that this limitation should recite, “a device to deliver a concealed article about the food item.”
Claim 1 recites, “said food item’s substantially upper surface.” (see line 9). For matters of form, this limitation should be amended to recite, “said substantially upper surface of said food item.”
Claim 6 recites the limitation, “wherein said release mechanism removably positioned.” It appears that this should recite, “wherein said release mechanism is removably positioned.
Claim 10 recites, “an opposing a distal aperture.” It appears that the term “a” should be deleted.
Claim 17 recites, “a. base supporting a tube.” (see line 3). For matters of form, this limitation should be amended to recite, “a. a base supporting a tube.”
Claim 17 recites, “said shuttle’s release aperture” on lines 4 and 6-7. For matters of form, this limitation should be amended to recite, “said release aperture of said shuttle.”
Claim 17 recites, “said tube’s release aperture” on line 7. For matters of form, this limitation should be amended to recite, “said release aperture of said tube.”
Appropriate correction is required.
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.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “release mechanism” in claims 1, 3, 6, 7, 8 and 17.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof (i.e. retractable structures that allow for a shuttle to move from a concealed position to a visible display position).
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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.
Claim 2, 4, 9-20 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.
Claim 2 recites, “said device comprises a base supporting a tube.” Claim 1 already recites that the device has a shuttle positioned within a tube, therefore claim 2 is not clear whether “a tube” is referring to the same tube as claim 1 or another and different tube.
Claim 4 recites, “including a tube having a track.” Claim 1 already recites that the device has a shuttle positioned within a tube, therefore claim 4 is not clear whether “a tube” is referring to the same tube as claim 1 or another and different tube.
Claims 9, 11, 15 and 16 recite the limitation, “said packaging system” which lacks proper antecedent basis.
Claim 10 recites “wherein said interior housing comprises a substantially open proximate portion and an opposing a distal aperture.” This limitation is not clear as to what the “open portion” is proximate to and what the “aperture” is distal to.
Claims 12-14 are rejected based on their dependence to a rejected claim.
Claim 13 recites, “a food product” and claim 14 recites, “said food product comprises a cake.” It is not clear whether “a food product” is intending to refer to the same food as “a food item” as recited in claim 1 or whether “a food product” and “said food product comprises a cake” are different from “a food item” as recited in claim 1.
Claim 16 recites, “a distal portion.” It is not clear as to what this portion is “distal to.
Claim 17 recites, “base supporting a tube having a release aperture.” This limitation is not clear as to what has the release aperture, the base or the tube.
Claim 17 recites, “an upper barrier aligned above said tube.” This limitation is not clear as to what “an upper barrier” is aligned with.
Claim 17 recites, “wherein said shuttle’s release aperture aligns with said tube’s release aperture in a loaded position.” It is not clear as to what is in a “loaded position”, the release aperture of the tube or the shuttle. It is also unclear as to what it means to be in a “loaded position.”
Claim 17 recites, “a rod spacing said upper barrier and said shuttle.” This limitation is not clear as to whether it is intending to recite that there is a rod that spaces the shuttle from the upper barrier or whether the rod provides some space for the upper barrier and the shuttle.
Claim 18 recites, “a confetti kit removably aligned below said upper barrier.” This limitation is not clear as to what the “confetti kit” is aligned with.
Claims 19 and 20 are rejected based on their dependence to claim 17.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 17 and 19 are rejected under 35 U.S.C. 102a1 as being anticipated by Herber (US 20030064661), as evidenced by the definition of “traverse.”
Regarding claim 17, Herber discloses a device to deliver a concealed article (see figure 1, item 12) about a food item (see figure 2, item 50 and paragraph 23, “cake”), said device comprising:
a. a base (see figure 1, item 16 and paragraph 23, “base”) supporting a tube (see figure 1, item 18, 20) having a release aperture (see the aperture through which the release line 102 extends (see figure 1 and 4, item 102));
b. a shuttle (see figure 1 and 6, item 32, 60 and 64, which together have been construed as being a shuttle) repositionable within said tube and having a release aperture (see figure 1 and 6, where the arm 64 of the shuttle has an aperture).
The shuttle’s release aperture is seen to “align” with the tube’s release aperture in a loaded position (because the claim does not limit what it means for the apertures to be aligned and because the two apertures can be construed as being aligned in a similar manner as two points on a line are aligned); and “traverses” a portion of said tube. That is, to “traverse” means to extend across as evidenced by the dictionary definition; and therefore, since the shuttle’s release aperture as a diameter, the shuttle’s release aperture is seen to “travel across” the tube to some degree. See annotated figure 1 below:
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Herber also teaches a release mechanism (see figure 4, item 102) capable of being removably positioned within said shuttle's release aperture and said tube's release aperture (see figure 1 and paragraph 36, “release line” “pulling the release line”). Since the claim is directed to the product and not the method of making the product, a release line which has been threaded through the shuttle release aperture and the tube release aperture would also have been capable of being removed from both of these apertures.
Herber teaches that there is an upper barrier aligned above said tube (see figure 1, item 42; see figure 5). The claim does not specify what the upper barrier is a barrier against and what it is aligned with. As such, Herber’s structure as discussed above is seen to be “aligned” and is seen to be a barrier.
Herber further teaches a rod (see figure 3, item 28) spacing said upper barrier and said shuttle, wherein said shuttle is adapted to traverse a portion of said tube to deliver said concealed article from an isolated position to an external position (see figure 3 and 5, which shows an external position compared to figure 1 and 2 which shows a concealed article in an isolated position.). At paragraph 25, Herber discloses that the concealed item is pushed up such that it and the shuttle portion 32 can traverse a portion of the tube to an external position.
Regarding claim 19, Herber discloses a food item positioned substantially around the tube (see figure 4 and 5, item 50, which is a cake).
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, 2, 6 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Charm (US 20190380352) in view of “Surprise Cake Stand” and “Surprise Cake”
Regarding claim 1, Charm discloses an assembly comprising:
A food item having a substantially upper surface (see at least, paragraph 19, “cakes” and paragraph 61, “hiding a surprise item in a cake”) and a device capable of delivering a concealed article about a food item (see at least, the abstract and figure 1). Charm further discloses wherein the device delivers said concealed article from an isolated position to a display position (see at least, the abstract and paragraph 7: “delivers the concealed article from an isolated position substantially parallel with the food item to an adjacent display position”).
If it could have been construed that Charm did not specifically teach a food item having a substantially upper surface and such that the device itself was concealed by the food item, “Surprise Cake Stand” teaches an assembly on which a food item is positioned, and which food item also includes a device to deliver a concealed article about a food item (see page 8 and 10 of the reference where central to the food is a device to deliver a concealed article). Page 8 teaches an article (“gift”) positioned on a shuttle (see #2: “Place the Gift Pod on the Shuttle”) and where the shuttle is pushed within a tube and restrained from movement in a loaded position by engagement of a release mechanism, such that when a release mechanism is pulled, the shuttle will move to reveal the article (see page 8, #3: “When ready, pull the release ring…to eject.”). Page 10 teaches the food item having a substantially upper surface on a support. As shown on page 10, the device is hidden within the food item.
It is further noted that “Surprise Cake” also teaches a food item with a substantially upper surface and a device to deliver a concealed article about the food item (see page 7 of the reference, “Popping Cake Stand + Cake Carrier”).
To therefore modify Charm and to provide the assembly with a food item having a substantially upper surface would have been obvious to one having ordinary skill in the art for the purpose of concealing Charm’s device within the food so as to provide the surprise when actuating Charm’s device.
As shown in figure 7, Charm further teaches that the device has a shuttle operable to move the concealed article from a first, isolated position to a second, display position visible about the food item, and wherein the device delivers the concealed article from the isolated position to the display position in response to activation of said release mechanism, wherein the shuttle is operable with the release mechanism (see paragraph 72 and 79 which discloses that the spring in combination with an actuator allows for the releasing of the container 130 from the tube to reveal the article; see figure 6A, showing a release mechanism such as plunger 121,122). It is additionally noted that “Surprise Cake Stand” also teaches a shuttle positioned within a tube and restrained from movement in a loaded position by engagement of a release mechanism (see page 5 which teaches a shuttle within a tube that is restrained by a release ring; see page 8 which discloses pulling the release ring to eject). It is noted that Applicant’s specification discloses release mechanisms in figures 6-7 that resemble those disclosed at figures 6-7 of Charm.
Regarding the limitation of, “said device delivers said concealed article external from said isolated position to said display position external of said food item’s substantially upper surface in response to activation of said release mechanism, wherein said shuttle being operable with said release mechanism,” the combination as discussed above is teaching and suggesting that the food item should completely conceal the device so as to only reveal the concealed article from the upper surface of the food item. This is further supported by “Surprise Cake Stand” also teaching a shuttle with a spring (see page 5) with a release mechanism (see page 5, “pull ring”) and where the device is hidden within the food item upper surface (see page 10 and 11) such that the shuttle is operable to reveal the concealed item from the food upper surface.
Therefore in view of “Surprise Cake Stand” it would have been obvious to one having ordinary skill in the art to have provided a shuttle that can move the concealed article to a display position visible about the food item, for the purpose of revealing the article as a surprise, as already desired by Charm.
Regarding claim 2, Charm teaches that the device comprises a base supporting a tube and which tube has a release aperture for the purpose of being able to disengage Charm’s shuttle (see figure 6a, and plunger 121) that releases the shuttle (see figure 6a, where the shuttle is to the right of the plunger 121; see paragraph 69). It is also noted that “Surprise Cake Stand” also teaches that the device comprises a base (see page 6, “Base”) supporting a tube (see page 5, “Tube”) having a release aperture (see page 7, “release ring”). That is, since there is a release ring that works with the shuttle to cause the concealed article to be revealed (see at least, page 8, #3, “When ready, pull the Release Ring…to eject”), it would have been obvious to one having ordinary skill in the art that the release ring would have resulted in an aperture within the tube. Thus, it would have been obvious to one having ordinary skill in the art to have modified Charm’s tube if necessary to have a release aperture in Charm’s tube, for the purpose of being able to engage and disengage Charm’s shuttle so as to allow the shuttle and concealed article to rise in the tube and be revealed.
Regarding claim 6, Charm discloses the release mechanism (see figure 6a, item 121, 123) that is removably positioned about said device in a loaded position (see paragraph 69). That is, the radially outward movement of the plunger 121 would allow for the tension in the spring to release and then allow for the shuttle to rise in the tube. (see figure 7).
Regarding claim 7, Charm discloses that activation of the release mechanism would disengage the release mechanism from the shuttle to permit movement of the shuttle (see paragraph 69).
Claims 3 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claims 1 and 6 above, which relies on Charm (US 20190380352) as the primary reference, and in further view of Coste (FR 2667494) and Ming (US 20190046893).
Regarding claim 3, in view of “Surprise Cake Stand” it would appear that the shuttle would have had some form of a retention mechanism, in order to secure the shuttle in position and then allow the shuttle to remove after pulling the release ring, as shown on page 5 and on page 8: “When ready, pull the release ring (or turn Music box) to eject.” Furthermore, since “Surprise Cake Stand” teaches the pull ring extending through the tube, it would have been obvious to one having ordinary skill in the art that there would have been some aperture in the tube in order for the pull ring to interact with the shuttle. Additionally, as shown in figure 6a, Charm also teaches a plunger 121 which would need to extend through a tube aperture in order to engage the shuttle and allow for the release from the shuttle to allow the shuttle to rise.
Nonetheless, claim 3 differs in specifically reciting, “said shuttle having a release aperture and said tube having a tube release aperture, and wherein said release mechanism is removably positioned within said shuttle release aperture and said tube release aperture.”
Coste teaches a base (figure 2, item 2) which supports a tube (figure 2, item 3, 13), that comprises a shuttle (figure 2, item 16) and where the tube and the shuttle both comprise an aperture in order for the release mechanism 8 to engage both the tube and the shuttle. Pulling of the release mechanism 8, allows for the shuttle to elevate and reveal a concealed item (see figure 2, item 18 and paragraph 7 of the machine translation, which discloses that the liquid 18 is revealed upon pulling a locking pin 8, which locking pin is positioned through an aperture in the tube 3 and also positioned within an aperture in the shuttle 16. See also paragraph 11 which recites, “In this position a transverse hole of this rod is located opposite the hole 15 of the stopper 20, which allows the locking pin 8 to be inserted into these two holes to block the piston 16”). Coste’s release mechanism is removably positioned within an aperture of the shuttle and the aperture of the tube. Ming teaches a similar concept to Charm and Coste, as shown in figure 8 and 9, where there is a receiving recess in the shuttle (136) as well as an aperture in the tube (figure 8, item 150) for allowing a releasing mechanism (128 - release pin) to engage both the tube as well as the shuttle, and where upon pulling of the pin, the shuttle can be released to reveal a concealed item (see figure 9). Ming also teaches a release mechanism 128, that is positioned within an aperture of the tube (150) and a recess in the shuttle.
Since Charm and “Surprise Cupcake Stand” are already both teaching a similar concept, to therefore modify Charm and to provide an aperture in the shuttle and an aperture in the tube such that the release mechanism is removably positioned within the shuttle release aperture and the tube release aperture would have been obvious to one having ordinary skill in the art, as taught by Coste and Ming, for the same purpose of using a locking pin/lever to prevent the shuttle from moving, and when the pin/lever is released, the shuttle is capable of moving to the top of the tube to reveal the concealed item.
Regarding claim 8, the combination teaches a release mechanism such as a pulling structure (see Coste figure 3, item 7 and 8).
While Coste does not teach the release mechanism comprises a card, Ming also teaches that the release mechanism can comprise a card (see figure 2, item 118, 114), for the purpose of providing instructions to “pull” the release mechanism, as well as providing other messages such as greetings and sentiments (see paragraph 20).
Charm also teaches at paragraph 69 that additional release mechanisms can be used (see paragraph 69: “Those skilled in the art having the benefit of this disclosure will recognize additional plunger and/or connection arrangements and orientations”). To therefore modify Charm and to also include a card with the release mechanism as taught by Ming would have been obvious to one having ordinary skill in the art, for the purpose of providing the user with various greetings and sentiments.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Charm (US 20190380352) as the primary reference, and in further view of Wong (US 6572435) and Zhang (CN2652476).
Regarding claim 4, in view of “Surprise Cake Stand” the combination appears to teach that a tube has a track (see page 5, where the interior of the tube appears to have 6 track elements)
The claim differs in specifically reciting, “including a tube having a track adapted to engage a corresponding shuttle alignment portion.”
However, Wong teaches a shuttle (see figure 3-5, item 220,229) having a shuttle alignment portion (231) which engages with a track (figure 3, item 130), which is part of the tube (Figure 3, item 110). Wong teaches that the track aligns with the shuttle alignment portion can help to control the movement of the shuttle when raising the articles out of the device (see column 4, lines 44-53).
Zhang also teaches that a tube (figure 1, item 4) which comprises a track (see figure 1, item 3) that engages with shuttle alignment portions (see figure 1, item 7,8) for the purpose of allowing the shuttle to move so as to provide an article in a display position (see paragraph 4) but prevents the shuttle from rotating (see paragraph 21 of the machine translation).
Since Charm also teaches a movable shuttle, it would have been obvious to one having ordinary skill in the art to have modified Charm’s tube and provided tracks for the purpose of allowing controlled vertical movement of the shuttle, while also preventing rotation of the shuttle.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 3 above, which relies on Charm (US 20190380352) as the primary reference, and in further view of Herber (US 20030064661).
Claim 5 differs from the combination, as applied to claim 3, in specifically reciting, “wherein said shuttle comprises an upper connection assembly.”
Herber teaches that the concealed article 12 can be attached to the shuttle 32 (see paragraph 25). As the claim does not limit what is “an upper connection assembly” and as Herber teaches that the article is attached to the shuttle, which shuttle is positioned below said article, it would have been obvious to one having ordinary skill in the art that the shuttle comprises an “upper connection assembly” for the purpose of securing an article there above.
To therefore modify the combination and to also provide an upper connection assembly, as taught by Herber, would have been obvious to one having ordinary skill in the art, for the purpose of being able to attach an article on top of the shuttle, as taught by Herber.
Claims 9-16 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Charm (US 20190380352) as the primary reference, and in further view of “The Cake Decorating Co.” and Allison (US 20150164089) and in further view of Linwood (US 2784895)
Claim 9 differs from the combination as applied to claim 1 in specifically reciting, wherein said packaging system includes an interior housing. It is initially noted that the claims do not limit relative to what is the “substantially open portion” proximate to and what the opposing aperture is “distal” to. For examination purposes, the claim has been construed to mean that there is an open portion and an opposing distal aperture.
Claim 10 differs in specifically reciting, wherein said interior housing comprises a substantially open proximate portion and an opposing a distal aperture.”
However, “Surprise Cake” also teaches a packaging system including an interior housing that can temporarily substantially house the device and the food item (see page 1 which shows a packaging system such as the base and lid that would have been capable of temporarily substantially housing the device and a food item). If it could have been construed that even “Surprise Cake” did not specifically teach a packaging system adapted to temporarily substantially house said device and food item, then it is noted that “The Cake Decorating Co.” teaches package systems that have been commonly used for transporting cakes (see pages 1 and 2). Additionally, Allison also teaches packaging systems commonly used for packaging cakes that have inedible elements associated therewith (see figure 5 which shows a cake on a base; paragraph 43 “cakes”).
In view of “Surprise Cake” which teaches a transport container with a closure (see the image on page 1) and in view of “The Cake Decorating Co.” which teaches shipping boxes, it would have been obvious to one having ordinary skill in the art to have modified Charm and combined the transport container of “Surprise Cake” and the transport box of “The Cake Decorating Co,” for the purpose of providing additional protection to the assembly and food item during transport and therefore teaching the packaging system including an interior housing.
Nonetheless, it is further noted that Linwood teaches shipping containers for articles such as cakes (see column 1, lines 15-17), where the packaging system comprises an interior housing (see figure 5, item 23 and 26), which interior housing comprises a substantially open proximate portion (see the circular rib element 26, which would have had an open proximate portion) and an opposing distal aperture (see figure 5, item 23, which is also a circular rib element and therefore would have had a distal aperture). Linwood teaches that these interior housing elements help to secure food items such as cakes in position (see column 2, lines 4-24).
To therefore modify the combination and provide an interior housing that comprises an open proximate portion and an opposed distal aperture, as taught by Linwood would have been obvious to one having ordinary skill in the art, for the purpose of providing additional securement of the assembly for shipping.
Regarding claims 11 and 12, it would appear that “Surprise Cake Stand” teaches an internal, substantially cylindrical shield removably aligned adjacent a food product as shown on page 10, lower right most image. See the annotated image below:
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If it could have been construed that “Surprise Cake Stand” was not clear in this regard, then it is noted that Linwood teaches an internal shield (see figure 5, item 24) which is substantially cylindrical and aligned adjacent a food product (27, 28), and used for the purpose of securing and supporting a food item in position (see column 1, lines 24-31 and column 2, lines 7-13).
To therefore modify the combination and to include a cylindrical internal shield would have been obvious to one having ordinary skill in the art, for the purpose of providing additional securement of the food item and device for transport.
Regarding 13, since Linwood teaches that the substantially cylindrical sidewall secures the food item in position, said substantially cylindrical sidewall is capable of being removably aligned adjacent a food product.
Regarding claim 14, the combination as applied to claim 1 teaches that the food product comprises a cake.
Regarding claim 15, “The Cake Decorating Co” and Linwood both teach the packaging system includes an exterior shell comprising a plurality of folds, as clearly shown on page 2 of “The Cake Decorating Co” and as shown in figure 2 and 4 of Linwood.
Regarding claim 16, “The Cake Decorating Co” teaches that the packaging system comprises a first, second third and fourth sides, with the first and second sides opposing each other and the third and fourth sides opposing each other (see the figure on page 2). Since “The Cake Decorating Co” teaches a rectangular prism type box, it would have been obvious to one having ordinary skill in the art that the first and second sides are substantially perpendicular to the third and fourth sides. “The Cake Decorating Co” also teaches a “rigid” lid, because the lid can hold its shape, which lid is adapted to receive a portion of the first through fourth sides in an assembled position. It is additionally noted that Linwood teaches a similar structure to the packaging system and to the substantially rigid lid, as shown in figure 1-3, as that of “The Cake Decorating Co.”
Claims 17 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Herber (US 20030064661) in view of Coste (FR 2667494). The definition of “traverse” has been relied on as evidence.
Regarding claim 17, Herber discloses a device to deliver a concealed article (see figure 1, item 12) about a food item (see figure 2, item 50 and paragraph 23, “cake”), said device comprising:
a. base (see figure 1, item 16 and paragraph 23, “base”) supporting a tube (see figure 1, item 18, 20) having a release aperture (see the aperture through which the release line 102 extends (see figure 1 and 4, item 102);
b. a shuttle (see figure 1 and 6, item 32, 60 and 64, which together have been construed as being a shuttle) repositionable within said tube and having a release aperture (see figure 1 and 6, where the arm 64 of the shuttle has an aperture).
The shuttle’s release aperture is seen to “align” with the tube’s release aperture in a loaded position and “traverses” a portion of said tube. That is, to “traverse” means to extend across as evidenced by the dictionary definition; and therefore, since the shuttle release aperture has a diameter, it is seen to “travel across” the tube to some degree. See annotated figure 1 below:
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Herber also teaches a release mechanism (see figure 4, item 102) removably positioned within said shuttle's release aperture and said tube's release aperture (see figure 1 and paragraph 36, “release line” “pulling the release line”);
Herber teaches that there is an upper barrier aligned above said tube (see figure 1, item 42; see figure 5). The claim does not specify what the upper barrier is a barrier against and what it is aligned with. As such, Herber’s structure as discussed above is seen to be “aligned” and is seen to be a barrier.
Herber further teaches a rod (see figure 3, item 28) spacing said upper barrier and said shuttle, wherein said shuttle is adapted to traverse a portion of said tube to deliver said concealed article from an isolated position to an external position (see figure 3 and 5, which shows an external position compared to figure 1 and 2 which shows a concealed article in an isolated position.). At paragraph 25, Herber discloses that the concealed item is pushed up such that it and the shuttle portion 32 can traverse a portion of the tube to an external position.
If it could have been construed that Herber did not teach “wherein said shuttle’s release aperture aligns with said tube’s release aperture in a loaded position and traverses a portion of said tube” then it is noted that Herber also teaches in figure 8A-8B that there can be a slot which engages a release mechanism (see item 64 and paragraph 37), thus teaching other expedients by which the shuttle can be locked in a loaded position.
In this regard, Coste teaches a base (figure 2, item 2) which supports a tube (figure 2, item 3), which tube comprises a shuttle (figure 2, item 16) and where the tube and the shuttle both comprise an aperture in order for the release mechanism 8 to engage both the tube and the shuttle. Pulling of the release mechanism 8, allows for the shuttle to elevate and reveal a concealed item (see figure 2, item 18 and paragraph 7 of the machine translation, which discloses that the liquid 18 is revealed upon pulling a locking pin 8, which locking pin is positioned through an aperture in the tube 3 and also positioned within an aperture in the shuttle 16. See also paragraph 11 which recites, “In this position a transverse hole of this rod is located opposite the hole 15 of the stopper 20, which allows the locking pin 8 to be inserted into these two holes to block the piston 16”). Therefore, Coste is teaching an aperture in the tube which is aligned with the aperture of the shuttle, for the purpose of securing the shuttle in a loaded position, such that pulling of the release mechanism allows for the shuttle to rise upward due to decompression of the spring.
Since Herber is already teaching a similar concept, to therefore modify Herber and to provide an aperture in the shuttle that aligns with the tube’s release aperture would have been obvious to one having ordinary skill in the art, as taught by Coste, for the same purpose of using a locking pin/lever to prevent the shuttle from moving, and when the pin/lever is released, the shuttle is capable of moving to the top of the tube to reveal the concealed item.
Further regarding the release mechanism being removably positioned within the shuttle release aperture and the tube release aperture, it woud lhvae been obvious to one having ordinary skill in the art that a string, as taught by Herber would have been capable of being removed, especially as figure 3, for example, shows access ot the interior of the device.
Regarding claim 19, Herber disclose a food item positioned substantially around the tube (see figure 4 and 5, item 50, which is a cake).
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Herber (US 20030064661) as applied under 35 U.S.C. 102a1 or as being unpatentable over the Herber (US 20030064661) combination as applied above under 35 U.S.C. 103, both in further view of Wong (US 6572435), Howie (WO 2020165609) and Meno (US 10898824).
Regarding claim 18, as shown in figure 3, Herber teaches that a concealed article that can be revealed can be release material such as glitter (see paragraph 9). This can be construed as a glitter kit that is removably aligned below the upper barrier 42, when in the closed position.
While this might not specifically be confetti, it is noted that to modify Herber to use another conventional type of decorative particulate such as confetti would have been an obvious matter of engineering and/or design. It is noted that the term “confetti kit” is seen to read on some configuration that can reveal confetti.
Nonetheless, if it could have been construed that claim 18 differs from Herber in specifically reciting, “wherein said concealed article comprises a confetti kit removably aligned below said upper barrier,” then it is noted that:
Wong teaches shuttle (see figure 3, item 220) within a tube (see figure 3, item 112) which can eject confetti from the top upon activating a release mechanism (see figure 5, item 400 and column 1, lines 40-50) and therefore teaches the concealed article comprises a confetti kit.
Howie also teaches a tube (see figure 11C, item 12), comprising a shuttle (see figure 11C, item 14), which shuttle can rise up through the tube via spring mechanism (see figure 12C, item 16) for the purpose of releasing a concealed article, such as confetti (see page 3, lines 12-14; where “confetti” can be construed as a confetti kit), for the purpose of providing an extra surprise (see page 1, lines 15-16).
Meno teaches ejecting confetti via a shuttle (see figure 3, item 24) upon release of a release mechanism (see the abstract) and where the confetti kit is associated with a food item such as a cake (see figure 1, item 12 and column 1, lines 60-63).
As Herber is not limiting as to the particular product that is to be elevated from the shuttle, to modify Herber and to eject another type of product, such as a confetti kit (i.e. confetti) would have been obvious to one having ordinary skill in the art, for the purpose of providing an another and conventional form of entertainment to be associated with a food item.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Herber (US 20030064661) or as being unpatentable over the Herber (US 20030064661) combination as applied above under 35 U.S.C. 103 as applied to claim 19, both in further view of Surprise Cake”, Linwood (US 2784895) and “The Cake Decorating Co.”
Claim 20 differs from Herber in specifically reciting, “including a packaging assembly adapted to temporarily substantially enclose said food item about said device in a storage position.
In this regard, “Surprise Cake” also teaches a packaging system that can temporarily substantially house the device and the food item (see page 1 which shows a packaging system such as the base and lid that would have been capable of temporarily substantially housing the device and a food item). If it could have been construed that “Surprise Cake” did not specifically teach a packaging system adapted to temporarily substantially house said device and food item, then it is noted that “The Cake Decorating Co.” teaches package systems that have been commonly used for transporting cakes (see pages 1 and 2). Additionally, Linwood teaches shipping containers for articles such as cakes (see column 1, lines 15-17). Linwood teaches that the packaging system helps to secure food items such as cakes in position (see column 2, lines 4-24).
To therefore modify Herber and to include a packaging assembly as taught by “Surprise Cake”, “The Cake Decorating Co” and Linwood would have been obvious to one having ordinary skill in the art, for the purpose of providing additional securement of the combination of the device and cake, for transport.
Claims 17 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Charm (US 20190380352) in view of Coste (FR 2667494) and in further view of Herber (US 20030064661) and Zhang (CN 2652476). The definition of “traverse” has been relied on as evidence.
Regarding claim 17, Charm teaches a device to deliver a concealed article about a food item (see the abstract), the device comprising a base (see figure 5), supporting a tube (figure 5, item 714) having a release aperture (see figure 6A and 6B, which shows a release mechanism that extends through the tube 714 – see paragraph 69). That is, since there is a retractable plunger through the tube wall, it would have been obvious to one having ordinary skill in the art that the tube would have had a release aperture.
Charm further discloses a shuttle (see figure 7 and the structure directly above spring 156) capable of being repositioned within the tube (114).
There is a release mechanism (see figure 7, item 910, 930 and paragraph 78) that is removably positioned with respect to the shuttle and the tube release aperture and an upper barrier aligned above the tube (see figure 5, item 135, 135’).
The shuttle is clearly adapted to traverse a portion of said tube to deliver said concealed article from an isolated position to an external position (see paragraph 14).
Claim 17 differs from Charm in specifically reciting, “a shuttle repositionable within said tube and having a release aperture, wherein said shuttle’s release aperture aligns with said tube’s release aperture in a loaded position and traverses a portion of said tube; a release mechanism removably positioned within said shuttle’s release aperture and said tube’s release aperture” and “a rod spacing said upper barrier and said shuttle.”
Regarding the shuttle and tube both having release apertures and a release mechanism removably positioned within both of these apertures, Charm teaches at paragraph 69 that additional release mechanisms can be used (see paragraph 69: “Those skilled in the art having the benefit of this disclosure will recognize additional plunger and/or connection arrangements and orientations”).
In this regard, Coste teaches a base (figure 2, item 2) which supports a tube (figure 2, item 3), which tube comprises a shuttle (figure 2, item 16) and where the tube and the shuttle both comprise an aperture in order for the release mechanism 8 to engage both the tube and the shuttle and be removed therefrom. Pulling of the release mechanism 8, allows for the shuttle to elevate and reveal a concealed item (see figure 2, item 18 and paragraph 7 of the machine translation, which discloses that the liquid 18 is revealed upon pulling a locking pin 8, which locking pin is positioned through an aperture in the tube 3 and also positioned within an aperture in the shuttle 16. See also paragraph 11 which recites, “In this position a transverse hole of this rod is located opposite the hole 15 of the stopper 20, which allows the locking pin 8 to be inserted into these two holes to block the piston 16”).
Since Charm is already teaching a similar concept, to therefore modify Charm and to provide an aperture in the shuttle which is aligned with an aperture in the tube, such that the two apertures are aligned and where the release mechanism is removably positioned within both of these apertures, would have been obvious to one having ordinary skill in the art, as taught by Coste, for the same purpose of using a locking pin/lever to prevent the shuttle from moving, and when the pin/lever is released, the shuttle is capable of moving to the top of the tube to reveal the concealed item.
It is noted that in view of the definition of “traverse,” the shuttle’s release aperture is seen to traverse to some degree a portion of the tube.
Claim 17 differs from the above combination in specifically reciting, “a rod spacing said upper barrier.”
Herber teaches a shuttle (figure 8A, item 32) that is repositionable within a tube (figure 3, item 20), and which shuttle uses a spring for facilitating movement thereof (see paragraph 25). Herber further teaches that the shuttle thus reveals a concealed article (see figure 3, item 12) and where the device can be used with a food item (see figure 2, item 50; the abstract and paragraphs 23-24). Herber further teaches a rod for also pushing up a shuttle and concealed article (see item 28 and paragraph 28-29). Zhang also teaches a shuttle (see figure 1, item 7) within a tube (see figure 1 and 2, item 4), which shuttle is also in a loaded position using a spring (see figure 1 and 2, item 10). The spring is used for allowing the shuttle to move so as to reveal a concealed item (see paragraph 7 and 8). Zhang further teaches that there is a rod (12) which spaces the shuttle from the upper barrier (1). Zhang teaches that the rod is useful for holding the shuttle in position (see paragraph 21).
Both Herber and Zhang are related to Charm because they teach how to use a spring loaded shuttle to reveal a previously concealed article. In view of this, it would have been obvious to one having ordinary skill in the art to have modified Charm’s device in view of Herber and Zhang’s teachings, to also have a rod spacing the upper barrier and the shuttle, for the purpose of providing further guidance and support to the shuttle during its travel to reveal the previously concealed article.
Regarding claim 19, in view of Herber the combination discloses a food item positioned substantially around the tube (see figure 4 and 5, item 50, which is a cake).
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 17 above, which relies on Charm (US 20190380352) as the primary reference, and in further view of Wong (US 6572435), Howie (WO 2020165609) and Meno (US 10898824).
Regarding claim 18, as shown in figure 3, Herber teaches that a concealed article that can be revealed can be release material such as glitter (see paragraph 9). This can be construed as a glitter kit that is removably aligned below the upper barrier 42, when in the closed position. While this might not specifically be confetti, and as Charm in not limiting as to the particular article to be revealed (see paragraph 20), it is noted that to modify Charm to use another conventional type of decorative particulate such as confetti would have been an obvious matter of engineering and/or design. It is noted that the term “confetti kit” is seen to read on some configuration that can reveal confetti.
Nonetheless, if it could have been construed that claim 18 differs from the combination in specifically reciting, “wherein said concealed article comprises a confetti kit removably aligned below said upper barrier,” then it is noted that:
Zhang teaches using a similar spring loaded shuttle for revealing confetti (i.e. a confetti kit) (see at least the abstract).
Wong teaches shuttle (see figure 3, item 220) within a tube (see figure 3, item 112) which can eject confetti (i.e. a confetti kit) from the top upon activating a release mechanism (see figure 5, item 400 and column 1, lines 40-50).
Howie also teaches a tube (see figure 11C, item 12), comprising a shuttle (see figure 11C, item 14), which shuttle can rise up through the tube via spring mechanism (see figure 12C, item 16) for the purpose of releasing a concealed article, such as confetti (see page 3, lines 12-14), for the purpose of providing an extra surprise (see page 1, lines 15-16).
Meno teaches ejecting confetti via a shuttle (see figure 3, item 24) upon release of a release mechanism (see the abstract) and where the confetti kit is associated with a food item such as a cake (see figure 1, item 12 and column 1, lines 60-63).
To therefore modify the combination and to eject another type of product, such as a confetti kit (i.e. confetti) would have been obvious to one having ordinary skill in the art, for the purpose of providing an another and conventional form of entertainment to be associated with a food item.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 17 above, which relies on Charm (US 20190380352) as the primary reference, and in further view of “Surprise Cake”, Linwood (US 2784895) and “The Cake Decorating Co.”
Claim 20 differs from the combination in specifically reciting, “including a packaging assembly adapted to temporarily substantially enclose said food item about said device in a storage position.
In this regard, “Surprise Cake” also teaches a packaging system that can temporarily substantially house the device and the food item (see page 1 which shows a packaging system such as the base and lid that would have been capable of temporarily substantially housing the device and a food item). If it could have been construed that “Surprise Cake” did not specifically teach a packaging system adapted to temporarily substantially house said device and food item, then it is noted that “The Cake Decorating Co.” teaches package systems that have been commonly used for transporting cakes (see pages 1 and 2). Additionally, Linwood teaches shipping containers for articles such as cakes (see column 1, lines 15-17). Linwood teaches that the packaging system helps to secure food items such as cakes in position (see column 2, lines 4-24).
To therefore modify the combination and to include a packaging assembly as taught by “Surprise Cake”, “The Cake Decorating Co” and Linwood would have been obvious to one having ordinary skill in the art, for the purpose of providing additional securement of the combination of the device and cake, for transport.
Response to Arguments
Applicant’s arguments on page 5 of the response have been considered but are not seen to be sufficient to overcome the rejection because the prior art is teaching and suggesting a device to deliver a concealed article about a food item, which device has a shuttle that is activated via a release mechanism to move a concealed article from an isolated position to a display position external of the food item’s substantially upper surface and where the device has a shuttle within a tube and which shuttle is restrained from movement in a loaded position by engagement of a release mechanism. The prior art further teaches an aperture in the tube and in the shuttle, into which apertures the release mechanism is removably positioned for securing the shuttle in a loaded position and subsequently removing the release mechanism from the apertures to allow the shuttle to dispense the article.
Conclusion
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/VIREN A THAKUR/Primary Examiner, Art Unit 1792