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 .
DETAILED ACTION
Election/Restrictions
Applicant's election with traverse of claims 1-8 in the reply filed on 10/16/25 is acknowledged. The traversal is on the ground(s) that the different claim groups merely represent different aspects of claiming the same inventive concept: Group I: The tool itself; Group II: How to use the tool; Group III: System incorporating cupcakes made with the tool; and Group IV: Commercial application of the system. Applicant asserts that these are not independent inventions requiring separate examination, but rather complementary claims directed to a single inventive solution.
Examiner points out that the restriction requirement was made by another examiner, and the instant examiner finds Applicant’s arguments to be persuasive.
The requirement is therefore removed.
Specification
The abstract of the disclosure is objected to because it recites at last line “folded with each for transportation” which appears to be a misstatement of “folded with each other for transportation”.
Appropriate correction is required.
Claim Objections
Claim 1 is objected to because of the following informalities: claim 1, line 8 recites “bottom a cupcake liner” which appears to be a misstatement of “bottom of a cupcake liner” and lines 11-12 recite “wherein when placed within a quantity of cake batter prior to cooking a cupcake is thereby formed having a cake sidewall circumscribing a hollow, fillable cavity.” which appears to be a misstatement of “wherein when placed within a quantity of cake batter prior to cooking, a cupcake is thereby formed having a cake sidewall circumscribing a hollow, fillable cavity.”.
Claim 9 is objected to because of the following informalities: claim 9, next to last line recites “cupcake cork creator” which appears to be a misstatement of “cupcake core creator”.
Claim 11 is objected to because of the following informalities: claim 11, ln 1 recites “multiple cupcake core creator” which appears to be a misstatement of “multiple cupcake core creators”.
Appropriate correction is required.
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 of this title, 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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-12 are rejected under 35 U.S.C. 103 as being unpatentable over Schilling (WO 2021139856).
For claims 1-2, Schilling teaches a cupcake core creator comprising: a generally cylindrical body, being at least substantially solid, adapted to be operable to form a displacement cavity in a top of a cupcake (Fig. 1 – element 1, [0044]); said cylindrical body being heat resistant or oven safe and being denser than cake batter such that the cylindrical body is prevented from floating in the batter or otherwise moving upward during a baking cycle ([0020]); a plurality of legs extending downward from the cylindrical body and adapted to support the cylindrical body above a bottom of a cupcake liner (element 5, [0021]); a handle coupled to or formed with the cylindrical body and adapted to be manually graspable about an upper surface of the cylindrical body (element 2c, [0014] & [0047]); wherein when placed within a quantity of cake batter prior to cooking, a cupcake is thereby formed having a cake sidewall circumscribing a hollow, fillable cavity ([0018]).
Though Schilling does not teach the handle coupled to or formed with a top of the cylindrical body, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have the handle coupled to or formed with a top of the cylindrical body, since it has been held that a mere rearrangement of elements without modification of the operation of the device involves only routine skill in the art. One would have been motivated to rearrange these elements in such a manner so as to provide even easier access to the handle for grasping. Please see In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) for further details.
For claims 3-4, though Schilling does not teach three said legs projecting downward from the body at an equal length, Schilling does teach the body to have one or more pin-like feet for setting a vertical distance to a baking pan ([0021]-[0022]) and it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have three said legs projecting downward from the body at an equal length, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. One would have been motivated to perform routine experimentation for the purpose of optimizing the number of legs for desired stability. Please see In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 for further details.
For claim 5, Schilling teaches a nonstick coating covering said body and said legs ([0042] & [0046]).
For claim 6, Schilling teaches said cylindrical body is formed of stainless steel, ceramic, silicone or glass ([0020]).
For claims 7-8, though Schilling does not teach said cylindrical body has a body diameter between about 1.3 cm to about 3.2 cm; and a body height between about 2.5 cm to about 4.4 cm, Schilling does teach said cylindrical body has a diameter and a height (Fig. 1) and the body establishes a volume for filling of the baked good ([0034]) and it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have said cylindrical body have a body diameter between about 1.3 cm to about 3.2 cm; and a body height between about 2.5 cm to about 4.4 cm, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. One would have been motivated to perform routine experimentation for the purpose of optimizing the cylindrical body dimensions in order to create the desired filling cavity size. Please see In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 for further details.
For claim 9, Schilling teaches a method for creating a cavity in a baked cupcake using the cupcake core creator of claim 1, comprising the steps of: placing the material for the product to be baked into a baking pan that Examiner interprets to be a cupcake liner; positioning the cylindrical body in the cupcake liner with the legs directed downward and leaving the top center region void due to obstruction by the body; baking the cupcake, the resultant cupcake comprising a bottom layer below the level of the cylindrical body and a peripheral wall encircling a cavity; and removing the cupcake core creator, post baking, to reveal the cavity adapted to be filled with confections or other foodstuffs ([0015]).
Though Schilling does not teach first pouring batter into the cupcake liner and about at least a portion of the cylindrical body, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to pour batter into the cupcake liner and about at least a portion of the cylindrical body since it has been held that the selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results. Please see In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) and MPEP 2144.04 IV(C) for details.
For claim 10, Schilling teaches the step of filling the cavity with a desired filling post removal of the cylindrical body ([0054]).
For claim 11, Schilling does not teach multiple cupcake core creators are utilized in a cupcake pan, with one cylindrical body per pocket of the pan. However, one having ordinary skill in the art would recognize this limitation as nothing more than the duplication of a part for a multiple effect and could seek the benefit of using a cupcake pan with one cylindrical body per pocket of the pan in order to increase productivity. Please see In re Harza, 274 F.2d 669, 671, 124 USPQ 378, 380 (CCPA 1960) and MPEP 2144.04 VI(B) for further details.
For claim 12, though Schilling does not teach the batter-filled liners are filled between one-third (1/3) to one-half (1/2) of their capacity to accommodate batter expansion during baking, Schilling does teach the provided ridge on the side of the cylindrical body allows for a more flexible choice of the amount of dough used for the baked goods, thus more reliably preventing poor baking results ([0018]) and it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have the batter-filled liners filled between one-third (1/3) to one-half (1/2) of their capacity to accommodate batter expansion during baking, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. One would have been motivated to perform routine experimentation for the purpose of optimizing the batter amount in order to prevent overflow of the product during baking. Please see In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 for further details.
Claims 13-20 are rejected under 35 U.S.C. 103 as being unpatentable over Schilling (WO 2021139856) in view of Velten et al (US 2020/0193759).
Schilling teaches the invention as discussed above, including that the purpose of the cavity is to be filled with a material, such as cream, that is the choice of the user ([0054]) and thus some selection is necessarily required.
Schilling does not teach a point-of-purchase cupcake customization system comprising: a display module presenting a variety of cupcakes of a select number of cake flavors available for selection, wherein each cupcake is formed of the method of claim 9; a subsequent display showcasing a range of fillable cavity contents or fillings for user choice; an additional module offering frosting type choices to be applied on the cupcake's top; and an ending selection point with a variety of topping types available for user preference; wherein the user can select from each module to build a personalized cupcake from base to top.
However, in a related field of endeavor pertaining to a bakery kiosk which can automatically prepare, store and dispense bakery products, Velten et al teach a point-of-purchase cupcake customization system comprising: a display module (Fig. 1 – element 1610) presenting a variety of cupcakes of a select number of cake flavors available for selection; an additional module offering frosting type choices to be applied on the cupcake's top; wherein the user can select from each module to build a personalized cupcake from base to top ([0053]-[0054]); and a subsequent display showcasing a range of fillable cavity contents or fillings for user choice; and an ending selection point with a variety of topping types available for user preference would have been well known to one of ordinary skill.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Velten et al with those of Schilling by using elements of Velten et al’s bakery kiosk to form each cupcake by the method of claim 9 in order to automatically take orders, customize the cupcakes quickly and efficiently, and dispense the cupcakes to customers without the assistance of employees as suggested by Velten et al ([0009]).
For claim 14, further regarding the point-of-purchase cupcake customization system taught as obvious by Velten et al above, Velten et al also teach said display module for cake flavors offers choices vanilla and chocolate ([0054]).
For claims 15-17, Schilling teaches the cavity is to be filled with a cream filling (see citation above) and it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have said subsequent display for cavity contents or fillings comprise selections from cream fillings, and further, consistent with MPEP 2144.03, it would have been well known to one of ordinary skill to have said additional module for frosting type offer choices from a group consisting of: cream cheese, buttercream, whipped cream, chocolate frosting, and any combination thereof; and said ending selection point for topping types showcase options from a group consisting of: sprinkles, fruit pieces, chocolate shavings, nuts, and any combination thereof.
For claims 18-20, further regarding the point-of-purchase cupcake customization system taught as obvious by Velten et al above, Velten et al also teach a method of automatically preparing and customizing bakery products using the bakery kiosk ([0032]-[0033]), and in order to apply the system discussed above it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have a method for offering point-of-purchase customized cupcakes using the system of claim 13, comprising the steps of: presenting available cake flavor options to the user; receiving user's cake flavor choice; showcasing fillable cavity contents or fillings for user selection; receiving user's filling choice; offering frosting types to the user; receiving user's frosting choice; displaying topping type choices to the user; and receiving user's topping choice, wherein following the selection process, the customized cupcake is then prepared based on the user's selections; the method further including the step of filling the cavity with the user-selected filling post removal of the cylindrical body; wherein post filling, the user-selected frosting is applied on the top of the cupcake.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES SANDERS whose telephone number is (571)270-7007. The examiner can normally be reached on M-F 11-7.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Galen Hauth can be reached on 571-270-5516. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JAMES SANDERS/Primary Examiner, Art Unit 1743