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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 January 12, 2026 has been entered.
Response to Amendment
Those rejections not repeated in this Office Action have been withdrawn.
Claims 18-34 are currently pending and rejected.
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 18-24, 26, 27 and 29-31 are rejected under 35 U.S.C. 103 as being unpatentable over Thota (US 5053594) in view of Quick (US 4713510) and Conatser (US 20110220640) and in further view of Mikulski (US 4703148) and in further view of Cole (US 20070251942), Murdick (US 20160068322) and Onuma (JP 2002002805).
Regarding claim 18, Thota discloses a package (see figure 7, 11 and 12), comprising: a set for microwave heating (see figure 7, item 10, which is a tray; and food within the tray as shown in figure 7 and 8, item 20) and an outer packaging (figure 11 and 12 item 60; column 9, at least, lines 40-41, “outer wrapping or carton” thus suggesting a wrapping material) configured to accommodate the set for microwave heating: wherein the set for microwave heating comprises: a tray (see figure 7, item 10); food accommodated in the tray (figures 7 and 8, item 20): and a heating laminate comprising: a heating element configured to generate heat by microwave irradiation and a substrate, wherein the heating laminate is disposed such that a heating element side faces the food (see figure 7, item 22 and column 8, lines 8-41 and column 5, lines 3-46 which discloses that the laminate 40 can be used as the lid 22, and includes a heating element 45, and a substrate layer 42 such that the heating element and protective layer are facing the food with the substrate layer positioned “above”), and the substrate is laminated on a face of the heating element (see column 5, lines 3-46), the face being opposite to another face of the heating element that is or will come in contact with the food (see figures 1-3, where substrate layer 42 is opposite to another face of the heating element 44,45 that is configured for browning and crisping; see column 5, lines 17-27).
Thota discloses that the heating element is disposed on a side that faces the food (see column 5, lines 17-27), the side being at an opening side of the tray opposite to a bottom face side of the tray (see figure 7, item 22 where the heating laminate is opposite to a bottom face of the tray and column 8, lines 12-19 disclosing the laminate 40 as part of the lid).
Regarding the limitation of, “wherein a shape of the heating laminate consists only of a flat and planar plate shape,” it is noted that as shown in figure 1 and 2, Thota is teaching and suggesting a flat planar plate shape. This is further supported by Thota’s disclosure as a whole. For example, on column 4, lines 58-68 Thota teaches that any paper-like sheet material, fibrous, particulate or homogeneous which meets the structural, thermal, sanitary and health requirements may alternatively be employed as structural layer 42. Thota discusses corrugations to this layer beginning on column 6, line 64 to column 7, line 28 as a corrugated laminate having the structure of any of the laminates of figures 1-3, but this disclosure does not recite that corrugations must be used. This is further supported by column 8, lines 12-19 which recites that the lid, as shown in figure 7, item 22 may be formed from the heating laminates 40. Figure 7 also further distinguishes between a corrugated structure 15 compared to the flat, planar plate shape to the lid 22. Furthermore, in figure 10, item 14 is taught to also be a heating laminate which is flat and of a planar plate shape because on column 9, lines 33-39, Thota teaches that the base 14 is fabricated of one of the laminates 40 while the lid in this embodiment is shown as corrugated (See figure 10, item 22). Claim 1 on column 10, lines 7-28 also does not require the corrugated surface to the heating laminate as compared to claim 8, lines 45-49 which discloses that the laminate has a corrugated portion. In view of these teachings, it would have been obvious to one having ordinary skill in the art that Thota is not limiting to a heating laminate that has a corrugated surface.
Regarding the heating laminate not including any of protrusions, recesses, holes and grooves, Thota teaches that it is the shell (i.e. tray 10) which may include slits (see the abstract). This is further supported by column 3, lines 55-57 where it is the food package or shell that can have slits and Thota’s disclosure on column 8, lines 20-23 where the lid “may” be formed with slits or slots for venting.
In view of Thota’s disclosure as a whole, it would have been obvious to one having ordinary skill in the art that venting would have been equally viable through the shell 10 and need not be positioned in the lid.
Nonetheless, and further regarding the above limitations, it is noted that Quick (US 4713510) teaches a heating laminate that can be positioned above a food within a tray (see figure 7, item 32 and column 6, lines 21-32). Quick does not disclose that the flat, planar plate shape has any protrusions, recesses, holes and grooves. Conatser (US 20110220640) further teaches microwave heating laminates positioned above a food that is within a tray (see figure 1A and 1B, item 112; paragraph 24) and where it would have been obvious to one having ordinary skill in the art to have routinely modified the laminated heating element commensurate with the particular type of heating desired as well as whether or not venting was required (see paragraph 53).
Therefore in view of Quick and Conatser it would have been obvious to one having ordinary skill in the art to have excluded the use of any protrusions, recesses, holes and grooves to Thota’s microwave susceptor since Thota does not suggest that protrusions, recesses, holes and grooves are required and because Quick and Conatser teach and suggests flat, planar susceptors that exclude protrusions, recesses, holes and grooves are equally viable to be positioned above a food product within a tray, commensurate with the particular type of heating that was required.
Claim 18 differs from Thota in specifically reciting that the heating element “is or will come in contact with the food.”
It is initially noted that the claims are directed to a product and not the method of using the product. In this regard, by turning the package upside down, it would have been reasonable to expect that the heating element would have been capable of coming into contact with the food, via the food falling onto the heating element.
Nonetheless, Mikulski teaches a heating element disposed on a side of a tray that is opposite to the bottom face of the tray, and which heating element is in contact with the food, for the purpose of crisping and browning the food (see figure 6 and 7, item 40 and column 5, lines 21-24 which discloses that heating element 44 is in direct contact with the food, such that the substrate 46 is on a face that is opposite of another face of the heating element that is or will come in direct contact with the food).
To modify Thota such that Thota’s heating element is also capable of coming into contact with a side of the food would have been obvious to one having ordinary skill in the art for the purpose of providing the desired crisping and browning to that surface of the food.
Thota also teaches that there is an outer packaging which would have been capable of contacting the substrate of the heating element. That is, the limitation of, “the substrate is or will come in contact with the outer packaging bag also reads on an intended use limitation because the claim only requires some degree of contact at some point it time.
Nonetheless, claim 18 differs from Thota in specifically reciting that the outer packaging is a pillow packaging bag.
Cole teaches a package comprising an outer packaging bag (see figure 3, item 304; paragraph 92-94) into which can be placed a tray that has a bottom susceptor element 310 as well as sidewalls, such that there is an opening side of the tray opposite to a bottom face side of the tray. Cole teaches a pouch into which the tray can be positioned (see figure 3, item 304 and paragraphs 92-94) and the bag also can be in contact with a heating element (paragraph 76 and 94). Murdick teaches what can be construed as a pillow packaging bag that encloses a microwavable tray (see figures 1-3 and paragraph 5). The bag would also have been in contact with Thota’s heating element, because Murdick teaches sealing the tray 20 to the bag at the flange 40 (see paragraph 14).
If it could have been construed that Cole and Murdick did not teach a pillow packaging bag, then Onuma teaches a pillow packaging bag (see the abstract) used to enclose a tray comprising food therein (see figure 1b; paragraph 6 of the machine translation; “food placed on a tray.”; paragraph 11 of the machine translation, “suitable for food packaging”) and which combination is microwavable for heating the food (see paragraph 7 of the machine translation).
To therefore modify Thota and use an outer packaging such as a pillow packaging bag would have been obvious to one having ordinary skill in the art based on conventional expedients for packaging microwavable products within a tray.
Regarding claim 19, it is noted that the claim is directed to the intended use of the package. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. In this regard, since the prior art is teaching an outer pillow packaging and a heating laminate, the prior art would also have been capable of fusing the packaging bag with the heating element in some manner. That is, the claim is directed to the intended use and also does not provide any specificity as to how the outer packaging bag is fused to the heating element. This would also appear to be a function of other factors associated with a method such as the intensity and duration of microwave heating as well as any particular steps involved during heating. It is also noted that Thota also teaches and suggests a substrate thickness such as greater than 0.02mm and within the range of 0.02-0.65mm, which appears to be one of the factors associated with the above intended use (see column 4, lines 59-61 which teaches a thickness of about 0.012 inches which equates to about 0.3mm; and paragraph 84 of Applicant’s specification for example); and Murdick teaches plastic bags that can be made from oriented polypropylene and polyethylene terephthalate and low density polyethylene (see Murdick paragraph 19 and 20).
Regarding claim 20, Thota teaches the tray has sidewalls that can be made from laminates 40 that comprise plastic (see column 7, lines 47-66 and column 5, lines 30-33 which discloses a polyester film used for the inner walls of the tray), and therefore reads on being made of plastic.
Regarding claim 21, Thota discloses that the heating element comprises a conductive-substance-containing film layer (see item 46 and column 5, lines 30-46 – “chromium”, “nickel”). It is also noted that Mikulski discloses that the heating element comprises a conductive- substance-containing thin film layer (see figure 9A, item 44 and 64 and column 5, line 66 to column 6, line 34, which discloses a thin metallized layer that generates heat using metals such as aluminum, gold, nickel and silver, which are also disclosed on paragraph 29 of Applicant’s specification as filed, as the conductive substance).
Regarding claim 22, Thota discloses that the heating element comprises a heat-resistant layer (44 – “protective layer”) and where this layer faces the food (see column 5, lines 23-27), such that the heat resistant layer is or is capable of coming into contact with the food. It is noted that Mikulski discloses that layer 62 as shown in figure 9A, can be a heat resistant polymer layer (see column 5, lines 61-65). Mikulski also discloses that this same layer can be positioned over the conducting-substance-containing thin film layer 64 (see column 6, lines 35-40) and therefore is disclosing that the heating element further comprises a heat-resistant layer, and the heating element is disposed such that the heat- resistant layer is or will come in contact with the food. The combination in view of Mikulski further teaches that such a heat-resistant layer would have come into contact with the food for achieving the desired browning and/or crisping of the food.
Regarding claim 23, Thota teaches that in a direction parallel to a bottom face of the tray, an outer edge of the conductive-substance-containing film layer is inside an inner wall of the tray without being in contact with the inner wall of the tray (see figure 7, and the gap between item 22 and the wall 25). It is also noted that Mikulski discloses that in a direction parallel to a bottom face of the tray, an outer edge of the conductive-substance-containing thin film layer is positioned inside an inner wall of the tray without being in contact with the inner wall of the tray (see figures 6 and 7 where there is no contact between the outer edge of the conductive-substance-containing thin film layer and an inner wall of the tray). Therefore, it would have been obvious to one having ordinary skill in the art to have modified Thota and positioned Thota’s outer edge of the conductive-substance containing film layer such that it is not in contact with the inner wall of the tray, based on known expedients for how one of ordinary skill in the art would have known to position such heating element layers.
Regarding claim 24, Thota’s conductive-substance-containing film layer as shown in figure 2, item 45; figures 1-3 and 7, does protrude out of an outer edge of the substrate. This is also suggested by Mikulski because in figures 6-7 the metallized layer 64 does not extend past an outer edge of the substrate. Therefore, it would have been obvious to one having ordinary skill in the art to not have the conductive substance containing film layer contained within the bounds of the substrate for the purpose of controlling the amount of heat applied to the package.
Regarding claim 26, as shown in figure 7 and 8, Thota teaches that neither the food or heating element protrude from an opening of the tray.
Regarding claim 27, Thota teaches that the food can have a fried face, such as fried chicken or fried fish (see column 1, lines 30 and 40-45). In view of Mikulski teaching foods that are par-fried (see column 1, lines 14-20; column 4, lines 15-35), the combination is teaching and suggesting contact between the heating element and the fried face.
Regarding claim 29, Thota teaches and suggests that the food can be frozen (see column 1, lines 20-25; column 2, lines 24-29). It is noted that Mikulski discloses a similar concept for packages used for microwave heating frozen food (see the abstract)
Regarding claims 30-31, Thota teaches that the substrate layer 42 can have a thickness of about 0.012 inches (column 4, lines 59-61), which equates to about 0.3mm, and therefore falls within the thickness ranges as recited in claims 30 and 31.
Claims 25 and 32 are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claims 18 and 24, above which relies on Thota (US 5053594) as the primary reference, and in further view of Russell (US 20070023426).
Claim 25 differs from the combination as applied to claim 24, in specifically reciting, wherein, in the direction parallel to the bottom face of the tray, the heating element and the substrate are laminated such that the outer edge of the conductive- substance-containing thin film layer is positioned inside the outer edge of the substrate.
However, Russell teaches a heating laminate comprising a heating element that includes a conductive-substance-containing thin film layer (see figure 3C, item 125 and paragraph 59) that does not extend to an outer edge of the support layer (figure 3C, item 130) on which the heating laminate is positioned (see also figure 6, item 436 and paragraph 90). Russell teaches that it has been desirable to provide a margin that is absent of the microwave interactive material (i.e. the conductive-substance containing thin film layer), for the purpose of controlling the thermal stress during heating (see paragraph 56).
Therefore it would have been obvious to one having ordinary skill in the art to have modified Thota’s heating element and substrate such that the conductive-substance-containing thin film layer was positioned within the outer edge of the substrate for the same purpose of controlling the thermal stress during heating.
Claim 32 differs from the combination as applied to claim 18 above, in specifically reciting, wherein the substrate has a thickness of more than 0.62 mm.
However, Russell teaches paperboard substrates (figure 3C, item 130) onto which has been placed a heating laminate with a conductive-substance-containing thin film layer (see figure 3C, item 125) and where the substrate can have a thickness of 12mils, which equates to about 0.30mm or can be 30mils, which equates to 0.76mm (see paragraph 73). Russell teaches that such a support layer is dimensionally stable and microwave energy transparent. Therefore, it would have been obvious to one having ordinary skill in the art to have used such thickness for Thota’s support layer, based on conventional and known dimensions for a support layer used for a similar purpose as already taught by Thota, of providing support to a microwave interactive layer while also being microwave transparent.
Claim 28 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 18, above which relies on Thota (US 5053594) as the primary reference, and in further view of Risch (US 5334820), “Homemade Egg Rolls,” and Persells (US 20140021198).
Regarding claim 28, it is noted that in view of Mikulski the combination teaches products such as pizza rolls (see Mikulski column 4, lines 25-26) which can be par-fried and therefore would have had a fried face (see Mikulski see column 1, lines 14-20; column 4, lines 15-35) which would have suggested a filling wrapped food and where the heating element would have come into contact with the filling wrapped food.
Nonetheless, the claim differs from the combination in specifically reciting, wherein the food is a filling-wrapped food, and the heating element is disposed such that it is or will come in contact with a fried face of the filling- wrapped food.
However, Risch teaches crisping of fried cooked food and further teaches food such as egg rolls (see at least the abstract and column 6, lines 10), which are known to be filling wrapped foods and are commonly known to also be fried as evidenced by “Homemade Egg Rolls” (see page 1 and 7 which discloses that egg rolls are fried).
Persells also teaches fully cooked frozen egg rolls that are contacted with a susceptor (see paragraph 11) for the purpose of crisping and browning (see paragraph 11). Since egg rolls are known to be fried, the prior art is teaching and suggesting a fried face of a filling wrapped food in contact with the heating element. Therefore, Risch, Homemade Egg Rolls and Persells are teaching that a fried face of the filling wrapped food would have been in contact with the heating element for the purpose of crisping or browning the filling wrapped food.
As Thota is not limiting as to the particular type of food, it would have been obvious to one having ordinary skill in the art to have packaged ready-cooked foods having a fried face, which fried face is capable of coming into contact with the heating element, for the purpose of crisping the food.
Claims 33 and 34 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claims 18 and 28 above, which relies on Thota (US 5053594) as the primary reference, and in further view of KR 200431742 (referred to as KR742) and Noyelle (US 20070228036).
Claims 33 and 34 differ from the combination as applied to claims 18 and 28 in specifically reciting that the food and the filling wrapped food comprises a gyoza dumpling.
However, KR742 teaches a microwaveable package that comprises a susceptor heating element (see item 2) positioned over and capable of being in contact with food products such as gyoza dumplings (see the abstract and see page 4 of the machine translation under Advantageous Effects”, “microwave susceptor” “optimize contact between the packaging material and the dumpling”). Noyelle also teaches dumplings (see paragraph 60) within a package that comprises a heating element that contacts the dumplings for microwave heating (see figure 11b, item 1090 and figure 13B, item 1290).
Since Thota is not limiting as to the particular type of food to be packaged, it would have been obvious to one having ordinary skill in the art to have modified Thota and packaged gyoza dumpling based on another known type of product that can desirably be packaged within a package that comprises a microwave heating element for providing crisping to the food.
Response to Arguments
On page 8 of the response, Applicant urges that Thota discloses on column 6, line 64 to column 76, line 55 that the laminate is corrugated and on column 8, lines 20-41, the lid may be formed with slits or slots for venting means and therefore teaches away from the newly presented claim limitations which recite that the shape of the heating laminate consist only of a flat and planar plate shape and the heating laminate does not include any of protrusions, recesses, holes and grooves.
These arguments have been considered but are not persuasive in view of Thota’s disclosure as a whole and in view of Quick and Conatser further supporting what Thota is already suggesting.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Oppenheimer (US 4935592) discloses a flat, planar plate shaped laminate heating element without any recesses, holes or protrusions (see the figure, item 30, 32, 34)
Turpin (US 4190757) discloses a flat, planar plate shaped laminate heating element without any recesses, holes or protrusions (see figure 2 and 6, item 44)
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/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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