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 .
Response to Amendment
This office action is in response to the reply filed on 5/28/2025, wherein claims 1, 6, 9, and 14 were amended, claims 2, 8, 10, and 16 are cancelled. Claims 1, 3-7, 9, and 11-15 are pending.
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 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.
The term “mesh structure positioned within an opening in the outer seal” in claims 1 and 9 is a relative term which renders the claim indefinite. The term “mesh structure positioned within an opening in the outer seal” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. As presently claimed, the outer seal has no openings. The word “seal” indicates that this is a closed off portion. The word opening would contradict the term “seal”. Further the claim is drawn towards an unopened pouch (as shown by the presence of a first tear strip). There is no “opening” in the unopened pouch. Further there is no “opening” in the outer “seal”. The outer seal contains the closed edges. Claims 3-7 and 11-15 directly or indirectly depend from claim 1 or 9 and are also rejected.
The term “configured to close the opening to seal the inner cavity” in claims 6 and 14 is a relative term which renders the claim indefinite. The term “configured to close the opening to seal the inner cavity” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The bounds of the inner cavity have changed from the bounds stated in claim 1. In claim 1, the inner cavity was the area within the outer seal which included the drain element. The actual applications resealable seal is located below the drain element, which would mean that the resealable seal does not seal the entire “inner cavity”, it only seals a portion. It also does not seal the same “opening” location as claim 1. The opening remains open. The seal is not on the opening; therefore, the seal does not seal that opening.
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.
Claim(s) 1, 3-5, 7, 9, 11-13, and 15 is/are rejected under 35 U.S.C. 102a(1) as being anticipated by VanHouten (US 20190161262 A1).
With respect to claim 1, VanHouten discloses a retort pouch, comprising: an inner cavity (space under 34) located within an outer seal (31, 32, 33, 34) and comprising a volume configured to receive a substance (100) therein; a first tear strip (51) in communication with the outer seal (31, 32, 33, 34) configured to expose the inner cavity; and a drain element (80s) located within and attached to a surface of the inner cavity, the drain element (80s) includes a mesh structure positioned within an opening in the outer seal (see 112b above) to allow a user to drain liquid from the inner cavity while retaining the substance in the inner cavity (abstract ), further comprising a second tear strip (61) configured to remove the drain element from the retort pouch.
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With respect to claim 3, VanHouten discloses the retort pouch of claim 1, wherein the drain element (80) is formed from a flexible material.
With respect to claim 4, VanHouten discloses the retort pouch of claim 1, wherein the retort pouch is hermetically sealed by the outer seal. (Inherent property of a seal of a food type storage heat seal pouch page 1 [0003])
With respect to claim 5, VanHouten discloses the retort pouch of claim 1, wherein the retort pouch is formed from a microwavable material. (page 1 [0010])
With respect to claim 7, VanHouten discloses the retort pouch of claim 1, wherein the retort pouch is formed of a material suitable to receive a food substance for retorting. (abstract)
With respect to claim 9, VanHouten discloses a method of forming a retort pouch, the method comprising: forming an inner cavity (space under 34) located within an outer seal (31, 32, 33, 34) and comprising a volume configured to receive a substance (100) therein; forming a first tear strip (51) in communication with the outer seal (31, 32, 33, 34) configured to expose the inner cavity; and locating a drain element (80) within and attached to a surface of the inner cavity, the drain element includes a mesh structure positioned within an opening in the outer seal to allow a user to drain liquid from the inner cavity while retaining a substance in the inner cavity (abstract) and forming a second tear strip (61) configured to remove the drain element from the retort pouch.
With respect to claim 11, VanHouten discloses the method of claim 9, wherein the drain (80) is formed from a flexible material.
With respect to claim 12, VanHouten discloses the method of claim 9, wherein the retort pouch is hermetically sealed by the outer seal. (Inherent property of a seal of a food type storage heat seal pouch page 1 [0003])
With respect to claim 13, VanHouten discloses the method of claim 9, wherein the retort pouch is formed from a microwavable material. (page 1 [0010])
With respect to claim 15, VanHouten discloses the method of claim 9, wherein the retort pouch is formed of a material suitable to receive a food substance. (abstract)
Claim(s) 1, 6, 9, and 14 is/are rejected under 35 U.S.C. 102a(1) as being anticipated by Farstad (US 20190009950 A1).
With respect to claim 1, Farstad discloses a retort pouch, comprising: an inner cavity located within an outer seal (24, 26, 28) and comprising a volume configured to receive a substance therein; a first tear strip (72 bottom) in communication with the outer seal configured to expose the inner cavity; and a drain element (50) located within and attached to a surface of the inner cavity, the drain element (50) includes a mesh structure positioned within an opening in the outer seal (see 112b above) to allow a user to drain liquid from the inner cavity while retaining a substance in the inner cavity, further comprising a second tear strip (72 top) configured to remove the drain element from the retort pouch. (see remarks below)
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With respect to claim 6, Farstad discloses the retort pouch of claim 1 further comprising a re-sealable seal disposed between the first tear strip and a bottom gusset of the retort pouch configured to close the opening to seal the inner cavity. (page 3 [0028] “may include placement of a zipper seal between the collapsible perforated folded panel 50 and the opening seal 60 to reversibly seal the front wall 12 to the rear wall 14. “… “Similarly, non-limiting examples for resealing the first ends 16 may include utilization of a sealing adhesive in the first end seal 24 which remains sticky and can be resealed, or may include the placement of a zipper seal in the pouch chamber 52 proximal the first end seal 24 to reversibly seal the front wall 12 to the rear wall 14.”)
With respect to claim 9, Farstad discloses a method of forming a retort pouch, the method comprising: forming an inner cavity located within an outer seal (24, 26, 28) and comprising a volume configured to receive a substance therein; forming a first tear strip (72 bottom) in communication with the outer seal configured to expose the inner cavity; and locating a drain element (50) within and attached to a surface of the inner cavity, the drain element (50) positioned within an opening in the outer seal to allow a user to drain liquid from the inner cavity while retaining the substance in the inner cavity, further comprising a second tear strip (72 top) configured to remove the drain element from the retort pouch. (see remarks below)
With respect to claim 14, Farstad discloses the method of claim 9 further comprising: disposing a re-sealable seal disposed between the first tear strip and a bottom gusset of the retort pouch configured to close the opening to seal the inner cavity. (page 3 [0028] “may include placement of a zipper seal between the collapsible perforated folded panel 50 and the opening seal 60 to reversibly seal the front wall 12 to the rear wall 14. “… “Similarly, non-limiting examples for resealing the first ends 16 may include utilization of a sealing adhesive in the first end seal 24 which remains sticky and can be resealed, or may include the placement of a zipper seal in the pouch chamber 52 proximal the first end seal 24 to reversibly seal the front wall 12 to the rear wall 14.”)
Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 20230286726 A1, US 10597210 B2, US 20190161262 A1, US 20190009950 A1, US 20170001782 A1, US 20140072247 A1, US 20130209628 A1, US 20120224792 A1, US 20070199453 A1, US 3155282 A.
Response to Arguments
Applicant's arguments filed 5/28/2025 have been fully considered but they are not persuasive. With respect to claim 6 and 14, the re-sealable seal does not re-seal the opening. Therefore, it cannot be stated that it is configured to close the opening. The opening remains open and the seal closes a portion behind it. The seal only selectively closes a portion of the inner cavity. The statement is incorrect and needs correction.
Without a supplied definition or material list, the term “flexible material” and “microwaveable material” shall be broadly interpreted within means. Similarly, the statement “suitable to receive a food substance” does not clearly state any structural limitation and shall be broadly viewed.
With respect to the amendments regarding “mesh structure”, applicants argues that VanHouten does not disclose of a “mesh structure”. However, the definition of a mesh is "(a piece of) material like a net with spaces in it, made from wire, plastic, or thread" (dictionary.com). The present invention meets this definition. VanHouten also meets this definition, as VanHouten discloses of a plastic with spaces in it (like the present application). The applicant needs to be more specific in defining the inventions mesh structure to overcome this rejection.
With respect to the arguments over the Farstad reference, applicant believes the amendments “a second tear strip configured to remove the drain element from the retort pouch” overcomes the prior art. However, the retort pouch is broadly defined as every element of the present invention. In fact, the drain element is part of the retort pouch. So essentially the question is; can the second tear strip of Farstad remove the drain element from a portion of the retort pouch? Yes. To overcome this rejection, the applicant would need to be more specific on which portion of the retort pouch that the second tear strip separates the drain element from.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/S.K.S./Examiner, Art Unit 3735
/ERNESTO A GRANO/Primary Examiner, Art Unit 3735