Claim Rejections - 35 USC § 102/103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
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) 1, 7-9, 14 and 20 is/are rejected under 35 U.S.C. 102(a)(2) as anticipated by Zephir et al. (9,174,769; hereinafter Zephir) or, in the alternative, under 35 U.S.C. 103 as obvious over Zephir.
As to claim 1, Zephir discloses a molded basket/bakery tray (400; Figs. 7-10) comprising a base (410) including a top surface (Fig. 8A) and a bottom surface (Fig. 8B), the top surface having a plurality of vent channels/nesting tabs (450-453) extending upwardly therefrom (Fig. 10), and a wall structure (430; the wall structure is defined between two corners 434; Fig. 7) extending upwardly from a periphery of the base and including an inner surface and an outer surface, the wall structure including an upper rim (420) having a uniform height (Figs. 9-10) above the base and an entirety of the wall structure having a mesh configuration (432; Fig. 7). Zephir further discloses the base and the wall structure are integrally formed from a plastic material (column 3, lines 61-62) and the plurality of nesting tabs are configured to support another bakery tray nested within the bakery tray (column 4, lines 12-15; Fig. 10). Zephir appears to disclose the upper rim having a uniform height above the base (Figs. 9-10). To the extent that Zephir fails to disclose the upper rim having a uniform height above the base, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the bakery tray of Zephir so the bakery tray is constructed with the upper rim having a uniform height above the base for decorative purposes.
As to claim 7, Zephir further discloses the wall structure flares outwardly from the base such that a perimeter of the upper rim is larger than a perimeter of the base (Figs. 8-10).
As to claim 8, Zephir discloses the top surface, the bottom surface, the inner surface and the outer surface each have a radiused configuration (Fig. 8)
As to claim 9, Zephir discloses the inner surface of the wall structure is rounded adjacent to corners of the bakery tray (Fig. 8).
As to claim 14, Zephir discloses a system of nesting baskets/bakery trays (400; Figs. 7-10) comprising a first bakery tray (400; see claim 1 above) including a first base (410) having the top surface, the top surface including the plurality of nesting tabs (450-453) extending upwardly therefrom, and the first wall structure (430; the wall structure is defined between two corners 434; Fig. 7) extending upwardly from a periphery of the first base and including the first inner surface, the first wall structure including the first upper rim coplanar with the first inner surface and having a uniform height above the first base, an entirety of the first wall structure having a mesh configuration, the first base and the first wall structure integrally formed from the plastic material; and a second bakery tray (400; see claim 1 above) comprising a second base (410) including a bottom surface, and a second wall structure extending upwardly from a periphery to the second base and including a second inner surface, the second wall structure including a second upper rim coplanar with the second inner surface and having a uniform height above the second base, an entirety of the second wall structure having a mesh configuration, the second base and the second wall structure integrally formed from a plastic material. Zephir further discloses the second bakery tray is configured to be nested within the first bakery tray (column 4, lines 12-15; Fig. 10) with the plurality of nesting tabs supporting the bottom surface of the second base such that the second upper rim of the second bakery tray is disposed above the first upper rim of the first bakery tray when nested.
As to claim 20, Zephir discloses the first wall structure flares outwardly from the first base such that a perimeter of the first upper rim is larger than a perimeter of the first base, and the second wall structure flares outwardly from the second base such that a perimeter of the second upper rim is larger than a perimeter of the second base (Figs. 7-10).
Claim(s) 2-6 and 15-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zephir in view of Lannon (2000/0025248).
As to claims 2 and 15, Zephir discloses the plurality of nesting tabs (see claim 1 above). However, Zephir fails to show the plurality of nesting tabs includes central tabs which are spaced along a central transverse axis of the base as claimed. Lannon teaches a food tray (10) comprising a base (12) including a top surface (14) and a bottom surface (16), the top surface having a plurality of elevations and guides/nesting tabs (32, 36, 38) extending upwardly therefrom and the plurality of nesting tabs are configured to support another food tray nested within the food tray (Figs. 1-2). Lannon further teaches the plurality of nesting tabs comprises central tabs (36, 38; Figs. 1 & 8) which are spaced along a central transverse axis of the base. Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention in view of Lannon to modify the bakery tray of Zephir so the bakery tray is constructed with the plurality of nesting tabs comprise the central tabs which are spaced along a central transverse axis of the first base because the substitution of one known element for another would have yielded predictable results to one of ordinary skill in the art at the time of the invention.
As to claims 3 and 16, Lannon further teaches the plurality of nesting tabs includes edge tabs (32, 38) projecting upwardly from the base at each corner of the food tray and at each end of the central transverse axis.
As to claims 4 and 17, the bakery tray of Zephir as above or as modified above further fails to disclose the plurality of nesting tabs each have a height of between about 0.35 to about 0.4 inches above the base. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the bakery tray of Zephir as modified so each of the plurality of nesting tabs is constructed with a height of between about 0.35 to about 0.4 inches above the base as claimed because the selection of the specific height for each of the plurality of nesting tabs such as a height as taught by Zephir or Lannon or as claimed would have been an obvious matter of design choice based upon conventional design consideration, such as to increase the rigidity of the bakery tray and also to facilitate separating the bakery trays from one another.
As to claims 5 and 18, the bakery tray of Zephir as above or as modified fails to disclose a height of the wall structure from the base to the upper rim is between about 2.5 inches and about 3 inches as claimed. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the bakery tray of Zephir as above or as modified so the bakery tray is constructed with the wall structure comprises a height from the base to the upper rim is between about 2.5 inches and about 3 inches because the selection of the specific height for the wall structure such as the height as taught by Zephir or Lannon or as claimed would have been an obvious matter of design choice based upon conventional design consideration, such as to provide the bakery tray for holding a specific numbers of contents with a desire height or a different type of articles.
As to claims 6 and 19, Zephir discloses the mesh configuration of the wall structure as above comprises longitudinal and transverse struts which define the openings (432). Lannon further teaches the base comprises a mesh configuration includes longitudinal and transverse struts which define openings. However, the bakery tray of Zephir as above or as modified fails to disclose each of the openings has an area of approximately 1 in² as claimed. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the bakery tray of Zephir as above or as modified so each opening of the mesh configuration is constructed with an area of approximately 1 in² as claimed because the selection of the specific size of the openings such as the size as disclosed by Zephir or Lannon or as claimed would have been an obvious matter of design choice inasmuch as the resultant structures will work equally well.
Allowable Subject Matter
Claims 10-13 are allowed.
Response to Arguments
Applicant's arguments with respect to all pending claims have been considered but are deemed to be moot in view of the new grounds of rejection.
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 extension fee 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 date of this final action.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LUAN K BUI whose telephone number is (571)272-4552. The examiner can normally be reached Generally M-F, 7-4.
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/LUAN K BUI/
Primary Examiner, Art Unit 3736