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 .
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 7 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Any negative limitation or exclusionary proviso must have basis in the original disclosure. If alternative elements are positively recited in the specification, they may be explicitly excluded in the claims. See In re Johnson, 558 F.2d 1008, 1019, 194 USPQ 187, 196 (CCPA 1977) (“[the] specification, having described the whole, necessarily described the part remaining.”). See also Ex parte Grasselli, 231 USPQ 393 (Bd. App. 1983), aff ’d mem., 738 F.2d 453 (Fed. Cir. 1984). The mere absence of a positive recitation is not basis for an exclusion. Any claim containing a negative limitation which does not have basis in the original disclosure should be rejected under 35 U.S.C. 112, first paragraph, as failing to comply with the written description requirement. Note that a lack of literal basis in the specification for a negative limitation may not be sufficient to establish a prima facie case for lack of descriptive support. Ex parte Parks, 30 USPQ2d 1234, 1236 (Bd. Pat. App. & Inter. 1993). With respect to the new limitation, Applicant’s original specification provides “In the example tray 302a/b, five vent channels 204 and five vent channels 304 are included. Each of the five vent channels 204 is located at the first side 164 of the tray 302a/b and is defined in the proximal segment 110, the upwardly-extending member 116, and the distal segment 114, and each of the five vent channels 304 is located at the second side 166 of the tray 302a/b and is defined in the proximal segment 110, the downwardly-extending member 118, and the distal segment 114. More or fewer vent channels 204 and/or vent channels 304 may be included in the tray 202a/b. Additionally and/or alternatively, some of the vent channels 204 and/or 304 may be defined at other locations on the rim 108 (such as at the first end 160 or the second end 162 of the tray 202a/b, between ends of the upwardly-extending member 116 and the downwardly-extending member 118 as described above for the vent channels 142). While each of the vent channels 204 and 304 is coextensive in length, that is, each extends the radial distance D.sub.1 of the rim 108, some of the vent channels 204 and/or 304 may be shorter in extent and terminate prior to the peripheral edge of the rim 108. In some examples, the vent channels 204 are not included in the tray 302a/b.” Applicant has not specifically required the subject matter of the new limitation and the new limitation must be removed, if Applicant would like to overcome the rejection.
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.
Claim(s) 14-17, 19-20, 1-4, 5-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dees (US 20040144781 A1) in view of Clark (US 3028039 A).
Dees discloses:
14. A container (figs 1-8) comprising a first tray and a second tray (10, 20), the first tray being releasably engageable with the second tray when the second tray is inverted relative to the first tray (as in fig 1, 3, 4, 6), each tray having a substantially identical profile (as in fig 1), for each tray: the tray comprising a cover portion (top end such as adjacent 24)), a peripheral rim (adjacent 15), and a sidewall extending between and coupling the cover portion and the rim (adjacent 13); the cover portion comprising a first stacking member and a second stacking member each located proximate an outer edge of the cover portion (30, 32, 36, 28), the first and second stacking members each having a U-shape profile (as in fig 1); the rim comprising a proximal segment and a bead segment (inner horizontal portion adjacent interior and 18/16 and portions adjacent 16, 18), wherein the proximal segment extends outwardly from the sidewall to the bead segment (as in fig 1); and the bead segment has an upwardly-extending member and a downwardly- extending member (as in fig 1), wherein the upwardly-extending member defines a first cavity (space within member), and wherein the downwardly-extending member defines a second cavity (space within member); wherein, when the first tray engages the second tray inverted relative to the first tray: the upwardly-extending member of the bead segment of the first tray is received in the second cavity of the bead segment of the second tray and engages the downwardly-extending member of the bead segment of the second tray (as in fig 1, 3, 4, 6); and the upwardly-extending member of the bead segment of the second tray is received in the second cavity of the bead segment of the first tray and engages the downwardly-extending member of the bead segment of the first tray (as in fig 1, 3, 4, 6); and wherein, when the second tray is inverted relative to the first tray and the cover portion of the second tray is stacked on the cover portion of the first tray, the first stacking member of the second tray is engageable with the second stacking member of the first tray and the first stacking member of the first tray is engageable with the second stacking member of the second tray to limit movement of the first tray and the second tray relative to one another (as in fig 6); but does not disclose:
wherein the rim includes at least one vent channel defined in the proximal segment and each of the at least one vent channels of the first and second trays is in communication with an interior volume of the container.
Clark discloses containers and also discloses the concept of providing vent channels on a proximal segment of the device (such as in fig 5 with elements 19, provided to extend from an interior area such as proximal segment to an exterior area such as a distal segment, and portions therebetween so that channel continues to function as intended) and therefore it would have been obvious to one of ordinary skill in the art at the time of the invention to modify Dees in view of Clark (by providing that the rim includes at least one vent channel defined in the proximal segment and each of the at least one vent channels of the first and second trays is in communication with the interior volume, where the channels could be added anywhere adjacent the rim) in order to provide the ability to release gas from the device in order to protect the intended contents of the device. The Office notes that with respect to the locations of the channels, it is well within the skill of one of ordinary skill in the art to provide a specific number or location, such as each side, of the vents such as based on the desired needs of the internal contents and also where the internal contents are stored specifically within the device. For example, an item that is desired to be more vented than another item could be placed adjacent the sides and the vents could be located adjacent to those contents.
The Combined Reference discloses:
15. The container of claim 14, wherein the first stacking member is a first stacking bar and the second stacking member is a second stacking bar, each of the first and second stacking bars extending outwardly from a surface of the cover portion (Dees as in fig 1).
16. The container of claim 15, wherein the first stacking bar and the second stacking bar each comprise stacking bar segments that are offset along the respective U- shape profile (Dees as in fig 6 where the locations are offset).
17. The container of claim 15, wherein the first stacking bar and the second stacking bar each comprise stacking bar segments that extend continuously along the respective U-shape profile (Dees an area of the bar extends along the profile such as an area on an entire side of the u-shape).
Dees discloses:
19. A pair of containers (figs 1-8), each container comprising a first tray and a second tray (10, 20), the first tray being releasably engageable with the second tray when the second tray is inverted relative to the first tray (as in figs 1, 3, 4, 6), each tray having a substantially identical profile (as in fig 1), for each tray: the tray comprising a cover portion (top end such as adjacent 24)), a peripheral rim (adjacent 15), and a sidewall extending between and coupling the cover portion and the rim (adjacent 13); the cover portion comprising a first stacking member and a second stacking member each located proximate an outer edge of the cover portion (30, 32, 36, 28), the first and second stacking members each having a U-shape profile (as in fig 1); the rim comprising a proximal segment and a bead segment (inner horizontal portion adjacent interior and 18/16 and portions adjacent 16, 18), wherein the proximal segment extends outwardly from the sidewall to the bead segment (fig 1); and the bead segment has an upwardly-extending member and a downwardly- extending member (fig 1), wherein the upwardly-extending member defines a first cavity (space within member), and wherein the downwardly-extending member defines a second cavity (space within member); wherein, for each container, when the first tray engages the second tray inverted relative to the first tray: the upwardly-extending member of the bead segment of the first tray is received in the second cavity of the bead segment of the second tray and engages the downwardly-extending member of the bead segment of the second tray (as in fig 1, 3, 4, 6); and the upwardly-extending member of the bead segment of the second tray is received in the second cavity of the bead segment of the first tray and engages the downwardly-extending member of the bead segment of the first tray (as in fig 1, 3, 4, 6); and wherein, when a first container of the pair of containers is stacked on a second container of the pair of containers, the first stacking member of the first tray of the first container is engageable with the second stacking member of the second tray of the second container and the first stacking member of the second tray of the second container is engageable with the second stacking member of the first tray of the first container to limit movement of the first container and the second container relative to one another (capable of performing the above intended use via use of the stacking members); but does not disclose:
wherein the rim includes at least one vent channel defined in the proximal segment and each of the at least one vent channels of the first and second trays is in communication with an interior volume of the container.
Clark discloses containers and also discloses the concept of providing vent channels on a proximal segment of the device (such as in fig 5 with elements 19, provided to extend from an interior area such as proximal segment to an exterior area such as a distal segment, and portions therebetween so that channel continues to function as intended) and therefore it would have been obvious to one of ordinary skill in the art at the time of the invention to modify Dees in view of Clark (by providing that the rim includes at least one vent channel defined in the proximal segment and each of the at least one vent channels of the first and second trays is in communication with the interior volume, where the channels could be added anywhere adjacent the rim) in order to provide the ability to release gas from the device in order to protect the intended contents of the device. The Office notes that with respect to the locations of the channels, it is well within the skill of one of ordinary skill in the art to provide a specific number or location, such as each side, of the vents such as based on the desired needs of the internal contents and also where the internal contents are stored specifically within the device. For example, an item that is desired to be more vented than another item could be placed adjacent the sides and the vents could be located adjacent to those contents.
The Combined Reference discloses:
20. The pair of containers of claim 19, wherein, for each tray, the first stacking member is a first stacking bar and the second stacking member is a second stacking bar, each of the first and second stacking bars extending outwardly from a surface of the cover portion (Dees fig 1).
Dees discloses:
1. A container comprising a first tray and a second tray (figs 1-8 with 10, 20), the first tray being releasably engageable with the second tray when the second tray is inverted relative to the first tray (figs 1, 3, 4, 6), each tray having a substantially identical profile (fig 1), for each tray: the tray comprising a cover portion (top end such as adjacent 24), a peripheral rim (adjacent 15), and a sidewall extending between and coupling the cover portion and the rim (adjacent 13); the rim comprising a proximal segment and a bead segment (inner horizontal portion adjacent interior and 18/16 and portions adjacent 16, 18), wherein the proximal segment extends outwardly from the sidewall to the bead segment (fig 1), and; and the bead segment has an upwardly-extending member and a downwardly- extending member (fig 1), wherein the upwardly-extending member defines a first cavity (Space within), and wherein the downwardly-extending member defines a second cavity (Space within); wherein, when the first tray engages the second tray inverted relative to the first tray: the upwardly-extending member of the bead segment of the first tray is received in the second cavity of the bead segment of the second tray and engages the downwardly-extending member of the bead segment of the second tray (as in fig 1, 3, 4, 6); the upwardly-extending member of the bead segment of the second tray is received in the second cavity of the bead segment of the first tray and engages the downwardly-extending member of the bead segment of the first tray (fig 1, 3, 4, 6); the sidewalls and the cover portions of the first and second trays define an interior volume of the container (inside of device); the proximal segments of the rims of the first and second trays are in face- to-face contact to substantially seal the interior volume (as in fig 4a); but does not disclose:
wherein the rim includes at least one vent channel defined in the proximal segment and each of the at least one vent channels of the first and second trays is in communication with the interior volume.
Clark discloses containers and also discloses the concept of providing vent channels on a proximal segment of the device (such as in fig 5 with elements 19, provided to extend from an interior area such as proximal segment to an exterior area such as a distal segment, and portions therebetween so that channel continues to function as intended) and therefore it would have been obvious to one of ordinary skill in the art at the time of the invention to modify Dees in view of Clark (by providing that the rim includes at least one vent channel defined in the proximal segment and each of the at least one vent channels of the first and second trays is in communication with the interior volume, where the channels could be added anywhere adjacent the rim) in order to provide the ability to release gas from the device in order to protect the intended contents of the device. The Office notes that with respect to the locations of the channels, it is well within the skill of one of ordinary skill in the art to provide a specific number or location, such as each side, of the vents such as based on the desired needs of the internal contents and also where the internal contents are stored specifically within the device. For example, an item that is desired to be more vented than another item could be placed adjacent the sides and the vents could be located adjacent to those contents.
The Combined Reference discloses:
2. The container of claim 1, wherein, for each tray, the rim comprises a distal segment extending outwardly from the bead segment opposite the proximal segment (Dees outer horizontal portion of device), the distal segment defines a peripheral edge of the rim (Dees outside edge such as shown in fig 4a), wherein the at least one vent channel is defined in the proximal segment, the bead segment, and the distal segment, and wherein the at least one vent channel terminates prior to the peripheral edge of the rim (as already provided above the element extends to the interior to near exterior, as also shown in Clark fig 5).
3. The container of claim 1, wherein, for each tray, the rim comprises a distal segment extending outwardly from the bead segment opposite the proximal segment (Dees outer horizontal portion of device), the distal segment defines a peripheral edge of the rim (Dees outside edge such as shown in fig 4a), wherein the at least one vent channel is defined in the proximal segment, the bead segment, and the distal segment, and wherein the at least one vent channel extends to the peripheral edge of the rim such that, when the first tray engages the second tray inverted relative to the first tray, the at least one vent channel creates a continuous path extending between the rims of the trays (as already provided above the element extends to the interior to near exterior, as also shown in Clark fig 5).
4. The container of claim 1, wherein, for each tray, the at least one vent channel is defined in one of the upwardly-extending member and the downwardly- extending member of the bead segment (as already provided above the element extends to the interior to near exterior, as also sown in Clark fig 5).
5. The container of claim 1, wherein, for each tray, the upwardly-extending member extends between first and second ends and the downwardly-extending member extends between first and second ends, the first end of the downwardly-extending member being located proximate the second end of the upwardly-extending member, the second end of the downwardly-extending member being located proximate the first end of the upwardly-extending member (Dees fig 1), and wherein the at least one vent channel is defined in the bead segment and extends between the first end of the downwardly-extending member and the second end of the upwardly-extending member or between the second end of the downwardly-extending member and the first end of the upwardly-extending member (as already provided above the element extends to the interior to near exterior, as also shown in Clark fig 5).
6. The container of claim 1, wherein, for each tray, the rim includes vent channels each defined in the proximal segment, wherein the vent channels include a first subset of vent channels positioned on a first side of the tray and a second subset of vent channels positioned on a second side of the tray opposite the first subset of vent channels (as already provided above the element extends to the interior to near exterior, as also shown in Clark fig 5). As already provided above, the Office notes that with respect to the locations of the channels, it is well within the skill of one of ordinary skill in the art to provide a specific number or location, such as each side, of the vents such as based on the desired needs of the internal contents and also where the internal contents are stored specifically within the device. For example, an item that is desired to be more vented than another item could be placed adjacent the sides and the vents could be located adjacent to those contents. The Office further notes that the vents could be provided around the perimeter of which also provides vents on each of the above sides within subsets.
7. The container of claim 6, wherein, for each tray, the vent channels are coextensive in length (Clark fig 5), wherein each tray includes a first end and a second end each extending from the first side to the second side, and wherein the first end and the second end do not include vent channels (the Office notes the 112 rejection above; nevertheless as already provided above, the Office notes that with respect to the locations of the channels, it is well within the skill of one of ordinary skill in the art to provide a specific number or location, such as each side and only the sides, of the vents such as based on the desired needs of the internal contents and also where the internal contents are stored specifically within the device. For example, an item that is desired to be more vented than another item could be placed adjacent the sides and the vents could be located adjacent to those contents. Though not required, and merely to expedite prosecution for Applicant, the Office also notes it would have been obvious to one of ordinary skill in the art to omit an element because omission of an element and its function is obvious if the function of the element is not desired, Ex parte Wu, 10 USPQ 2031 (Bd. Pat. App. & Inter. 1989).
8. The container of claim 6, wherein, for each tray, each of the vent channels is defined in one of the upwardly-extending member and the downwardly-extending member and extends to a peripheral edge of the rim such that, when the first tray engages the second tray inverted relative to the first tray, each of the vent channels creates a continuous path extending between the rims of the trays (as already provided above the element extends to the interior to near exterior, as also shown in Clark fig 5).
9. The container of claim 1, wherein, for each tray, the cover portion comprises a first stacking member and a second stacking member each located proximate an outer edge of the cover portion, wherein, when the second tray is inverted relative to the first tray and the cover portion of the second tray is stacked on the cover portion of the first tray, the first stacking member of the first tray is engageable with the second stacking member of the first tray and the first stacking member of the first tray is engageable with the second stacking member of the second tray to limit movement of the first tray and the second tray relative to one another (Dees 30, 32, 36, 28 capable of performing the above intended use, as shown in figs 1, 4, 5, 6).
10. The container of claim 9, wherein the first stacking member is a first stacking bar and the second stacking member is a second stacking bar, each of the first and second stacking bars having a U-shape profile and extending outwardly from a surface of the cover portion (Dees fig 1).
11. The container of claim 10, wherein the first stacking bar and the second stacking bar each comprise stacking bar segments that are offset along the respective U- shape profile (Dees as in fig 6 where the locations are offset)
12. The container of claim 10, wherein the first stacking bar and the second stacking bar each comprise stacking bar segments that extend continuously along the respective U-shape profile (Dees an area of the bar extends along the profile such as an area on an entire side of the u-shape).
Response to Arguments
Applicant's arguments filed 18355130 have been fully considered but they are not persuasive. Applicant states that the base reference does not include vents. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). The secondary reference is provided for the above feature. Applicant states that the applied prior art are containers to entirely different purposes. It appears that Applicant is attempting to ague that that prior art is non-analogous. In response to applicant's argument, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, the prior art are both to containers for holding food items. Additionally, the technologies are also both classified in 220 receptacles. The prior art is indeed analogous. Applicant states that there is no reason to modify the device. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify Dees in view of Clark (by providing that the rim includes at least one vent channel defined in the proximal segment and each of the at least one vent channels of the first and second trays is in communication with the interior volume, where the channels could be added anywhere adjacent the rim) in order to provide the ability to release gas from the device in order to protect the intended contents of the device. As already provided above, the devices are both for holding food items, and venting food is well known in the art, such as to prevent continued and overcooking of items, as an example. Applicant states that the primary reference would be rendered inoperable. The purpose of the primary reference is to contain and protect intended contents. The modification enhances the intended purpose of the device by providing venting. The Office furthermore notes that inasmuch as a problem exists with permitting liquids to enter, the same problem exists in Applicant’s own device. Accordingly, Applicant/Appellant has not demonstrated error in the factual findings or reasoning set forth by the Office and the Office maintains the 103 rejection.
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 nonprovisional extension fee (37 CFR 1.17(a)) 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW D PERREAULT whose telephone number is (571)270-5427. The examiner can normally be reached Monday - Friday 7:00am-5:30pm.
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/ANDREW D PERREAULT/Primary Examiner, Art Unit 3735