DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Response to Amendment
Applicant’s arguments, see pages 10-13 of the response filed 12/2/25, have been fully considered and are persuasive. The objections to the Priority, Specification, and rejections under 112a of 9/2/25 have been withdrawn.
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
Claims 1-4, 6-20 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over EP 1538102B1 in view of Entenmann [Pat. No. 4,002,773], Peters [Pat. No. 3,865,953], Gics et al [Pat. No. 5,632,924], and Alessi [Pat. No. 6,231,906].
EP 1538102B1 teaches a method for packaging foods by preparing fragile dessert food items with a marginal undecorated peripheral cup section in a preparation facility (Figure 4-6, #9-10), loading the food items into the cavities of a container (Figure 4-6, #2, 6), applying a lid with downward extending protrusions, a planar upper surface, a peripheral edge, and sidewall (Figure 4-5, #4, 14, 5); each protrusions having four retainers extending laterally from a distal end (Figure 4-6, #11, 14; paragraph 0025-0026), closing the lid so that the retainers overlie the marginal undecorated peripheral cup section of the food items to minimize upward movement of the food items (Figure 4-6, #11), a gap between the retainers and food item (Figure 6, #9, 11), the retainers abutting the marginal peripheral sections of the food items when moved vertically (Figure 4-6, #9, 11), and the retainers can be designed quite differently or used in other forms (paragraph 0027).
EP 1538102B1 does not explicitly recite decorating the food upper surface with a decoration (claim 1, 6, 10, 12), the retainers abutting/overlying an undecorated margin of the upper surface of the food body (claim 1, 6, 10, 12), the retainers extending past the cavity rims (claim 1, 6, 10, 12), placing the container on display on a sales shelf in a retail store (claim 1), freezing the food (claim 2), thawing the food (claim 3), dispensing batter into wrappers on a baking pan and baking the batter (claim 4, 15), a 2X2 pattern of cavities (claim 6, 10, 12), the lid being integral transparent plastic (claim 7), constant abutment (claim 8), a living hinge (claim 11), a paper wrapper (claim 14), and the paper wrapper being removable from the food and cavities (claim 17).
Alessi teaches a method for packaging foods by preparing a food item including an edible baked tart shell or cup (Figure 6, #2), a decorative filling placed on a central area of the upper surface of the edible shell (Figure 6, #7), the shell having a peripheral marginal area which is not decorated by the filling (Figure 6, #2, 7), placing the food in a container with cavities (Figure 6, #21), the container having a 2x2 or 1x2 configuration of cavities (Figure 9-10), a lid with protrusions extending downwardly to constantly abut the marginal undecorated portion of the tart shell (Figure 6, #37), the protrusions extending inwardly past the cavity rim (Figure 6, #37, 31), and a live hinge connecting the lid and container (Figure 5, #15).
Entenmann teaches a method for packaging cupcakes or muffins (column 4, line 1) by dispensing batter into paper liners or wrappers in a baking pan (Figure 1, #10, 16, 19), baking the batter in the liners (Figure 1, #20), decorating the central upper surface of the cupcakes or muffins (Figure 1, #23), and providing an undecorated, peripheral, marginal section including the liner and muffin surrounding the decorated portion (Figure 3, #16, 19, 23).
Gics et al teach a method for packaging muffins by providing trays in a 2x2 pattern of cavities (Figure 8), placing paper liners in the cavities (Figure 1, # 24), dispensing batter into paper liners (Figure 1, #26), baking the batter in an oven (Figure 1, #34), freezing the baked goods (Figure 1, #42), closing a lid onto the tray (Figure 1, #56, 58), the lid having a planar upper surface with a protrusion extending down and laterally inward over the cavity rim (Figure 10, #200, 202), the lid being an integral clear plastic (column 5, line 3; Figure 10), transporting the frozen trays to a retailer where they are thawed an placed in a merchandizing display (column 5, lines 31-35).
It would have been obvious to one of ordinary skill in the art to incorporate the claimed decorating features, paper wrapper, batter, baking, freezing, and thawing into the invention of EP 1538102B1, in view of Entenmann, Alessi, and Gics et al, since all are directed to methods of packaging foods, since EP 1538102B1 already included a dessert item as the food (paragraph 0001) and simply did not mention whether the cup was edible or not, since muffins and cupcakes were a common form of dessert, since packaged muffins were commonly made by placing paper liners in the cavities (Figure 1, # 24), dispensing batter into paper liners (Figure 1, #26), baking the batter in an oven (Figure 1, #34), freezing them (Figure 1, #42), and closing a lid onto the tray (Figure 1, #56, 58) as shown by Gics et al; since packaged cupcakes and muffins were also commonly made by dispensing batter into paper liners or wrappers (Figure 1, #16, 19), baking the batter in the liners (Figure 1, #20), decorating the upper surface of the cupcakes or muffins (Figure 1, #23), and providing an undecorated peripheral section including the liner and muffin surrounding the decorated portion (Figure 3, #16, 19, 23) as shown by Entenmann; since many consumers desired cupcakes and muffins with decorative upper surfaces, since freezing and thawing of packaged foods was a common means for delivering fresh tasting foods to consumers, since many consumers desired cupcakes, muffins, and other baked goods; since paper liners were commonly removed from cupcakes and muffins prior to being consumed, since the substitution of one known element (ie the dessert cup of EP 1538102B1) for another (ie the cupcake/muffin of Gics et al and Entenmann) would have yielded predictable results to one of ordinary skill in the art, since using the container of EP 1538102B1 to contain cupcakes and muffins with decorative upper surfaces would have enabled transport of these baked goods over long distances while also reducing the chance of possible damage due to excess movement within the container, since the method of EP 1538102B1 would have benefited from the ability and flexibility in choosing the type of dessert item or baked good to be shipped to the consumer, and since the muffin/cupcakes would have been easily adapted to the package of EP 1537102B1 due to the presence of the peripheral undecorated portion of Entennman which would have contacted the peripheral retainers and thus prevented damage to the central decorated portion.
It further would have been obvious to one of ordinary skill in the art to incorporate the claimed 2x2 configuration, integral transparent plastic lid, and retail display into the invention of EP 1538102B1, in view of Entenmann, Alessi, and Gics et al, since all are directed to methods of packaging foods, since EP 1538102B1 already included an integral lid with plural cavities (Figure 4-6), since food containers commonly included trays with a 2x2 pattern of cavities (Figure 8), the lid being an integral clear plastic (column 5, line 3; Figure 10), and transporting the frozen trays to a retailer where they are thawed an placed in a merchandizing display (column 5, lines 31-35) as shown by Gics et al; since consumers commonly purchased groups of four desserts for events and gatherings, and since a clear plastic lid and display on a shelf would have enabled the consumer to view the quality of the foods of EP 1538102B1 prior to purchase.
Peters teaches a packaged food product comprising a food upper surface including a central decorated portion surrounded by an undecorated portion (Figure 13, #429, 433), a package including a base and lid (Figure 13, #423, 422), a protrusion retainer extending down from the lid which overlies the undecorated peripheral portion of the food (Figure 13, #436-437), and the protrusion retainer limiting the movement of the food when inverted and thus protecting the decorated food surface from damage (Figure 15).
It would have been obvious to one of ordinary skill in the art to incorporate the claimed concept of the retainer abutting the marginal undecorated food upper surface into the invention of EP 1537102B1, in view of Entenmann, Peters, Alessi, and Gics et al; since all are directed to methods of packaging food items, since EP 1538102B1 already included retainers which overlie the peripheral cup section of the food items to minimize upward movement of the food items (Figure 4-6, #11), the retainers abutting the undecorated peripheral sections of the food items when moved vertically (Figure 4-6, #9, 11), and the retainers can be designed quite differently or used in other forms (paragraph 0027); since desserts such as cupcakes and muffins commonly included a paper wrapper enclosing the cake as shown by Entenmann and Gics et al; since baked goods commonly included decorating the upper surface of the cupcakes or muffins (Figure 1, #23) and providing an undecorated peripheral section including the liner and muffin surrounding the decorated portion (Figure 3, #16, 19, 23) as shown by Entenmann; since food packaging methods commonly included a protrusion retainer extending down from the lid which overlies the undecorated peripheral portion of the food (Figure 13, #436-437) and the protrusion retainer limiting the movement of the food when inverted and thus protecting the decorated food surface from damage (Figure 15) as shown by Peters; since EP 1538102A1 simply did no mention whether the cup was made from edible material, since food packages commonly included retainers which abutted an undecorated marginal portion of the edible shell (Figure 6, #37) as shown by Alessi, since the packaging container of EP 1538102A1 was not limited to only creamy food in cups, since packaging other food items such as cupcakes and muffins in the packaging container of EP 1538102A1 would have also enabled safe transport and display of those food items with reduced chance of damage, and since having the protrusions abut the peripheral undecorated portion of the food upper surface would have further ensured that the decorated portion of the packaged food of EP 1538102B1, in view of Entenmann, Peters, Alessi, and Gics et al, was not damaged during shipping, transport, and display steps.
It also would have been obvious to one of ordinary skill in the art to incorporate the claimed retainer extending laterally over the cavity rim in the invention of EP 1538102B1, in view of Gics et al, Peters, Alessi, and Entenmann; since all are directed to methods of packaging food products, since EP 1538102B1 already taught retainers which overlie the peripheral cup section of the food items to minimize upward movement of the food items (Figure 4-6, #11), the retainers abutting the undecorated peripheral sections of the food items when moved vertically (Figure 4-6, #9, 11), and the retainers can be designed quite differently or used in other forms (paragraph 0027); since desserts such as cupcakes and muffins commonly included a paper wrapper enclosing the cake as shown by Entenmann and Gics et al; since baked goods commonly included decorating the upper surface of the cupcakes or muffins (Figure 1, #23), and providing an undecorated peripheral section including the liner and muffin surrounding the decorated portion (Figure 3, #16, 19, 23) as shown by Entenmann; since food packaging methods commonly included a protrusion retainer extending down from the lid which overlies the undecorated peripheral portion of the food (Figure 13, #436-437) and the protrusion retainer limiting the movement of the food when inverted and thus protecting the decorated food surface from damage (Figure 15) as shown by Peters; since food containers commonly included the lid having protrusions extending down and laterally inward over the cavity rim and abutting the marginal undecorated upper surface (Figure 6, #37, 31, 2) as shown by Alessi, since a larger abutment area would have provided a more stable position for the food product and thus prevented side-to-side and vertical movements of the food of EP 1538102B1, and since having the protrusion extend over the cavity rim would have better ensured that the central decorated portion of the packaged food of EP 1538102B1, combined with Entenmann, Peters, Alessi, and Gics et al, was not damaged during shipping and transport.
It would have been obvious to one of ordinary skill in the art to incorporate the claimed constant abutment and living hinge into the invention of EP 1538102B1, in view of Entenmann, Peters, Gics et al, and Alessi, since all are directed to methods of packaging desserts, since EP 1538102B1 already included retainers, a lid, and abutment; since packaged desserts commonly included an edible tart shell and filling (Figure 6, #2, 7), placing the food in a container with cavities (Figure 6, #21), a lid with protrusions extending downwardly to constantly abut the tart shell (Figure 6, #37), and a live hinge connecting the lid and container (Figure 5, #15) as shown by Alessi, since constant abutment would have eliminated any movement of the dessert of EP 1538102B1 and thus provided safer transport and storage, since a living hinge would have prevented the lid of EP 1538102B1 from being misplaced or lost, and since constant abutting the baked good of the combined invention of EP 1538102B1, in view of Entenmann, Gics et al, and Alessi, would have further ensured that the food item did not move within the container.
In conclusion, all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination would have yielded predictable results to one of ordinary skill in the art.
Claim 5 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over EP 1538102B1, in view of Entenmann, Peters, Stone et al, and Gics et al, as applied above, and further in view of Powell [US 2011/0031375A1].
EP 1538102B1, Entenmann, Peters, Stone et al, and Gics et al teach the above mentioned concepts. EP 1538102B1 do not explicitly recite removing the food from the baking pan (claim 5). Powell teaches a method for making cupcakes by placing the paper liners into a baking pan (Figure 6, #50) and removing the baked goods from the baking pan (paragraph 0005-0006). It would have been obvious to one of ordinary skill in the art to incorporate the claimed removal step into the invention of EP 1538102B1, in view of Gics et al, Peters, Entenmann, and Powell, since all are directed to methods of making desserts, since the container of EP 1538102B1 was not intended for baking, since Gics et al and Entenmann already included paper liners for baking, since baking systems commonly included placing the paper liners into a baking pan (Figure 6, #50) and removing the baked goods from the baking pan (paragraph 0005-0006) as shown by Powell, and since baking in a separate pan would have permitted the use of less expensive materials for the container of EP 1538102B1.
Response to Arguments
Applicant's arguments filed 12/2/25 have been fully considered but they are not persuasive.
The declaration under 37 CFR 1.132 filed 12/2/25 is insufficient to overcome the rejection of claims 1-20 based upon EP 1538102B1, in view of Entenmann, Peters, Alessi, and Gics et al; as set forth in the last Office action because: the declaration primarily focuses on the dimensions of the individual references without effectively considering the teachings and suggestions of the references when combined as a whole, particularly the new reference of Alessi and the old reference of Peters. Regarding the cup of EP 1538102B1, EP 1538102B1 does not mention whether the cup was edible or not. However, Alessi teaches that cups were commonly made from edible material and held in place by lid protrusions which extend over the cavity rim and undecorated marginal periphery of the edible cup (Figure 6, #2, 37, 31).
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
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/DREW E BECKER/Primary Examiner, Art Unit 1792