DETAILED ACTION
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 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 5-8, 10 and 12 – 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.
Regarding claim 5, it is unclear if the “a protein item” is referring to the “a protein item” recited in claim 4 or some other heretofore unrecited protein item.
Claim 6 is rejected based on its dependence to a rejected claim.
Claim 7, line 7 recites that “C is a nominal length” but it is unclear as to what “C” would be a “nominal” length of.
Regarding claim 8, there is no antecedent basis for the term “the adjacent distinct compartments”.
Regarding claim 8, it is unclear if the “one or more distinct ingredients” are the same as the “a plurality of distinct ingredients” recited in claim 1, or some other heretofore unrecited set of distinct ingredients.
Claim 10, line 7 recites that “C is a nominal length” but it is unclear as to what “C” would be a “nominal” length of.
Regarding claim 11, there is no antecedent basis for the term “the adjacent distinct compartments”.
Regarding claim 11, it is unclear if the term “one or more distinct compartments” refers to “”the plurality of compartments”, “two adjacent compartments”, “ the adjacent distinct compartments”, or some other one or more distinct compartments.
Regarding claim 12, it is unclear what nominal length the term “a nominal length” is referring to. Would this be the “a distance between the tab and the contact surface of a first compartment of the two adjacent compartments”, a distance between the tab and the contact surface of a second compartment of the two adjacent compartments”, or some other nominal length altogether?
Claims 13 – 20 are rejected by virtue of their dependence on a rejected base claim.
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 – 19 are rejected under 35 U.S.C. 103 as being unpatentable over Grossman US 2010/0155459.
Regarding claims 1 and 3, Grossman discloses a packaged food item (sandwich contents) (paragraph [0015]) which packaged food item comprises an inner packaging comprising a plurality of compartments (cavities) arranged in a marketable configuration (paragraph [0242] fig. 26C), a plurality of distinct ingredients (fillers) (paragraph [0007], [0016]), each of the plurality of distinct ingredients positioned within a distinct one of the plurality of compartments (762, 776, 770) (fig. 26E), and an overwrap (outer container 270) (paragraph [0228] and fig. 23) (paragraph [0266] and fig. 32) would be positioned around the inner packaging. The plurality of distinct ingredients are subcomponents of a single food product (sandwich), the marketable configuration visually presents (constructed from a transparent material) (paragraph [0327]) (so the user can view the filler) (paragraph [0220]) the plurality of distinct ingredients as the single food product, and the overwrap would maintain the inner packaging in the marketable configuration (fig. 23, 24A).
Regarding claims 2 and 4, Grossman discloses each of the plurality of distinct ingredients are at least one of a baked good (bread), a protein item (hamburgers), or a produce item (tomatoes) (paragraph [0007], [0016]).
Regarding claims 5 and 6, Grossman discloses the distinct ingredients, which would include the protein item, are positioned between a first baked good and a second baked good (sandwich halves) and the plurality of compartments (inner container) (paragraph [0020]) would be stacked in the marketable configuration (fig. 23).
Regarding claims 7 and 8, Grossman discloses there would be one or more tabs (780, 763) extending between two adjacent compartments (paragraph [0244] and fig. 26E). Regarding the specific lengths of said tabs once it was known to provide one or more tabs each extending between two adjacent compartments where each of the one or more tabs comprise a length it is not seen that patentability would be predicated on the particular length of the and/or distance of the tabs absent strong and compelling evidence to the contrary. Limitations relating to the length of the tabs are not sufficient to patentably distinguish over the prior art. The mere scaling up of prior art tabs capable of being scaled up or down, if such were the case, would not establish patentability in a claim to an old one or more tabs so scaled. Where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed tabs and a packaged food item having the claimed relative tab dimensions would not perform differently than the prior art tabs, the claimed tabs are not patentably distinct from the prior art tabs (MPEP § 2144.04 IV.A.).
Regarding claim 9, Grossman discloses a packaging system capable of packaging a marketable product (sandwich contents) (paragraph [0015]) which packaging system would comprise a plurality of compartments (cavities) each compartment would obviously have a corresponding thickness (paragraph [0244], fig. 26E) and there would be an overwrap capable of securing the plurality of compartments in a marketable configuration (outer container 270) (paragraph [0228] and fig. 23) (paragraph [0266] and fig. 32). Further, each of the plurality of compartments is capable of receiving a distinct component of the marketable product (paragraph [0158]) and the marketable configuration visually presents the distinct components as the marketable product (constructed from a transparent material) (paragraph [0327]) (so the user can view the filler) (paragraph [0220]).
Claims 10 and 11 are rejected for the same reasons given above in the rejections of claims 7 and 8 over Grossman.
Regarding claims 12 and 14, Grossman discloses a packaging system capable of packaging a marketable product (sandwich contents) (paragraph [0015]) which packaging system comprises a plurality of compartments (cavities) (paragraph [0242]), each of the plurality of compartments comprising a thickness and a contact surface positioned at an end of the thickness (fig. 26C, 26E) and a plurality of tabs (780, 763) extends between two adjacent compartments of the plurality of compartments (paragraph [0244]), fig. 26E). The plurality of compartments are capable of receiving a distinct component of the marketable product (filler) (paragraph [0158]), each of the plurality of tabs has a length, it would have been obvious to the ordinarily skilled artisan to have provide a distance between the tab and the contact surface of a first compartment of two adjacent compartments corresponding to a thickness of a filling to be placed between the two adjacent compartments such that the compartment would lay flat on the adjacent compartment in order for the marketable product to be properly packaged, and the packaging system is configured to be positioned in a marketable configuration visually presenting the distinct components as the marketable product (constructed from a transparent material) (paragraph [0327]) (so the user can view the filler) (paragraph [0220]).
Regarding claim 13, Grossman discloses an overwrap would be positioned around the inner packaging (outer container 270) (paragraph [0228] and fig. 23) (paragraph [0266] and fig. 32).
Regarding claim 15, Grossman discloses the plurality of compartments would comprise a first compartment, a second compartment, and a third compartment. The first compartment comprises a first thickness (754) corresponding to a thickness of a first baked good , the second compartment (766) comprising a second thickness corresponding to a thickness of a protein item, and the third compartment comprises a third compartment (752) corresponding to a thickness of a second baked good (paragraph [0239], [0244]), fig. 26E).
Regarding claim 16, Grossman discloses the packaging system would be made of plastic (paragraph [0164]).
Regarding claim 17, Grossman discloses the overwrap would be a clamshell box (paragraph [0049]) which would necessarily comprising a first portion, a second portion, a hinge connecting the first portion and the second portion (fig. 26E, 28B), the clamshell box further comprising a transparent section positioned at least partially along the first portion and a rear wall of the clamshell box (constructed from a transparent material) (paragraph [0327]) (so the user can view the filler) (paragraph [0220]).
Regarding claim 18, Grossman discloses the overwrap would be a hollow truncated cone having an open end and a closed end (paragraph [0229] and fig. 21B and 22).
Regarding claim 19, Grossman discloses there would be an overwrap in the form of a band (652/654) (fill width, attached to the outer cover) (paragraph [0215]).
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Grossman US 2010/0155459 as further evidenced by Inoue JPH 1-132332.
Regarding claim 20, Grossman discloses there would be an according folding about a plurality of tabs (4808) (paragraph [0314], [0317] and fig. 48A, 49). Inoue provides further evidence that a marketable configuration would be achieved by according folding about a plurality of tabs (4) (fig. 5).
Conclusion
The prior art made of record and not relied upon in the rejections at this time is considered pertinent to applicant's disclosure.
Tognetti US 2013/0224354 and Qian et al. US 2018/0037366 each disclose a packaged food item comprising a plurality of distinct ingredients each of which are positioned within a distinct one of a plurality of sub compartments of a single food product.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHAIM A SMITH whose telephone number is (571)270-7369. The examiner can normally be reached Monday-Thursday 09:00-18:00.
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/C.S./
Chaim SmithExaminer, Art Unit 1791 24 July 2026
/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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