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 § 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 1-4, 10-14 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Burek et al. (US 2017/0137184) in view of Franchere et al. (US 5,285,907).
Regarding claim 1, Burek discloses a container (at 1 in Fig. 1) for dispensing food products or medication (container 1 is capable of being used to dispense food products or medication) comprising: a rectangular compartment (at the left side of Fig. 1 – See Fig. 1 labeled below) comprising: gripping elements (rib elements on the opposing short sidewalls - See Fig. 1 labeled below) capable of being used to grip the rectangular compartment by a user, and a lid portion (at 3 - See Fig. 1 labeled below), wherein the rectangular compartment and the lid portion are connected via a living hinge (at 5 in Fig. 1) and comprise a closing mechanism (at 21/20 in Fig. 1) and a safety mechanism (at 12/10/11 in Fig. 1), wherein the closing mechanism fastens the rectangular component to the lid portion (as described in [0027]), and the safety mechanism hinders unfastening of the rectangular compartment and the lid portion (as described in [0026]).
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Burek discloses the claimed invention except for the connecting members. However, Franchere teaches a container (at 10 in Fig. 2) comprising connecting members (at 30/34 in Fig. 2) being on two opposite sides of the rectangular compartment and operable to attach one or more other containers to the container for the purpose of joining a plurality of containers together for storage and handling (column 3, lines 7-22). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided opposing sides of the container of Burek with connecting members as taught by Franchere in order to store/handle a plurality of containers together.
Regarding claim 2, Burek discloses the safety mechanism comprises a safety aperture (at 11/13 in Fig. 3) on the lid portion and a safety projection (at 10/12 in Fig. 1) on the rectangular compartment, and wherein the safety projection is received by the safety aperture to secure the rectangular compartment and the lid portion.
Regarding claim 3, Burek discloses the safety projection is operable to be disengaged in order to disable the safety mechanism (as described in [0026]).
Regarding claim 4, Burek discloses the closing mechanism comprises a snap fit tab (at 20 in Fig. 1) on the lid portion and a protrusion (rib element at 21 in Fig. 1) for engaging the snap fit tab on the rectangular compartment (as described in [0027]).
Regarding claim 10, Burek-Franchere discloses the connecting members comprise protruding connectors (at 30 in Fig. 2 of Franchere) and receiving connectors (at 34 in Fig. 2 of Franchere), the protruding connectors configured to fit into receiving connectors of a second container for dispensing food products or medication, and the receiving connectors configured to receive protruding connectors of a third container for dispensing food products or medication (as shown in Fig. 3 of Franchere).
Regarding claim 11, Burek discloses the rectangular compartment comprises one or more label areas (area at 3 in Fig. 7 is considered a label area since a label can be disposed thereon for viewing by the user) to provide a surface for adhesion of a label to provide information to users.
Regarding claim 12, Burek discloses the two opposite sides are wider than two adjacent sides, and the gripping elements are formed on the two adjacent sides and on a portion of each of the two adjacent sides.
Regarding claim 13, Burek discloses the gripping elements are formed horizontally on the two adjacent sides and on the portion of each of the two adjacent sides.
Regarding claim 14, Burek discloses the container is manufactured by one-piece construction.
Regarding claim 16, Burek discloses the container is molded ([0025]). Furthermore, the determination of patentability in a product-by-process claim is based on the product itself, even though the claim may be limited and defined by the process. That is, the product in such a claim is unpatentable if it is the same as or obvious from the product of the prior art, even if the prior product was made by a different process. In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985). A product-by-process limitation adds no patentable distinction to the claim, and is unpatentable if the claimed product is the same as a product of the prior art. (Same cite as above).
Claims 5-8 are rejected under 35 U.S.C. 103 as being unpatentable over Burek et al. (US 2017/0137184) in view of Franchere et al. (US 5,285,907) as applied to claim 1 above, and further in view of Kowalski (US 2,740,546). As described above, Burek-Franchere discloses the rectangular compartment comprising a top opening (at the top end of 4 in Fig. 1 of Burek – See Fig. 1 of Burek labeled above), but does not disclose the appendage. However, Kowalski teaches a container (See Fig. 2) comprising a compartment (at 10 in Fig. 2) including an appendage (panel at 48 in Fig. 2) at a top edge (at 22 in Fig. 2) of the compartment, the appendage comprising an indentation (one of the openings 52 can be considered an indentation) and configured to fold over (panel 48 folds over the top edge of 10 at hinge 50 in Fig. 2) the top edge to cover a substantial portion of the top opening (as shown in Figs. 1 and 4), for the purpose of holding objects (40) in position within the container. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided the container of Burek-Franchere with an appendage as taught by Kowalski in order to allow items to be secured in place within the container.
Regarding claims 6-8, Kowalski teaches the appendage comprises two or more perforated portals (two of the openings 52 in Fig. 2) capable of being used to dispense food products or medication held within the container. Regarding the dimensions of the portals, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the sizes of the portals of Burek-Franchere-Kowalski to be different from one another in order to securely hold items of different sizes. To modify the sizes of the portals would entail a mere change in size of the components and yield only predictable results. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Furthermore, the portals of Burek-Franchere-Kowalski include perforations (top openings of the portals) operable to be opened (when opening the lid) in order to dispense food products or medication of different dimensions that are held within the container.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Burek et al. (US 2017/0137184) in view of Franchere et al. (US 5,285,907) as applied to claim 1 above, and further in view of Michel (US 4,344,646). As described above, Burek-Franchere discloses the claimed invention except for the internal agitators. However, Michel teaches a container (See Fig. 1) comprising a compartment (at 10 in Fig. 1) and a lid (at 11 in Fig. 1), wherein the compartment is provided with internal agitators (internal partitions at 12 are considered agitators as they disturb the movement of items within the compartment) providing an internal separation within the compartment for the purpose of subdividing the compartment and creating isolated cavities within the compartment for storing items. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided the compartment of Burek-Franchere with internal agitators as taught by Michel in order to separate items within the compartment and limit the movement/mixing of items.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Burek et al. (US 2017/0137184) in view of Franchere et al. (US 5,285,907) as applied to claim 14 above, and further in view of Warner et al. (US 11,117,722). As described above, Burek-Franchere discloses the claimed invention except for the specific material of the container. However, Warner teaches a container formed from a polypropylene material for the purpose of durability (column 8, lines 8-21). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the container of Burek-Franchere to be formed from polypropylene material as taught by Warner in order to have sufficient durability. Furthermore, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEVEN A REYNOLDS whose telephone number is (571)272-9959. The examiner can normally be reached M-F 9am-5pm.
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/STEVEN A. REYNOLDS/Primary Examiner, Art Unit 3735