Notice of Pre-AIA or AIA Status
1. 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
2. Claim 25 is objected to because “the second receiving area” should be “a second receiving area” in order to avoid improper antecedent basis. Appropriate correction is required.
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
3. The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
4. As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
5. Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
6. Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
7. Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
8. In claims 21 and 23, the limitation “orientation means” is being interpreted as any structure that allows a user to somehow create and/or maintain an orientation of one physical object with respect to another physical object. Applicant’s orientation means is a groove or elevation 52 at the bottom of the cup, though structures other than a groove or elevation could fall under the scope of “orientation means”.
Claim Rejections - 35 USC § 103
9. 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.
10. Claims 3-13 and 15-26 are rejected under 35 U.S.C. 103 as being unpatentable over Brock (US 2,688,430) as applied to claim 2 above, and further in view of Struble (US 3,907,195).
Regarding claim 11, Brock teaches a combination packaging container comprising: a cup-shaped container 20’, wherein the container has a container jacket (the round wall and rim) which has one open end and one closed end with a base; a sealing element 27’, said sealing element sealing the open end of the container in a detachable manner.
Brock does not teach an outer component as claimed.
Struble teaches an outer container for use with a platter (Figs. 6-7) to prevent food on the platter from being crushed (see col. 1 lines 25-26), wherein the outer component is made from a pre-cut part (Fig. 10), wherein the pre-cut part has a substantially circular ring segment basic shape, wherein the pre-cut part has a first end portion 122 and a second end portion 116, wherein the pre-cut part can be wrapped into a jacket where the first end portion and the second end portion can be joined with one another in an overlap area (Fig. 6), wherein the pre-cut part further has a first end face (illustrated as the edges that form the left side of the blank in Fig. 10) and a second end face (illustrated as the edges on the right side of the blank in Fig. 10) and wherein the first end face and the second end face are spaced apart from one another, wherein the pre-cut part has a longitudinal extension 115 extending from the first end face to the second end face, wherein the pre-cut part has a receiving area 124 and an area 120, said area being arranged between the receiving area and the second end face when viewed in the longitudinal extension.
It would have been obvious to one of ordinary skill in the art to combine the container of Brock with an outer component like that of Struble with the motivation of protecting food from crushing, as taught by Struble. Brock teaches the seal is attached to the platter rim, so a section of the open end and/or a section of the sealing element of the container would be received in the receiving area of the jacket of the outer component in this combined Brock/Struble packaging.
Regarding claim 3, Brock as modified above would include the combination packaging container of claim 11, wherein Struble teaches the receiving area 124 has a first receiving area end (the higher side as shown in Fig. 10) and a second receiving area end (the lower side), wherein the first receiving area end is facing the first end portion 122 of the pre-cut part and wherein the second receiving area end is facing the second end portion 116 of the pre-cut part, wherein the first receiving area end and the second receiving area end are spaced apart from one another.
Regarding claim 4, Brock as modified above would include the combination packaging container of claim 3, wherein Struble shows the first receiving area end and the second receiving area end are spaced apart from one another by a length, said length being 5% to 75% of the receiving area jacket circumference of the jacket (Fig. 6 and 10).
Regarding claim 5, Brock as modified above would include the combination packaging container of claim 11, wherein Struble teaches the receiving area 124 has a circular ring segment basic shape which is concentric to the circular ring segment basic shape of the pre-cut part (Fig. 10) and wherein the receiving area has a first receiving area end face (the bottom side, as illustrated in Fig. 7), where said first receiving area end face is facing the first end face, and wherein the receiving area has a second receiving area end face (the top side as illustrated in Fig. 7), where said second receiving area end face is facing the second end face, wherein the first receiving area end face and the second receiving area end face are spaced apart from one another, wherein the receiving area has a receiving area height extending from the first receiving area end face to the second receiving area end face (Fig. 7). Regarding claim 6, Brock as modified above would include the combination packaging container of claim 11, wherein Struble teaches the first end face (illustrated as the left edge in Fig. 10) and/or the second end face has/have a circular arc shape (Fig. 10), or wherein the first end face and/or the second end face has/have a wave or sine wave shape.
Regarding claim 7, Brock as modified above would include the combination packaging container of claim 11, wherein Struble teaches the jacket of the outer component has a second receiving area 142 and a second area 130, said second area being arranged between the second receiving area and the second end face (the ) when viewed in the longitudinal extension of the outer component (Fig. 10).
Regarding claim 8, Brock as modified above would include the combination packaging container of claim 7, wherein Struble illustrates the receiving area 124 and the second receiving area 142 have at least substantially the same dimensions (Fig. 10), and wherein the receiving area and the second receiving area are arranged opposite one another in the jacket of the outer component (Fig. 7). Regarding claim 9, Brock as modified above would include the combination packaging container of claim 11, wherein Struble teaches a predetermined separation area 150 is provided for in the jacket of the outer component, said predetermined separation area extending from the first end face to the receiving area, in particular to the first receiving area end face, or said predetermined separation area 150 extending from the first end face to the second end face (Struble illustrates the separation area extending fully between left and right sides of the blank as illustrated in Fig. 10).
Regarding claim 10, Brock as modified above would include the combination packaging container of claim 11, wherein Struble teaches the area is configured with a fold line 121, said fold line being configured concentrically to the jacket of the outer component in relation to a longitudinal axis of the jacket of the outer component, and wherein the area between the fold line and the second end face has a folding area 120, said folding area being foldable in a radial direction to the longitudinal axis of the jacket of the outer component (Fig. 7), and said folding area optionally having a tab 140, said tab being joinable with a second receiving area 142.
Regarding claim 12, Brock as modified above would include the combination packaging container of claim 11, wherein Struble teaches the area 120 of the outer component extends across the open end of the container when viewed in the longitudinal extension (Fig. 6).
Regarding claim 13, Brock as modified above would include the combination packaging container of claim 11, wherein Brock teaches the sealing element is on the platter rim (Fig. 8). Brock is modified with the outer cover of Struble, and Struble teaches a platter rim is engaged with the receiving area (Fig. 6), so this structure is configured such that it can only be removed once the outer component has been removed from the container.
Regarding claim 15, Brock as modified above would include the combination packaging container of claim 11, wherein Struble illustrates the jacket of the outer component extends over part of the container jacket (Fig. 6).
Regarding claim 16, Brock as modified above would include the combination packaging container of claim 11, wherein Struble teaches the area 120 is configured with a fold line 121, said fold line being configured concentrically to the jacket of the outer component in relation to a longitudinal axis of the jacket of the outer component (Fig. 7), and wherein the area between the fold line and the second end face has a folding area 120, said folding area being folded in a radial direction to the longitudinal axis of the jacket of the outer component, such that the folding area partially or fully covers the open end, in particular the sealing element (Fig. 6).
Regarding claim 17, Brock as modified above would include the combination packaging container of claim 16, wherein Struble teaches the folding area 120 has a tab 140, said tab being joined with a second receiving area 142 (Fig. 8).
Regarding claim 18, Brock as modified above would include the combination packaging container of claim 11, wherein Brock teaches a round platter, which has a truncated cone shape. Brock is modified with the outer cover of Struble, and Struble teaches a truncated cone shape as well. Brock and Struble do not teach any particular angles, but the examiner notes that because the platter is shallower than the outer component, this limitation would be anticipated. The examiner provides an annotated illustration below to show how these angles would be formed; where the line is drawn from the start and end point of each of the jackets of the container and outer component. The annotation lines do not line up with the features exactly, and it is still plainly evident the first angle is greater.
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Regarding claim 19, Brock as modified above would include the combination packaging container of claim 18, wherein Brock teaches a round platter, which has an open end and/or the sealing element has/have a collar. Brock is modified with the outer cover of Struble, and Struble teaches the collar protrudes radially to the conical axis across the container jacket of the container. Brock teaches a structure wherein a third angle is configured between the conical axis and an imaginary intersecting line (the bottom angle in the annotated figure below), where said imaginary intersecting extends from an outermost point of the collar (45) to the conical axis and intersects the first end face. Struble does not explicitly teach making the third angle to be greater than the second angle, but this would occur at some point where the rim projects further from the collar. It would have been obvious to one of ordinary skill in the art to form the structure with a large amount of platter projecting from the cutouts with the motivation of engaging a large portion of the cutouts to ensure a firm grip on the platter.
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Regarding claim 20, Brock as modified above would include the combination packaging container of claim 11, wherein the container of Brock is reusable to the extent broadly claimed. There is no structure in Brock that would physically prevent a user from choosing to use the container two or more times.
Regarding claim 21, Brock as modified above would include the combination packaging container of claim 11, wherein Brock teaches the container has an orientation means 21 in its base area, in particular a groove or an elevation, which is configured to fix and/or position the container (Fig. 4).
Regarding claim 22, the method steps as claimed would be satisfied during the normal operation and use of the modified Brock container set forth above. The structure of the claim elements is described regarding claim 11 above. Brock teaches the steps of providing the recited cup-shaped container, filling the container with product (Fig. 6), sealing the open end of the container with a detachable sealing element (Fig. 7). Brock is modified with the outer cover of Struble, and Struble teaches providing the recited outer component and providing it on the container such where a section of the container is received in the receiving area (Figs. 6-7).
Regarding claim 23, Brock as modified above would include the method according to claim 22, wherein Brock illustrates the container can be fixed and/or positioned prior to wrapping with the outer component or prior to the axial sliding of the outer component by coupling a coupling element with an orientation means 21 (Fig. 4), in particular with a groove or elevation, in the base area of the container.
Regarding claim 24, the method steps as claimed would be substantially satisfied during the normal operation and use of the modified Brock container set forth above. The structure of the claim elements is described regarding claim 11 above. Brock teaches the steps of providing the recited cup-shaped container, filling the container with product (Fig. 6), sealing the open end of the container with a detachable sealing element (Fig. 7). Brock is modified with the outer cover of Struble, and Struble teaches providing the recited outer component and providing it on the container such where a section of the container is received in the receiving area (Figs. 6-7), and separating the outer component by opening the predetermined separation area (col 3 lines 46-48). Brock does not explicitly teach removing the sealing element; however it would have been obvious to one of ordinary skill in the art to remove the sealing element to access the food.
Regarding claim 25, Brock as modified above would include the combination packaging container of claim 10, wherein Struble teaches the folding area 120 has a tab 140, said tab being joined with a second receiving area 142 (Fig. 8).
Regarding claim 26, Brock as modified above would include the combination packaging container according to claim 11, but so far fails to include wherein the jacket of the outer component extends over between a quarter and two thirds of the container jacket. Looking at Struble alone, Struble shows the jacket of the outer component extending over the entirety of the container jacket. See Figure 8 of Struble where the jacket of the outer component extends over all of the container jacket and touches the surface the container it sitting on. There is currently nothing precisely comparing the height of the Brock container to that of Struble. It is not clear how much of the Brock container jacket would be covered by the jacket of the outer component of Struble when combined. If the Brock container were taller than that of Struble, the jacket of the outer component of Struble would cover less than its entirety. The amount that the jacket of the outer component extends over the container jacket is a function of container height. It would have been obvious to one having ordinary skill in the art at the time Applicant’s invention was effectively filed to have changed the height dimension of the Brock container to any suitable height, including such a height where coincidentally the jacket of the outer component of Struble would extend over between a quarter and two thirds of the container jacket. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Furthermore, a person of ordinary skill in the art would have realized through their own available knowledge and reasoning that varying the height of the Brock container in either direction would predictably control the volume of food capable of being received therein.
Allowable Subject Matter
11. Claim 14 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
12. The following is a statement of reasons for the indication of allowable subject matter: The prior art does not teach or suggest the recited outer component for a sealed cup element where removing the outer component automatically removes the underlying sealed element. The prior art teaches sealing elements and caps as separate elements that are independently removed.
Response to Arguments
13. Applicant’s arguments filed 7/15/25 have been fully considered. Some arguments are persuasive and the appropriate rejections have been withdrawn.
14. Applicant’s argument that Brock fails to disclose a cup-shaped container is not persuasive. Applicant has argued that the container of Brock has a rim that is low compared to its base. Applicant has argued that cups have rims which are high compared to its base. Examiner notes that nothing in the claims establish a requisite height of the claimed container. There is no standard cup size. Cups can be tall. Cups can be short. Cups can be wide. Cups can be narrow. Brock shows a container that is “cup-shaped” to the degree it has a base and sidewall that encloses a volume, like the shape of a cup. Following Applicant’s own logic, one could find a square shaped cup and argue that Applicant’s container is not “cup-shaped” because it is round and not square like the provided cup. Again, there is no standard “cup” shape and this term alone cannot be relied upon to define specific structure to the degree Applicant has attempted.
15. Applicant’s argument that there is no motivation to combine Brock and Struble is not persuasive. Applicant has argued that the seal of Brock already provides crush-protection such that the crush-protection afforded by the Struble outer component would add no benefit. Brock makes no mention of his cellophane sheet seal providing crush protection. A person of ordinary skill in the art would understand through their own available knowledge and reasoning that the cellophane seal taught by Brock would provide very little, if any, crush protection and that the structural outer component of Struble, specifically intended to prevent crushing, would better protect food in the Brock container from being crushed and would have found it obvious to have combined the container of Brock with an outer component like that of Struble.
Conclusion
16. Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
17. Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILLIP D SCHMIDT whose telephone number is (571)272-3459. The examiner can normally be reached Monday-Friday; hours vary approximately 0800-1900. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nathan Newhouse can be reached at 571-272-4544. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JUSTIN M LARSON/Primary Examiner, Art Unit 3734 7/28/26
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