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 .
Response to Amendment
Those objections and rejections that are not repeated in this Office Action have been withdrawn.
Claims 1-12, 15-18 and 20 are currently pending and rejected.
Drawings
The drawings filed December 22, 2025 are objected to because
Paragraph 105 of the specification discloses that there is sandwich shown in figure 20, however, this is not clearly indicated in figure 20. The drawings and amendment to the specification filed December 22, 2025 appear to use reference character 576 to show a sandwich, but this is not clear in light of figure 18 using 576 to describe an upper surface of removable card 521 (see paragraph 104). Applicant’s remarks do not provide further clarity in this regard.
In view of the above, reference character 576 is has been used to designate both an upper surface of the removable card 521 as shown in figure 18 and paragraph 104 and a sandwich as presented in figure 20 and paragraph 105.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Applicant is advised that should claim 6 be found allowable, claim 16 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
Claims 9, 17 and 20 are objected to because of the following informalities:
Claim 9 recites, “at least one of the side walls.” For matters of form, this limitation should be amended to recite, “at least one of the plurality of side walls.”
Claim 17, line 5 recite, “plurality of side walls.” For matters of form, this limitation should be amended to recite, “a plurality of side walls.”
Claim 20 recites the limitation, “at least one of the side wall vent opening.” For matters of form, this limitation should be amended to recite, “at least one of the side vent opening.”
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 17, 18 and 20 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 17 recites the limitation, “the absorbent material extending beyond a periphery and into the bottom vent opening.” Applicant’s remarks point to figure 5 and claim 31 as originally filed for support of this limitation. Original claim 31 recites, “The absorbent material extends beyond a periphery of the vent opening” and figure 5 shows a bottom view of the food package, where the absorbent material 60, 62 is positioned about vent opening 44 such that the absorbent material extends beyond the periphery of the vent openings to substantially encircle the openings (see paragraph 93 of Applicant’s specification as filed). While the above supports that the absorbent material extends beyond a periphery of the bottom vent opening, the disclosure does not provide reasonable support for the absorbent material extending into (i.e. inside) the bottom vent opening. Therefore the limitation of, “the absorbent material extending into the bottom vent opening,” is not seen to be reasonably supported and is therefore new matter.
Claims 18 and 20 are rejected based on their dependence to a rejected claim.
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.
The factual inquiries 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, 2, 6, 7 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Neff (US 20100072197) in view of Hopkins (US 20070056962).
Regarding claim 1, Neff teaches a microwavable package for a comestible (see the abstract), the microwavable package comprising:
a bottom wall, the bottom wall having a bottom susceptor layer having a first pattern percentage of susceptor material to non-susceptor material (see figure 1 and 3, item 200 and 240). At paragraph 41, Neff teaches that the susceptors on all surfaces can be 5-100% patterned and further teaches susceptor 240, on the bottom wall, can be 40-60% patterned, thus teaching a first pattern percentage of susceptor to non-susceptor material.
Neff further teaches a top wall including a top wall susceptor having a second pattern percentage of susceptor material to non-susceptor material (see figure 3, item 202, 242 and paragraph 41); and
at least one side wall positioned between the bottom wall and the top wall and coupled to the bottom wall, the at least one side wall having a side wall susceptor having a third pattern percentage of susceptor material to non-susceptor material (see figure 3, item 212,243 and paragraph 41), the at least one side wall, bottom wall, and top wall generally surrounding a comestible cooking space (see figure 3, item 340).
Regarding the limitation of, wherein the third pattern percentage is less than the first and second pattern percentages, Neff teaches that the sidewall susceptor can be 5% patterned or be substantially continuous, while the first pattern percentage on the bottom susceptor can be 100% patterned or 40-60% patterned and the second pattern percentage of the top wall can 5-100% patterned and where the surfaces can have the same or different patterns, thus teaching and suggesting that the third pattern percentage is less than the first and second pattern percentage (see paragraph 41).
Claim 1 differs from Neff in specifically reciting the bottom wall defining a vent opening extending at least partially through the bottom wall.
However, Hopkins teaches a microwaveable package that can also comprise susceptors on the top, bottom and at least one sidewall (see figure 16, item 62,76 and paragraphs 37 and 38) and where the bottom wall can also have a susceptor material (see paragraph 38 and figure 16, item 63 and 76) and where the bottom wall can further include a vent opening extending at least partially through the bottom wall (see figure 12, item 30A, which are venting holes as discussed on at least paragraph 31; see also figure 16 and paragraph 36 which discloses that the bottom panel also has holes and slots). Hopkins is teaching that the holes are useful for venting the package during heating so as to enhance the browning and crisping of the food (see paragraph 31 and 39).
To therefore modify Neff and to also include holes on the bottom wall, as taught by Hopkins would have been obvious to one having ordinary skill in the art, for the purpose of also providing venting to the package during microwave heating so as to provide the requisite degree of browning and crisping to the food.
Regarding claim 2, Neff teaches that the first and second pattern percentages can be 100% (see paragraph 41) and that the sidewall pattern percentage can be less than 90% for controlling the degree of heating, such as 5% (see paragraph 41-42).
Regarding claims 6 and 16, Neff discloses that the bottom wall is generally rectangular (see figure 1) and includes corners, wherein at least a portion of the corners do not include susceptor material (see figure 3, where the susceptor 240 does not extend into corners; see also paragraph 28 which further teaches that the corners can be exposed (i.e. without a susceptor).
Regarding claim 7, Neff’s top wall is seen to be separate from the bottom wall and the at least one side wall (see figure 5 and figure 8). The top wall would have been capable of being positioned within a perimeter of the at least one side wall. That is, this is seen to be an intended use limitation that the prior art would have been capable of performing, especially as the claim does not provide any further structural limitations for what results in the top wall being positioned within a perimeter of the at least one side wall.
Claims 3-5 are rejected under 35 U.S.C 103 as being unpatentable over the combination, as applied to claim 1 above which relies on Neff as the primary reference, and in further view of Mast (US 20040238534, i.e. Mast534) and Mast (WO 0130657, i.e. Mast657) and Davis (US 5726426).
Regarding claim 3, Neff teaches as shown in figure 4, the top wall is coupled to the at least one side wall, the top wall further including a flap.
Neff also teaches that additional surfaces can also have susceptors in addition to the ones that are specifically shown (see paragraph 32).
Claim 3 differs in specifically reciting, the flap including a flap susceptor.
However, Mast534 teaches on in figure 8 that there can be a lid with a flap, which flap has a susceptor material thereon (see figure 8, item 30 on lid flaps 60). Mast534 also teaches providing that the flaps, sides and lid of the package can include a nonoverlapping combination of susceptors for achieving the desired cooking result (see paragraph 52) and further teaches where the sidewalls of the base of the container can also have susceptors (see figure 5). Mast534 also teaches coupling of the flap to the at least one sidewall (see figure 9 and paragraph 54 which would have coupled the lid flap to the at least one sidewall).
Mast657 also teaches susceptors on at least one sidewall (see figure 1 and 2, between item 15) and on a lid that is coupled to the at least one sidewall, and including a lid flap including a flap susceptor (see figure 2, item 30 as part of the lid 12, as well as the susceptor material as part of flap 45, near item 15). Mast657 teaches that the first and second microwave susceptors form a continuous susceptor layer around an item of food (see page 8, lines 11 to page 9, line 12). As shown in figure 1, Mast657 teaches the lid coupled to the at least one sidewall.
Davis also teaches that both the container and lid can be made from the same microwave susceptor materials (see column 3, lines 25-53; column 4, lines 37-44 which shows the entirety of the container being made from a cut blank of susceptor material), such that the lid would also have had a flap comprising a flap susceptor (see figure 1, item 18).
To therefore modify the combination and to provide a susceptor material on the flap of the lid of Neff would have been obvious to one having ordinary skill in the art for providing the requisite degree of heating and to provide a continuous but non-overlapping susceptor layer around the food for heating.
Regarding claims 4 and 5, Hopkins teaches that the at least one side wall includes a vent opening that is substantially aligned with vent openings on the flap of the lid (see figure 16, item 86 and paragraph 39). Hopkins teaches that providing this alignment can be useful for controlling the venting for browning and crisping (see paragraph 39). Hopkins thus teaches that the top wall and the at least one sidewall includes a vent opening, as recited in claim 5.
It would therefore have been obvious to one having ordinary skill in the art to have modified Neff to have aligned vent openings on the flap of the lid and on the at least one sidewall, as taught by the Mast, Davis and Hopkins references, for the purpose of controlling the venting and thus crisping.
Claims 8-12 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Neff (US 20100072197) in view of Hoese (US 6781101) and in further view of Mast (US 20040238534, i.e. Mast534) and Mast (WO 0130657, i.e. Mast657) and Davis (US 5726426) and in further view of Hopkins (US 20070056962)
Regarding claim 8, Neff teaches a microwavable package for a comestible, the microwavable package comprising: a bottom wall; a plurality of side walls extending from the bottom wall; a top wall forming a lid operably coupled to at least one of the plurality of side walls (see figure 4 item 202 coupled to item 243; see also figure 2 where the top wall is coupled to one of the side walls via cut lines 244, 246), the top wall, bottom wall, and plurality of side walls (figure 1, item 241, 243) generally surrounding a comestible cooking space (see figure 3 and 4).
There is a first hinge positioned adjacent the top wall to permit the top wall to be located a first distance from the bottom wall (see figure 4 and the opened top portion 202).
Claim 8 differs from Neff in specifically reciting a second hinge positioned adjacent the first hinge to permit the top wall to be located a second distance from the bottom wall, the second distance being smaller than the first distance.
Hoese teaches a microwaveable package with a top (figure 2, item 24) having a first hinge adjacent to the top wall (figure 1, item 80) and a second hinge adjacent to the first hinge (figure 1, 2, 4 and 5, item 82), which second hinge allows the top to be positioned at a smaller distance to the bottom wall than the distance allowed by the first hinge (see figure 5). Hoese teaches that this configuration allows for the crisping of the food by lowering the top closer to the surface of the food for cooking and crisping of the food (see column 4, lines 34-54).
Since Neff also desirably wants to microwave cook and crisp food, it would have been obvious to one having ordinary skill in the art to have modified Neff’s top wall to have a second hinge, as taught by Hoese for the purpose of allowing Neff’s top wall susceptor to be positioned closer to the food for additional crisping thereof.
Regarding the limitation of, “a flap coupled to the top wall,” Neff teaches as shown in figure 4, the top wall is coupled to the at least one side wall, the top wall further including a flap. Neff also teaches that additional surfaces can also have susceptors in addition to the ones that are specifically shown (see paragraph 32).
Claim 8 differs from the Neff/Hoese combination in specifically reciting, the flap including a flap susceptor.
However, Mast534 teaches on in figure 8 that there can be a lid with a flap, which flap has a susceptor material thereon (see figure 8, item 30 on lid flaps 60). Mast534 also teaches providing that the flaps, sides and lid of the package can include a nonoverlapping combination of susceptors for achieving the desired cooking result (see paragraph 52) and further teaches where the sidewalls of the base of the container can also have susceptors (see figure 5). Mast534 also teaches coupling of the flap to the at least one sidewall (see figure 9 and paragraph 54 which would have coupled the lid flap to the at least one sidewall).
Mast657 also teaches susceptors on at least one sidewall (see figure 1 and 2, between item 15) and on a lid that is coupled to the at least one sidewall, and including a lid flap including a flap susceptor (see figure 2, item 30 as part of the lid 12, as well as the susceptor material as part of flap 45, near item 15). Mast657 teaches that the first and second microwave susceptors form a continuous susceptor layer around an item of food (see page 8, lines 11 to page 9, line 12). As shown in figure 1, Mast657 teaches the lid coupled to the at least one sidewall.
Davis also teaches that both the container and lid can be made from the same microwave susceptor materials (see column 3, lines 25-53; column 4, lines 37-44 which shows the entirety of the container being made from a cut blank of susceptor material), such that the lid would also have had a flap comprising a flap susceptor (see figure 1, item 18).
To therefore modify the combination and to provide a susceptor material on the flap of the lid of Neff would have been obvious to one having ordinary skill in the art for providing the requisite degree of heating and to provide a continuous but non-overlapping susceptor layer around the food for heating.
Regarding the limitation of, “wherein at least one side wall includes a side wall vent opening and the flap includes a flap vent opening such that the side wall vent opening and the flap vent opening are substantially aligned when the top wall is closed ot surround the cooking space,” it is noted that , Hopkins teaches that the at least one side wall includes a vent opening that is substantially aligned with vent openings on the flap of the lid (see figure 16, item 86 and paragraph 39). Hopkins teaches that providing this alignment can be useful for controlling the venting for browning and crisping (see paragraph 39). Hopkins thus teaches that the top wall and the at least one sidewall includes a vent opening.
It would therefore have been obvious to one having ordinary skill in the art to have modified Neff to have aligned vent openings on the flap of the lid and on the at least one sidewall, as taught by the Mast, Davis and Hopkins references, for the purpose of controlling the venting and thus crisping.
Regarding claim 9, as shown in figure 4 of Neff and figure 2 of Hoese, the prior art teaches a portion of the top wall is removably separable from at least one of the side walls.
Regarding claim 10, Neff at figure 4, item 242 and Hoese at figure 2, item 84, both teach the top wall comprising a susceptor layer.
Regarding claim 11 , Neff teaches the bottom wall includes a bottom susceptor layer having a first pattern percentage of susceptor material to non-susceptor material, the top wall includes a top wall susceptor having a second pattern percentage of susceptor material to non-susceptor material (see figure 1, item 240, 242 and paragraph 41-42). Neff teaches that “the plurality of side walls” can have susceptors such as (figure 1, item 241 and 243) having a third pattern percentage (see paragraph 41-42). wherein the third pattern percentage is less than the first and second pattern percentages.
Regarding the limitation of, wherein the third pattern percentage is less than the first and second pattern percentages, Neff teaches that the sidewall susceptor can be 5% patterned or be substantially continuous, while the first pattern percentage on the bottom susceptor can be 100% patterned or 40-60% patterned and the second pattern percentage of the top wall can 5-100% patterned and where the surfaces can have the same or different patterns, thus teaching and suggesting that the third pattern percentage is less than the first and second pattern percentage.
If it could have been construed that Neff did not specifically teach a plurality of side walls that surround a comestible that each include a side walls susceptor, then Hoese teaches that both the top wall, bottom wall and all the side walls can comprise a susceptor for providing additional crisping to the food (see column 13, lines 9-36), such that it would have been obvious to one having ordinary skill in the art to have modified Neff to include susceptor material on each side wall for the purpose of achieving the requisite degree of crisping.
Regarding claim 12, Neff teaches that the first and second pattern percentages can be 100% (see paragraph 41) and that the sidewall pattern percentage can be less than 90% for controlling the degree of heating, such as 5% (see paragraph 41-42).
Further regarding claim 15, which recites “a vent positioned on at least one of the bottom wall, the top wall and the plurality of side walls,” it is noted that Hopkins teaches that the at least one side wall includes a vent opening that is substantially aligned with vent openings on the flap of the lid (see figure 16, item 86 and paragraph 39). Hopkins teaches that providing this alignment can be useful for controlling the venting for browning and crisping (see paragraph 39). Hopkins thus teaches that the top wall and the at least one sidewall includes a vent opening, as recited in claim 15.
It would therefore have been obvious to one having ordinary skill in the art to have modified the combination and to have aligned vent openings on the flap of the lid and on the at least one sidewall, for the purpose of controlling the venting and thus crisping.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Neff (US 20100072197) in view of Young (US 5585027), Flautt (US 4268738) and Sadek (US 6359272) and in further view of Uribe (US 20210070525) and Karul (US 20030211284).
Regarding claim 17, Neff teaches microwavable package for a comestible, the microwavable package comprising: a bottom wall; a plurality of side walls extending from the bottom wall (see figure 4, item 212, 206, 210, 218); a top wall forming a lid (figure 4, item 202) and the top wall, bottom wall, and plurality of side walls generally surrounding a comestible cooking space (see figure 3); and a susceptor material positioned on at least one of the bottom wall, top wall, and plurality of side walls facing the comestible cooking space (see figure 3, item 240, 241, 242, 243).
Claim 17 differs from Neff in specifically reciting that the bottom wall, the plurality of side walls and the top wall all comprise a vent opening extending through the bottom wall, the plurality of side walls and the top wall.
Young teaches microwave susceptors that can form a package having a top wall, side walls and a bottom wall (see figure 20 and column 3, lines 47-48), where the perforations 172 allow for venting steam away from the food product (see column 8, line 63 to column 9, line 6). Young is teaching and suggesting that the microwave susceptor can surround the food as shown in figure 10 and 12). Flautt also teaches containers which can comprise apertures that surround the food for venting and moisture removal based on the type of food to be cooked (see figure 3, item 51; column 8, line 65 to column 9, line 11) and which containers can comprise top, bottom and side walls (see figure 17; column 16, lines 5-26). Sadek also teaches providing vent openings at the top and bottom walls of a microwavable susceptor package for venting moisture during heating for achieving the requisite degree of cooking (see figure 11, item 922, 950; see column 8, lines 2-6; column 10, lines 316). There would also have been vent openings on a plurality of side walls due to the slits as well as the bottom of the side walls providing an elevated surface for venting (see figure 3, item 310 and figure 10). Sadek also teaches that the number, size and location of apertures can vary with the food item and can be readily determined by one having ordinary skill in the art (see column 6, lines 9-12)
Since Young, Flautt and Sadek are also directed to microwaveable containers that can comprise susceptors, and further teach providing vent openings that can surround a food product from the top, bottom and sides, it would have been obvious to one having ordinary skill in the art to have provided vent openings on Neff’s bottom wall, top wall and plurality of side walls for the purpose of providing the requisite degree of ventilation to the food.
Claim 17 differs from the combination above, in specifically reciting, “an absorbent material positioned at the bottom wall, the absorbent material extending beyond a periphery and into the bottom vent opening.”
However, Uribe teaches a bottom wall comprising a vent opening (see figure 15 and 16, item 326 and paragraph 62; page 7-8, claim 1; see also figure 8 and 9 and paragraph 54) and where there is an absorbent material positioned at the bottom wall (see figure 9, item 122 and paragraph 54) and extending beyond a periphery and into the bottom vent opening (see figure 9, where the absorbent material 122 extends beyond a periphery and into the bottom vent opening), for the purpose of absorbing grease and moisture exuded from the food during preparation (see paragraph 38, 54). Karul (US 20030211284) also teaches it has been known and desirable to position absorbent material into openings (see paragraph 18, 52, 104, 106 and figure 18, item 154 which extends into openings 150; see also figure 38, item 406). See annotated figure 18 below:
PNG
media_image1.png
262
669
media_image1.png
Greyscale
Since the prior art already teaches a vent opening on the bottom wall, it would have been obvious to one having ordinary skill in the art to have provided an absorbent material positioned at the bottom wall and extending beyond a periphery and into the bottom vent opening for the purpose of absorbing grease and moisture exuded from the food during preparation.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 17 above, which relies on Neff (US 20100072197) as the primary reference, and in further view of Cole (US 20100012652).
Regarding claim 18, it is initially noted that the combination as applied to claim 17 teaches a variety of different aperture densities for the package as a whole, and where the purpose of the apertures has been for providing ventilation of moisture and steam during cooking. In this regard, it is further noted that it would have been obvious to one having ordinary skill in the art to have controlled the number of openings for the purpose of controlling the degree of ventilation.
Nonetheless, Cole teaches a microwave susceptor package (see paragraph 4) comprising apertures that can be from 2-50% of the overall area of the layer of microwave susceptor material or the insulating structure, such as 5%-50% (see paragraph 32 and 50). If 5%-50% of each of Neff’s susceptor surfaces had apertures there-through for ventilation purpose, then it would have been obvious to one having ordinary skill in the art that Cole would be suggesting that the apertures would have been at least 5%-50% of the outer surface area of Neff’s package.
To therefore modify the combination and use between 5-50% apertures as a percent of the total outer surface area would have been obvious to one having ordinary skill in the art, for the purpose of controlling the degree of ventilation through the package for achieving the desired cooking of the contents within the package.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 17 above, which relies on Neff (US 20100072197) as the primary reference, and in further view of Hopkins (US 20070056962).
Regarding claim 20, Neff teaches that the top wall includes a flap.
Claim 20 differs from the combination, as applied to claim 17 in specifically reciting, the flap having a flap vent opening such that at least one side wall vent opening, and flap vent opening are substantially aligned when the top wall is closed to surround the comestible cooking space
Hopkins teaches that the at least one side wall includes a vent opening that is substantially aligned with vent openings on the flap of the lid (see figure 16, item 86 and paragraph 39). Hopkins teaches that providing this alignment can be useful for controlling the venting for browning and crisping (see paragraph 39).
It would therefore have been obvious to one having ordinary skill in the art to have modified Neff to have aligned vent openings on the flap of the lid and on the at least one sidewall, for the purpose of controlling the venting and thus crisping.
Claims 8-10 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Hoese (US 6781101) in view of Mast (US 20040238534, i.e. Mast534) and Mast (WO 0130657, i.e. Mast657) and Davis (US 5726426) and in further view of Hopkins (US 20070056962).
Regarding claim 8, Hoese teaches a microwavable package for a comestible, the microwavable package comprising: a bottom wall (figure 2, item 90; figure 4, item 112); plurality of side walls (figure 1, item 12, 18, 20, 22; see figure 4, item 118) extending from the bottom wall; a top wall forming a lid operably coupled to at least one of the plurality of side walls, the top wall, bottom wall (see figure 2, item 24; figure 4, item 114), and plurality of side walls “generally” surrounding a comestible cooking space (see figure 4). Hoese teaches a microwaveable package with a top (figure 2, item 24) having a first hinge adjacent to the top wall (figure 1, item 80) and a second hinge adjacent to the first hinge (figure 1, 2, 4 and 5, item 82), which second hinge allows the top to be positioned at a smaller distance to the bottom wall than the distance allowed by the first hinge (see figure 5). Hoese teaches that this configuration allows for the crisping of the food by lowering the top closer to the surface of the food for cooking and crisping of the food (see column 4, lines 34-54).
Hoese teaches as shown in figure 2, the top wall is coupled to the at least one side wall, the top wall further including a flap.
Hoese also teaches that additional surfaces can also have susceptors in addition to the ones that are specifically shown (see column 13, lines 9-12 and 32-36).
Claim 8 differs in specifically reciting, the flap including a flap susceptor and wherein at least one side wall includes a side wall vent opening and the flap includes a flap vent opening such that the side wall vent opening and the flap vent opening are substantially aligned when the top wall is closed to surround the comestible cooking space.”
However, Mast534 teaches on in figure 8 that there can be a lid with a flap, which flap has a susceptor material thereon (see figure 8, item 30 on lid flaps 60). Mast534 also teaches providing that the flaps, sides and lid of the package can include a nonoverlapping combination of susceptors for achieving the desired cooking result (see paragraph 52) and further teaches where the sidewalls of the base of the container can also have susceptors (see figure 5). Mast534 also teaches coupling of the flap to the at least one sidewall (see figure 9 and paragraph 54 which would have coupled the lid flap to the at least one sidewall).
Mast657 also teaches susceptors on at least one sidewall (see figure 1 and 2, between item 15) and on a lid that is coupled to the at least one sidewall, and including a lid flap including a flap susceptor (see figure 2, item 30 as part of the lid 12, as well as the susceptor material as part of flap 45, near item 15). Mast657 teaches that the first and second microwave susceptors form a continuous susceptor layer around an item of food (see page 8, lines 11 to page 9, line 12). As shown in figure 1, Mast657 teaches the lid coupled to the at least one sidewall.
Davis also teaches that both the container and lid can be made from the same microwave susceptor materials (see column 3, lines 25-53; column 4, lines 37-44 which shows the entirety of the container being made from a cut blank of susceptor material), such that the lid would also have had a flap comprising a flap susceptor (see figure 1, item 18).
To therefore modify the combination and to provide a susceptor material on the flap of the lid of Hoese would have been obvious to one having ordinary skill in the art for providing the requisite degree of heating and to provide a continuous but non-overlapping susceptor layer around the food for heating.
Further regarding the limitation of, “wherein at least one side wall includes a side wall vent opening and the flap includes a flap vent opening such that the side wall vent opening and the flap vent opening are substantially aligned when the top wall is closed to surround the comestible cooking space,” Hoese teaches that the top wall includes a flap (see figure 2).
The claim differs in specifically reciting, the flap having a flap vent opening such that at least one side wall vent opening, and flap vent opening are substantially aligned when the top wall is closed to surround the comestible cooking space
Hopkins teaches that the at least one side wall includes a vent opening that is substantially aligned with vent openings on the flap of the lid (see figure 16, item 86 and paragraph 39). Hopkins teaches that providing this alignment can be useful for controlling the venting for browning and crisping (see paragraph 39).
It would therefore have been obvious to one having ordinary skill in the art to have modified the combination and to have aligned vent openings on the flap of the lid and on the at least one sidewall, as taught by the Mast, Davis and Hopkins references, for the purpose of controlling the venting and thus crisping.
Regarding claim 9, as shown in figure 1 and 2, Hoese teaches a portion of the top wall is removably separable from at least one of the side walls (see item 34, 60, 64 which are score lines and perforations for separation (see at least, column 6, lines 6-28)
Regarding claim 10, Hoese at figure 2, item 84, teaches the top wall comprising a susceptor layer and the bottom wall 90 comprising a susceptor (see column 12, line 58 to column 13, line 36).
Further regarding claim 15, Hopkins teaches that the at least one side wall includes a vent opening that is substantially aligned with vent openings on the flap of the lid (see figure 16, item 86 and paragraph 39). Hopkins teaches that providing this alignment can be useful for controlling the venting for browning and crisping (see paragraph 39). Hopkins thus teaches that the top wall and the at least one sidewall includes a vent opening, as recited in claim 15.
It would therefore have been obvious to one having ordinary skill in the art to have modified the combination and to have aligned vent openings on the flap of the lid and on the at least one sidewall, for the purpose of controlling the venting and thus crisping.
Claims 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 8 above, which relies on Hoese (US 6781101) as the primary reference and in further view of Neff (US 20100072197).
Regarding claims 11 and 12, Hoese teaches that the top wall, the bottom wall and the side walls can all comprise susceptor materials (see column 13, lines 9-10 and lines 32-36 and column 13, line 67 to column 14, line 4). Hoese also teaches that the properties of the susceptors can vary to achieve the requisite degree of cooking (see column 13, line 3-8)
Claim 11 differs in specifically reciting that the bottom wall susceptor, top wall susceptor and side wall susceptors each have a pattern percentage of susceptor material to non-susceptor material and with the third pattern percentage of the side wall susceptors is less than the first and second pattern percentages of the bottom and top wall.
Neff teaches that the susceptors on all surfaces can be 5-100% patterned and further teaches susceptor 240, on the bottom wall, can be 40-60% patterned, thus teaching a first pattern percentage of susceptor to non-susceptor material (see paragraph 41). Neff further teaches a top wall including a top wall susceptor having a second pattern percentage of susceptor material to non-susceptor material (see figure 3, item 202, 242 and paragraph 41); and where the side walls can have a third pattern percentage of susceptor material to non-susceptor material (see figure 3, item 212,243 and paragraph 41), the at least one side wall, bottom wall, and top wall generally surrounding a comestible cooking space (see figure 3, item 340).
Regarding the limitation of, wherein the third pattern percentage is less than the first and second pattern percentages, Neff teaches that the sidewall susceptor can be 5% patterned or be substantially continuous, while the first pattern percentage on the bottom susceptor can be 100% patterned or 40-60% patterned and the second pattern percentage of the top wall can 5-100% patterned and where the surfaces can have the same or different patterns, thus teaching and suggesting that the third pattern percentage is less than the first and second pattern percentage (see paragraph 41).
Neff teaches that the first and second pattern percentages can be 100% (see paragraph 41) and that the sidewall pattern percentage can be less than 90% for controlling the degree of heating, such as 5% (see paragraph 41-42).
As Hoese is not limiting as to the particular pattern percentage and teaches that the susceptor configuration can vary, it would have been obvious to one having ordinary skill in the art to have modified Hoese and used a third pattern percentage that is less than the first and second pattern percentage, and where the third pattern percentage is 90% or less while the first and second pattern percentages is 100%, as taught by Neff, for the purpose of achieving the desired degree of heating to the particular food being cooked within the package.
Response to Arguments
On page 10 of the response, Applicant urges that figure 12 of Hopkins is directed to a food supporting tray that is more akin to an insert and is not a bottom wall coupled to at least one side wall, and in fact describes the food supporting tray as having a tray floor 21A that is spaced above the floor of the box and where the package is configured in this manner to provide for a gap and air flow between the tray floor and the bottom wall of the package - which is contrary to amended claim 1.
This argument is not seen to be sufficient to overcome the rejection. It is initially noted that Neff already teaches a side wall coupled to the bottom wall and the at least one side wall having a side susceptor. Neff does not specifically teach a vent opening extending at least partially through the bottom wall. Hopkins teaches that there is desirable functionality to providing a vent opening at least partially though a bottom wall that is coupled to a side wall, which vent opening can be useful for enhancing browning and crisping. Therefore, the rejection is not relying on bodily incorporating Hopkins’ structure. Hopkins has been relied on to teach that it has been desirable to provide a vent opening on a bottom wall on which a food product is placed for the purpose of helping to brown and crisp the food. The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). 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).
Further regarding Hopkins it is noted that in figure 16, for example, end wall 52 which comprises the susceptor tab 64 are bonded together and are also coupled to the bottom wall (see paragraph 36: “Line 67 is the hinge line at which the rear end tab 52 of the bottom panel 47 of the box is turned upward when erecting the box. The susceptor tab 64 is glued or otherwise secured to the end panel 52 of the box so that, when the panel 52 is turned upward at the line 67, the susceptor tab goes with it”). As shown figure 16, Hopkins also teaches side walls 48, 49 also coupled to the bottom wall. Additionally, even if Hopkins’ package provides some elevation of the susceptor via rear 66 and front 82 edges, Hopkins’ is still teaching that this susceptor surface 63 is part of the bottom wall and would still have been coupled to at least one side wall. The claims do not limit the particular structure of the bottom wall.
Further on page 11, Applicant urges that the combination fo Neff in view of Hoese as applied to claims 8-12 do not teach the structure now incorporated into claim 8 from previously presented claims 13 and 14.
This argument is not persuasive in view of the rejection as presented in this Office Action which further incorporates the teachings of the secondary references already relied on with respect to now canceled claims 13 and 14.
Applicant’s arguments with respect to claim 17 are moot in view of the new grounds of rejection necessitated by the amendment to the claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Haskett (US 20080110878) teaches an absorbent material “at” the bottom wall and which extends beyond a periphery and “into” the bottom vent opening (see figures 2 and 3, item 120), because the absorbent material 120 can be woven, nonwoven fabric, tissue or sponge material that is shown as extending to the openings to some degree.
Grone (US 5655708) further teaches a food tray comprising an absorbent material on a bottom wall (see figure 6, item 26) and which extends beyond a periphery of the openings (Figure 6, item 11) while also extending into the openings for providing the requisite absorption (see column 6, lines 15-24).
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VIREN THAKUR whose telephone number is (571)272-6694. The examiner can normally be reached M-F: 10:30-7:00pm.
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, Erik Kashnikow can be reached at 571-270-3475. 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.
/VIREN A THAKUR/Primary Examiner, Art Unit 1792