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 Objections
Claims 21 and 22 are objected to because of the following informalities: Claims 21 and 22 do not have a period to end the sentence of each of these claims. Appropriate correction is required.
Claim Rejections - 35 USC § 103
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 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) 1-3, 6-9, 11, 14, 19-20 and 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Read et al. (GB 272714) (Read) in view of Bedsole (WO 2011/029009).
Read discloses a food carrying system comprising: a plurality of stackable food service items, said items including at least one stackable container having a base and a lid (Fig. 1 is an exploded view showing the components, the top item has a base and lid and the other items have the base, at least one of the food service items including a pair of opposed strap openings (slots i); and a support band (either of the straps j or k in Fig. 2) configured for threading through the strap openings and encircling the food service items when stacked, ends (see top of Fig. 2 where the ends of strap j connect and the ends of strap k connect) of said band being configured for mutual engagement with each other, thereby enabling said encircled food service items to be maintained in a stack during lifting and transport. Re claim 6, the strap openings are provided within the opposing handles b and each handle b defines a flange handle.
Read fails to disclose that the support band has openings configured for mutual alignment. Bedsole teaches a support band (bento wrap 140) with openings at its ends, the openings are configured for mutual alignment when the ends of the band are fixed together, the openings forming a handle for carrying. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the invention to modify the ends by providing openings which mutually align to form a carry handle. This provide the convenience of carrying the stack of food service items in one hand for efficient transport and handling.
Re claim 2, the lid (topmost piece in Fig. 1) includes a pair of opposed stackable container strap openings (slots i).
Re claim 3, the topmost base (piece immediately adjacent and underneath topmost piece in Fig. 1) includes a pair of opposed stackable container strap openings (slots i).
Re claims 7-9, the dinnerware items include the tiers a in the form of a tray and a plate as shown being present inside the second or middle tier a in Fig. 1.
Re claim 14, the plate as shown being present inside the second or middle tier a in Fig. 1 is considered a food service item that doesn’t have strap openings.
Re claim 19, Read fails to disclose a beverage holder. Bedsole teaches a beverage holder (caddy 120 configured to carry bottles as shown in Fig. 19A and 19B). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the invention to add the beverage holder to provide the convenience of carrying both food service items and beverages in the same package.
Re claim 20, the beverage holder is placed on top of the stack of food service items in Bedsole.
Re claim 22, Bedsole teaches that the distal ends 142, 144 of the support band 140 are affixed together by magnets (as stated in paragraph [84], lines 10-15). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the invention to add band end affixing magnets to prevent the support band from falling down when the package is set down momentarily.
Claim(s) 4, 5 and 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Read in view of Bedsole as applied to claim 1 above, and further in view of McFarland (US 8006843).
Re claims 4 and 5, The combination discloses the invention except for surrounding edge or surrounding flange as the handles do encircle the perimeter. McFarland teaches an encircling, surrounding edge and surrounding flange with handles having openings large enough for a strap. It would have been obvious to a person having ordinary skill in the art at the time the invention was made to modify the handles and strap openings to be part of a surrounding edge or surrounding flange as the surrounding edge or surrounding flange reinforces the entire perimeter and makes the tier or tray stronger.
Re claim 12, the strap opening of Read is closed, but crescent shaped. The combination fails to disclose the oval shaped slot. McFarland teaches an oval shaped slot. It would have been obvious to a person having ordinary skill in the art at the time the invention was made to modify the shape of the slot to be oval to provide reduce stress concentration in the ends of the slot.
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Read in view of Bedsole as applied to claim 1 above, and further in view of Short et al. (US 2013/0206784) (Short).
The combination fails to disclose a C-shaped strap opening and the opening open to the outer side of the opening. Short teaches a C-shaped strap opening and the opening open to the outer side of the opening. It would have been obvious to a person having ordinary skill in the art at the time the invention was made to modify the closed strap opening to be open to the outer side and C-shaped overall in order to allow strap engagement through the open outer side for quicker engagement that doesn’t require threading through a closed opening.
Claim(s) 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Read in view of Bedsole as applied to claim 20 above, and further in view of Luciano et al. (US D923415) (Luciano).
The combination fails to disclose that the support band is threaded through the beverage holder. Luciano teaches a beverage holder configured to hold a plurality of drink containers with openings at distal ends of the holder. Also, the food service items of Read use support band openings and receive the support band through these openings. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the invention to add support band opening to a beverage holder and to thread the support band through these openings to allow the beverage holder to be properly secured to a package.
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.
Claims 1-14 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of U.S. Patent No. 11,794,972 to Vish. Although the claims at issue are not identical, they are not patentably distinct from each other because the patent claims a food carrying system comprising a plurality of stackable food service items and a support band configured for threading through strap openings and encircling the food service items when stacked.
Response to Arguments
Applicant's arguments filed 11 February 2025 have been fully considered but they are not persuasive.
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 this case, the motivation is contained within the teaching reference, Bedsole which shows a strap having aligned openings that when combined together form a handle.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
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 (i.e., the compartments of Read are not food containers) are not recited in the rejected claim(s). 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). The system comprises a plurality of food service items and a support band. No food is being claimed.
Applicant states that Read does not teach a flexible strap for carrying food containers. This is not true or accurate.
Re the non-statutory double patenting rejection, there is no such MPEP procedure for holding rejections in abeyance.
Conclusion
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sjc/STEPHEN J CASTELLANO/ Primary Examiner, Art Unit 3733