DETAILED ACTION
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 .
Election/Restrictions
Applicant's election with traverse of Group I and Species III Fig. 3B in the reply filed on 10/07/2025 is acknowledged. The traversal is on the ground(s) that “the various embodiments of the present invention involve overlapping subject matter” and “searches for each embodiment would necessarily overlap one another”. This is not found persuasive because while the species may have subject matter that overlaps, they also have divergent subject matter, i.e., the different shapes and number of side portions, which require different search strategies to the divergent subject matter.
The requirement is still deemed proper and is therefore made FINAL.
Claims 18-20 withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Group, there being no allowable generic or linking claim. No argument were directed to the election between groups in the reply filed on 10/07/2025.
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 2-3, 5 and 8 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 2 and 11 recite “comprises a thermoformed or injection molded plastic”, this is unclear. Do all the component need to comprise a thermoformed or injection molded plastic? Do the components need to be made by thermoformed or injection molded plastic? Can a material with a blend of types of plastic be used such that thermoformed or injection molded plastic is one component of the blend?
Claim 3 and 12 recite “comprises a transparent or translucent material”, this is unclear. Does this mean the container and insert are transparent or translucent? Or does this mean a transparent/translucent material is just one of the material used to create the finished product, i.e., a blend of different materials?
Claim 5 recites “wherein the lid comprises an upper surface and a lower surface, wherein the lower surface of the lid comprises a protrusion, the protrusion shaped to receive the tab”, this is unclear. If the lower surface has a protrusion, that protrusion would be downward towards the bottom of the assembly because if it was upward, it would be from the upper surface. How then would a downwardly directed protrusion be shaped to receive an upwardly projecting tab? Does the applicant mean the lid has a protrusion that is shaped to receive the tab? It is unclear if this is the structure disclosed in Fig. 4. Should this be a recess in the upper surface? Or a lid portion that is adapted for the projecting tabs? It is unclear what is required to meet this limitation and if it is directed to the embodiment shown in the figures.
The term “about” in claim 8 is a relative term which renders the claim indefinite. The term “about” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear what the tolerance is for “about”, how close does the thickness have to be to be “about”?
Claim Rejections - 35 USC § 102
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(s) 1-2, 4, 6-11 and 13-17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kwak KR 20110005199 U, herein after referred to as Kwak.
Regarding claim 1 Kwak discloses a food storage assembly (Figs. 1-3) comprising:
a container (1 can) comprising a base (bottom of 1) and an opening defining a rim (upper opening), wherein a side wall is circumferentially disposed between the base and the rim (Fig. 2, the walls surrounds the base along the circumference); and
an insert (10 detachable means) having a base, wherein the insert comprises two or more side portions (101 side plates) connected to the base (102 bottom plate) and extending radially therefrom, wherein the two or more side portions (101) are flexible and are folded to form a side wall conforming to a shape of the side wall of the container when the insert is positioned inside the container (Figs. 1-3).
Regarding claim 2 Kwak discloses the food storage assembly of claim 1. In accordance to MPEP 2113, the method of forming the device is not germane to the issue of patentability of the device itself. Therefore, this limitation has not been given patentable weight. Please note that even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a
product, i.e. -food storage assembly, does not depend on its method of production, i.e. made by being thermoformed plastic or by injection molding plastic.
Regarding claim 4 Kwak discloses the food storage assembly of claim 1 and further discloses wherein the two or more side portions (101) of the insert comprise an upper edge (near 110) and a lower edge (near 102), wherein at least one of the two or more side portions of the insert further comprises a tab (110 grip) adjacent the upper edge of the at least one of the two or more side portions (Figs. 1-3).
Regarding claim 6 Kwak discloses the food storage assembly of claim 1 and further discloses wherein the side portions (102) forming the side wall of the insert are separable from each other (Figs. 1 and 3).
Regarding claim 7 Kwak discloses the food storage assembly of claim 1 and further discloses wherein the insert comprises a flexible material (page 2, line 27).
Regarding claim 8 Kwak discloses the food storage assembly of claim 1 and further discloses wherein the insert has a thickness. Kwak discloses substantially all the limitations of the claim(s) except for the thickness of the insert being between 0.001 and 0.05 inches. It would have been an obvious matter of design choice to make the thickness of the insert in that range, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art.
Regarding claim 9 Kwak discloses the food storage assembly of claim 1 and further discloses wherein the insert further comprises a perforated section, an indentation, a groove, or a combination thereof located along a connection point between the base of the insert and at least one of the two or more side portions of the insert (there is a fold line between the base 102 and the side portions 101 that is an indentation where the fold is made).
Regarding claim 10 Kwak discloses an insert (10 detachable means) of a food storage assembly (Figs. 1-3), wherein the insert comprises food-safe, foldable material (the material is folded as shown in Figs. 2-3 and is for a container having food and is food safe as it is used with food products), the insert comprising :
a base (102 bottom plate); and
two or more side portions (101 side plates) connected to the base (102 bottom plate) and extending radially therefrom, wherein the two or more side portions (101) are flexible and are folded to form a side wall when folded (Figs. 1-3).
Regarding claim 11 Kwak discloses the insert of claim 10. In accordance to MPEP 2113, the method of forming the device is not germane to the issue of patentability of the device itself. Therefore, this limitation has not been given patentable weight. Please note that even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product, i.e. -the insert, does not depend on its method of production, i.e. made by being thermoformed plastic or by injection molding plastic.
Regarding claim 13 Kwak discloses the insert of claim 10 and further discloses wherein the two or more side portions (101) of the insert comprise an upper edge (near 110) and a lower edge (near 102), wherein at least one of the two or more side portions of the insert further comprises a tab (110 grip) adjacent the upper edge of the at least one of the two or more side portions (Figs. 1-3).
Regarding claim 14 Kwak discloses the insert of claim 10 and further discloses wherein the side portions (102) forming the side wall are separable from each other (Figs. 1 and 3).
Regarding claim 15 Kwak discloses the insert of claim 10 and further discloses wherein the insert comprises a flexible material (page 2, line 27).
Regarding claim 16 Kwak discloses the insert of claim 10 and further discloses wherein the insert has a thickness. Kwak discloses substantially all the limitations of the claim(s) except for the thickness of the insert being between 0.001 and 0.05 inches. It would have been an obvious matter of design choice to make the thickness of the insert in that range, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art.
Regarding claim 17 Kwak discloses the insert of claim 10 and further discloses wherein a perforated section, an indentation, a groove, or a combination thereof located along a connection point between the base of the insert and at least one of the two or more side portions of the insert (there is a fold line between the base 102 and the side portions 101 that is an indentation where the fold is made).
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(s) 3 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Kwak in view of Columbo US 5,266,763, herein after referred to as Columbo.
Regarding claim 3 Kwak discloses the food storage assembly of claim 1. Kwak is silent to the opacity of the material used.
Columbo teaches a food storage assembly (Figs. 1-3) for holding food stuffs made from a clear translucent polymer (Col. 2, lines 46-49).
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 material of the container and the insert to comprise translucent material as taught by Columbo as doing so is well known in the art and would yield predictable results. Additionally, is allows the user to facilitate continuous inspection of the foodstuff within the container. Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice.
Regarding claim 12 Kwak discloses the insert of claim 10. Kwak is silent to the opacity of the material used.
Columbo teaches a food storage assembly (Figs. 1-3) for holding food stuffs made from a clear translucent polymer (Col. 2, lines 46-49).
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 material of the insert to comprise translucent material as taught by Columbo as doing so is well known in the art and would yield predictable results. Additionally, is allows the user to facilitate continuous inspection of the foodstuff within the container. Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Lauren Kmet whose telephone number is (313)446-4834. The examiner can normally be reached M-F 9am-6pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anthony Stashick can be reached at (571) 272-4561. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/L KMET/Examiner, Art Unit 3735
/Anthony D Stashick/Supervisory Patent Examiner, Art Unit 3735