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 .
Priority
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in New Zealand on November 20, 2023. It is noted, however, that applicant has not filed a certified copy of the NZ432943 application as required by 37 CFR 1.55.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description:
Reference character “122” in figure 1G cannot be found in the specification.
Corrected drawing sheets in compliance with 37 CFR 1.121(d), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.121(b) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The disclosure is objected to because of the following informalities:
Paragraphs 102-106 of the Specification as filed refer to reference character “124” as a wrapper, however, Figure 1G, appears to use “124” to point to one’s hand.
Appropriate correction is required.
Claim Objections
Claim 67 is objected to because of the following informalities: Claim 67 recites, “wherein the container is an edible waffle cone.” Since claim 67 depends from claim 66, for matters of form, the above limitation should be amended to recite, “wherein the edible cone is a waffle cone.”
Appropriate correction is required.
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 54-60 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 54 recites the limitation, “a shape that is complementary to the shape of a perimeter.” The plain meaning of the term, “complementary” is to be different from each other but to make a good combination. In view of this, the scope of what can be construed as being “complementary” to the shape of a perimeter, as claimed is not clear.
Claims 55 and 56 are rejected based on their dependence to a rejected claim.
Claim 56 and 57 recite the limitation, “approximately the same.” This limitation is a relative term that has not been defined by the claims or specification, thus making the scope of what can be construed as a diameter and shape as “approximately” being the same unclear.
Claim 57 recites, “the exposed portion” which lacks proper antecedent basis.
Claim 58 is rejected based on its dependence to a rejected claim.
Claim 59 recites the limitation, “resist (but not prevent)” on line 5. It is not clear whether the limitations in parenthesis are required or not.
Claim 60 recites that, “the first portion of the capsule comprises a peripheral lip disposed at an angle matching that of the container.” This limitation is not clear as to what angle of the container is being referred to.
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 51-53, 63, 65 and 66 are rejected under 35 U.S.C. 103 as being unpatentable over Lee (KR 940003631 Y1) in view of Ozbek (US 20190193927 cited on IDS).
Regarding claim 51, Lee teaches a novelty confectionery, comprising:
a frozen confectionery (figure 1 and 2, item 1; see page 2 of the machine translation: “ice cake”,);
a non-edible capsule defining a compartment (Figure 1, item 3 and 5; page 2 of the machine translation: “inner lid 3” “outer lid 5”);
a novelty item located in the compartment (figure 1, item 4; page 2 of the machine translation: “promotional materials (4) such as toys”); and
a removable wrapper encompassing, in a first state, at least a portion of the container and at least a portion of the non-edible capsule to consolidate the capsule to the container in a removable manner (see figure 1, item 2; see page 2 of the machine translation: “outer packaging (2)”).
Claim 51 differs from Lee in specifically reciting, “a container” containing the frozen confectionery.”
Ozbek teaches a similar concept to Lee of a non-edible capsule defining a compartment (figure 3 and 4, item 20; paragraph 7: “non-edible part (i.e. toy’s receptacle)” and paragraph 9) with a novelty item within the compartment (see paragraph 20; paragraph 22). There is a container (figure 3, item 2; paragraph 9: “edible cone”) within which is placed a frozen confectionery (figure 3, item 5; paragraph 11-12: “foodstuff” “ice cream”). Ozbek further teaches a wrapper (figure 2 and 3, item 10 and 11; paragraph 14 and 30) which would encompass a portion of both the container and the non-edible capsule to consolidate the capsule to the container in a removable manner.
Since Lee already teaches an ice-cream cake and further teaches that the ice cream cake is in the shape of a cone, to modify Lee and to place the ice cream cake within a container as taught by Ozbek, would have been obvious to one having ordinary skill in the art for the purpose of making it easier to consume the ice cream cake, such as by holding the ice cream cake in one’s hand using the edible container as taught by Ozbek.
While Lee does not specifically state that the capsule holding the novelty item is non-edible, it would have been obvious to one having ordinary skill in the art in view of Ozbek to make such capsule non-edible, in light of the capsule desirably holding a novelty item such as a toy, and since Ozbek teaches that toy containing receptacles are known to be non-edible.
Regarding claim 52, Lee teaches that the non-edible capsule comprises:
a first portion comprising an opening through which the novelty item can pass (figure 1, item 3); and a second portion removably attached to the first portion (see figure 1 and 2, item 5); and wherein: the first portion and second portion are configured to define the compartment; the novelty item is disposed in the compartment (see figure 2).
In view of Lee, the combination teaches that the removable wrapper encompasses at least a portion of the container and at least a portion of at least one of the first and second portions of the capsule to consolidate the container to the capsule in a removable manner (see figure 1 and 2, where the outer wrapper 2, clearly encompasses a portion of the first portion and second portion and encompasses the container as taught by the combination. It would have been obvious to one having ordinary skill in the art that Lee’s wrapper would have been capable of being removed.
Regarding claim 53, Lee teaches that the first portion of the non-edible capsule comprises a hood (see figure 1, item 3) and the second portion closes first portion (see figure 1 and 2, item 5).
Claim 53 differs from Lee in specifically reciting that the second portion is removably attached to the hood.
However, Ozbek teaches a similar configuration of a non-edible capsule, comprising a first portion that comprises a hood (see figure 4, item 16) and a second portion that comprises a closure (15) which is removably attached to the hood (see figure 4, where the second portion 15, can hinge open and closed and therefore is removably attached to the first portion.
To therefore modify Lee and to use another configuration of a non-edible capsule that has been used for the same purpose as taught by Ozbek would have been obvious to one having ordinary skill in the art, as an obvious substitution of one containment capsule for a novelty item, for another.
Regarding claim 63, Lee teaches that the item can be a toy (see page 2 of the machine translation: “promotional materials (4) such as toys”). Additionally, Ozbek also discloses that the novelty item can be a toy (see paragraph 20, “toy as a surprise gift”).
Regarding claim 65-66, in view of Ozbek the combination teaches that the container is an edible cone (paragraph 20, “edible cone”). It would therefore have been obvious to one having ordinary skill in the art to have modified Lee to use an edible cone as the container for the purpose of making it easier to consume Lee’s ice cream in a handheld manner, while also being able to consume the container, instead of discarding the container.
Claims 54-57 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 52 above, which relies on Lee (KR 940003631 Y1) as the primary reference, and in further view of Cummings (US 2925347) and in further view of Lam (US 20150210432), Gordon (US 20020139694) and Klemme (US 5669550).
Regarding claim 54, in view of Ozbek the combination is suggesting that the frozen confectionery extends beyond the container by an exposed portion because as shown in figure 3, Ozbek is suggesting that there is a frozen confectionery (figure 3, item 5) that extends above the cone (2), which has been designated by the hash-marked surface.
If it could have been construed that Ozbek was not clear regarding the frozen confectionery extending beyond the container by an exposed portion, then it is noted that Cummings further teaches what Ozbek is suggesting: that it has been conventional to position the frozen confectionery beyond the container and still wrapping the confectionery with a removable wrapper (see figure 5 and 6). As shown in figure 6, Cummings teaches that providing this extending allows for one to visually see the frozen confectionery after removal of the wrapper (see column 1, lines 41-43).
Therefore, it would have been obvious to one having ordinary skill in the art to have modified the Lee combination and to extend an amount of the frozen confectionery beyond the container for the purpose of providing a desirable visual appearance of the frozen confectionery product can be visible after the wrapper has been removed.
In view of Cummings it would also have been obvious to one having ordinary skill in the art to also extend a portion of the frozen confectionery beyond the container as an obvious matter of engineering and/or design, based known expedients for how to package a frozen confectionery within a container that has been enclosed in a removable wrapper.
Further regarding claim 54, Lee teaches that the opening of the first portion has a perimeter having a shape that is complementary to the shape of a perimeter of the distal end of the exposed portion as shown in figures 1 and 2. Lee also teaches that the non-edible capsule has an angle that is approximately the same as that of the wrapper and Ozbek also teaches that the non-edible capsule has an angle that is the same as that of the cone (see paragraph 9).
Therefore, the combination teaches that the opening of the first portion would have had a perimeter having a shape that is complementary to the shape of a perimeter of the distal end of the exposed portion of the frozen confectionery.
Claim 54 differs in specifically reciting that the distal end portion of the exposed portion of the frozen confectionery is adjacent the opening of the first portion of the capsule.
However, Lam (US 20150210432) teaches a non-edible capsule comprising a first portion (figure 1 and 2, item 112) having an opening that faces a food containing compartment (figure 1 and 2, item 116) and said capsule having a second portion (figure 1 and 2, item 120) that can be secured within the interior of the first portion 112 (see paragraph 18: “Internal divider 120 may be disposed so that its perimeter engages the interior of…within top portion 112..”). Lam teaches that the non-edible capsule can contain a novelty item such as a toy (see paragraph 16).
Additionally, Gordon further teaches a non-edible capsule (see figure 2B, item 14, 48, 50A) that can hold a promotional article therein (i.e. a novelty item)(see paragraph 20: “promotional item” and figure 2B, item 42), the capsule comprising a first portion with an opening facing a food product (see figure 2B, item 14 and 48) and a second portion (Figure 2B, item 50A) that defines the chamber holding the novelty item. Gordon further teaches that the opening of the first portion would face the food within the container 12 (see paragraph 9 and 20 disclosing that there can be a beverage in the container 12).
Klemme further evidences a non-edible capsule containing a novelty item therein such as a toy (see the abstract; column 3, lines 8-13) and which non-edible capsule can have a first portion (figure 4, item 24) with an opening that faces the food (see figure 4, item 18; column 2, lines 33-42: “storing a primary food product”) or can have the first portion opening facing away from the food, as shown in figure 5, item 44. Klemme thus teaches that a non-edible capsule holding a promotional item or toy and having the opening of the first portion facing the food or facing away from the food have been obvious variants of each other.
To therefore modify Lee and to reverse the configuration of Lee’s capsule such that the first portion 3 was positioned such that its opening was facing the frozen confectionery while the second portion 5 closes the capsule, would have been an obvious rearrangement of parts which would have been an obvious matter of engineering and/or design based on another known configuration for how to position a capsule containing a novelty item together with a food container.
Regarding claim 55, in view of Cummings teaching the entirety of the novelty confectionery being wrapped, it would have been obvious to one having ordinary skill in the art that the combination is teaching that the wrapper encompasses at least a portion of the container, the exposed portion of the frozen confectionery, and at least a portion of the capsule to consolidate the container to the capsule in a removable manner.
Regarding claim 56, the combination is teaching that the opening of the first portion of the capsule has a diameter that is “approximately” the same as the diameter of the exposed portion of the frozen confectionery, especially because Lee and Ozbek teach that the first portion of the non-edible capsule has a diameter that resembles that of the exposed portion of the frozen confectionery. Additionally, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device (see MPEP 2144.04(IV)(A)). That is, the prior art already teaches that the portion of the non-edible capsule adjacent to the frozen confectionery product has a similar diameter as that of the frozen confectionery. Therefore, it would have been obvious to one having ordinary skill in the art, when rearranging the orientation of Lee’s non-edible capsule to similarly have provided the opening of the first portion with a diameter that is approximately the same as that of the exposed portion of the frozen confectionery, for the purpose of maintaining the same proportions between the frozen confection and the capsule, as already shown by Lee and Ozbek.
Regarding claim 57, Lee teaches an end of the capsule in contact with the frozen confectionery as shown in figure 2. In view of Cummings, the combination teaches that there a distal end of an exposed portion of the frozen confectionery, as discussed above with respect to claim 54. In view of Lam, Gordon and Klemme as applied to claim 54, the combination teaches reversing the arrangement of Lee’s non-edible capsule such that the first portion is positioned with an opening facing the food and the second portion would have been adjacent the food. As shown in figure 2, Lee teaches that the non-edible capsule is in contact with the food.
Therefore to modify Lee such that the second portion of Lee’s non-edible capsule is in contact with the food, would have been obvious to one having ordinary skill in the art, as an obvious rearrangement of the orientation of the capsule, while achieving the same purpose of containing a novelty item within the non-edible capsule.
Claim 57 claim differs from the combination as applied to claim 52 in specifically reciting that the surface of the second portion of the capsule having a perimeter having a shape that is approximately the same shape as the perimeter of the distal end of the exposed portion of the frozen confectionery.
Since Lee as well as Ozbek teach that both portions of the capsule have a perimeter having a shape is circular, the prior art teaches and suggests the second portion of the capsule having a perimeter having a shape that is “approximately” the same shape as the perimeter of the distal end of the exposed portion of the frozen confectionery.
Claim 58 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 57 above, which relies on Lee (KR 940003631 Y1) as the primary reference, and in further view of Teich (DE 202006016010 U1).
Claim 58 differs from the combination as applied to claim 57 in specifically reciting, the surface of the second portion of the capsule is configured with a swirl pattern.
It is initially noted that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art (see MPEP 2144.04(I)). Nonetheless, Teich teaches a non-edible capsule comprising a first portion (figure 2, item 1) and a second portion (figure 2, item 3). The second portion comprises a relief surface that can provide any type of pattern to the surface of a food product (see the abstract and paragraph 5, 7, 9, 14 and 18 of the machine translation). As shown in figure 2, the pattern is provided on both sides of the second portion.
Since the combination teaches that the second portion is contacting the frozen confectionery of Lee, to therefore modify the second portion of the non-edible capsule as taught by the prior art so as to have a pattern thereon, would have been obvious to one having ordinary as an obvious matter of engineering and/or design, for the purpose also imparting a pattern to the surface of Lee’s frozen confectionery. Once it was recognized to provide the second portion with a pattern, it is not seen that patentability can be predicated on the specific pattern, which would have been a matter of obvious ornamentation and would have been a matter of design and/or choice.
Claim 59 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 52 above, which relies on Lee (KR 940003631 Y1) as the primary reference, and in further view of Hartelius (US 6766902), Whetstone (US 6099872) or Gass (US 20170295839).
Claim 59 differs from the combination as applied to claim 52 in specifically reciting, wherein the second portion of the capsule further comprises an outer edge, the outer edge comprising one or more ridges configured to mate with ridges inside the open end of the first portion of the capsule to index the first portion to the second portion, wherein the ridges are configured to resist removal of the first portion from the second portion.
Hartelius teaches a capsule to hold a novelty item such as a toy (see figure 3, item 19; column 3, lines 30-31), where the first portion (figure 3, item 1), comprises indents (and therefore ridges between the indents) (figure 3, item 9 and column 3, lines 11-20) and where a second portion of the capsule comprises ridges (see figure 3, item 16) which mate with the inner ridges of the first portion (see column 3, lines 25-28) for the purpose of securing the two portions of the capsule to.
Whetstone teaches a non-edible capsule holding a novelty toy therein (see figure 4, item 31), and which capsule comprises a second portion with an outer edge comprising one or more ridges (see figure 12, item 134) that are configured to mate with ridges inside of the open end of the first portion of the capsule (see figure 15A, item 130 and column 6, lines 49-62- there would have been multiple ridges in light of the multiple recesses 130).
Gass (US 20170295839) also teaches a non-edible capsule holding a novelty toy therein (see paragraph 9), and which capsule comprises a second portion with an outer edge comprising one or more ridges (see figure 8, item 24) that are configured to mate with ridges inside of the open end of the first portion of the capsule (see figure 8, item 26 and paragraph 60 which discloses nubs 24 (plural) interlocking with a plurality of recesses 26 (plural) and therefore teaching the first portion inside surface also comprising ridges).
To therefore modify the combination and to use inter-engaging ridges between an inner surface of the first portion and the outer surface of the second portion of Lee’s non-edible capsule would have been obvious to one having ordinary skill in the art, as a matter of engineering and/or design based on known expedients for how to secure a novelty item within a nonedible capsule associated with a food container and where such a modification would also have allowed for reclosing of the capsule for subsequent storage of the novelty item after unpackaging the novelty item from the confectionery product.
Claim 60, 68 and 70 rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claims 51 and 52 above, which relies on Lee (KR 940003631 Y1) as the primary reference, and in further view of Cummings (US 2925347).
Regarding claim 60, as shown in figure 1, item 3 of Lee shows the first portion of the capsule comprising a peripheral lip. As shown in figure 2, the peripheral lip is disposed at an angle matching that of the container. The removable wrapper extends above the lip.
Claim 60 differs from Lee in specifically reciting that the removable wrapper folds over the lip.
Ozbek discloses that the first portion of the capsule comprises a peripheral lip disposed at an angle matching that of the container (see figure 4, item 18). Since Ozbek discloses that the wrapper extends over (i.e. above) the lip and that elements 10 and 11 can be fixed to each other, (see figure 3, item 10 and 11 and paragraph 14), Ozbek has been construed to disclose that the removable wrapper folds over the lip to consolidate the capsule to the container.
Further in this regard, Cummings (US 2925347) teaches a container (figure 1, item 12; column 1, lines 30-33, “sugar cone”) containing a frozen confectionery (see figure 2, item 36; column 3, lines 20-22) and which combination further includes a wrapper to consolidate the entirety of the cone containing the frozen confectionery (see figure 5, item 14; column 3, line 46 to column 4, line 4) for the purpose of producing a sealed, packaged product and capable of entering the channels of trade (see column 1, lines 33-40). As shown in figure 5, the wrapper would also have folded over the lip of Lee’s first portion. It is noted that the claim does not limit the particulars of how the wrapper is folded over the lip of the first portion.
To therefore modify Lee and to position the wrapper such that it folds over the lip of the first portion and over the entirety of the novelty confectionery such that it encases the entirety of the product would have been obvious to one having ordinary skill in the art, for the purpose of producing a sealed, packaged product and capable of entering the channels of trade
Regarding claim 68, in view of Ozbek the combination teaches the wrapper 11, extends from a top 10 that is positioned above the capsule. In view of Cummings the combination further teaches and suggests that the wrapper would encase the entirety of the cone and therefore it would have been obvious to one having ordinary skill in the art that the combination is teaching and suggesting that the removable wrapper would encompass the entirety of Lee’s non-edible capsule.
Regarding claim 70, in view of Ozbek the combination discloses that the frozen confectionery extends beyond the container by an exposed portion (see figure 3, item 5). That is, it would have been obvious to one having ordinary skill in the art that Figure 3 is suggesting that the frozen confectionery 5 is positioned above the cone 2 and below region 4. The capsule (figure 3, item 20) is seated in a manner to conceal the frozen confectionery in the removable wrapper, when the capsule is consolidated with the container by the wrapper, since the wrapper encloses the entirety of the side and bottom of the cone and frozen confectionery and since the capsule is positioned above the exposed frozen confectionery.
If it could have been construed that Ozbek was not clear regarding the frozen confectionery being positioned above the container, then it is noted that Cummings further teaches what Ozbek is suggesting: that it has been conventional to position the frozen confectionery beyond the container and still wrapping the confectionery with a removable wrapper (see figure 5 and 6). As shown in figure 6, Cummings teaches that providing this extending allows for one to visually see the frozen confectionery after removal of the wrapper (see column 1, lines 41-43).
Therefore, in view of Cummings it would also have been obvious to one having ordinary skill in the art to also extend a portion of the frozen confectionery beyond the container as an obvious matter of engineering and/or design, based known expedients for how to package a frozen confectionery within a container that has been enclosed in a removable wrapper.
Claims 61 and 62 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 52 above, which relies on Lee (KR 940003631 Y1) as the primary reference, and in further view of any of Buck (US 9622605), Vovan (US 8083089) or Chen (US 8240505).
Claim 61 differs from the combination as applied to claim 52 in specifically reciting that the second portion of the capsule further comprises an outer edge having a tab. Claim 62 differs from the combination as applied to claim 52 in specifically reciting, wherein an outer periphery of the first portion of the capsule comprises a cutout configured such that the tab of the second portion is accessible through the cutout.
Buck teaches a known expedient for closing a non-edible capsule (figure 4, item 100b) positioned above a container (Figure 4, item 130) that can house ice cream (column 5, lines 26-31; column 14, lines 6-10). In figure 19, the non-edible capsule can comprise cut-outs (see item 1906) to make it easier to grasp tabs that are part of an outer edge of a second portion (figure 19, 1905) that closes this non-edible capsule (see column 22, lines 29-32).
Vovan also teaches a cut out in a periphery of a first portion of a non-edible capsule, (see figure 6, near item 26) that can provide access to a tab as part of a second portion (see figure 6, item 24).
Chen also teaches a non-edible capsule that comprises a first portion (figure 5, item 40) which comprises a cutout (figure 5, item 46) through which a tab (figure 5, item 55) of a second portion of the capsule can be accessed (see figure 8) to make it easier to open the capsule (see figure 3, lines 47-54).
To therefore modify the combination and to provide a cutout in a first portion of the non edible capsule and a tab to the second portion that is accessible through the cutout would have been obvious to one having ordinary skill in the art, for the purpose of keeping the capsule closed but then making it easier to open by allowing easier access to an opening tab.
Claim 64 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 63 above, which relies on Lee (KR 940003631 Y1) as the primary reference, and in further view of Bezek (US 20020039609) and in further view of Witkowski (US 20060003055).
Regarding claim 64, Lee further teaches a frozen confectionery (figure 2, item 1) within a wrapper (figure 1 and 2, item 2) and where there is an upper non-edible capsule (figure 1 item 3 and 5), which can contain a plurality of toys (see page 1, line 2 below “Description-of-Embodiments”: “insert a variety of toys”; see page 2 of the machine translation, line 2, “insert various promotional materials (4) such as toys”).
Claim 64 differs in specifically reciting that the toy is formed from a plurality of individual components contained in a flexible pouch inside the non-edible capsule.
Bezek teaches a non-edible capsule defining a compartment (see figure 11, item 1110) which can contain a toy, a ball or other items, which can be inside a pouch (see paragraph 59). Together, Bezek and Lee teach and suggest that the toy can comprise a plurality of individual components. Witkowski further teaches toys such as puzzles and linking articles (see the abstract) packaged within a bag (see the abstract) and which can be edible but also are toys (see the abstract). Witkowski thus teaches a plurality of individual components that form a toy.
To therefore modify the combination and to provide a plurality of individual components as part of the toy, contained within a pouch, would have been obvious to one having ordinary skill in the art, based on another and conventional expedient to contain the multiple toy elements together when being placed within the non-edible capsule. Such a modification would have been advantageous for similarly preventing the toy elements from becoming separated when opening the non-edible capsule of Lee.
Claim 67 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 66 above, which relies on Lee (KR 940003631 Y1) as the primary reference, and in further view of Cummings (US 2925347) and Messinger (US 20210368822).
Claim 67 differs from the combination as applied to claim 66 in specifically reciting that the container is an edible waffle cone.
Regarding claim 67, in view of Cummings the combination teaches that the edible container can be an edible ice cream cone, such as a sugar cone (see Cummings Column 1, lines 30-33).
Further regarding the container being an edible waffle cone, it is initially noted that once it was taught by the prior art to prepackage a frozen confectionery in an edible cone, it is not seen that patentability can be predicated on the particular and conventional type of cone that was used.
Nonetheless, Messinger teaches that it has been conventional to prepackage a frozen confectionery such as ice cream with any known type of edible cone such as a waffle cone or sugar cone (see paragraph 42; see figure 8 and paragraph 69).
To therefore modify the combination and to use another known type of edible cone used with frozen confectionery products, such as a waffle cone as taught by Messinger, would have been obvious to one having ordinary skill in the art based on a substitution of known equivalents used for the same function.
Claim 69 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 51 above, which relies on Lee (KR 940003631 Y1) as the primary reference, and in further view of Weinstein (US 4444795 cited on IDS)
Claim 69 differs from the combination as applied to claim 51 in specifically reciting, wherein the removeable wrapper includes a frangible region to facilitate the removing of the wrapper from the container and non-edible capsule.
Weinstein teaches a wrapper for a novelty confectionery, which further includes a score line (see figure 1, item 14D; column 3, lines 22-27) for the purpose of being able to tear away the wrapper (see column 4, lines 29-38).
To therefore modify the combination and include a frangible region would have been obvious to one having ordinary skill in the art, for the purpose of making it easier to tear away the wrapper for consuming the frozen confectionery.
Claims 51-53, 60, 61, 63, 65, 66, 68 and 70 are rejected under 35 U.S.C. 103 as being unpatentable over Ozbek (US 20190193927 cited on IDS) in view of Cummings (US 2925347).
Regarding claim 51, Ozbek teaches A novelty confectionery, comprising:
a container (Figure 3, item 2 and paragraph 9, “edible cone”) containing a frozen confectionery (figure 3, item 5 and paragraph 11-12, “foodstuff”, “ice cream”;
a non-edible capsule defining a compartment (Figure 3 and 4, item 20; paragraph 12)
a novelty item located in the compartment (see paragraph 20, “toy as a surprise gift”; see paragraph 22, “toy’s receptacle (20)”); and
a removable wrapper encompassing, in a first state, at least a portion of the container and at least a portion of the non-edible capsule to consolidate the capsule to the container in a removable manner (see figure 2, item 10 and 11 and paragraph 14, 30). Since Ozbek discloses that the confectionary is to be consumed, it is inherent that the wrapper is a removable wrapper. Furthermore, if it could have been construed that Ozbek was not clear in specifically reciting that the wrapper encompasses at least a portion of both the container and non-edible capsule, then Cummings (US 2925347) teaches a container (figure 1, item 12; column 1, lines 30-33, “sugar cone”) containing a frozen confectionery (see figure 2, item 36; column 3, lines 20-22) and which combination further includes a wrapper to consolidate the entirety of the cone containing the frozen confectionery (see figure 5, item 14; column 3, line 46 to column 4, line 4) for the purpose of producing a sealed, packaged product and capable of entering the channels of trade (see column 1, lines 33-40). It would therefore have been obvious to have modified Ozbek if necessary and to ensure that the wrapper at least partially encompasses both the non-edible capsule and the container for the purpose of producing a packaged and sealed frozen confectionery product which can then be sealed and subsequently placed for retail sale.
Regarding claim 52, Ozbek discloses that the non-edible capsule comprises:
a first portion comprising an opening through which the novelty item can pass (figure 4, item 16); and a second portion removably attached to the first portion (see figure 4, item 15); and wherein: the first portion and second portion are configured to define the compartment; the novelty item is disposed in the compartment (see paragraph 20 and 22).
In view of Ozbek and Cummings, the combination teaches that the removable wrapper encompasses at least a portion of the container and at least a portion of at least one of the first and second portions of the capsule to consolidate the container to the capsule in a removable manner (see Ozbek figure 3, where the wrapper 11 encompasses at least a portion of the first and second portions; See Cummings Figure 5).
Regarding claim 53, Ozbek’s non-edible capsule (figure 4) can be construed as having a first portion that comprises a hood (see figure 4, item 16) and a second portion that comprises a closure (15) removably attached to the hood.
Regarding claim 60, Ozbek discloses that the first portion of the capsule comprises a peripheral lip disposed at an angle matching that of the container (see figure 4, item 18). Since Ozbek discloses that the wrapper extends over (i.e. above) the lip (see figure 3, item 10 and 11), Ozbek has been construed to disclose that the removable wrapper folds over the lip to consolidate the capsule to the container. This is further supported by Cummings teaching that the wrapper extends above and over the entirety of the top of the frozen confectionery (see figure 5).
Regarding claim 61, Ozbek discloses that there is a hinge as part of the second portion (figure 4, item 12) which can be construed as an outer edge of the second portion (15) comprising a tab.
Regarding claim 63, Ozbek discloses that the novelty item can be a toy (see paragraph 20, “toy as a surprise gift”).
Regarding claim 65-66, Ozbek teaches that the container is an edible cone (paragraph 20, “edible cone”).
Regarding claim 68, Ozbek teaches the wrapper 11, extends from a top 10 that is positioned above the capsule. In view of Cummings the combination further teaches and suggests that the wrapper would encase the entirety of the cone and therefore it would have been obvious to one having ordinary skill in the art that the combination is teaching and suggesting that the removable wrapper would encompass the entirety of Ozbek’s non-edible capsule 20.
Regarding claim 70, Ozbek discloses that the frozen confectionery extends beyond the container by an exposed portion (see figure 3, item 5). That is, it would have been obvious to one having ordinary skill in the art that Figure 3 is suggesting that the frozen confectionery 5 is positioned above the cone 2 and below region 4. The capsule (figure 3, item 20) is seated in a manner to conceal the frozen confectionery in the removable wrapper, when the capsule is consolidated with the container by the wrapper, since the wrapper encloses the entirety of the side and bottom of the cone and frozen confectionery and since the capsule is positioned above the exposed frozen confectionery.
If it could have been construed that Ozbek was not clear regarding the frozen confectionery being positioned above the container, then it is noted that Cummings further teaches what Ozbek is suggesting: that it has been conventional to position the frozen confectionery beyond the container and still wrapping the confectionery with a removable wrapper (see figure 5 and 6). As shown in figure 6, Cummings teaches that providing this extending allows for one to visually see the frozen confectionery after removal of the wrapper (see column 1, lines 41-43). Therefore, in view of Cummings it would also have been obvious to one having ordinary skill in the art to also extend a portion of the frozen confectionery beyond the container as an obvious matter of engineering and/or design, based known expedients for how to package a frozen confectionery within a container that has been enclosed in a removable wrapper.
Claims 54-56 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 52 above, which relies on Ozbek (US 20190193927) as the primary reference, and in further view of Lam (US 20150210432), Gordon (US 20020139694) and Klemme (US 5669550).
Claim 54 Ozbek in view of Cummings as applied to claim 52 teaches that the frozen confectionery extends beyond the container by an exposed portion. Ozbek also teaches that the opening of the first portion has a perimeter having a shape that is complementary to the shape of a perimeter of the distal end of the exposed portion, because Ozbek teaches that the non-edible capsule has a circular perimeter (see figure 4) and is tightly fit in the casing volume (see paragraph 23) and because the frozen confectionary is also taught to have a circular shape (see paragraph 21, 22). Ozbek also teaches that the non-edible capsule has the same angle as that of the cone (see paragraph 9). Therefore, Ozbek teaches that the opening of the first portion would have had a perimeter having a shape that is complementary to the shape of a perimeter of the distal end of the exposed portion of the frozen confectionery.
Claim 54 differs in specifically reciting that the distal end portion of the exposed portion is adjacent the opening of the first portion of the capsule.
However, Lam (US 20150210432) teaches a non-edible capsule comprising a first portion (figure 1 and 2, item 112) having an opening that faces a food containing compartment (figure 1 and 2, item 116) and said capsule having a second portion (figure 1 and 2, item 120) that can be secured within the interior of the first portion 112 (see paragraph 18: “Internal divider 120 may be disposed so that its perimeter engages the interior of…within top portion 112..”). Lam teaches that the non-edible capsule can contain a novelty item such as a toy (see paragraph 16).
Additionally, Gordon further teaches a non-edible capsule that can hold a promotional article therein (i.e. a novelty item)(see paragraph 20: “promotional item” and figure 2B, item 42), the capsule comprising a first portion with an opening facing a food product (see figure 2B, item 48) and a second portion (Figure 2B, item 50A that defines the chamber holding the novelty item. Gordon further teaches that the opening of the first portion would face the food within the container 12 (see paragraph 9 and 20).
Klemme further evidences a non-edible capsule containing a novelty item therein such as a toy (see the abstract; column 3, lines 8-13) and which non-edible capsule can have a first portion (figure 4, item 24) with an opening that faces the food (see figure 4, item 18; column 2, lines 33-42: “storing a primary food product”) or can have the first portion opening facing away from the food, as shown in figure 5, item 44). Klemme thus teaches that a non-edible capsule holding a promotional item or toy and having the opening of the first portion facing the food or facing away from the food have been obvious variants of each other.
To therefore modify Ozbek and to reverse the configuration of Ozbek’s capsule such that the first portion 16 was positioned such that its opening 18 was facing the frozen confectionery while the second portion 15 closes the capsule, would have been an obvious rearrangement of parts which would have been an obvious matter of engineering and/or design based on another known configuration for how to position a capsule containing a novelty item together with a food container.
Regarding claim 55, in view of Cummings teaching the entirety of the novelty confectionery being wrapped, it would have been obvious to one having ordinary skill in the art that the combination is teaching that the wrapper encompasses at least a portion of the container, the exposed portion of the frozen confectionery, and at least a portion of the capsule to consolidate the container to the capsule in a removable manner.
Regarding claim 56, the combination is teaching that the opening of the first portion of the capsule has a diameter that is “approximately” the same as the diameter of the exposed portion of the frozen confectionery, especially because Ozbek is already teaching that the lower portion of the non-edible capsule has a diameter that resembles that of the exposed portion of the frozen confectionery. Additionally, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device (see MPEP 2144.04(IV)(A)). That is, the prior art already teaches that the portion of the non-edible capsule adjacent to the frozen confectionery product has a similar diameter as that of the frozen confectionery. Therefore, it would have been obvious to one having ordinary skill in the art, when rearranging the orientation of Ozbek’s non-edible capsule to similarly have provided the opening of the first portion with a diameter that is approximately the same as that of the exposed portion of the frozen confectionery, for the purpose of maintaining the same proportions between the frozen confection and the capsule, as already shown by Ozbek.
Claim 59 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 52 above, which relies on Ozbek (US 20190193927) as the primary reference, and in further view of Hartelius (US 6766902), Whetstone (US 6099872) or Gass (US 20170295839)
Claim 59 differs from the combination as applied to claim 52 in specifically reciting, wherein the second portion of the capsule further comprises an outer edge, the outer edge comprising one or more ridges configured to mate with ridges inside the open end of the first portion of the capsule to index the first portion to the second portion, wherein the ridges are configured to resist (but not prevent) removal of the first portion from the second portion.
Hartelius teaches a capsule to hold a novelty item such as a toy (see figure 3, item 19; column 3, lines 30-31), where the first portion (figure 3, item 1), comprises indents (and therefore ridges between the indents) (figure 3, item 9 and column 3, lines 11-20) and where a second portion of the capsule comprises ridges (see figure 3, item 16) which mate with the inner ridges of the first portion (see column 3, lines 25-28) for the purpose of securing the two portions of the capsule to.
Whetstone teaches a non-edible capsule holding a novelty toy therein (see figure 4, item 31), and which capsule comprises a second portion with an outer edge comprising one or more ridges (see figure 12, item 134) that are configured to mate with ridges inside of the open end of the first portion of the capsule (see figure 15A, item 130 and column 6, lines 49-62- there would have been multiple ridges in light of the multiple recesses 130).
Gass (US 20170295839) also teaches a non-edible capsule holding a novelty toy therein (see paragraph 9), and which capsule comprises a second portion with an outer edge comprising one or more ridges (see figure 8, item 24) that are configured to mate with ridges inside of the open end of the first portion of the capsule (see figure 8, item 26 and paragraph 60 which discloses nubs 24 (plural) interlocking with a plurality of recesses 26 (plural) and therefore teaching the first portion inside surface also comprising ridges).
To therefore modify the combination and to use inter-engaging indents between an inner surface of the first portion of Ozbek and the outer surface of the second portion of Ozbek would have been obvious to one having ordinary skill in the art, as a matter of engineering and/or design based on known expedients for how the ordinarily skilled artisan can secure a novelty item within a nonedible capsule associated with a food container and where such a modification would also have allowed for reclosing of the capsule for subsequent storage of the novelty item after unpackaging the novelty item from the confectionery product.
Claims 61-62 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 52 above, which relies on Ozbek (US 20190193927) as the primary reference, and in further view of any of Buck (US 9622605), Vovan (US 8083089) or Chen (US 8240505).
Claim 61 differs from the combination as applied to claim 52 in specifically reciting that the second portion of the capsule further comprises an outer edge having a tab. Claim 62 differs from the combination as applied to claim 52 in specifically reciting, wherein an outer periphery of the first portion of the capsule comprises a cutout configured such that the tab of the second portion is accessible through the cutout.
Buck teaches a known expedient for closing a non-edible capsule (figure 4, item 100b) positioned above a container (Figure 4, item 130) that can house ice cream (column 5, lines 26-31; column 14, lines 6-10). In figure 19, the non-edible capsule can comprise cut-outs (see item 1906) to make it easier to grasp tabs that are part of an outer edge of a second portion (figure 19, 1905) that closes this non-edible capsule (see column 22, lines 29-32).
Vovan also teaches a cut out in a periphery of a first portion of a non-edible capsule, (see figure 6, near item 26) that can provide access to a tab as part of a second portion (see figure 6, item 24).
Chen also teaches a non-edible capsule that comprises a first portion (figure 5, item 40) which comprises a cutout (figure 5, item 46) through which a tab (figure 5, item 55) of a second portion of the capsule can be accessed (see figure 8) to make it easier to open the capsule (see figure 3, lines 47-54).
To therefore modify the combination and to provide a cutout in a first portion of the non edible capsule and a tab to the second portion that is accessible through the cutout would have been obvious to one having ordinary skill in the art, for the purpose of keeping the capsule closed but then making it easier to open by allowing easier access to an opening tab.
Claim 64 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 63 above, which relies on Ozbek (US 20190193927) as the primary reference, and in further view of Bezek (US 20020039609) and Lee (KR 940003631) and in further view of Witkowski (US 20060003055).
Regarding claim 64, Ozbek teaches a toy but claim 64 differs in specifically reciting that the toy is formed from a plurality of individual components contained in a flexible pouch inside the non- edible capsule.
Bezek teaches a non-edible capsule defining a compartment (see figure 11, item 1110) which can contain a toy, a ball or other items, which can be inside a pouch (see paragraph 59). Lee further teaches a frozen confectionery (figure 2, item 1) within a wrapper (figure 1 and 2, item 2) and where there is an upper non-edible capsule (figure 1 item 3 and 5), which can contain a plurality of toys (see page 1, line 2 below “Description-of-Embodiments”: “insert a variety of toys”; see page 2 of the machine translation, line 2, “insert various promotional materials (4) such as toys”). Together, Bezek and Lee teach and suggest that the toy can comprise a plurality of individual components. Witkowski further teaches toys such as puzzles and linking articles (see the abstract) packaged within a bag (see the abstract) and which can be edible but also are toys (see the abstract). Witkowski thus teaches a plurality of individual components that form a toy.
To therefore modify the combination and to provide a plurality of individual components as part of the toy, contained within a pouch, would have been obvious to one having ordinary skill in the art, based on another and conventional expedient to contain the multiple toy elements together when being placed within the non-edible capsule. Such a modification would have been advantageous for similarly preventing the toy elements from becoming separated when opening the non-edible capsule of Ozbek.
Claim 67 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 66 above, which relies on Ozbek (US 20190193927) as the primary reference, and in further view of Messinger (US 20210368822).
Regarding claim 67, in view of Cummings the combination teaches that the edible container can be an edible ice cream cone, such as a sugar cone.
Claim 67 differs in specifically reciting that the container is an edible waffle cone.
It is initially noted that once it was taught by the prior art to prepackage a frozen confectionery in an edible cone, it is not seen that patentability can be predicated on the particular and conventional type of cone that was used. Nonetheless, Messinger teaches that it has been conventional to prepackage a frozen confectionery such as ice cream with any known type of edible cone such as a waffle cone or sugar cone (see paragraph 42; see figure 8 and paragraph 69).
To therefore modify the combination and to use another known type of edible cone used with frozen confectionery products, such as a waffle cone as taught by Messinger, would have been obvious to one having ordinary skill in the art based on a substitution of known equivalents used for the same function.
Claim 69 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 51 above, which relies on Ozbek (US 20190193927) as the primary reference, and in further view of Weinstein (US 4444795 cited on IDS)
Claim 69 differs from the combination as applied to claim 51 in specifically reciting, wherein the removeable wrapper includes a frangible region to facilitate the removing of the wrapper from the container and non-edible capsule.
Weinstein teaches a wrapper for a novelty confectionery, which further includes a score line (see figure 1, item 14D; column 3, lines 22-27) for the purpose of being able to tear away the wrapper (see column 4, lines 29-38).
To therefore modify the combination and include a frangible region would have been obvious to one having ordinary skill in the art, for the purpose of making it easier to tear away the wrapper for consuming the frozen confectionery.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Fredette (US 2979193) teaches that it has been conventional to position a container comprising a novelty item such as a toy within a non-edible capsule (see figure 2, item 43 and column 3, lines 4-14) and which non-edible capsule is positioned within a container comprising a food (see column 2, lines 2-5). Fredette teaches that the non-edible capsule has a first portion with an opening that is facing the food within the container (see figure 2, item 48).
O’Brian (US 2903365) teaches a plurality of individual components that can form a toy (see the figures).
Rider (US 5758794) discloses a recess (see figure 3 and 5, item 40) into which can be received a tab (figure 3-6, item 30) for closing a container.
Corazza (US 20240253879) discloses a recess in a first portion of a container (see figure 3, item 42) into which can be received a tab of a second portion of the ocntianer (figure 3, item 44; figure 4) for closing a container.
Neitzel (DE 29905650) discloses a food container with a non-edible capsule holding a novelty item therein (see figure 1, item 12; paragraph 26-28 of the machine translation)
Bambagioni (US 20190177028) discloses a first portion of a lid having a lip over which a wrapper has been folded (figure 9).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VIREN THAKUR whose telephone number is (571)272-6694. The examiner can normally be reached M-F: 10:30-7:00pm.
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/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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