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 .
Claim Rejections - 35 USC § 102
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 following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-2, 6-8 and 20 is/are rejected under 35 U.S.C. 102(a) (1) as being anticipated by Nishida et al. (US 2004/0213880) (Nishida).
Nishida discloses a fry portioning basket (carrier 20), comprising: a frame (upper frame 202 and lower frame 201) having a first side (one longitudinal side), a second side (other longitudinal side), a front side (side opposing handle 204), a rear side (side with handle 204), and a bottom side, the frame defining a cavity and having a frame height (see Fig. 2B, total height of frame not including handle 204) defined as a first distance between the bottom side (side with members 203a, 203b) and a top rim (top rim of upper frame 202) of the frame; one or more dividers (partitioning rods 201a-c) positioned within the cavity and extending from the bottom side between the first side and the second side of the frame, the one or more dividers having a divider height (see Fig. 2B approximately the height of lower frame 201) defined as a second distance from a top of the one or more dividers and the bottom side of the frame, wherein: the divider height is less than the frame height (as shown in Fig. 2B), the cavity includes a sub-cavity (anyone of the four small sections 201s, compartments) defined between the top of the one or more dividers and the bottom side of the frame, between a first side of one of the one or more dividers and the front side of the frame, and between the first side and the second side of the frame, the sub-cavity (volume of forwardmost section 201s) having an upper boundary having a width extending between the first side of the one or more dividers and the front side of the frame, the cavity includes an upper area (volume of upper frame 202, see Fig. 2B) having an unobstructed open volume extending between the top of the one or more dividers and the top rim of the frame, between the first side and the second side of the frame, and between the front side and the rear side of the frame, and the upper boundary of the sub-cavity is contiguous with a lower boundary of the upper area across an entirety of the width to allow food items to float out of the sub-cavity and into the upper area; and a handle (204) extending adjacent the rear side.
Re claim 2, the sub-cavity defined between the top of the one or more dividers and the bottom side of the frame, and between a first side of one of the one or more dividers and the front side of the frame, and between the first side and the second side of the frame is a first sub-cavity, the fry portioning basket further comprising: a second sub-cavity (three sections 201s behind forwardmost section 201s) defined between the top of the one or more dividers and the bottom side of the frame, between a second side of one of the one or more dividers and the rear side of the frame, and between the first side and the second side of the frame, wherein the first sub-cavity is sized to accommodate a first serving of a food item and the second sub-cavity is sized to accommodate a second serving of the food item.
Re claim 6, the one or more dividers include a first divider and a second divider, the first divider having a first divider height (full height of divider) and the second divider having a second divider height (height of divider at transverse center section wherein the height is only the diameter of rod), and wherein the first divider height is different from the second divider height (first divider height is greater than second divider height).
Re claim 7, the divider height is further defined as being between one-quarter and three-quarters the frame height (as shown in Fig. 2B the tallest or full height of the divider is approximately one-half the full frame height).
Re claim 8, the divider height is further defined as being between one-third and two-thirds the frame height (as shown in Fig. 2B the tallest or full height of the divider is approximately one-half the full frame height).
Re claim 20, the method of manufacturing a fry portioning basket is disclosed by Nishida, the steps of (1) providing a frame, (2) coupling one or more dividers and (3) coupling a handle are disclosed by Nishida, the construction of the basket (frame, dividers and handle) is as discussed for claim 1. Note that “to allow food items to float out of the sub-cavity and into the upper area” as stated in lines 23-24 of claim 20 is functional language describing intended use of the basket and not a step in manufacturing the basket. The basket described by Nishida is capable of being used in this fashion, even though this method of use may not be expressly stated or intended by Nishida.
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.
Claim(s) 4-5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nishida in view of McCord (US 4508027).
Nishida fails to disclose that the dividers are removably coupled to the frame and removable to change the size of a sub-cavity. McCord teaches a fry basket with the function of dividing portions, Fig. 1-5, 8 and 9 disclose the use of one removable divider and two differently sized (volume) compartments and Fig. 6-7 disclose the use of two removable dividers and three somewhat equally sized (volume) compartments, such that the removal of a second divider changes the size of the sub-cavity. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the present invention to modify the dividers to be removably coupled and to change the size of a sub-cavity to allow differently sized portions to be cooked in the same basket.
Claim(s) 9-13 and 17-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nishida in view of Koopman et al. (US 5079020) (Koopman).
Re claims 9 and 12, Nishida fails to disclose that the frame is constructed of wire mesh (wire mesh frame, claim 12) (as the rods are not uniformly spaced to form a mesh. Koopman teaches a frame (basket 10) with four mesh sidewalls. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the present invention to modify the frame to be constructed of mesh to prevent small food particles from floating out of the frame and soiling the fry oil.
Re claim 10, Nishida fails to disclose that the dividers are constructed of mesh. Koopman teaches dividers 30 constructed of wire mesh, see Fig. 2, 4, 6-9. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the present invention to modify the dividers to be constructed of mesh to prevent small food particles from floating between compartments as the foods may be different in an adjacent compartment, e.g., sea food being separated from potato.
Re claim 11, Nishida fails to disclose the hook. Koopman teaches forward end hook (see 68 in Fig. 10 and 12 and see Fig. 1, 3, 5, 7, 8). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the present invention to modify the basket to have a hook to make suspending the basket on an upper edge or hanger convenient such that excess oil may drain properly from the basket.
Re claim 13, all of Nishida’s sub-cavities are equally sized.
Re claim 17, the divider height of Nishida is further defined as being between one-quarter and three-quarters the frame height (as shown in Fig. 2B the tallest or full height of the divider is approximately one-half the full frame height).
Re claim 18, the divider height of Nishida is further defined as being between one-third and two-thirds the frame height (as shown in Fig. 2B the tallest or full height of the divider is approximately one-half the full frame height).
Re claim 19, the one or more dividers of Nishida include a first divider and a second divider, the first divider having a first divider height (full height of divider) and the second divider having a second divider height (height of divider at transverse center section wherein the height is only the diameter of rod), and wherein the first divider height is different from the second divider height (first divider height is greater than second divider height).
Claim(s) 15-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nishida in view of Koopman as applied to claims 12-13 above, and further in view of McCord.
The combination fails to disclose that the dividers are removably coupled to the frame and removable to change the size of a sub-cavity. McCord teaches a fry basket with the function of dividing portions, Fig. 1-5, 8 and 9 disclose the use of one removable divider and two differently sized (volume) compartments and Fig. 6-7 disclose the use of two removable dividers and three somewhat equally sized (volume) compartments, such that the removal of a second divider changes the size of the sub-cavity. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the present invention to modify the dividers to be removably coupled and to change the size of a sub-cavity to allow differently sized portions to be cooked in the same basket.
Claim(s) 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nishida in view of Koopman and Leng (US 2022/0408971).
Nishida discloses the one or more dividers include a first divider and a second divider, the first divider having a first fixed divider height (full height of divider) and the second divider having a second fixed divider height (height of divider at transverse center section wherein the height is only the diameter of rod), and wherein the first divider height is different from the second divider height (first divider height is greater than second divider height). Nishida fails to disclose the mesh material of the frame and the dividers.
Koopman teaches a frame (basket 10) with four mesh sidewalls. Leng teaches a bottom side of the frame of a grill basket constructed of wire mesh material. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the present invention to modify the frame to be constructed of mesh on the first side, second side, front side, rear side and bottom side to prevent small food particles from floating out of the frame and soiling the fry oil and to prevent the loss of cooked food.
Koopman teaches dividers 30 constructed of wire mesh, see Fig. 2, 4, 6-9. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the present invention to modify the dividers to be constructed of mesh to prevent small food particles from floating between compartments as the foods may be different in an adjacent compartment, e.g., sea food being separated from potato.
Response to Arguments
Applicant’s arguments with respect to the rejections have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration and search, new grounds of rejection are made with Nishida et al.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHEN J CASTELLANO whose telephone number is (571)272-4535. The examiner can normally be reached Monday - Friday.
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sjc/STEPHEN J CASTELLANO/ Primary Examiner, Art Unit 3733
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