DETAILED ACTION
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either 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 § 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.
Claims 1, 3 – 8, and 10 – 15 are rejected under 35 U.S.C. 103 as being unpatentable over Wnek et al. US 2008/0078759 in view of Mir US 2019/0117012.
Regarding claims 1 and 8, Wnek discloses a single use prepackaged frozen food product (paragraph [0017]) capable of roasting said food product in a microwave oven (paragraph [0002]) which comprises a plurality of frozen food pieces (chicken nuggets) having a moisture content by weight from about 10% to about 90% (where percent weight loss represents a moisture content) (test 2, 28.2%) and a sealed pouch containing the plurality of frozen food pieces positioned within an interior volume defined by the sealed pouch (paragraph [0082]). The sealed pouch is formed from a flexible material (MICROFLEX®) defining a plurality of inflatable segments (pillows) in a rectangular array having a susceptor (205) on an interior surface of the sealed pouch (paragraph [0100] and fig. 2C). The sealed pouch includes a top panel sealed to a bottom panel via opposing first and second seals to form the interior volume (paragraph [0121]), and a vent positioned through the flexible material to permit release of moisture from an interior of the seal pouch during microwave cooking (paragraph [0147]).
Further, Wnek also discloses the vents (slits 440b) would be off centered along edges 436 which is to say that Wnek is disclosing that vent is positioned with respect to the rectangular array of the plurality of inflatable segments such that at least two edges of the vent align with the rectangular array without intersecting an inflatable segment of the plurality of inflatable segments (paragraph [0123] and fig. 4A). The interior surface of the pouch is configured to contact at least a portion of the plurality of frozen food pieces as the plurality of inflatable segments inflate with moisture released from the plurality of frozen food pieces during microwave cooking to push the susceptor into contact with the food (expansion of water vapor and air in the closed cells 214 applies pressure on the susceptor film 205 ) (paragraph [0100]-[0101]). Contact occurs from each of a top orientation and a bottom orientation during microwave cooking of the microwave food package (the susceptor contacts all surfaces of the food product ) (paragraph [0016]) while moisture is released through the vent to roast the at least a portion of the plurality of frozen food pieces through heating of the susceptor (paragraph [0100]-[0101]).
Claims 1 and 8 differ from Wnek in the vent occupying a surface area from about 1.5% to about 2.5% of a total surface area of the interior surface, the vent positioned on the top panel with a spacing of at least about 14% of a length between the opposing first and second seals from each of the opposing first and second seals.
Mir discloses a single use prepackaged frozen food product capable of cooking said food product in a microwave oven (paragraph [0048]) which comprises a plurality of frozen food pieces positioned in the interior volume of a sealed pouch (fig. 2) which pouch is formed from a flexible material (base films) including a top panel sealed to a bottom panel to form the interior volume (paragraph [0050]) and a vent (slit 115) (engineered to break open at a particular level of pressure build-up) positioned in the top panel (paragraph [0051]) having a length between the opposing first and second seals, which length can vary (paragraph [0053]). As is clearly evidenced in figure 19 there would be a spacing of at least about 14% of a length between opposing first and second seals (i.e. the left and right seals), therefore teaching and suggesting a known degree of spacing between the vent and the opposing first and second seals. Once it was known to position a vent through the flexible material to permit release of moisture from an interior of the pouch during microwave cooking the substitution of one known vent for another known vent with a spacing of at least about 14% of a length between opposing first and second seals to obtain predictable results would have been an obvious matter of choice and design to the ordinarily skilled artisan (MPEP § 2143 I.(B). Regarding the particular surface area the vent would occupy Mir discloses that the vent (115) may have varying dimensional characteristics such that upon cooking the vent may resist premature opening or be delayed in structural breakdown to ensuring that the pouch is vented at the proper time (paragraph [0054]) which is to say that the surface area that the vent would occupy based on the total surface area of the interior surface would be a result effective variable that the ordinarily skilled artisan would regularly and routinely optimize. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages. It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions (MPEP § 2145 II.A.).
Regarding claims 3 and 11, Wnek discloses there would be four chicken nuggets in the single use prepackaged frozen food product which is seen to be an amount sufficient to arrange the plurality of frozen food pieces in a substantially single layer on the bottom panel during microwave cooking (paragraph [0080]).
Regarding claim 4 and 12, Wnek in view of Mir disclose a single use prepackaged frozen food product capable of cooking said food product in a microwave oven (‘012, paragraph [0048]) which comprises a plurality of frozen food pieces positioned in the interior volume of a sealed pouch (fig. 2) which pouch is formed from a flexible material (base films) including a top panel sealed to a bottom panel to form the interior volume (‘012, paragraph [0050]) and a vent (slit 115) (engineered to break open at a particular level of pressure build-up) positioned in the top panel (‘012, paragraph [0051] and fig. 1). Once it was known to position a vent through the flexible material to permit release of moisture from an interior of the pouch during microwave cooking it is not seen that patentability would be predicated on the vent having a surface area of about 3.0% to about 5.0% of the surface area of the top panel. Limitations relating to the surface area of the vent of the top panel would not be sufficient to patentably distinguish over the prior art. The mere scaling up of a prior art surface area capable of being scaled up or down, if such were the case, would not establish patentability in a claim to an old surface area. Where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed surface area and a single use prepackaged frozen food product having the claimed relative surface area would not perform differently than the prior art surface area, the claimed surface is not patentably distinct from the prior art (MPEP § 2144.04 IV.A.).
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Regarding claims 5 and 13, Wnek in view of Mir disclose there would be a longitudinal seal extending between the opposing first and second seals (924A) (‘759, paragraph [0145] and fig. 9A).
Regarding claims 6 and 14, Wnek in view of Mir disclose the vent (115) would be present in a longitudinal arrangement along the length of said package (‘012, paragraph [0051] and fig. 1) which would be seen as substantially parallel to the longitudinal seal of the single use prepackaged frozen food product (‘759, fig. 5).
Regarding claims 7 and 15, Wnek in view of Mir disclose the susceptor would occupy at least about 80% of a surface area of the sealed pouch (the susceptor layer generally forms the interior surface of the sleeve) (‘759, paragraph [0016]).
Regarding claim 10, Wnek in view of Mir disclose the bottom panel is capable of resting against a support surface of a microwave oven during microwave cooking (microwave packaging material resting on the cooling platform in the microwave oven) (‘759, paragraph [0016]).
Claims 2 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Wnek et al. US 2008/0078759 in view of Mir US 2019/0117012 in view of Huang US 4,985,300.
Regarding claims 2 and 9 Wnek in view of Mir disclose the vent (115) of the single use prepackaged frozen food product would be positioned through the flexible material which would be capable of preventing passage of the plurality of frozen food pieces through the vent during storage of the prepackaged microwave food product since the vent is covered (sealed) and which cover is removed from the vent when said product is microwave cooking (‘012, paragraph [0051]).
Claims 2 and 9 differ from Wnek in view of Mir in the vent disclosing the cover would be removed from the vent prior to microwave cooking. It is seen however that the vent would be capable of being uncovered, i.e., removed should it be desired to do so the prior to microwave cooking.
Nevertheless, Huang discloses a single use prepackaged frozen food product (example 6) which comprises a sealed pouch formed from a flexible material having a susceptor on an interior surface of the sealed pouch (col. 3, ln 23 – 25). Huang further discloses said pouch would be made airtight but provided with vents, perforations (pinholes) and that said vents would be uncovered, that is opened, by the consumer prior to cooking in order to provide an escape for steam generated during microwave cooking (col. 5, ln 53 – 62) making it an obvious matter of choice and/or design to the ordinarily skilled artisan to have the modified the vent cover of Wnek in view of Mir to removably affixed to the vent prior to microwave cooking.
Response to Arguments
Applicant's arguments filed 20 April 2026 have been fully and carefully considered but they are not found persuasive.
Applicant urges that Wnek fails to disclose or otherwise suggest "the vent positioned on the top panel with a spacing of at least about 14% of a length between the opposing first and second seals from each of the opposing first and second seals" as recited in claims 1 and 8 or "the vent positioned with respect to the rectangular array of the plurality of inflatable segments such that at least two edges of the vent align with the rectangular array without intersecting an inflatable segment of the plurality of inflatable segments and that the Office Action relies on two separate, unrelated embodiments of Wnek with respect to disclosure of a vent. These urgings are not deemed persuasive.
Wnek was brought to teach that it was conventional and known in the art to position a vent through a flexible material of a sealed pouch, not to teach the exact positioning and spacing of the vent. Had Wnek taught all the limitations as claimed a rejection under 35 U.S.C. 103 would not have been necessary as a rejection under 35 U.S.C. 102 would have ensured. The particulars of the vent have been made obvious by Mir as set forth in the rejections. Further, the ordinarily skilled artisan does not live in a vacuum and each reference is good for all that is taught in light of the teachings of the prior art and of the particular application disclosure as it would be interpreted by one possessing the ordinary level of skill in the pertinent art which is to say that the ordinarily skilled artisan would obviously think to combine the various facets of the embodiments taught in a single document.
Applicant urges that with respect to Mir figure 19 provides no description whatsoever that "there would be a spacing of at least about 14% of a length between opposing first and second seals" as proffered in the Office Action. This urging is not found persuasive.
Mir clearly suggests such positioning as is clearly evidenced in figure 19 that there would be a spacing of at least about 14% of a length between opposing first and second seals in that Mir shows the vent as between the left and right seals, therefore teaching and suggesting a known degree of spacing between the vent and the opposing first and second seals.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007).
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (the recitation of "a length between the opposing first and second seals" defines a length, 14% of a length defines a second length and a spacing of at least about 14% of a length between the opposing first and second seals from each of the opposing first and second seals defines the spacing of the vent from each of the opposing first and second seals i.e., the configuration of the vent is shown as in FIG. 5A of the instant application) are not recited in the rejected claims. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
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 CHAIM A SMITH whose telephone number is (571)270-7369. The examiner can normally be reached Monday-Thursday 09:00-18:00.
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/C.S./
Chaim SmithExaminer, Art Unit 1791 27 June 2026
/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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