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
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 1-20 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 (and its dependents) require the limitation “substantially open frame” which is indefinite—“substantially” here has no ascertainable boundary and is purely a subjective term. The relative degree of “open[ness]” is not apparent or meaningfully described in the specification.
Claim 9 requires “plurality of elements…” “near a center” which is indefinite, as ‘near’ is subjective—and here it is confusing because it is not clear whether it requires an element to be nearer than other elements to the center to qualify as “near” or whether the term is so broad that the opposite of applicant’s intent could still read on the claim—by a further from center blade being a higher standoff distance, but still being ‘near’ the center. The claim does not appear to require the nearest or nearer to center standoff to be the minima—though that appears to be the intent.
Claim 13 “handles located further from the base than the plurality of elongated cutting elements” is indefinite for ambiguity—it is not ascertainable whether the handles need to be further from the base than the base is from the elongated cutting elements, or if the handles need to be further from the base than the handles are from the cutting elements.
Claim 15 requires “approximately 0.1875” which is indefinite. The nature of the approximation is without any objective standard, and therefore is subjective and indefinite.
Claim Rejections - 35 USC § 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 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) 1-20, are rejected under 35 U.S.C. 103 as being unpatentable over Foate (US 4,998,348) in view of Rogers (2016/0207212) and Suer (US 2002/0100173) and Dettman (US 2,520,000), and Coursey (US D648,989 S).
Regarding claim 1, Foate discloses a food slicer (Abstract lines 1-2 “hamburger” “cutting” inter alia), comprising: a substantially open frame (19) having opposing first and second sides (top half/ bottom half figure 1). Foate discloses a plurality of cutting elements (11-15 figure 1) mounted between the first and second sides( they are within the ring—as seen in figure 1; alternately, the first and second sides may be defined as the places where the blades end and start within the ring). Foate discloses wherein the plurality of cutting elements are arranged in parallel and have different lengths according to their position along a length of the open frame (As shown plainly in figure 1).
Foate discloses wherein the first and second sides are configured to encircle and pass around a food item on a surface when the open frame is placed over and pushed through the food item onto the surface (the structure shows this capability—and also the reference shows the intent to do this as in the Abstract, inter alia)
Foate does not disclose “the plurality of cutting elements are configured to perform a Hasselback cut into the food item when the open frame is placed over and pushed through the food item onto the surface.” because Foate has a ‘standoff’ distance of 0 – the pressing of the ring onto a surface will create a full through cut of the food item, which is not a “Hasselback” cut.
In the art of food cutting, we look for evidence of the knowledge of this cut style.
Hasselback cutting known in the art
Rogers discloses “Hasselback” cutting to be a series of parallel cuts in a food (14 B figure 1B), without passing through the food entirely—and having a ‘standoff’ distance (62 figure 1B). Rogers is a non-manual (automatic) cutter type, which reciprocates blades up and down perpendicular to the food item as the food moves on a conveyor (see figure 4B, 4C, inter alia). Rogers also discloses reasons for the selection and pursuit of the Hasselback cut:
[0042] As referred to herein, a “hasselback” food item is a food item where a plurality of substantially parallel, spaced apart cuts (preferably 4 or more) have been formed in an upper portion of the food item. The width of each cut preferably extends the full width of the food item where the cut is made, and the depth of each cut is preferably less than the height of the food item (and preferably greater than half the height of the food item) where the cut is made. Accordingly, none of the cuts intersect, and none of the cuts divide the food item into discrete pieces. The resulting food item includes an upper portion having a plurality of upstanding spaced apart strips which extend from an uncut lower portion.
[0043] In one aspect, a hasselback food item may provide a unique combination of textures and enhanced surface area for flavor penetration. For example, a baked and buttered hasselback potato may provide a lower portion that is soft like a baked potato….
Standoff Height Teachings in the Cutting arts
Because Foate is intended to cut clear through the food—not for a Hasselback—the clearance between blade and the work surface is clearly set to “0” in that device.
In other cutters where incomplete cuts are desired, the person of ordinary skill knows to set the standoff to the height that they desire for the cut. See Dettman (US 2,520,000), and Suer (US 2002/0100173).
Dettman shows a hotdog cutter where there is a base/frame 2 designed to surround a food item (see figure 3) while the base is engaged with the work supporting surface (as shown in figure 3) and the blade 13 is designed to ride in the base of the device, so that the cut depth is limited to not go all the way through the food, and therefore has a ‘standoff’ height (shown in the incomplete cut in both figure 2 and 3).
Suer (US 2002/0100173) similarly to applicant, shows a plunging towards the work support cut style, where an array of blades 32 figure 8 is pressed down and toward and through food item to be partially cut (See figure 1-2, [0032], [0006], and [0035], which refers to ‘an uncut portion’ and the end result being a hot dog shaped like an ‘octopus’ – meaning the slits are formed in the work – food in such a manner that the cut is incomplete—which is the same or analogous to a hasselback cut. Sin Suer, the ‘standoff’ of the cutting is created by the slits in a guide (12, 16 figure 2) not extending all the way to the work support surface, and the cutter being effectively blocked at around the location 28, figure 2.
STANDOFF HEIGHT TEACHINGS For ring cutters
Specifically with respect to ring type food cutters (like Foate) it is known to provide suitable standoff heights at various locations along the cut line—as seen in Coursey (US D648,989 S)
Coursey figure 8 shows blades arranged in a ring where the height of the blades is such that there is a varied standoff distance from the plane of the ring edge. The edges of the ring show some amount of gap relative to the blade at its inception point, and then at the center of the ring, the blades are tapered and angled, so there is a different amount of standoff at the center of the device. This is evidence that in ring blades those of ordinary skill know that blade standoff can be adjusted along the length of the blades.
It would have been obvious to adjust the blade placement of Foate to include a standoff distance from the base of the ring—since that is how Hasselback cuts are known to be effected—with Rogers showing blades which do not extend to the full depth of cut, and both Dettman and Suer reinforcing the idea that the use of a standoff height for blades relative to a work surface is an effective way to make such cuts.
Regarding claim 2, Foate shows the plurality of cutting elements have reduced lengths toward opposing ends of the first and second sides (the circular shape of the frame is the same as the frame in the present application, so the lengths are reduced in the same manner, as shown in Foate figure 1).
Regarding claim 3, the above combination treats claim 1, however, we have not yet discussed the selection of cutting depths along the cut arrangement such that “the plurality of cutting elements are arranged in the open frame to provide an increased cutting depth, relative to the surface, towards a middle of the open frame.” This is simply a reflection of the choice of cut depth, and is known in the art of Hasselbacking—see figure 1B and 3B of Rogers, which shows that a uniform cut depth/ and cut standoff height is known (figure 1B) and also it is known to equivalently select blade standoffs in an array of blades which provide less standoff at the center line of the cut (62 figure 3B) than at the lateral sides (left and right figure 3B of Rogers, as compared to uniform standoff shown in 1B).
Regarding claim 4, Foate and Rogers, as noted above, discloses and renders obvious the food slicer of claim 3, but the particular height is not specified for the standoff height being “configured to cut to within 0.375 inches of the surface near a middle of the open frame and to within 1.75 inches near opposing ends of the first and second sides.” That understood—the point of figure 3 of Rogers is to show that kind of arrangement in blade positioning, and the specific distance is not an inventive change. 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.
Regarding claim 5, Foate and Rogers (inter alia), as noted above renders obvious the food slicer of claim 3, but is not specific regarding the plurality of cutting elements have a reduced “blade height” towards opposing ends of the first and second sides. There is no inventiveness in having some blades smaller or larger than others—because the blades will function in essentially the same manner regardless of their height. Blades are known to come in a variety of sizes, and it would have required no undue experimentation or caused no unexpected results to make the blades of Foate in view of Rogers be varied in size—either having larger ones in the middle, larger at the outside, alternating larger and smaller, etc… since the adjustment is just to the size of the blade, and the blade will cut to the same depth based on the position of the leading edge thereof—which is already shown to be selectable in order to ensure the Hasselback cut type shown in Rogers 3B. The Rogers 3B and Coursey teachings known together here shows that the adjustment of blade thickness is a known consideration, and those of ordinary skill would be able to select any appropriate thickness for the blades, including the particular arrangement claimed here.
Regarding claim 6, as shown above, Foate uses cutting elements that are straight blades.
Regarding claim 7, Coursey shows the use of varied height/curved blade edges, which are therefore per se scalloped blades. In light of this knowledge, it would have been obvious to select scalloped blades, since they are known in the art of ring cutters and would therefore recommend themselves to use in combination with Rogers and Foate (etc.)
Regarding claim 8, Foate and Rogers don’t use cutting elements comprised as wires. Using cutting wires is well known in the art—as shown in Suer (US 2002/0100173). It would have been obvious to replace blades of Foate with wires of Suer, since both are seen to make the same kinds of cut through food by plunging them towards a work surface—they are shown to be known to be used for equivalent purposes, and the substitution of one for the other would require no undue experimentation or have no unexpected results—the point of blades or wires is to provide cut lines consistent with their placement in relation to the other elements.
Regarding claim 9, Foate discloses, as outlined above with respect to claims 1-2 A food slicer, comprising: an open frame having a perimeter configured to encircle a food item on a surface; and a plurality of elongated cutting elements arranged in parallel within the open frame (11-15). Foate does not show the plurality of elongated cutting elements are arranged with a plurality of standoff distances from a base of the open frame. As set forth above with respect to claim 3, the selection of a variety of standoff distances for the blades would have been obvious. In that discussion of claims 3-4, both the idea of a variety of standoff, and the particular selection of larger standoff closer to the edges of the frame, consistent with the claim requirement here: “wherein the plurality of standoff distances increase from a minimum value for first elongated cutting elements near a center of the open frame to a maximum value for second elongated cutting elements near ends of the open frame” is shown in the Rogers device to be routine and known type of Hasselback—since it is shown in figure 3B of Rogers as an explicit equivalent to the uniform standoff distance embodiment. Claim 9 is therefore obvious on consideration of the same references and reasoning as claims 1-3 above (inter alia).
Regarding claim 10, Foate additionally demonstrates the base of the open frame is configured to encircle and pass around the food item when the open frame is placed over and pushed towards the surface (figure 1, abstract, inter alia); and wherein the plurality of elongated cutting elements are configured to perform a Hasselback cut into the food item when the base is placed over and pushed through the food item onto the surface (when modified by Rogers, etc. as in claims 1-4 especially; to ensure a partial cut as opposed to the intent of Foate to make a completed cut).
Regarding claim 11, Foate further discloses that the open frame (19) has handles (17 figure 1) located above the plurality of elongated cutting elements (see their position based on 16, 20, figure 2)
Regarding claim 12, Foate further discloses the handles (17) are located at opposing sides of the plurality of elongated cutting elements (as shown in figure 1, left and right, respectively).
Regarding claim 13, Foate further discloses the open frame has handles located further from the base than the plurality of elongated cutting elements As in figure 2, the handles are closer to the cutting elements (11 12, inter alia) which are contained in ring 19 starting at the top – see detail in figure 4—than they are close to the base (21 figure 2—at the very bottom).
Claim 14 is obvious on the same grounds as claim 4, detailed supra.
Regarding claim 15, Foate (US 4,998,348) in view of Rogers (2016/0207212) and Suer (US 2002/0100173) and Dettman (US 2,520,000), and Coursey (US D648,989 S) do not discuss the cutting element gap in terms of inches. Rogers does discuss Hasselback slice thickness 48, shown in figure 1B; as follows: “Accordingly, the width 48 of each strip 42 is defined by the spacing between the adjacent cuts 14 that surround and form the opposite faces of the strip 42. For example, the width 48 of strip 42ab is defined by the distance between cuts 14a and 14b. Strips 42 may have any suitable width 48. Preferably, width 48 of strips 42 is between 3.0 mm and 18.0 mm, and more preferably between 3.5 mm and 4.5 mm.”
Examiner takes official notice that 1mm is approx. 0.0393701” and therefore the teaching of Rogers is of a width between cuts of 0.11811” up to 0.708661.”
As noted above, selection of size is ordinarily left to a person of ordinary skill for the routine spacing of components—and here the art in Rogers specifically suggests that Hasselback cuts are known to be between 0.11811” up to 0.708661.” which surrounds and overlaps the claimed “a spacing between the plurality of elongated cutting elements is approximately 0.1875 inches.”
Regarding claim 16, Foate clearly shows the plurality of elongated cutting elements are elongated blades (figure 1, inter alia).
Claim 17 is obvious on the same grounds as claim 8.
Regarding claim 18, Foate shows the plurality of elongated cutting elements are contained within an outer perimeter of the open frame (e.g. figure 1).
Claim 19 is rejected on the same grounds as claims 3-5, discussed in more detail above.
Claim 20 is rejected on the same grounds as claims 3-5, discussed in more detail above.
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