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 .
Priority
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in EP on December 30, 2022. It is noted, however, that applicant has not filed a certified copy of the EP 22383322.9 application as required by 37 CFR 1.55.
Claim Objections
Claims 1, 3, 7 are objected to because of the following informalities:
Claim 1 recites the limitation, “an upper paper layer which, in turn, comprises.” For matters of form, “in turn” should be deleted since the claim is already reciting that the upper layer is comprising a coating.
Claim 3 recites the limitation, “SBS.” For matters of form, the full name for the acronym, “SBS” should also be part of the claim (i.e. “Solid Bleached Sulphate (SBS)”), as presented in the specification.
Claim 7 recites, “A recyclable food container made of biodegradable material suitable for food use which, being suitable for conventional ovens….and freezing, is characterized in that….” For matters of form, this limitation should be amended to recite, “A recyclable food container made of biodegradable material suitable for food use and that is suitable for conventional ovens….and freezing, is characterized in that….”
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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 1-7 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 1 recites the limitation, “such as” on line 2, thus raising a question as to whether the limitations following, “such as” are required.
Claim 1 recites the limitation, “it” at the end of line 3, which is unclear as to what “it” is referring to.
Claim 1 recites the limitation, “the lower layer” on line 6, which lacks proper antecedent basis.
Claim 1 recites, “the upper layer” on line 6, which lacks proper antecedent basis.
Claim 1 recites, “an upper paper layer” on line 7. It is not clear as to whether this is intending to recite an additional layer that is a paper layer or whether “the upper layer” and “an upper paper layer” are intending to refer to the same layer.
Claim 1 recites the limitation, “non-plastic.” It is not clear from Applicant’s specification as to what it means to be “non-plastic.” That is, there is no guidance in the specification whether “non-plastic” is referring to a coating that does not have plastic properties or whether it is intending to refer to materials that are not construed as plastics.
Claim 1 recites the limitation, “in different possible colors.” This limitation is not clear as to whether it is referring to the upper layer or the coating that can be in different possible colors. Furthermore, the claim limitation is also indefinite because it is not clear as to the scope of colors that would have been “possible.” It is also not clear as to whether the varnish or upper paper layer is being positively claimed as being in different colors or whether this is merely an intended use limitation (i.e. capable of having different colors).
Claim 2 recites the limitation, “the upper paper layer” and claim 5 recites, “the upper layer.” The claims are unclear as to whether these limitations are intending to refer to two different layers or are intending to refer to the same layer.
Claim 4 recites, “characterized in that the intermediate gluing layer is a glue.” As claim 1 already recites that the intermediate layer is a gluing layer that joins the lower layer to the upper layer, it is not clear as to how claim 4 would have further limited claim 1.
Claim 7 recites, “A recyclable food container made of biodegradable material suitable for food use which, being suitable for conventional ovens….and freezing, is characterized in that it consists of a container in the form of a tray…made of a material comprising.”
This limitation is not clear as to what “it” is referring to.
The above limitation also recites, “consists of” followed by “comprising” in the same claim. This makes the claim indefinite because the limitation “consists of” would appear to exclude additional structural elements from being present in the food container, but the term, “comprising” is open ended, allowing additional structural elements.
Claim 7 recites the limitation, “or similar” which renders the claim indefinite because the claim is referring to elements not actually disclosed (i.e. those encompassed by “or similar”) thereby rendering the scope of the claim unascertainable. See MPEP 2173.05(d).
Claim 8 recites the limitation, “it,” which is not clear as to what “it” is referring to.
Claim 8 recites that the recyclable food container also has a heat-sealed closing lid; however since claim 7 recites the transitional phrase, “consists of” claim 8 is indefinite because it includes additional limitations that would have been excluded by the phrase, “consists of.” (see MPEP 2111.03(II)).
Claim 8 recites, “which can be made of plastic film or paper or cardboard.” This limitation is indefinite because what the lid “can be” made of does not make clear whether the lid is made of one of the recited materials.
Claim 8 recites, “which can be made of plastic film or paper or cardboard with a varnish treatment for heat-sealing.” This limitation is unclear as to whether only the cardboard comprises a varnish treatment or whether the plastic film, paper and cardboard have a varnish treatment for heat sealing.
Claims 3, 5 and 6 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, 4 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Crooks (US 20170190159) in view of Littlejohn (US 20200399011), Bowden (US 20030216492) and “Pfleiderer.”
Regarding claims 1 and 7 it is initially noted that the claims are unclear in light of the rejections under 35 U.S.C. 112b. Furthermore, the “consists of” language of claim 7 is unclear and in light of this, the claim has been construed as a comprising claim.
Regarding claims 1 and 7, Crooks teaches a biodegradable, recyclable and heat sealable material for food use and that is suitable for conventional and microwave ovens and freezing and heat sealing (see paragraph 15) and forms a food container in the form of a tray “or similar” (see figure 4) and the material comprises, a lower cardboard layer (see figure 1, item 102 and paragraph 19, “cardboard”); an intermediate gluing layer (figure 1, item 106 and paragraph 19, “adhesive”) and an upper paper layer (figure 1, item 104; and paragraph 19, “composite barrier paper”) which can have a coating that can have barrier properties to water (see paragraph 19 “Alternatively or in addition, the composite layer 104 could include any suitable paper material….to have barrier properties (…barrier to water…”).
Claim 1 differs from Crooks in specifically reciting that the upper paper layer comprises a coating that makes up a waterproof barrier made of a non-plastic, silicone-free, non-stick varnish of vegetable origin in different possible colors.
It is noted however, that the claim does not provide any specificity as to the particulars of the varnish and therefore allows for any combination of ingredients provided that the varnish is “non-plastic” and “silicone-free” and can provide some degree of non-stick and has some degree of vegetable origin.
Littlejohn teaches paperboard materials (paragraph 18) that can use waterproof coatings that can be of vegetable origin (see paragraph 24) and therefore would have been non-plastic, silicone-free of vegetable origin and would have had some degree of non-stick, since Littlejohn discloses that a waterproof coating is impermeable to water and grease (see paragraph 16). Littlejohn also teaches that such coatings can provide waterproofing and also be biodegradable and recyclable and therefore more environmentally friendly (paragraph 5 and 24). Since Littlejohn is also teaching storing food on the coated material (see paragraph 37), it would have been obvious to one having ordinary skill in the art that the material would also have had sealability.
Bowden teaches providing non-plastic, silicone free coatings of vegetable origin for providing waterproofing (see paragraph 174-177) for paperboard containers (see paragraph 133, 147, 178) and which material would have been capable of being microwavable and ovenable (paragraph 189, 191, “microwavable dinner trays” “baking trays”) and which containers are recyclable, biodegradable and heat sealable (see the abstract, paragraph 162: “recycled”; paragraph 183, “container to be heat sealed”).
Pfleiderer teaches a silicone-free non-stick coating, “PERGO-RELEASE” applied to paper based baking trays (see page 2, 3rd paragraph below “A feast for the eyes”). On page 4, paragraph 15, Applicant’s specification as filed appears to indicate that PERGO-RELEASE is the type of coated paper used for the upper layer.
Since Crooks does not provide specificity as to the particular type of grease and waterproof coatings it would have been obvious to one having ordinary skill in the art to modify Crooks in view of the teachings of Littlejohn, Bowden and Pfleiderer and to use non-plastic, silicone-free vegetable origin coatings that also can have non-stick properties, for the purpose of using known coating compositions to provide waterproofing and release properties to microwavable, ovenable food packaging materials while also providing recyclability and biodegradability to the packaging material.
Regarding the limitation “in different possible colours” it is not clear as to what is being claimed to have possible colors. Nonetheless, Littlejohn teaches that it has been known to use colorants as part of waterproof coatings (see paragraph 28).
To modify the combination and use any type of colorant would have been obvious to one having ordinary skill in the art as a matter of engineering and/or design.
Regarding claim 2, since Crooks teaches that the material is used for packaging foods that can be heated, the upper paper layer would obviously have been for food use.
Regarding claim 4, Crooks teaches a “glue” because layer 106 is an adhesive.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Crooks (US 20170190159) as the primary reference, and in further view of Quick (US 4900594) or Statelman (US 20230151554).
Regarding claim 3, while Crooks teaches that the lower layer is a cardboard layer, claim 3 differs in specifically reciting that this layer is an SBS cardboard.
Quick teaches that SBS cardboard is a known form of cardboard material used for forming trays that are ovenable (see the abstract and column 2, lines 64-68).
Statelman also teaches dual ovenable recyclable containers (see at least, the abstract and paragraph 2) which can be made using SBS layers (see paragraph 24)
To therefore modify Crooks and use a known form of cardboard layer would have been obvious to one having ordinary skill in the art, as a matter of engineering and/or design, based on known expedients usable in a similar manner for making heatable paperboard packaging materials.
Claims 5-6 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Crooks (US 20170190159) as the primary reference, and in further view of Emmerick (NL 2008872 C2) or Quick (US 4757940).
Regarding claim 5 and 6, Littlejohn teaches that the two paperboard layers 50 and 70 (see paragraph 18) can have a basis weight of between 30-250 lb/3000 ft2 (see paragraph 20). This equates to a grammage of between 48 to 390 g/m2 and therefore encompasses and falls within the range as recited in claim 5 and 6 for the upper layer rand the lower cardboard layer, respectively. Littlejohn teaches that the basis weight can be useful for achieving the desired rigidity (see paragraph 45).
Nonetheless, Emmerick teaches paperboard food packages that can comprise a paper layer (Figure 1, item 12; see page 2 of the machine translation below “Description of the Figures”: “a paper layer 12”) and a cardboard layer (see figure 2, item 13 and page 2 of the machine translation below “Description of the Figures”: a cardboard layer 13). Emmerick teaches that the paper layer can have a grammage of for example 20-134g/m2 as well as 40-70g/m2 (see page 2 of the machine translation 4th paragraph below the “Description of the Figures”) and the cardboard layer can have a grammage of 250-400g/m2, see page 2 of the machine translation 12th paragraph below the “Description of the Figures”). Quick also teaches dual ovenable paperboard trays (see column 1, lines 23-35) that can comprise a laminate of which a paper layer can have a grammage of 42lb/3000ft2 or 68.5g/m2 (see column 2, lines 42-45) and a cardboard layer can have a basis weight of 215lb/3000ft2 or 349.5g/m2 (see column 2, lines 30-31).
To therefore modify Crook who is not limiting as to the particular weight of the paper layer and the cardboard layer and use known grammages such as those taught by Emmerick and Quick and as also suggested by Littlejohn would have been obvious to one having ordinary skill in the art for achieving the requisite structural properties to the material.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 7 above, which relies on Crooks (US 20170190159) as the primary reference, and in further view of Valencia (US 20140123607) or Portrey (US 20210086494).
Regarding claim 8, it is noted that since Crooks teaches that the tray can be hermetically sealed (see paragraph 15) it would have been obvious to one having oirndary skill in the art that there would have been a heat sealed closing lid.
Claim 8 differs in specifically reciting that there is, “a heat-sealed closing lid, which can be made from plastic film or paper or cardboard with a varnish treatment for heat sealing.”
However, Valencia teaches a heat seal coating applied to a cardboard or paper layer (see figure 3, item 14 and paragraph 21, 23 and paragraph 22) for the purpose of sealing a lid to the container.
Portrey also teaches a sealing film used to seal a paperboard container (see figure 5, item 116 and paragraph 29, 41-43) and which lid can be plastic (see paragraph 42), “polymeric materials”) and can have a coating thereon for providing the requisite properties to the lid (see paragraph 22 and paragraph 43 which is suggesting that the lid or film layer can also have the additional clay coating thereon).
Bowden also teaches heat sealable coatings (see paragraph 183).
It would therefore have been obvious to one having ordinary skill in the art to have modified Crooks and to have used a coated lid which can be heat sealed to Crooks’ tray, for the purpose of providing the hermetic sealed package.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Harlin (US 20110223401), teaches coatings for paperboard packaging that can be of plant origin and are therefore construed to be non-plastic, silicone free and of vegetable origin, while also having some degree of non-stick in light of providing waxes and hydrophobic agents (see paragraph 42,43 and 45; see page 6, claim 2) for providing barrier protection to the paperboard (see paragraph 4) while also providing recyclability and biodegradability (see at least, paragraph 31).
Dellinger (US 20100203348), further discloses that it has been known to use wax and phospholipids such as lecithin to provide non-stick characteristics to a biodegradable moisture resistant coating on a biodegradable, recyclable paperboard container (see the abstract and paragraphs 14, 21, 28, 29).
Beerend (US 3155304), discloses paperboard containers (see figure 1 and 3; column 1, lines 39-45), which paperboard container comprises an intermediate adhesive layer (see figure 3, item 9 and column 2, line 9) and an upper paper layer that includes a coating of “quilon” which is not a plastic, is silicone free and provides a non-stick varnish.
Cunningham (US 3397065), teaches applying a coating of an edible oil to the surface of a paperboard material, for the purpose of also providing non-stick release properties (see column 1, lines 10-22; column 2, lines 16-22; column 3, lines 24-30), which coating is non-plastic, silicone-free and non-stick.
Seung (US 5494716), teaches coatings (i.e. varnish) for dual ovenable containers that are made from paperboard and cardboard (column 1, lines 5-10; column 2, lines 5-23) and which coating is non-plastic, silicone-free and non-stick (see column 2, lines 53 to column 3, line 8; a latex can be construed as being “non-plastic”) and is waterproof (see at least, column 2, lines 15-17) and which coating can be construed to be of vegetable origin, in light of the coating also comprising a food grade wax such as carnauba wax (see 4, lines 4-15).
“Papkot” teaches biodegradable, recyclable, plastic free, silicone free coatings for paper materials.
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.
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/VIREN A THAKUR/Primary Examiner, Art Unit 1792