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
Claims 1-15 and 24-38 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 recites “the bottom area, the plurality of diecuts being a series of spaced cuts that are straight or S-shaped oriented in a radial direction, and arranged in a generally radial pattern whereby, due to the orientation of the spaced cuts, when the food product is being removed from the tray by inserting a spatula between the food product and the tray, the spatula will not catch on the spaced cuts”. However, the specification in paragraph 0051 specifically states that the orientation and shape of fig. 11 (that is not straight or S-shaped) makes the diecuts 110 less likely to catch the edge of a spatula. Nothing in the specification states that the spatula will not catch on the spaced cuts.
Claim 24 recites “the spatula will not catch on the spaced cuts”. However, the specification in paragraph 0051 specifically states that the orientation and shape of fig. 11 makes the diecuts 110 less likely to catch the edge of a spatula. Nothing in the specification states that the spatula will not catch on the spaced cuts.
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, 3-15, 24 and 26-38 are rejected under 35 U.S.C. 103 as being unpatentable over Pugh (US 10,314,429) in view of Pugh (US 9,744,738) or Pugh’738 herein.
Regarding claim 1, Pugh (figs. 5-22 and col 5-lines 48-57) discloses a paper-based bakeable tray, comprising a tray 100, 200, 300, 400, 500 and 600 formed of paper-based material and capable of withstand oven temperatures between about 150 degrees Fahrenheit and about 500 degrees Fahrenheit, said tray including:
an outer peripheral edge 316, 416;
a bottom area 312, 412 on which the food product is received.
Pugh fails to disclose a plurality of die cuts within the bottom area 312, 402, the plurality of diecuts being a series of spaced cuts that are straight or S-shaped oriented in a radial direction, and arranged in a generally radial pattern whereby, due to the orientation of the spaced cuts, when the food product is being removed from the tray by inserting a spatula between the food product and the tray, the spatula will not catch on the spaced cuts.
However, Pugh’738 teaches an embossed sheet for pizza having a plurality of die cuts 116 that may be any desired shape and in any desired arrangement (fig. 29 and col. 6, lines 10-18).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed, to have provided the bottom area of the tray of Pugh, die cuts, to permit venting or air circulation through the bottom (as taught by Pugh’738 in col. 6, lines 10-12) to prevent sogginess.
Regarding the shape and orientation of the diecuts, a change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. In re Dailey et al., 149 USPQ 47. Also, it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70.
Further, the modified Pugh discloses when the food product is being removed from the tray by inserting a spatula between the food product and the tray, the spatula will not catch on the spaced cuts.
Regarding claim 3, Pugh further discloses said tray has a shape selected from the group consisting of a circle, a rectangle and a triangle (col. 4, lines 39-43).
Regarding claim 4, Pugh further discloses said tray has a shape generally in the shape of the food product received therein (fig. 5).
Regarding claim 5, Pugh further discloses said tray further includes a barrier coating such that the tray is generally impermeable to liquid (col. 5, lines 26-34).
Regarding claim 6, Pugh further discloses said paper-based material is plant material (col. 5, lines 20-25).
Regarding claim 7, Pugh further discloses said plant material is premium grade solid bleached sulfate (SBS) paper (col. 5, lines 20-25).
Regarding claim 8, Pugh further discloses said tray has a black color (col. 5, lines 8-19).
Regarding claim 9, Pugh further discloses said bottom area further includes raised contour surfaces 20 (figs. 8-10 and 14-16).
Regarding claim 10, Pugh further discloses the bottom area including an embossed pattern 402 having:
a plurality of upward projections 404 extending upwardly from about 0.01 to about 0.04 inches above a top planar surface of the bottom area such that an uppermost end of said upper projections form an intermittent upper support surface above the top planar surface, whereby the intermittent upper support surface intermittently supports the food product above the top planar surface so as to provide an air space between an underside of the food product and the top planar surface (fig. 11 and col.4, lines 44-58).
Regarding claim 11, Pugh further discloses the bottom area including an embossed pattern 402 having: a plurality of downward projections 404 extending downwardly below a top planar surface of the bottom area thereby forming a plurality of reservoirs below the top planar surface for collecting liquid which may drip from the food product, the plurality of downward projections extending downward from about 0.01 inches to about 0.04 inches below a bottom surface of the bottom area such that the downward projections form an intermittent lower support surface, the intermittent lower support surface providing an air space allowing for air circulation between the plurality of downward projections(fig. 11 and col.4, lines 44-58).
Regarding claim 12, Pugh further discloses said embossed pattern further includes:
a plurality of downward projections extending downwardly from said planar surface area thereby forming a plurality of reservoirs below said planar surface area and the food product for collecting liquid which may drip from the food product, said plurality of downward projections extending downward from about 0.01 inches to about 0.04 inches below said planar surface area such that said downward projections form an intermittent lower support surface below said planar surface area, whereby said intermittent lower support surface provides an air space allowing for air circulation between said plurality of downward projection (col.4, lines 44-58).
Regarding claims 13-15, Pugh further discloses said bottom area further includes raised contour surfaces 20 (figs. 8-10 and 14-16).
Regarding claim 24, Pugh (figs. 5-22 and col 5-lines 48-57) discloses a paper-based bakeable tray, comprising:
a tray 100, 200, 300, 400, 500 and 600 formed of paper-based material and capable of withstanding oven temperatures between about 150 degrees Fahrenheit and about 500 degrees Fahrenheit, said tray including:
an outer peripheral edge 316, 416;
a bottom area 312, 412 on which the food product is received.
Pugh fails to disclose:
a plurality of diecuts within the bottom area, the plurality of diecuts being a series of spaced cuts with an arced edge oriented toward a center of the bottom area and arranged in a generally radial pattern;
whereby, due to the orientation of the spaced cuts, when the food product is being removed from the tray by inserting a spatula between the food product and the tray, the spatula will not catch on the spaced cuts.
However, Pugh’738 teaches an embossed sheet for pizza having a plurality of die cuts 116 that may be any desired shape and in any desired arrangement (fig. 29 and col. 6, lines 10-18).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed, to have provided the bottom area of the tray of Pugh, die cuts, to permit venting or air circulation through the bottom (as taught by Pugh’738 in col. 6, lines 10-12) to prevent sogginess.
Regarding the shape and orientation of the diecuts, a change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. In re Dailey et al., 149 USPQ 47. Also, it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70.
Further, the modified Pugh discloses when the food product is being removed from the tray by inserting a spatula between the food product and the tray, the spatula will not catch on the spaced cuts.
Regarding claim 26, Pugh further discloses said tray has a shape selected from the group consisting of a circle, a rectangle and a triangle (col. 4, lines 39-43).
Regarding claim 27, Pugh further discloses said tray has a shape generally in the shape of the food product received therein (fig. 5).
Regarding claim 28, Pugh further discloses said tray further including a barrier coating such that the tray is generally impermeable to liquid (col. 5, lines 26-34).
Regarding claim 29, Pugh further discloses said paper-based material is plant material (col. 5, lines 20-25).
Regarding claim 30, Pugh further discloses said plant material is premium grade solid bleached sulfate (SBS) paper (col. 5, lines 20-25).
Regarding claim 31, Pugh further discloses said tray has a black color (col. 5, lines 8-19).
Regarding claim 32, Pugh further discloses said bottom area further includes raised contour surfaces 20 (figs. 8-10 and 14-16).
Regarding claim 33, Pugh further discloses the bottom area having embossed pattern 402 including:
a plurality of upward projections 404 extending upwardly from about 0.01 to about 0.04 inches above a top planar surface of the bottom area such that an uppermost end of said upper projections form an intermittent upper support surface above the top planar surface, whereby the intermittent upper support surface intermittently supports the food product above the top planar surface so as to provide an air space between an underside of the food product and the top planar surface (fig. 11 and col.4, lines 44-58).
Regarding claim 34, Pugh further discloses the bottom area having embossed pattern 402 including: a plurality of downward projections 404 extending downwardly below a top planar surface of the bottom area thereby forming a plurality of reservoirs below the top planar surface for collecting liquid which may drip from the food product, the plurality of downward projections extending downward from about 0.01 inches to about 0.04 inches below a bottom surface of the bottom area such that the downward projections form an intermittent lower support surface, the intermittent lower support surface providing an air space allowing for air circulation between the plurality of downward projections(fig. 11 and col.4, lines 44-58).
Regarding claim 35, Pugh further discloses said embossed pattern further includes:
a plurality of downward projections extending downwardly from said planar surface area thereby forming a plurality of reservoirs below said planar surface area and the food product for collecting liquid which may drip from the food product, said plurality of downward projections extending downward from about 0.01 inches to about 0.04 inches below said planar surface area such that said downward projections form an intermittent lower support surface below said planar surface area, whereby said intermittent lower support surface provides an air space allowing for air circulation between said plurality of downward projection (col.4, lines 44-58).
Regarding claims 36-38, Pugh further discloses said bottom area further includes raised contour surfaces 20 (figs. 8-10 and 14-16).
Claims 2 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Pugh (US 10,314,429) in view of Pugh (US 9,744,738) or Pugh’738 herein as applied to claims 1 and 16 above, further in view of Brink (US 2002/0144490).
Regarding claims 2 and 25, the modified Pugh discloses all elements of the claimed invention except for at least one retaining tab proximate the outer peripheral edge, the retaining tab having a cut edge, the retaining tab being foldable in an upward direction along a fold line such that the cut edge of the retaining tab extends a distance above the bottom area.
However, Brink teaches a tray for food product having tabs 191 proximate to an outer peripheral edge, wherein the tab 191 is foldable in an upward direction along a fold line as claimed (figs. 7-8).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to have provided the modified device of Pugh, tabs, for providing spacing/separating /denesting features as taught by Brink in paragraph 0059.
Response to Arguments
Applicant's arguments have been fully considered but they are not persuasive.
Regarding the argument of the double patenting rejection and the 35 U.S.C. 103, it is noted that Pugh’738 teaches an embossed sheet for pizza having a plurality of die cuts 116 that may be any desired shape and in any desired arrangement (fig. 29 and col. 6, lines 10-18). Therefore, a change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. In re Dailey et al., 149 USPQ 47. Also, it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70.
Conclusion
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 nonprovisional extension fee (37 CFR 1.17(a)) 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 mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BLAINE GIRMA NEWAY whose telephone number is (571)270-5275. The examiner can normally be reached Monday - Friday 9:00 AM- 5:00PM.
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/BLAINE G NEWAY/Examiner, Art Unit 3735
/Anthony D Stashick/Supervisory Patent Examiner, Art Unit 3735
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