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
Claims 1-40 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 8/25/25.
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) 41 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Flothmann et al. (DE102015122045).
Regarding Claim 41, Flothmann et al. discloses a heating apparatus (Figure 1) having a cavity (figure 1) configured to receive a beverage container 9 (Figure 1), the heating apparatus comprising: a generally rigid upper portion 14 (Figure 1) at least partially defining the cavity; a base portion 12 (figure 1) operably coupled to the upper portion; a gripping mechanism (figure 1, rim) on an exterior surface of the upper portion (Figure 1); and a plurality of heating elements 20 (figure 1;paragraph 28) disposed within the upper portion to at least partially define the cavity (Figure 1), wherein each of the plurality of heating elements is positioned such that, when the beverage container is received within the heating apparatus, the heating elements engage an exterior surface of the beverage container (figure 1).
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) 42-57 is/are rejected under 35 U.S.C. 103 as being unpatentable over Flothmann et al. (DE102015122045).
Regarding Claim 42, Flothmann et al. discloses a plurality of pressure arms disposed within the upper portion 13/20 (figure 1), wherein each of the pressure arms comprises: a first leg portion 20 (figure 1); and a second leg portion 13 (Figure 1) coupled to and integral with the first leg portion (figure 1), wherein individual heating elements are inner surfaces of corresponding first leg portions (figure 1). Flothmann et al. does not disclose individual elements carried by inner surface of corresponding first leg portions. However, it would have been obvious to one having ordinary skill in the art at the time the invention was made to have separate heating elements form the surface since it has been held that constructing a formerly integral structure in various elements involves only routine skill in the art. Nerwin v. Erlicnrnan 168 USPQ 177, 179.
Regarding Claims 43 and 51, Flothmann et al. discloses the plurality of pressure arms are disposed in a generally circular arrangement about the cavity within the upper portion of the heating apparatus (Figure 1).
Regarding Claims 44 and 52, Flothmann et al. discloses the beverage container is not received within the cavity, the first and second leg portions are spaced apart from each other by a first gap, and when the beverage container is received within the cavity, the first and second leg portions are spaced apart from each other by a second gap smaller than the first gap (Figure 1).
Regarding Claims 45 and 53, Flothmann et al. discloses the beverage container comprises a first beverage container having a first size 9 (Figure 1), the cavity is configured to receive a second beverage container having a second size larger than the first size, and when the second beverage container is received within the cavity, the first and second leg portions of each of the plurality of pressure arms are spaced apart from each other by a third gap that is smaller than the second gap (functional language, capable of, figure 1).
Regarding Claims 46 and 54, Flothmann et al. discloses the cavity is configured to receive a third beverage container having a third size larger than the second size, and when the third beverage container is received within the cavity, the first and second leg portions of each of the plurality of pressure arms are spaced apart from each other by a fourth gap that is smaller than the third gap (functional language, Figure 1, capable of doing the above).
Regarding Claims 47 and 55, Flothmann et al. discloses a circular holder (holder sidewall at 14; Figure 1) positioned between the upper portion and the base portion, wherein the second leg portions of each of the plurality of pressure arms are removably coupled to and extend away from the circular holder (17, Figure 1).
Regarding Claims 48 and 56, Flothmann et al. discloses the base portion includes control circuitry coupled to the plurality of heating elements (paragraph 8).
Regarding Claims 49 and 57, Flothmann et al. discloses the heating elements are configured to selectively heat the beverage container so that a liquid within the beverage container remains at or near a desired temperature (paragraph 26).
Regarding Claim 50, Flothmann et al. discloses a beverage heating apparatus (Figure 1), the beverage heating apparatus comprising: a generally rigid upper portion 14 (Figure 1) at least partially defining a cavity (Figure 1) configured to receive a beverage container 9 (Figure 1); a base portion 12 (figure 1) operably coupled to the upper portion (Figure 1); a plurality of pressure arms 13/20 (figure 1) disposed within the upper portion (Figure 1), wherein each of the pressure arms comprises a first leg portion 20 (figure 1) and a second leg portion 13 (Figure 1) coupled to the first leg portion (Figure 1); and a plurality of heating elements 20 (figure 1) disposed within the upper portion, wherein individual heating elements are inner surfaces of the first leg portions (figure 1), and wherein each of the plurality of heating elements is positioned such that, when the beverage container is received within the heating apparatus, the heating elements engage an exterior surface of the beverage container (Figure 1). Flothmann et al. does not disclose individual elements carried by inner surface of corresponding first leg portions. However, it would have been obvious to one having ordinary skill in the art at the time the invention was made to have separate heating elements form the surface since it has been held that constructing a formerly integral structure in various elements involves only routine skill in the art. Nerwin v. Erlicnrnan 168 USPQ 177, 179.
Applicant is duly reminded that a complete response must satisfy the requirements of 37 C.F. R. 1.111, including: “The reply must present arguments pointing out the specific distinctions believed to render the claims, including any newly presented claims, patentable over any applied references. A general allegation that the claims “define a patentable invention” without specifically pointing out how the language of the claims patentably distinguishes them from the references does not comply with the requirements of this section. Moreover, “The prompt development of a clear Issue requires that the replies of the applicant meet the objections to and rejections of the claims.” Applicant should also specifically point out the support for any amendments made to the disclosure. See MPEP 2163.06 II(A), MPEP 2163.06 and MPEP 714.02. The ''disclosure'' includes the claims, the specification and the drawings.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 41-57 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-8 of U.S. Patent No. 11839328. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the patent read on the claim broader claims of the application.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH J VOLZ whose telephone number is (571)270-5430. The examiner can normally be reached Monday-Friday 11am-7pm est.
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/ELIZABETH J VOLZ/Examiner, Art Unit 3733