DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Drawings
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: Reference character “50” as discussed at paragraph 118; “243’’ “ at paragraph 168 of the specification as filed cannot be found in the drawings.
52 as presented in figure 4;
114 as presented in figure 14A;
140’ in figure 16;
232, 235, 237, in figure 18D;
243 as presented in figure 19A;
243’, 244’, 249’ in figure 20A
202’’, 211’’, 219’’, 230’’, 236’’, 238’’ in figure 21A
226’’, 232’’, 234’’, 259’’ in figure 21B
202’’, 219’’ 216’’, 270’’, 272’’, 280’’ in figure 21C;
224’’, 226’’ as shown in figure 21E
At least, the above mentioned characters cannot be found in the specification.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because reference characters "220’’ " as shown in figure 21B and "240’’ " as shown in figure 21E both have been used to designate the mixing chamber.
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. 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
Claim 71 is objected to because of the following informalities:
Claim 71 recites the limitation, “processing data carrying by” on line 10. It appears that this should be corrected to recite, “processing data carried by” or similar language.
Claim 75 recites the limitation, “quantity an additional ingredient,” on line 4. It appears that this should recite, “a quantity of an additional ingredient” or similar language.
Appropriate correction is required.
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 74 and 75 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 74 recites the limitation, “proper emptying.” This limitation is not defined by the claims or specification thus making the scope of what can be construed as an emptying that is “proper” unclear.
Claim 75 recites the limitation, “during processing.” It is not clear if this is intended to be referring to “processing the ingredients” as recited in claim 71, line 13 for example, or is referring to additional processing as also recited in claim 75.
Claim 75 recites the limitation, “the ingredients.” It is not clear whether this is intended to also include “an additional ingredient” as recited on at least, line 4 and 6 of claim 75 or if this limitation is only intending to refer to “ingredients” that are contained in the pod body, as recited in claim 71, line 3.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of pre-AIA 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 –
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of application for patent in the United States.
Claims 71-77 are rejected under pre-AIA 35 U.S.C. 102b as being anticipated by Vincent (US 20010038019).
Regarding claim 71, Vincent discloses a pod capable of being used to prepare a cooled edible product in an appliance configured to utilize said pod, the pod comprising:
a pod body that contains ingredients to be processed by the appliance to produce the cooled edible product therefrom (see at least, the abstract; figure 1, item 120, paragraph 37), the pod containing said ingredients in an amount for the preparation of one serving of the cooled edible product (see paragraph 37; it is also noted that “one serving” reads on any amount of the cooled edible product), the pod body having an opening (see figure 2, near item 130);
a rupturable closure sealing the opening (see figures 3,4 and 9-12, where the closure that seals the opening is capable of being rupurable” since it is a valve that can open), and configured to be ruptured when the pod is introduced into said appliance to permit at least a majority of ingredients contained in the pod to be introduced therethrough into the appliance (see figure 1 which shows that the pod is configured to be ruptured “when” the pod is introduced into said appliance to permit a majority of ingredients contained int eh product to be introduced therethrough into the appliance. That is, this limitation is an intended use which the prior art would have been capable of performing); and
processing data carrying by at least a portion of an external surface of the pod body or the rupturable closure, said processing data being configured for acquisition by a data reader of the appliance to thereby operate the appliance, and being indicative of all process parameters and steps for processing the ingredients into said cooled edible product by the appliance, said process parameters and steps being specific for the ingredients and the cooled edible product produced therefrom (see figure 1a, item 150, 160, 170). It is noted that at paragraph 51-53, Vincent discloses that the reader reads the data on the label of the container, for providing processing parameters including a uniform rate of dispensing including adjusting the force applied to the piston and the compressibility of the ingredients (see paragraph 52). Vincent also discloses processing data such as temperature input, dispensed product input and force input as used for providing uniform dispensing and therefore so that less frozen product is wasted (see paragraph 106 and 107). Vincent is therefore carrying processing data on an external surface of the pod which data is configured for acquisition by a data reader to operate the appliance and is “indicative” of all process parameters and steps for processing the ingredients into said cooled edible product by the appliance, which parameters and steps are specific for the ingredients and the product produced therefrom.
Regarding claim 72, the process parameters are seen to “correspond to” (i.e. relate to or be associated with) the amount of ingredients in the pod, so as to control the dispensing of the product. The claim is not limiting as to what processing parameters are being referred to and also is not limiting as to how the parameters correspond to the amount of ingredients in the pod.
Regarding claim 73, the claims do not limit what can be construed as an “authentication code.” Therefore, since Vincent discloses that the label is capable of being read by the apparatus for identifying the formulation of the frozen product (see paragraph 14) this can be construed as an authentication code, especially as the reference discloses that such identification is used for dispensing of the product.
Regarding claim 74, the process data, such as the force input and temperature as taught by Vincent reads on said process data comprises operation instructions to the appliance to ensure “proper” emptying of the cooled edible product from the appliance after processing said ingredients into said cooled edible product.
It is noted that the limitation of, “after processing said ingredients into a cooled edible product” is an intended use that the prior art pod would have been capable of performing. That is, the claims are not directed to the method of making a cooled edible product, but rather to the structure of the pod containing ingredients that are capable of being used for preparing a cooled edible product; and in this regard, Vincent’s ingredients are capable of being used for preparing a cooled edible product – especially as the claimed product is not directed to any particular method of preparing.
Regarding claim 75, Vincent discloses that there is a temperature control system that maintains the desired temperature during the processing of the pod within the appliance using the controller (see paragraph 43 and 48) and information directed to the temperature requirements can be provided on the container, which is read by the apparatus (see paragraph 100 and figure 14). This is seen to read on “cooling time” of the ingredients during processing in the appliance.
Regarding claim 76, since the pod is capable of being inserted into the appliance (see figure 1), the pod would also have been configured for removal from the appliance after emptying. The pod is also seen to have a volume suitable to receive said one serving of the cooled edible product dispensed from the appliance after removal of the pod body from the appliance. That is, this is an intended use that the prior art would have been capable of performing.
Regarding claim 77, Vincent discloses the data is encoded into a barcode or RFID tag (see paragraph 53, “radio-frequency reader”).
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter 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 pre-AIA 35 U.S.C. 103(a) 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 71-77 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Delande (WO 2010149509) in view of Kateman (US 6907741 cited on IDS).
Regarding claim 71, Delande discloses a pod (Figure 3, 8-9, item 20; figure 17) for the preparation of a cooled edible product (see page 11, lines 12-17) in an appliance configured to utilize said pod (figure 3) , the pod comprising: a pod body that contains ingredients to be processed by the appliance to produce the cooled edible product therefrom (see at least, page 3, line 27-30), the pod containing said ingredients in an amount for the preparation of one serving of the cooled edible product (the pod would have been capable of preparing “one serving”), the pod body having an opening (see figure 17, item 38 and page 10, lines 10-15); a rupturable closure sealing the opening (see page 10, lines 12-13), and configured to be ruptured when the pod is introduced into said appliance to permit at least a majority of ingredients contained in the pod to be introduced therethrough into the appliance (this is an intended use that the prior art would have been capable of).
Claim 71 differs from Delande in specifically reciting, “processing data carrying by at least a portion of an external surface of the pod body or the rupturable closure, said processing data being configured for acquisition by a data reader of the appliance to thereby operate the appliance, and being indicative of all process parameters and steps for processing the ingredients into said cooled edible product by the appliance, said process parameters and steps being specific for the ingredients and the cooled edible product produced therefrom.”
However, Kateman teaches containers (see figure 2, item 30a, 30b, 32a-32c; 34a-34c) used for making cooled edible products (see column 2, lines 28-30) which containers can comprise processing data on an external surface of the container (see figure 3, item 56; column 3, lines 17-30) for acquisition by a data reader (see column 3, line 62 to column 4, line 5) to operate the appliance (see column 2, lines 58-60; column 5, lines 17-54). Kateman this discloses that all process parameters and steps for processing the ingredients into the edible product can be incorporated into the data on the surface of the pod and can be specific for the ingredients and the product produced therefrom.
Since Delande also teaches controlling processing parameters such as aeration (see page 5, lines 11-22) as well as mixing and agitating the ingredients (see page 9, line 33 to page 10, line 8) the reference is teaching that the apparatus operates a variety of processing parameters.
To therefore modify Delande and to provide processing data on the surface of the pod which can be readable by the appliance would have been obvious to one having ordinary skill in the art for providing automation to the preparation of a product from the pod, so as to consistently produce the same product commensurate with the amount of mixing, agitation and aeration required of the product.
Regarding claim 72, the process parameters as taught by the combination, as discussed directly above, are seen to “correspond” to the amount of ingredients in the pod. That is the claim does not limit what are the parameters and how they correspond to the amount of ingredients. In this regard, since the combination is teaching processing parameters on readable media on the pod, associated with the specific preparation procedures of said pod, it would have been obvious to one having ordinary skill in the art that to correspond the parameters to the amount of ingredients in the pod for the purpose of making the requisite cooled edible product.
Regarding claim 73, the claims do not limit what can be construed as an “authentication code.” Therefore, since the combination discloses that the label is capable of being read by the apparatus for identifying the formulation of the frozen product (see Kateman) this can be construed as an authentication code, especially as the reference discloses that such identification is used for dispensing of the product.
Regarding claim 74, in view of Kateman, the combination is teaching and suggesting the use of process data that comprises operating instructions to ensure proper emptying of the edible product from the appliance after processing the ingredients into the cooled product, since the purpose of the pod of Delande and the processing parameters is for preparing and dispensing an edible product.
Regarding claim 75, Delande discloses mixing and aeration as part of processing to prepare the cooled edible product (page 9, line 33 to page 10, line 8). In view of this, it would have been obvious to one having ordinary skill in the art to have modified Delande to have included mixing time or aeration time as part of the processing data, for the purpose of ensuring consistency in mixing of the ingredients in the pod as well as for ensuring a consistent degree of aeration of the product.
Regarding claim 76, since the pod is capable of being inserted into the appliance (see Delande, figure 3), the pod would also have been configured for removal from the appliance after emptying. The pod is also seen to have a volume suitable to receive said one serving of the cooled edible product dispensed from the appliance after removal of the pod body from the appliance. That is, this is an intended use that the prior art would have been capable of performing.
Regarding claim 77, in view of Kateman the combination discloses the data is encoded into a barcode (see column 4, line 1-2).
Claims 78-80 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 71 above, which relies on Delande (WO 2010149509) as the primary reference, and in further view of Marina (US 20110166910).
Regarding claims 78 and 79, Delande teaches ingredients in the pod, but is not specific as to the particular state of the ingredient.
Therefore, claim 78 differs from Delande in specifically reciting the ingredients are in liquid form; and claim 79 differs in specifically reciting that the ingredients are in dry form, configured for dilution by or mixing with at least one liquid.
However, Marina teaches rupturable containers (see figure 3, item 166; paragraph 37), which containers can comprise liquid or powder ingredients (see paragraph 43) and can be used for preparing cooled edible products (see paragraph 101). Kateman also teaches the ingredients in the pods can be solid or liquid (See column 8, lines 44-49).
To therefore modify Delande and to use liquid ingredients, or dry forms of ingredients that can be diluted by a liquid would have been obvious to one having ordinary skill in the art, as an obvious matter of engineering and/or design based on conventional states of ingredients, that can be within a pod used to make cooled, edible products.
Regarding claim 80, the combination as applied to claim 71 teaches the pod according to claim 71.
Claim 80 differs in specifically reciting, “a removable cap configured to accommodate at least a portion of the pod, the removable cap having a volume suitable for receiving said one serving of the cooled edible product dispensed from the appliance and produced from the ingredients in the pod.”
However, the claim does not limit the particular structure of the “removable cap.” In this regard, Marina teaches a “removable cap” (see figure 29A, 29B, item 1600) which is suitable for receiving a serving of the product and can accommodate a portion of the pod (1620).
Since the combination is dispensing the edible product into a container, it would have been obvious to one having ordinary skill in the art, to have modified the combination and included a removable cap, as taught by Marina, for the purpose of foregoing the need to use another container to receive the prepared product.
Claim 80 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 71 above, which relies on Delande (WO 2010149509) as the primary reference, and in further view of Marina (US 20110166910) and Estabrook (US 20120321756).
Claim 80 differs in specifically reciting, “a removable cap configured to accommodate at least a portion of the pod, the removable cap having a volume suitable for receiving said one serving of the cooled edible product dispensed from the appliance and produced from the ingredients in the pod.”
However, the claim does not limit the particular structure of the “removable cap.” In this regard, Marina teaches a “removable cap” (see figure 29A, 29B, item 1600) which is suitable for receiving a serving of the product and can accommodate a portion of the pod (1620). Estabrook also teaches that the pod that is used with a machine also includes a removable cap (see figure 2 and 3, removable cap 21), that is capable of receiving a serving of a product produced by the appliance (see paragraph 38-39)
Since the combination is dispensing the edible product into a container, it would have been obvious to one having ordinary skill in the art, to have modified the combination and included a removable cap, as taught by Marina and Estabrook, for the purpose of foregoing the need to use another container to receive the prepared product.
Claims 71-80 are rejected under 35 U.S.C. 103 as being unpatentable over Marina (US 20110166910) in view of Kateman (US 6907741).
Regarding claim 71, Marina teaches a pod (see figure 30, item 1750), capable of being used for preparing a cooled edible product in an appliance that is configured to use the pod, (see figure 30); the pod comprising a body that contains ingredients used to make “one serving” of the edible product (see paragraph 101), the body comprising an opening that is sealed by a rupturable opening (see paragraph 37, figures 3-3A), to permit a majority of the ingredients to be used with the appliance.
Marina also discloses a barcode or RFID identifier which has information linked to the pod (see paragraph 93).
Claim 71 differs from Marina in specifically reciting, “processing data carrying by at least a portion of an external surface of the pod body or the rupturable closure, said processing data being configured for acquisition by a data reader of the appliance to thereby operate the appliance, and being indicative of all process parameters and steps for processing the ingredients into said cooled edible product by the appliance, said process parameters and steps being specific for the ingredients and the cooled edible product produced therefrom.”
However, Kateman teaches containers (see figure 2, item 30a, 30b, 32a-32c; 34a-34c) used for making cooled edible products (see column 2, lines 28-30) which containers can comprise processing data on an external surface of the container (see figure 3, item 56; column 3, lines 17-30) for acquisition by a data reader (see column 3, line 62 to column 4, line 5) to operate the appliance (see column 2, lines 58-60; column 5, lines 17-54). Kateman this discloses that all process parameters and steps for processing the ingredients into the edible product can be incorporated into the data on the surface of the pod and can be specific for the ingredients and the product produced therefrom.
Since both Marina and Kateman are directed to processing ingredients with a pod to make a cooled edible product, and Marina teaches that the contents of the pod can be mixed to produce a frozen product (see paragraph 101) and mixing with the requisite amount of additional ingredients for producing the desired product (see paragraph 91).
To therefore modify Marina and to provide processing data on the surface of the pod which can be readable by the appliance would have been obvious to one having ordinary skill in the art for providing automation to the preparation of a product from the pod, so as to consistently produce the same product commensurate with the amount of mixing and agitation required of the product.
Regarding claim 72, the process parameters as taught by the combination, as discussed directly above, are seen to “correspond” to the amount of ingredients in the pod. That is the claim does not limit what are the parameters and how they corresponds. In this regard, since the combination is teaching processing parameters on readable media on the pod, associated with the specific preparation procedures of said pod, it would have been obvious to one having ordinary skill in the art that he combination is teaching that the parameters correspond to the amount of ingredients in the pod.
Regarding claim 73, the claims do not limit what can be construed as an “authentication code.” Therefore, since the combination discloses that the label is capable of being read by the apparatus for identifying the formulation of the frozen product (see Kateman) this can be construed as an authentication code, especially as the reference discloses that such identification is used for dispensing of the product. It is further noted however, that Marina teaches a barcode that can be construed as an identifier for the specific pd (see paragraph 93) and which therefore can be construed as an authentication code.
Regarding claim 74, in view of Kateman, the combination is teaching and suggesting the use of process data that comprises operating instructions to ensure proper emptying of the edible product from the appliance after processing the ingredients into the cooled product, since the purpose of the pod of Marina and the processing parameters is for preparing and dispensing an edible product.
Regarding claim 75, Marina discloses mixing as part of processing to prepare the cooled edible product (see paragraph 91 and 101). In view of this, it would have been obvious to one having ordinary skill in the art to have modified Marina to have included mixing time as part of the processing data, for the purpose of ensuring consistency in mixing of the ingredients in the pod.
Regarding claim 76, since the pod is capable of being inserted into the appliance (see Marina figure 30), the pod would also have been configured for removal from the appliance after emptying. The pod is also seen to have a volume suitable to receive said one serving of the cooled edible product dispensed from the appliance after removal of the pod body from the appliance. That is, this is an intended use that the prior art would have been capable of performing.
Regarding claim 77, in view of Kateman the combination discloses the data is encoded into a barcode (see column 4, line 1-2).
Regarding claims 78 and 79, Marina teaches rupturable containers (see figure 3, item 166; paragraph 37), which containers can comprise liquid or powder ingredients (see paragraph 43) and can be used for preparing cooled edible products (see paragraph 101). Kateman also teaches the ingredients in the pods can be solid or liquid (See column 8, lines 44-49).
Regarding claim 80, the combination as applied to claim 71 teaches the pod according to claim 71. Further regarding claim 80, the claim does not limit the particular structure of the “removable cap.” In this regard, Marina teaches a “removable cap” (see figure 29A, 29B, item 1600) which is suitable for receiving a serving of the product and can accommodate a portion of the pod (1620).
Claim 80 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 71 above, which relies on Marina (US 20110166910) as the primary reference, and in further view of Marina (US 20110166910) and Estabrook (US 20120321756).
Claim 80 differs in specifically reciting, “a removable cap configured to accommodate at least a portion of the pod, the removable cap having a volume suitable for receiving said one serving of the cooled edible product dispensed from the appliance and produced from the ingredients in the pod.”
However, the claim does not limit the particular structure of the “removable cap.” In this regard, Marina teaches a “removable cap” (see figure 29A, 29B, item 1600) which is suitable for receiving a serving of the product and can accommodate a portion of the pod (1620). If it could have been construed that Marina’s teachings were not specifically a “removable cap” then Estabrook also teaches that the pod that is used with a machine also includes a removable cap (see figure 2 and 3, removable cap 21), that is capable of receiving a serving of a product produced by the appliance (see paragraph 38-39)
Since the combination is dispensing the edible product into a container, it would have been obvious to one having ordinary skill in the art, to have modified the combination and included a removable cap, as further taught by Estabrook, for the purpose of foregoing the need to use another container to receive the prepared product.
Claim 73 is rejected under 35 U.S.C. 103 as being unpatentable over Vincent (US 20010038019) and in further view of Santoiemmo (US 20110020508 cited on IDS).
Further regarding claim 73, if it could have been construed that Vincent’s disclosure did not disclose processing data that comprises an authentication code, then it is further noted that Santoiemmo teaches providing processing data on a pod, which can include validating or authentication code on an RFID tag for authentication or verification of the processing (see paragraph 51).
Therefore, it would have been obvious to one having ordinary skill in the art to have modified Vincent to include an authentication code for this same purpose as taught by Santoiemmo.
Claim 73 is rejected under 35 U.S.C. 103 as being unpatentable over Delande (WO 2010149509) in view of Kateman (US 6907741 cited on IDS) and in further view of Santoiemmo (US 20110020508).
Further regarding claim 73, if it could have been construed that the Delande/Kateman combination did not disclose processing data that comprises an authentication code, then it is further noted that Santoiemmo teaches providing processing data on a pod, which can include validating or authentication code on an RFID tag for authentication or verification of the processing (see paragraph 51).
Therefore, it would have been obvious to one having ordinary skill in the art to have modified the combination to include an authentication code for this same purpose as taught by Santoiemmo.
Claim 73 is rejected under 35 U.S.C. 103 as being unpatentable over Marina (US 20110166910) in view of Kateman (US 6907741) and in further view of Santoiemmo (US 20110020508).
Further regarding claim 73, if it could have been construed that the Marina/Kateman combination did not disclose processing data that comprises an authentication code, then it is further noted that Santoiemmo teaches providing processing data on a pod, which can include validating or authentication code on an RFID tag for authentication or verification of the processing (see paragraph 51).
Therefore, it would have been obvious to one having ordinary skill in the art to have modified the combination to include an authentication code for this same purpose as taught by Santoiemmo.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim 71 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11672260.
Although the claims at issue are not identical, they are not patentably distinct from each other because the patented claim also includes a pod that has a body that contains ingredients to be processed by an applicance, and which pod can be used to make a single serving of cooled edible product, which body ha an opening sealed with a rupturable closure, which is therefore capable of being ruptured when introduced into the applicance (see column 17, lines 62-65). The patented claim also discloses that the pod can comprise data indicative of process parameters and steps for processing the ingredients into said cooled edible product by the appliance; the process parameters being specific for the ingredients and therefore obviously would have been for the cooled edible product produced therefrom.
Claims 72-77 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11672260 in view of Kateman (US 6907741).
Claim 72 differs from the patented claim in specifically reciting, “said process parameters correspond to the amount of ingredients in the pod.” However, the process parameters as taught by the patented claim are seen to “correspond” to the amount of ingredients in the pod. That is the claim does not limit what are the parameters and how they corresponds. In this regard, since the patented is teaching processing parameters on the pod, associated with the specific preparation procedures of said pod, it would have been obvious to one having ordinary skill in the art that the patented claim is also suggesting that the parameters correspond to the amount of ingredients in the pod.
Nonetheless, if it could have been construed that this was not specifically the case, then Kateman teaches containers (see figure 2, item 30a, 30b, 32a-32c; 34a-34c) used for making cooled edible products (see column 2, lines 28-30) which containers can comprise processing data on an external surface of the container (see figure 3, item 56; column 3, lines 17-30) for acquisition by a data reader (see column 3, line 62 to column 4, line 5) to operate the appliance (see column 2, lines 58-60; column 5, lines 17-54). Kateman this discloses that all process parameters and steps for processing the ingredients into the edible product can be incorporated into the data on the surface of the pod and can be specific for the ingredients and the product produced therefrom.
Therefore, it would have been obvious to one having ordinary skill in the art to have included process parameters that correspond in some way to the amount of ingredients in the pod, based on using the process parameters for making a specific amount and type of edible product.
Regarding claim 73, the claim does not limit what can be construed as an “authentication code.” Therefore, since Kateman discloses that the label is capable of being read by the apparatus for identifying the formulation of the frozen product (see Kateman) this can be construed as an authentication code, especially as the reference discloses that such identification is used for dispensing of the product.
To therefore modify the patented claim to include “authentication code” would have been obvious to one having ordinary skill in the art, for the purpose of being able to read the capsule by the machine for automating the process of producing an edible product from the pod.
Regarding claim 74, patented claim 1 discloses emptying the contents of the pod through the rupturing. In view of this, and as the patented claim is using the data on the pod for processing the pod for making the edible product, it would have been obvious to one having ordinary skill in the art for the data to include instructions that can be construed as ensuring “proper” emptying of the edible product since the purpose of the pod and the appliance are for dispensing a cooled edible product.
Regarding 75 the claim differs from the patented claim in specifically reciting the specifically claimed at least one parameter for the processing data.
However, Kateman discloses readable data on the pod related to processing data such as the desired cooling time of the ingredients (see figure 7, “coded input” and item 104). To therefore modify the patented claims to also include a cooling time, when the patented claims also are directed to producing cooled edible products would have been obvious to one having ordinary skill in the art for providing consistency in the preparation of the desired edible product.
Regarding claim 76, since the pod of the patented claim is capable of being inserted into the appliance the pod would also have been configured for removal from the appliance after emptying. The pod is also seen to have a volume suitable to receive said one serving of the cooled edible product dispensed from the appliance after removal of the pod body from the appliance. That is, this is an intended use that the prior art would have been capable of performing.
Regarding claim 77, in view of Kateman the combination discloses the data is encoded into a barcode (see column 4, line 1-2).
Claims 78-80 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11672260 in view of Kateman (US 6907741) and in further view of Marina (US 20110166910)
Regarding claims 78 and 79, the claims differ from the patented claim in specifically reciting that the ingredients are in liquid form and that the ingredients are in dry form and configured for dilution by or mixing with at least one liquid.
However, Marina teaches rupturable containers (see figure 3, item 166; paragraph 37), which containers can comprise liquid or powder ingredients (see paragraph 43) and can be used for preparing cooled edible products (see paragraph 101). Kateman also teaches the ingredients in the pods can be solid or liquid (See column 8, lines 44-49).
To therefore modify the patented claim and to use liquid or dry ingredients would have been obvious to one having ordinary skill in the art, as an obvious matter of engineering and/or design based on conventional forms of ingredients within pods that are used for producing cooled edible products.
Regarding claim 80, the rejection of claim 71 has been incorporated herein. Further regarding claim 80, the claim does not limit the particular structure of the “removable cap.” In this regard, Marina teaches a “removable cap” (see figure 29A, 29B, item 1600) which is suitable for receiving a serving of the product and can accommodate a portion of the pod (1620).
Since the combination is dispensing the edible product into a container, it would have been obvious to one having ordinary skill in the art, to have modified the combination and included a removable cap, as taught by Marina, for the purpose of foregoing the need to use another container to receive the prepared product.
Claim 80 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11672260 in view of Kateman (US 6907741) and in further view of Marina (US 20110166910) and Estabrook (US 20120321756).
Claim 80 differs in specifically reciting, “a removable cap configured to accommodate at least a portion of the pod, the removable cap having a volume suitable for receiving said one serving of the cooled edible product dispensed from the appliance and produced from the ingredients in the pod.”
However, the claim does not limit the particular structure of the “removable cap.” In this regard, Marina teaches a “removable cap” (see figure 29A, 29B, item 1600) which is suitable for receiving a serving of the product and can accommodate a portion of the pod (1620). If it could have been construed that Marina’s teachings were not specifically a “removable cap” then Estabrook also teaches that the pod that is used with a machine also includes a removable cap (see figure 2 and 3, removable cap 21), that is capable of receiving a serving of a product produced by the appliance (see paragraph 38-39)
Since the patented claim discloses dispensing the edible product into a container, it would have been obvious to one having ordinary skill in the art, to have modified the combination and included a removable cap, as further taught by Estabrook, for the purpose of foregoing the need to use another container to receive the prepared product.
Claims 71-76 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 4, 5 and 6 of U.S. Patent No. 10123551.
Although the claims at issue are not identical, they are not patentably distinct from each other because the patented claim also includes a pod that has a body that contains ingredients to be processed by an appliance, and which pod can be used to make a single serving of cooled edible product, which body has an opening sealed with a rupturable closure, which is therefore capable of being ruptured when introduced into the appliance (see column 17, lines 45-52). The patented claim also discloses that the pod can comprise data indicative of process parameters and steps for processing the ingredients into said cooled edible product by the appliance; the process parameters being specific for the ingredients and therefore obviously would have been for the cooled edible product produced therefrom (see column 17, lines 53-60).
Regarding claim 72, patented claim 5 discloses the process parameters correspond to the amount of ingredients in the pod.
Regarding claim 73, patented claim 6 teaches that the pod comprises authentication code.
Regarding claim 74, patented claim 8 discloses that the process parameters ensure proper emptying of the cooled edible product.
Regarding claim 75, patented claim 4 discloses one of the parameters can be mixing time, thus suggesting the parameter can be mixing time of the ingredients during processing in the appliance.
Regarding claim 76, since the pod of the patented claim is capable of being inserted into the appliance the pod would also have been configured for removal from the appliance after emptying. The pod is also seen to have a volume suitable to receive said one serving of the cooled edible product dispensed from the appliance after removal of the pod body from the appliance. That is, this is an intended use that the prior art would have been capable of performing.
Claims 77 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 10123551 in view of Kateman (US 6907741).
Claim 77 differs from the patented claims in specifically reciting that the data is encoded into at least one form selected from a barcode, an RFID tag, a graphic pattern, a magnetic strip and a pattern of bulges.
Kateman teaches containers used for preparing cooled edible products, where the containers have data that is encoded into a barcode (see column 4, line 1-2).
Since the patented claims are already using data enclosed onto the pods, to therefore modify the patented claims to use a bar code for encoding the data would have been an obvious matter of engineering and/or design based on conventional forms of optically readable code used for transmitting data for preparation of an edible product.
Claims 78-80 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 10123551 in view of Kateman (US 6907741) and in further view of Marina (US 20110166910)
Regarding claims 78 and 79, the claims differ from the patented claim in specifically reciting that the ingredients are in liquid form and that the ingredients are in dry form and configured for dilution by or mixing with at least one liquid.
However, Marina teaches rupturable containers (see figure 3, item 166; paragraph 37), which containers can comprise liquid or powder ingredients (see paragraph 43) and can be used for preparing cooled edible products (see paragraph 101). Kateman also teaches the ingredients in the pods can be solid or liquid (See column 8, lines 44-49).
To therefore modify the patented claim and to use liquid or dry ingredients would have been obvious to one having ordinary skill in the art, as an obvious matter of engineering and/or design based on conventional forms of ingredients within pods that are used for producing cooled edible products.
Regarding claim 80, the rejection of claim 71 has been incorporated herein. Further regarding claim 80, the claim does not limit the particular structure of the “removable cap.” In this regard, Marina teaches a “removable cap” (see figure 29A, 29B, item 1600) which is suitable for receiving a serving of the product and can accommodate a portion of the pod (1620).
Since the combination is dispensing the edible product into a container, it would have been obvious to one having ordinary skill in the art, to have modified the combination and included a removable cap, as taught by Marina, for the purpose of foregoing the need to use another container to receive the prepared product.
Claim 80 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 10123551 in view of Kateman (US 6907741) and in further view of Marina (US 20110166910) and Estabrook (US 20120321756).
Claim 80 differs in specifically reciting, “a removable cap configured to accommodate at least a portion of the pod, the removable cap having a volume suitable for receiving said one serving of the cooled edible product dispensed from the appliance and produced from the ingredients in the pod.”
However, the claim does not limit the particular structure of the “removable cap.” In this regard, Marina teaches a “removable cap” (see figure 29A, 29B, item 1600) which is suitable for receiving a serving of the product and can accommodate a portion of the pod (1620). If it could have been construed that Marina’s teachings were not specifically a “removable cap” then Estabrook also teaches that the pod that is used with a machine also includes a removable cap (see figure 2 and 3, removable cap 21), that is capable of receiving a serving of a product produced by the appliance (see paragraph 38-39)
Since the patented claim discloses dispensing the edible product into a container, it would have been obvious to one having ordinary skill in the art, to have modified the combination and included a removable cap, as further taught by Estabrook, for the purpose of foregoing the need to use another container to receive the prepared product.
Conclusion
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/VIREN A THAKUR/Primary Examiner, Art Unit 1792