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 .
Claim Rejections - 35 USC § 112(b)
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 1-18 are rejected under 112(b) for failing to clearly set forth the subject matter regarded as the invention.
Where applicant acts as his or her own lexicographer to specifically define a term of a claim contrary to its ordinary meaning, the written description must clearly redefine the claim term and set forth the uncommon definition so as to put one reasonably skilled in the art on notice that the applicant intended to so redefine that claim term. Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357, 52 USPQ2d 1029, 1033 (Fed. Cir. 1999). The term “comminuting” or “comminuted” or “comminution” in claims 1-18 is used by the claim to mean “cutting—even a single time” while the accepted meaning is “breaking particles from one average particle size to a smaller average particle size.” Comminution is distinct from cutting, and typically involves grinding, powdering, crushing, etc. The term is being used here to mean making a simple division by a cut—which appears incompatible and un-necessarily confusing. The term is indefinite because the specification does not clearly redefine the term.
Claims 2+ refer to “the comminution device” but the preamble of claim 1 recites “A device for comminuting fruits” which is slightly inconsistent, and should be corrected to either recite “A comminution device for …” in claim 1, or else change the dependent claims to recite “the device.” Note the above request to modify the claim nature of the device from “comminuting to “cutting” or similar—more consistent with the disclosure and the recognized terminology in the art.
Claim Rejections - 35 USC § 102
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.
Claim(s) 1-4, 7-11 is/are rejected under 35 U.S.C. 102(a)(1) or (a)(2) as being anticipated by Melton *(US 2010/0224041).
Regarding claim 1, Melton discloses a device (Figure 1, figure 7, inter alia) for comminuting fruits (Title: “Food slicer”), having a base part (24 figure 1) which has a platform (18), projecting in relation to a base bottom portion (24), for at least one fruit. Note here that the tool shown in Melton is inverted relative to the applicant’s disclosure but the terms used, such as “base” does not limit the device to a base which is ‘lower’ relative to gravity. Also the device as shown in melton is fully operational upside down—in the same manner as applicant’s. It is clearly a device which is hand-held and can be operated in many orientations, not just as pictured.
It will be noted here that the disclosure of Melton does not correspond with the images and figures of Melton as a whole. Especially noted is the fact that the disclosure notes 18 as “blades” but shows blades within cups 31 and 30 in figures 7 and 10. In that context, it is clear that blades “18” of Melton are not blades—they are support surfaces which force food into the cup of the comminution part (30/ 10, etc.)
Melton further discloses a comminution part (10 inter alia, figure 1; also see 112(b) above regarding ‘comminution’) which has at least one knife (inside 31 figure 7; or as shown in figure 10) and is movable so as to be guided relative to the base part (24,22) in such a manner that a fruit located on the platform (18 works as a platform to push fruit through the sheet 12 and against the blades shown in cup 31 within comminution part 10) is comminuted by means of the knife (inside 30 figure 10 or 31 figure 7), the platform (18 forms a platform to force fruit down) containing at least one slot (as shown at figure 6 there are clear slots between the adjacent fins of platform 18—the same type of platform shown in applicant’s disclosure ) which extends from an upper side of the platform in the direction toward the base bottom portion and into which the knife (inside 30/ 31 as noted above) plunges during the guided movement, wherein the base part (16 figure 6) has a linear guide portion (20 figure 2) on which the comminution part (10 figure 2) can be moved ( it is capable of doing so—see L2 figure 2) so as to be linearly guided in a first direction (up/down along axis A figure 1, for example)
Regarding claim 2 Melton further discloses base part (24/22 inter alia) having a first guide post (30 figure 1) and a second guide post (opposite of 30 figure 1, near the 22 mark on the left), the first guide post (20) having a first guide face (inside surface engaged with comminution part, figures 1-2 inter alia) and the second guide post having a second guide face (the engagement surface of 16/ 30 figure 1 on the left side, which engages with the comminution part)
Regarding claim 3 Melton further discloses claim 2 as above, and further the first and the second guide posts (left and right 16/30 figure 1) being mutually spaced apart in a second direction (left right), the platform (18/18) in the second direction (left-right) being disposed between the first and the second guide posts (see figure 1).
Regarding claim 4, Melton further discloses the knife (inside 30 or 31 figures 7 and 9-10)) of the comminution part (10) extending in a second direction (left right—as shown in figure 2, etc.figure 9 and 10 shows especially the straight left/right option of the blade placement) perpendicular to the first direction (up/down) and the slot (within 18) of the platform (18) extending in the second direction (left/right).
Regarding claim 7, Melton discloses the base part and the comminution part being mutually separate parts (See figures 1-5).
Regarding claim 8, Melton discloses the comminution part (10) having a container portion (inside 10) with having an elastically expandable container bottom portion (12 and 14 figure 1; note here--- like above—that “bottom portion” is not required to be relative to gravity, and the disclosure of Melton shows that this is a hand tool orientable in space and usable for its intended cutting regardless of orientation in space) which can expand during the guided movement of the comminution part (10) relative to the base part (16/24 figure 2) so as to transfer at least part of the comminuted fruit into the container portion (As the support 18 presses the fruit down in figure 2-4, it passes through the elastic portion 12/14: “the blade guiding top that is made of elastic material…” abstract).
Regarding claim 9, Melton shows that the expandable container bottom portion (14) having a plurality of elastically deformable bottom segments (see figure 1 which shows the ‘fingers’ of the projections) which each project in each case from a periphery (around the opening in 14 figure 1) of the container portion (10/ inter alia) radially inward (see figure 1), the plurality of bottom segments (14 etc.) preferably defining a central opening (see figure 1), the size of the latter central opening corresponding to that of the platform when viewed from above in the first direction (as seen throughout—the hole and slots of 14 are meant to correspond with and accommodate the fingers 18 as they press the food down into the container to engage with blades held inside the comminuting part thereof, as seen in figures 7 and/or 9-10).
Regarding claim 10, Melton further discloses the knife (inside 30, 31 figures 7, 9, 10) being disposed in a container interior (see figures 7, 9, 10) of the container portion (31, inter alia, figures 7, 9, 10).
Regarding claims 11-12, the slots of the base 18 support clearly accommodate and relate to the blades shown in the figures 7, 9, 10 for through cuts to the food being cut and segmented.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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) 5-6 is rejected under 35 U.S.C. 103 as being unpatentable over Melton *(US 2010/0224041) in view of Leavens (US 2,329,918) and Young (US 2,303,595).
Regarding claim 5, Melton *(US 2010/0224041) doesn’t disclose the Q and L dimensions are different--- Melton’s frame is a circle, and not a pseudo-rectangle as shown in applicant’s disclosure, and claimed here. The use of rectangular frames is old, and well known in the food chopping art, as shown in Leavens (US 2,329,918) which shows a rectangular food cutting base 1 in figure 3. Similarly, Young shows rectangular blade plates (figure 12, inter alia), and rectangular plungers 49 figure 11, 52 figure 8 for sliding relative to and pushing food through cutters, in a manner similar to applicant and/or Melton.
It would have been obvious to modify Melton’s overall outer shape to be a rectangle rather than a circle—since both shapes are known in the art for the purpose of guiding food relative to a cutter, and both could be implemented with no undue experimentation or unexpected results.
Regarding claim 6, as noted above, changing the profile of Melton to be a rectangle (*as known in the art) would result in the second guide post of the base part being greater than, or equal to, the transverse extent of the comminution part, since the circle of Melton would be a rectangle. It is noted that both rectangles (with the longer and shorter sides reversed) are obvious each in their own way—since both would function and neither is discouraged, and here-- since it has been held that changing the size or range of an article is not ordinarily a matter of invention. Appropriate selection of size, weight, ratios, etc. is considered routine, and is typically a matter of design choice. See In re Rose 105 USPQ 237 (CCPA 1955) and also In re Yount (36 C.C.P.A. (Patents) 775, 171 F.2d 317, 80 USPQ 141. Choosing which two sides are shorter and which longer is a routine selection of the dimensions of the device, where the features are broadly shown in the art.
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Melton as applied to claim 1, inter alia, above, and further in view of Gimelli (US 2,815,056).
Regarding claim 13, Melton does not discuss that the base part and/or a container portion of the comminution part being produced from plastics material.
The use of plastics for food cutting utensils and their housings is old and well known in the same art and problem solving endeavor—Gimelli is a cutter with a bousing, and notes “(42) The housing (12 or 22) and the stripper plate (20 or 39) of the chopping device embodying the present invention may be made of metal or plastic materials, the housing being preferably made of transparent plastic materials to facilitate inspection of the inner surfaces for cleanliness”
It would have been obvious to one of ordinary skill to make the housings of Melton from plastic and transparent plastic specifically, since doing so aids in the inspection of a food tool for cleanliness, which is an excellent motivation to select plastic specifically in the context of a food tool such as Melton.
Claim(s) 14-16, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Melton *(US 2010/0224041) as applied to claims 1-4, inter alia, above, and further in view of Chiu (US 7,870,812).
Regarding claim 14, Melton shows a method for comminuting fruits such as fresh fruit or vegetables by means of a comminution device (10) as claimed in claim 1
comprising the following steps: removing the comminution part (12/14/10) from the base part (24 etc. See removed position in figure 7
Placing a fruit onto the platform ([see 0004] “fruit”) of the base part (18 etc).
Engaging the comminution part (see assembled in figure 1) with the base part and guiding the comminution part on the guide portion of the base part in the first direction (up/down – See [0033]: “The slicing device 16 includes a cutting tool 18 rigidly and removably attached to a frame 20 wherein the frame 20 and cutting tool 18 both slide vertically up and down together between an open, or fruit loading, position and a closed, or fruit slicing, position.”) in such a way that the knife (figure 7 or 9) comminutes the fruit on the platform (18) and plunges into the slot (between 18) of the platform (18)
The comminuted fruit parts, making their way via an elastically expandable container bottom portion (12/14) into a container interior (inside 10, below 30 figure 10) of a container portion (10) of the comminution part (10 inter alia)
As noted above with respect to claim 1, there is a slight difference in the disclosure and the Melton reference, in that the present application shows the comminuting portion above the base portion, but Melton does the opposite. This is not a difference in claim scope, as presently understood—however, for clarity, the reversal is also obvious in the art, as seen in Chiu.
Chiu shows a comminution ring 10/11 which moves up and down into engagement with a base portion 21.22 which has the same type of wedge base supports with slots for blades to slot into (see 26/23). This shows that in the art, Melton’s use of comminution on bottom and presser/support on top is not the only known way to arrange those elements—Chiu would suggest the opposite arrangement of comminution portion on top with the support/ base on bottom, as seen therein.
It would have been obvious to one of ordinary skill in the art to reverse the Melton device to be inverted, as taught to be routine and ordinary in the same field of fruit chopping by Chiu.
Regarding claim 15, It is also apparent that “lifting the comminution part from the base part the comminuted fruit parts being held in said container interior after the comminution part is lifted from the base part is a natural result of the device as shown above—Melton is designed to permit elastic deformation of the skirt 14 so the fruit would be in the container—and in order to chop another piece of fruit, the comminuter and base would need to be opened and pulled away from each other, as the structures imply in the figures of Melton.
Regarding claim 16, Melton, (above) shows the two lateral clearances are connected by way of the slot.
Regarding claim 18, the above disclosure of the relative positioning and movement of a Melton style cutter with the adjustment to reverse the positioning of the container / comminuter with the ‘base’ or guide would result in the same claimed steps and arrangement here of the comminuted fruit parts make their way via the elastically expandable container bottom portion (the poihnt of Melton 14 is permitting food to enter the lower comminuting chamber where a knife or more is placed to cut the food therein) into the container interior of the container portion of the comminution part (10 Melton figures 1, 2, 7, 9, 10, especially) as the comminution part (10 and the knife therein) is guided on the guide portion (lateral sides) of the base part (20, 22, 24, 16 figure 1) in the first direction (Melton Axis A – Up-down).
Claim(s) 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Melton *(US 2010/0224041) in view of Chiu (US 7,870,812) as applied to claims 14-16, 18 above, and further in view of Gimelli (US 2,815,056) and Sanders (US 6,142,193).
Regarding claim 17, Melton does not disclose at least one of the base part and the container portion of the comminution part is produced as an injection-molded plastic part.
Melton does not discuss that the base part and/or a container portion of the comminution part being produced from plastics material.
The use of plastics for food cutting utensils and their housings is old and well known in the same art and problem solving endeavor—Gimelli is a cutter with a bousing, and notes “(42) The housing (12 or 22) and the stripper plate (20 or 39) of the chopping device embodying the present invention may be made of metal or plastic materials, the housing being preferably made of transparent plastic materials to facilitate inspection of the inner surfaces for cleanliness”
It would have been obvious to one of ordinary skill to make the housings of Melton from plastic and transparent plastic specifically, since doing so aids in the inspection of a food tool for cleanliness, which is an excellent motivation to select plastic specifically in the context of a food tool such as Melton.
Injection Molding is old and well known in the art
In the art of plastic housing making—it is known to make plastic parts from injection molding. See Sanders: “The preferred embodiment of the funnel 100 of the present invention is made out of a hard, durable plastic that can be manufactured easily by injection molding. This method of manufacture is for convenience purpose only. It would be readily apparent for one of ordinary skill in the relevant art to make the funnel 100 out of any suitable material, e.g. metal, composites, stiff paper (for a disposable funnel), and the like. Further, the embodiment described above is described in sufficient detail to enable those skilled in the relevant art to design, manufacture, and use the funnel 100 of the present invention.”
In that context, it appears that manufacturing plastic components by injection molding specifically is well known to make those components rapidly and efficiently, and is routine to those of ordinary skill.
It would have been obvious to make the plastic components of the Melton in view of Gimelli cutter by the well known process of injection molding, since doing so would enable ‘easily’ manufacturing the items—as taught in Sanders.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SEAN M MICHALSKI whose telephone number is (571)272-6752. The examiner can normally be reached Typically M-F 6a-3:30p East Coast Time.
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SEAN M. MICHALSKI
Primary Examiner
Art Unit 3724
/SEAN M MICHALSKI/Primary Examiner, Art Unit 3724