DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This application is a Division of application No. 17/449,388, filed on Sep. 29, 2021, now Pat. No. 11,905,396, which is a continuation-in-part of application No. 17/060,058, filed on Sep. 30, 2020.
Acknowledgment is made of Provisional application No. 62/907,959, filed on Sep.
30, 2019.
Claims 1-6 are pending.
Priority
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994)
The disclosure of the prior-filed application, Application No. 62/907,959, fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application.
Accordingly, claims 1-6 have a filing date of Sep. 29, 2021.
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 1-6 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 15-20 of U.S. Patent No. 11,905,396 in view of LaPray et al. (US 2018/0100060). Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claims 1-6: US ‘396 claim 15-20 recite a method for packaging frozen foods by providing the claimed renewably sourced biodegradable polyolefin container, although doesn’t claim a pro-oxidant biodegrading agent.
Haley is directed to a method for packaging frozen food, wherein by controlling the specific concentration of the components allows the composition to exhibit a relatively fast oxidation rate ([0018] Haley). One skilled in the art would have been motivated to have included a pro-oxidant biodegrading agent in US 396 to exhibit a relatively fast oxidation rate. Therefore, it would have been obvious to one skilled in the art at the time the invention was filed to have included a pro-oxidant biodegrading agent in the method of US ‘396.
Claim 20 of US ‘396 recites a method for cooking food.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Haley et al. (US 2017/0058101).
Regarding claim 1: Haley is directed to a method for packaging frozen food, which comprises:
Providing a renewably sourced biodegradable polyolefin container for carrying hot or cold food, said renewably sourced biodegradable container including a vessel, e.g. frozen food packaging ([0037] Haley). The vessel is made from a polymerized mixture including the renewably sourced polyolefin and a pro-oxidant biodegrading agent. Specifically, Haley teaches by controlling the specific concentration of the components allows the composition to exhibit a relatively fast oxidation rate ([0018] Haley). Further, the transition metal is employed to accelerate free radical generation by hydroperoxides, which may be introduced along the polymer backbone during exposure to an oxidizing atmosphere (e.g., oxygen, air, etc.) ([0026] Haley).
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 2 is rejected under 35 U.S.C. 103 as being unpatentable over Haley as applied to claim 1 above, and further in view of Jackson et al. (US 2017/0003063).
Regarding claim 2: Jackson teaches that frozen foods are typically stored using dry ice and are well known ([0005] Jackson), wherein dry ice sublimates at a temperature of negative 100 ˚F (negative seventy eight degrees). One skilled in the art would have been motivated to have cooled the packaging of Haley to a temperature of negative seventy eight degrees to cool frozen products to a very low range ([0003] Jackson). Therefore, it would have been obvious to one skilled in the art at the time the invention was filed to have cooled the packaging to Haley to negative seventy eight degrees to arrive at claim 2 of the present invention.
Claims 3-4 are rejected under 35 U.S.C. 103 as being unpatentable over Haley as applied to claim 1 above, and further in view of Rabinovitch et al. (US 2009/0041910).
Regarding claims 3-4: Haley doesn’t mention heating the food. However, one skilled in the art understands frozen food should be consumed at about room temperature (25 ˚C).
Rabinovitch is directed to packaging for animal food including polyolefin containers of polypropylene and other plastics ([0032] Rabinovitch). The food is made shelf stable via retort sterilized by passing containers through a steam sterilization of about 250 ˚F (121 ˚C) to cook food while also killing pathogens ([0003] Rabinovitch). One skilled in the art would have been motivated to have heated the food container of Haley to a temperature of at least twenty five degrees Celsius (claim 3) and at least one hundred degrees Celsius (claim 4) to cook food while also killing pathogens and thereby make shelf stable. Therefore, it would have been obvious to one skilled in the art at the time the invention was filed to have heated the food container of Haley to a temperature of at least twenty five degrees Celsius (claim 3) and at least one hundred degrees Celsius (claim 4).
Claims 5-6 are rejected under 35 U.S.C. 103 as being unpatentable over Haley as applied to claim 1 above, and further in view of Pawlick et al. (US 2009/0078125).
Regarding claim 5: Haley mentions packaging for food items ([0037] Haley), although doesn’t mention heating said food with microwaves.
Pawlick is directed to a steaming tray being configured to hold frozen food at a temperature below zero Celsius and to hold the food at a temperature of one hundred degrees Celsius when heated with a microwave (abstract [0086] [0088] Pawlick). One skilled in the art would have been motivated to have selected a steaming tray being configured to hold frozen food at a temperature below zero Celsius and to hold the food at a temperature of one hundred degrees Celsius when heated with a microwave as the food packaging of choice in Haley to produce a commercial foodservice ovenable cooking apparatus ([0115] Pawlick). Therefore, it would have been obvious to one skilled in the art at the time the invention was filed to have selected a steaming tray being configured to hold frozen food at a temperature below zero Celsius and to hold the food at a temperature of one hundred degrees Celsius when heated with a microwave as the food packaging of choice in Haley to arrive at claim 5 of the present invention.
Regarding claim 6: Haley is directed to a method for cooking food, which comprises:
Providing a package of food, said package including a renewably sourced biodegradable polyolefin container for carrying hot or cold food, said renewably sourced biodegradable container including a vessel, e.g. frozen food packaging ([0037] Haley). The vessel is made from a polymerized mixture including the renewably sourced polyolefin and a pro-oxidant biodegrading agent. Specifically, by controlling the specific concentration of the components allows the composition to exhibit a relatively fast oxidation rate ([0018] Haley).
Haley mentions packaging for food items ([0037] Haley), although doesn’t mention heating said food with microwaves.
Pawlick is directed to a steaming tray being configured to hold frozen food at a temperature below zero Celsius and to hold the food at a temperature of one hundred degrees Celsius when heated with a microwave (abstract [0086] [0088] Pawlick). One skilled in the art would have been motivated to have selected a steaming tray being configured to hold frozen food at a temperature below zero Celsius and to hold the food at a temperature of one hundred degrees Celsius when heated with a microwave as the food packaging of choice in Haley to produce a commercial foodservice ovenable cooking apparatus ([0115] Pawlick). Therefore, it would have been obvious to one skilled in the art at the time the invention was filed to have selected a steaming tray being configured to hold frozen food at a temperature below zero Celsius and to hold the food at a temperature of one hundred degrees Celsius when heated with a microwave as the food packaging of choice in Haley to arrive at claim 5 of the present invention.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT T BUTCHER whose telephone number is (571)270-3514. The examiner can normally be reached Telework M-F 9-5 Pacific Time Zone.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Lanee Reuther can be reached at (571) 270-7026. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ROBERT T BUTCHER/Primary Examiner, Art Unit 1764