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
Response to Amendment
As a result of the amendments to the claim, the 112(b) rejections over Claims 1-2, 4, and 6-14 have been withdrawn.
All rejections not repeated in this office Action have been withdrawn.
Claims 1-4, 6-9, and 11-14 are currently pending in this Office Action.
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.
Claim(s) 1-4, 6-9, 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Malenke et al. (US 2012/0067451 A1) in view of Cindy (Take a Balanced Break and Get a Free Women’s Health Subscription, Akron Ohio Moms).
Regarding Claim 1, Malenke et al. discloses a method for manufacturing a tray containing crackers (paragraph 54) comprising the steps:
providing the tray have a receptacle, the receptacle defined at least in part by a curved wall adjacent a bottom wall so as to define a shape of the receptacle (see tray 30 of Fig. 5);
dropping the crackers into the receptacle (paragraph 31).
Malenke is silent to wherein the curved wall has a radius of curvature of at least 0.35 inches, providing at least 10 crackers having a width and a length of 1.0 inches or less, wherein the shape of the receptacle enables the crackers to slide in the receptacle toward the bottom wall and stop in an orientation generally parallel to the bottom wall; and
enclosing the receptacle with a flexible film wherein the occurrences of the crackers puncturing the flexible film is reduced due to the shape of the receptacle.
As to the limitation of enclosing the receptacle with a flexible film, Cindy is relied on to teach packaged food products comprising several pieces of cheese, nuts, and dried fruits (see image on page 1), comprising a flexible film. It is noted that the flexible film of Cindy do not have any puncture as evidenced by the film seem in the image on page 4 of Cindy.
Since both Malenke and Cindy are directed to commercially packaged food trays comprising cheese and the like, it would have been obvious to one of ordinary skill in the art to enclose the receptacle with a flexible film for the purpose of sealing the food tray for commercial sale.
As to the limitation of wherein the shape of the receptacle enables the crackers to slide in the receptacle toward the bottom wall and stop in an orientation generally parallel to the bottom wall, since Malenke also teaches a container having a curved wall adjacent to a bottom wall, there is a reasonable expectation that at least some crackers of Malenke would also be capable of sliding towards the bottom wall with the aid of the curved wall adjacent to the bottom wall. The limitation is also dependent on the size of the receptacle relative to the food such that a small food when dropped into a receptacle that is relatively much larger would likely be in an orientation that is generally parallel (i.e. less crowding). Therefore, absent any claim limitation regarding the size of the receptacle relative to the size of the food products, it would have been obvious to one of ordinary skill in the art to increase the size of the receptacle based on product design choices. It is further noted that the package of Cindy shows several pieces of cashew nuts that are oriented generally parallel to the bottom wall (see image on page 3) and that none of the flexible film show any evidence of being punctured.
Cindy is further relied on to teach a packaged food tray comprising approximately 30 food pieces (see image on page 3 of Cindy) and comprises a length dimension of about 1 inch (i.e. raisins, cheese). Therefore, since Cindy is directed to packaged food tray for storing cheese and nuts as a snack to meet a certain macronutrient requirement (see package image on page 1 describing the protein and caloric contents), it would have been obvious to one of ordinary skill in the art to select the size and quantity of the cracker based on product design choice.
The combination is silent to wherein the shape of the receptacle is defined by a side wall having a radius of curvature of about at least 0.35 inches. However, the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), or MPEP 2144.04.IV.A. In this case, since Malenke is seen to be capable of performing the intended use (as discussed in Claim 1), the claimed dimensions are not patentably distinct from the prior art.
Regarding Claim 2, Malenke further teaches wherein the crackers are dropped into the receptacle using a funnel (funnel system 24, paragraph 20).
Regarding Claim 3, Cindy is further relied on to teach a packaged food tray comprising approximately 30 food pieces (see image on page 3 of Cindy) and comprises a length dimension of about 1 inch (i.e. raisins, cheese). Therefore, since Cindy is directed to packaged food tray for storing cheese and nuts as a snack to meet a certain macronutrient requirement (see package image on page 1 describing the protein and caloric contents), it would have been obvious to one of ordinary skill in the art to select the size and quantity of the cracker based on product design choice.
Regarding Claim 4, Malenke discloses a method for manufacturing a tray containing rigid food products (rice, cookies, crackers, paragraph 54) comprising the steps:
providing the tray having a top surface (flange) and a receptacle, the receptacle having a bottom wall, having at least one side wall with a straight portion adjacent to and perpendicular to the top surface and integral with a curved portion adjacent to the bottom wall (see tray 30 of Fig. 5);
moving the rigid food products into the tray (paragraph 31).
Malenke is silent to specifically reciting a curved portion having a radius of curvature of at least 0.35 inches; providing and moving at least 10 rigid food products have a width and a length of 1.0 inch or less into the tray such that the rigid food products enter the receptacle, slide toward the bottom wall and stop in an orientation that is generally parallel to the bottom wall and below the top surface; and
applying a flexible film removably securable to the top surface of the tray and enclosing the receptacle so that the flexible film is not punctured by the rigid food products when being secured to the top surface.
As to the limitation of applying a flexible film removably securable to the top surface of the tray and enclosing the receptacle so that the flexible film is not punctured by the rigid food products, Cindy is relied on to teach packaged food products comprising several pieces of cheese, nuts, and dried fruits (see image on page 1), comprising a flexible film that is removably securable. It is noted that the flexible film of Cindy do not have any puncture as evidenced by the film seem in the image on page 4 of Cindy.
Since both Malenke and Cindy are directed to commercially packaged food trays comprising cheese and the like, it would have been obvious to one of ordinary skill in the art to enclose the receptacle with a flexible film for the purpose of sealing the food tray for commercial sale.
As to the limitation of wherein the rigid food products slide toward the bottom wall and stop in an orientation generally parallel to the bottom wall and below the top surface, since Malenke also teaches a container having a curved wall adjacent to a bottom wall, there is a reasonable expectation that at least some rigid food products of Malenke (such a rice) would also be capable of sliding towards the bottom wall with the aid of the curved wall adjacent to the bottom wall. It is further noted that the package of Cindy shows several pieces of cashew nuts that are oriented generally parallel to the bottom wall (see image on page 3) and that none of the flexible film show any evidence of being punctured.
As to wherein the shape of the receptacle is defined by a side wall having a radius of curvature of about at least 0.35 inches. However, the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), or MPEP 2144.04.IV.A. In this case, since Malenke is seen to be capable of performing the intended use (as discussed in Claim 1), the claimed dimensions are not patentably distinct from the prior art.
Regarding Claim 6, Cindy is further relied on to teach a packaged food tray comprising approximately 30 food pieces (see image on page 3 of Cindy) and comprises a length dimension of about 1 inch (i.e. raisins). Therefore, since Cindy is directed to packaged food tray for storing cheese and nuts as a snack to meet a certain macronutrient requirement (see package image on page 1 describing the protein and caloric contents), it would have been obvious to one of ordinary skill in the art to select the size and quantity of the cracker based on product design choice.
Regarding Claim 7, Malenke is silent to wherein the receptacle has a height and wherein the receptacle height is no more than 1.5 times the width dimension and the height dimension of the rigid food products. Cindy is relied on to teach a packaged tray comprising rigid food products such as cheese, nuts, raisins (see image on page 1). The packaged tray of Cindy has a height dimension that is no more than 1.5 times the width dimension of the rigid food products stored therein (see image on page 3 where length of cashew is relatively similar to height of package and where the pieces of cheese standing upright is near the top surface of the tray). It would have been obvious to one of ordinary skill in the art to size the height dimension of the tray to adequately store the rigid food products based on product design choice. In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.
Regarding Claim 8, Malenke is silent to the specific materials of the tray. Cindy teaches a packaged food tray made of a plastic material (see transparent material, image on page 1 and 3). The package of Cindy is construed to be of a plastic material and therefore semi-rigid. Since both Malenke and Cindy are directed tray packages for storing similar food (i.e. cheese), it would have been obvious to one of ordinary skill in the art to substitute equivalents known for the same purpose (see MPEP 2144.06).
Regarding Claim 9, the claim is rejected for reasons discussed in Claims 4 and 7.
Regarding Claim 14, Malenke further teaches comprising cheese, but is silent to a second receptacle. Cindy is relied on to teach a tray having two receptacle, wherein one receptacle contains cheese (paragraph 5), the tray includes a second receptacle containing cheese (see image on page 3) among other foods (nuts, raisins). Since both Malenke and Cindy are directed to trays comprising cheese, it would have been obvious to one of ordinary skill in the art to modify the tray into a two compartment tray for the purpose of holding multiple types of food.
Claim(s) 11-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 9, further in view of Quada (D881,720 S).
Regarding Claim 11, the combination is silent to wherein the shape of the receptacle includes a squared off end and a pointed end. Quada is relied on to teach a packaging tray for a “snack kit” (see title), wherein the tray comprises two compartments, and includes a squared off end (left or right side of the package, Fig. 1), and a pointed end (center of the receptacle adjacent the divide, see Fig. 1 annotated below). Since both Quada and Cindy are directed to packaged food trays comprising two receptacles, it would have been obvious to one of ordinary skill in the art to modify the shape of the package based on design choices.
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Regarding Claim 12, Quada is further relied on to teach wherein the pointed end includes a wall having a draft angle (see Fig. 1 annotated above). The wall adjacent the pointed end is construed to have a draft angle because the wall is slanted between the bottom surface and the top surface of the tray such that the entire wall can be seen in the top-view orientation and shown in Fig. 1. The corresponding wall in Fig. 2 also show a wall having a draft angle.
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 9, further in view of Vue et al. (US D752,924 S)
Regarding Claim 13, Malenke is silent to wherein the tray is fabricated of a semi-rigid material and wherein the receptacle includes a step-down to provide rigidity to the tray.
Cindy teaches a packaged food tray made of a plastic material (see transparent material, image on page 1 and 3). The package of Cindy is construed to be of a plastic material and therefore semi-rigid. Since both Malenke and Cindy are directed tray packages for storing similar food (i.e. cheese), it would have been obvious to one of ordinary skill in the art to substitute equivalents known for the same purpose (see MPEP 2144.06).
As to the receptacle including a step-down to provide rigidity, Vue is relied on to teach a package tray having two receptacle (the package tray of Vue appears to be similar to the package of Cindy based on the Assignee). The tray of Vue also discloses a step-down in a similar manner as applicants (See Fig. 4 annotated below). One of ordinary skill in the art would recognize that a step-down such as one shown by Vue provides structural rigidity, and assist in stacking/nesting of the trays during manufacturing. Therefore, since Vue is directed to similar tray packages, to provide a step up as seen in Vue would have been obvious to one of ordinary skill in the art to provide structural rigidity to the container.
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Response to Arguments
Applicant’s arguments in the response filed 18 Feb 2025 has been considered, but is found not persuasive over the prior art of record.
In response to Applicant’s argument regarding the size of the food, the argument is found not persuasive because the size of the food would have been an obvious matter of product design choice and/or preference which would have naturally flowed from the prior art, especially since Cindy teaches food products having dimensions below 1.0 inches.
In response to Applicant’s argument regarding enclosing with a flexible film, Applicant argues that the Cindy reference would not have allowed broken film seal to be distributed to customer and therefore does not indicate issues on the production line; however, the argument is not persuasive because the images shown would still indicate that the tray successful produces a sealed container without broken seal and therefore meet the limitations of the claim. Also, there is no evidence to suggest that the container of Cindy is susceptible to broken seals due to the rigid food products stored therein.
In response to Applicant’s argument for number of food products, the argument is not persuasive because Cindy is merely relied on to teach quantity, but is not relied on to substitute the food products with raisin. Rather, Malenke already teaches comprising crackers as required by the claim.
In response to Applicant’s argument regarding the shape of receptacle and radius of curvature, the argument is not persuasive because it is apparent in the Malenke reference that there is a radius of curvature; Malenke is merely silent to specifying said radius of curvature. Applicant notes that “one of skill in the art would recognize that a radius of curvature of the tray of at least 0.35 inches would certainly perform differently”; however, Applicant’s statement would support that the claimed radius of curvature does not produce an unexpected result according to a person of ordinary skill in the art. That is, since one of ordinary skill in the art would recognize that a radius of curvature of at least 0.35 inches performs differently compared to a container with no or less radius of curvature, then determining the particular radius of curvature would have been routinely determined, especially since Malenke already comprises an edge defined by a curve. Therefore, it would have been within the technical grasp of one having ordinary skill in the art to determine the proper radius of curvature based on engineering design choice.
As response to Applicant’s argument regarding the size of the receptacle, Applicant’s argues that one of ordinary skill in the art would not increase size due to cost; however, the argument is not persuasive because there is no evidence that one of ordinary skill in the art would be taught away from increasing the size. Also, there is no evidence that the increase in cost would teach away from increasing the size of the container since there is no indication of revenue, cost of goods, intended demographics, and several other variables of commercializing a product.
For these reasons the prior art has been maintained.
Conclusion
THIS ACTION IS MADE FINAL. 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.
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/T.H.N/Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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