DETAILED ACTION
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim Rejections - 35 USC § 112
Claims 1, 3-9, 11, 12, and 14-18 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.
Regarding claim 1 and 12, the limitation “the continuous flexible side wall is scratch proof,” is indefinite. In the art “scratch proof” has at least two meanings, either the material is scratch proof such that it is not likely to scratch a surface that it is resting on or that the material itself cannot be marked by scratches, in this case, the term “scratch resistant” is more frequently used. The specification provides no explanation of the meaning of “scratch proof.” The specification does not disclose any particular properties of the material that causes it to be “scratch proof.” For the purposes of examination, the limitation is interpreted to mean that the material will not scratch a surface. Furthermore, it is not clear what property causes the device of the instant application to have the characteristic of “scratch proof.” Is it the material itself or some other aspect of the material, like material hardness, a special metal additive or a particular coating?
The claims not addressed above are rejected since they depend from a rejected claim.
Claim Rejections - 35 USC § 103
Claim(s) 1, 3-6, 8, 9, 11-12, 14-15, 17-18, are rejected under 35 U.S.C. 103 as being unpatentable over Witkowsk (US 11950716) in view of Aseff (US 8100285).
Regarding claim 1, 3-5, 12, 14, Witkowski discloses a handheld food storing device 20 comprising, fig. 1, 2B, 2A: a continuous flexible side wall at 22; and a flexible bottom wall, fig. 2B forming a cavity; wherein said continuous flexible side wall having a top edge including a lip 32 extending around said top edge; wherein said continuous flexible side wall and said flexible bottom wall having a flexible outer surface and a flexible inner surface, Col. 6: 1-15;
wherein said continuous flexible side wall having a height less than a height of a food item (chicken leg, fig. 2B); wherein said lip extending generally orthogonal to said top edge, fig. 2B;
wherein said cavity housing a first portion of said food item while a second portion of said food item extends outward from said cavity, fig. 2B;
wherein said first portion of said food item gripped by said flexible inner surface when a user squeezes said continuous flexible side wall, col. 6: 30-40; and
further wherein said second portion of said food item is accessible for consumption by a user and said flexible bottom wall is fully capable of collecting food crumbs and condiments falling from said food item, fig. 2B;
said cavity having a width and a length, and said length (about 6.5 inches) is generally about two times said width (the radius is 1.5 inches, the diameter (width) is then 3 inches, approximately half the length (also 6.5 inches is approximately 2 times the width).
Applicant discloses no particular silicone other than silicone that is PVC and BPA free. With this in mind, as Witkowski discloses the same kind of silicone, the material of Witkowski has the same properties as applicant’s claimed material:
further wherein said handheld food storing device having a material resistant to extreme temperatures from about -30°C to about 130°C and is food grade antifungal silicone (even the smooth surface of the container of Witkowski at least partially provides antifungal aspects to the device.
The silicone material disclosed by Witkowski is soft, resilient, and non-slip grip, col. 1: 35-40, col. 6:30-40. With this in mind, the material disclosed by Witkowski is scratch proof as it will not scratch surfaces, in addition, the flexibility of silicone materials make it scratch resistant since the surface provides give before being scratched.
The smoothness of the flexible silicone holder of Witkowski makes it inherently antimicrobial. However, if this interpretation is found sufficient to teach the claimed antimicrobial aspect, the following modification is provided.
Aseff teaches container 20 for food made from silicone, col. 2: 5-15, fig. 1 and 2, and provided with, by either blending, or coating, an anti-microbial additive, col. 10:24-40.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the material of Witkowski to have either an integrated or a coated anti-microbial additive in order to maintain food safety.
Witkowski discloses that said handheld food storing device having a material of food grade silicone, can be reused (as it is dishwasher safe) col. 3: 49-56.
Regarding claims 6 and 15, Witkowski discloses the device is made from silicone, silicone is microwavable. With this in mind, the device of Witkowski is microwavable.
Regarding claims 8 and 17, the device of Witkowski is tubular in shape, fig. 1.
Regarding claims 9 and 18, Witkowski discloses that the cavity is oval in shape, col. 6: 25-30.
Regarding claim 11, Witkowski further discloses that the handheld food storing device is disposable, col. 8: 5-10, also anything can be thrown away.
Claim(s) 7 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Witkowski and Aseff as applied to claims 6 and 15 above, and further in view of Mayeaux (US 3481458).
Regarding claims 7 and 16, the references applied above teach all of claims 6 and 15, as applied above. Witkowski further teaches that the container may be square (made out of a different material than the silicone embodiment), col. 8: 5-15. Witkowski discloses no particular reason for a square shaped cross section.
However, it is known to provide cuboidal shaped food holders for holding a sandwich, Mayeaux, fig. 2 and 4:
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It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the shape of the container of Witkowski to be cuboidal (have a square cross section) in order to hold cuboidal shaped food like sandwiches as per the teaching of Mayeaux.
Claim(s) 19 is rejected under 35 U.S.C. 103 as being unpatentable over Witkowski in view of Aseff and MacDonald (US 2021/0345640).
Regarding claim 19, Witkowski discloses a handheld food storing device 20 comprising, fig. 1, 2B, 2A: a continuous flexible side wall at 22; and a flexible bottom wall, fig. 2B forming a cavity; wherein said continuous flexible side wall having a top edge including a lip 32 extending around said top edge; wherein said continuous flexible side wall and said flexible bottom wall having a flexible outer surface and a flexible inner surface, Col. 6: 1-15;
wherein said continuous flexible side wall having a height less than a height of a food item (chicken leg, fig. 2B); wherein said lip extending generally orthogonal to said top edge, fig. 2B;
wherein said cavity housing a first portion of said food item while a second portion of said food item extends outward from said cavity, fig. 2B;
wherein said first portion of said food item gripped by said flexible inner surface when a user squeezes said continuous flexible side wall, col. 6: 30-40; and
further wherein said second portion of said food item is accessible for consumption by a user and said flexible bottom wall is fully capable of collecting food crumbs and condiments falling from said food item, fig. 2B;
said cavity having a width and a length, and said length (about 6.5 inches) is generally about two times said width (the radius is 1.5 inches, the diameter (width) is then 3 inches, approximately half the length (also 6.5 inches is approximately 2 times the width).
Applicant discloses no particular silicone other than silicone that is PVC and BPA free. With this in mind, as Witkowski discloses the same kind of silicone, the material of Witkowski has the same properties as applicant’s claimed material:
further wherein said handheld food storing device having a material resistant to extreme temperatures from about -30°C to about 130°C and is food grade antifungal silicone (even the smooth surface of the container of Witkowski at least partially provides antifungal aspects to the device.
The silicone material disclosed by Witkowski is soft, resilient, and non-slip grip, col. 1: 35-40, col. 6:30-40. With this in mind, the material disclosed by Witkowski is scratch proof as it will not scratch surfaces, in addition, the flexibility of silicone materials make it scratch resistant since the surface provides give before being scratched.
The smoothness of the flexible silicone holder of Witkowski makes it inherently antimicrobial. However, if this interpretation is found sufficient to teach the claimed antimicrobial aspect, the following modification is provided.
Aseff teaches container 20 for food made from silicone, col. 2: 5-15, fig. 1 and 2, and provided with, by either blending, or coating, an anti-microbial additive, col. 10:24-40.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the material of Witkowski to have either an integrated or a coated anti-microbial additive in order to maintain food safety.
Witkowski discloses that said handheld food storing device having a material of food grade silicone, can be reused (as it is dishwasher safe) col. 3: 49-56.
Witkowski does not teach indicia.
MacDonald is analogous art in regard to food holders 100, fig. 1, and teaches that text, images, and/or patterns may be disclosed on the outer surface for the purpose of providing a logo for advertisement [0036].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the food holder of Witkowski to have indicia in order to provide a means for advertising or giving information as per the teaching of MacDonald.
Response to Arguments
Applicant’s arguments with respect to the claim(s) have been considered but are moot because the new ground of rejection does not rely on any combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
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 MOLLIE L IMPINK whose telephone number is (571)270-1705. The examiner can normally be reached Monday-Friday (7:30-3:30).
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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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MOLLIE LLEWELLYN IMPINK
Primary Examiner
Art Unit 3799
/MOLLIE IMPINK/Primary Examiner, Art Unit 3799