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 .
Election/Restrictions
Claims 59-62, 67-70, and 72-75 withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected Species, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 07/17/2026.
Applicant's election with traverse of Species 7: Figures 73A-77B in the reply filed on 07/17/2026 is acknowledged. The traversal is on the ground(s) that the Examiner has not provided that the species are patentably distinct. This is not found persuasive because the Examiner has provided the reasoning that the shared special technical feature does not contribute over the prior art, as outlined in the restriction requirement mailed on 05/18/2026.
The requirement is still deemed proper and is therefore made FINAL.
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.
Claim(s) 56-58 and 63 is/are rejected under 35 U.S.C. 103 as being unpatentable over Scott (US 1,811,566) in view of Brust (US 2016/0073590) and further in view of Henke et al. (Henke US 2009/0314664).
56-57: Scott teaches a baking container (baking container shown in Figure 1), comprising: a planar bottom face (see Figure 4 below), having a periphery (see periphery located at the bottom of the container, see Figure 4 below); a sidewall (see Figure 4 below) extending from the periphery to a rim (see Figure 4 below), wherein the baking container is made of paper (col. 2, ll. 71-77).
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Scott teaches the claimed invention as discussed above except for a rupture line extending from the rim to a first point on the periphery, extending from the first point on the periphery to a second point on the planar bottom face located within the periphery, and further extending to a third point located on an opposite side of the periphery from the first point, wherein the rupture line is formed by perforations, wherein the rupture line is configured to be torn to open the sidewall to ease removal from and/or consumption of a foodstuff contained therein, wherein the baking container is made of paper, and wherein the baking container is configured to be completely separated into two distinct parts via the rapture line.
Brust teaches a tear-away container (1100, Figure 11 and 1200, Figure 12, embodiment where the rupture line extends up an opposing side wall of container 1100 or 1200, paragraph 0043-0044) wherein the container comprises a rupture line (line generally indicated as 1100 in Figure 11 below) extending from a rim (see the rim at the top of 1100) to a first point on the periphery (see first point in Figure 11 below), extending from the first point on the periphery to a second point on the planar bottom face located within the periphery (see second point in Figure 11 below), and further extending to a third point located on an opposite side of the periphery from the first point (see third point in Figure 11 below), wherein the rupture line is formed by perforations (rupture line has two perforations at opposite sides along the strip, paragraph 0007, see Figure 11 below), wherein the rupture line is configured to be torn to open the sidewall to ease removal from and/or consumption of an unclaimed material contained therein (see Figure 12, where the sidewall of the container is torn open to provide ease of removal), and wherein the baking container is configured to be completely separated into two distinct parts via the rapture line (see Figure 12, where two completely separate distinct parts, 1200A and 1200 B).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Scott such that a rupture line extending from the rim to a first point on the periphery, extending from the first point on the periphery to a second point on the planar bottom face located within the periphery, and further extending to a third point located on an opposite side of the periphery from the first point, wherein the rupture line is formed by perforations, wherein the rupture line is configured to be torn to open the sidewall to ease removal from and/or consumption of a foodstuff contained therein, wherein the baking container is made of paper, and wherein the baking container is configured to be completely separated into two distinct parts via the rapture line was provided along the sidewall and bottom planar surface of the baking pan liner of Scoot in order to permit the container easier to open in order to permit ease of removal of contents within and to reduce damage to contents during removal.
Scott-Brust teaches the claimed invention as discussed above except that the perforations comprise dots, pinholes, or circular holes, wherein the dots, pinholes, or holes have inner diameter of 0.05 – 1.00mm.
Henke teaches a plurality of holes, such as punched holes, e.g. circular or pin holes forming the perforations, having a diameter between 0.25 and 0.05 mm.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Scott-Brust such that the teaching of the perforations comprise dots, pinholes, or circular holes, wherein the dots, pinholes, or holes have inner diameter of 0.05 – 1.00mm were applied since such a method of using punched, pin, or circular holes to form perforations are known in the art to facilitate tearing, as taught by Henke, paragraph 0044-0046 and the claimed values of the diameter of the holes are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233, MPEP 2144.05.
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58: Scott-Brust-Henke teaches the claimed invention as discussed above for Claim 56 and the modified Scott-Brust-Henke teaches that the rupture line further extends from the third point to a fourth point located on an opposite side of the sidewall from the first point (see Figure 12 below, of Brust), and from the fourth point to a fifth point located on the rim (see Figures 11-12 where the rupture line extends from one side of the container to the other side of Brust).
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63: Scott-Brust teaches the claimed invention as discussed above for Claim 56 and the modified Scott-Brust teaches that the planar bottom surface is continuous such that the bottom face does not include an opening (see Figures 11-12, before the rupture line is punctured, no openings are present).
Claim(s) 64 and 66 is/are rejected under 35 U.S.C. 103 as being unpatentable over Scott (US 1,811,566) in view of Brust (US 2016/0073590).
64: Scott teaches a baking container (baking container shown in Figure 1), comprising: a planar bottom face (see Figure 4 below), having a periphery (see periphery located at the bottom of the container, see Figure 4 below); a sidewall (see Figure 4 below) extending from the periphery to a rim (see Figure 4 below), wherein the baking container is made of paper (col. 2, ll. 71-77).
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Scott teaches the claimed invention as discussed above except for a rupture line extending from the rim to a first point on the periphery, extending from the first point on the periphery to a second point on the planar bottom face located within the periphery, and further extending to a third point located on an opposite side of the periphery from the first point, wherein the rupture line is formed by perforations, wherein the rupture line is configured to be torn to open the sidewall to ease removal from and/or consumption of a foodstuff contained therein, wherein the baking container is made of paper, and wherein the baking container is configured to be completely separated into two distinct parts via the rapture line.
Brust teaches a tear-away container (1100, Figure 11 and 1200, Figure 12, embodiment where the rupture line extends up an opposing side wall of container 1100 or 1200, paragraph 0043-0044) wherein the container comprises a rupture line (line generally indicated as 1100 in Figure 11 below) extending from a rim (see the rim at the top of 1100) to a first point on the periphery (see first point in Figure 11 below), extending from the first point on the periphery to a second point on the planar bottom face located within the periphery (see second point in Figure 11 below), and further extending to a third point located on an opposite side of the periphery from the first point (see third point in Figure 11 below), wherein the rupture line is configured to be torn to open the sidewall to ease removal from and/or consumption of an unclaimed material contained therein (see Figure 12, where the sidewall of the container is torn open to provide ease of removal), and wherein the baking container is configured to be completely separated into two distinct parts via the rapture line (see Figure 12, where two completely separate distinct parts, 1200A and 1200 B).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Scott such that a rupture line extending from the rim to a first point on the periphery, extending from the first point on the periphery to a second point on the planar bottom face located within the periphery, and further extending to a third point located on an opposite side of the periphery from the first point, wherein the rupture line is formed by perforations, wherein the rupture line is configured to be torn to open the sidewall to ease removal from and/or consumption of a foodstuff contained therein, wherein the baking container is made of paper, and wherein the baking container is configured to be completely separated into two distinct parts via the rapture line was provided along the sidewall and bottom planar surface of the baking pan liner of Scoot in order to permit the container easier to open in order to permit ease of removal of contents within and to reduce damage to contents during removal.
Scott-Brust teaches the claimed invention as discussed above except in the explicit embodiment of Figures 11 wherein the rupture line is formed by depressions or scores. However, Brust teaches that the edges of portions 142, 144 of strip 110 (Figure 1) can be perforated or scored (paragraph 0032).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Scott-Brust such that the teaching of the rupture line is formed by depressions or scores were applied since such a method of using depressions or scores to form perforations are known in the art to facilitate tearing, as taught by Brust, paragraph 0032.
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66: Scott-Brust teaches the claimed invention as discussed above for Claim 56 and the modified Scott-Brust teaches that the rupture line further extends from the third point to a fourth point located on an opposite side of the sidewall from the first point (see Figure 12 below, of Brust), and from the fourth point to a fifth point located on the rim (see Figures 11-12 where the rupture line extends from one side of the container to the other side of Brust).
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Claim(s) 65 is/are rejected under 35 U.S.C. 103 as being unpatentable over Scott (US 1,811,566) in view of Brust (US 2016/0073590) and further in view of Henke et al. (Henke US 2009/0314664).
65: Scott-Brust teaches the claimed invention as discussed above except the depressions or scores are circular and/or elongated.
Henke teaches a plurality of perforation holes, in the form of a row of small cuts/ punched holes e.g. circular or pin holes forming the perforations/cuts, having a diameter between 0.25 and 0.05 mm.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Scott-Brust such that the teaching of the depressions or scores are circular were applied since such a method of using punched or circular holes/cuts to form perforations are known in the art to facilitate tearing, as taught by Henke, paragraph 0044-0046.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 56-58, 63-66, and 71 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,185,727. Although the claims at issue are not identical, they are not patentably distinct from each other because both inventions are directed to a baking container, comprising: a planar bottom face, having a periphery; a sidewall extending from the periphery to a rim; and a rupture line extending from the rim to a first point on the periphery, extending from the first point on the periphery to a second point on the planar bottom face located within the periphery, and further extending to a third point located on an opposite side of the periphery from the first point, wherein the rupture line is formed by perforations, wherein the perforations comprise elongated slits having an elongated axis along the rupture line, wherein the rupture line is configured to be torn to open the sidewall to ease removal from and/or consumption of a foodstuff contained therein, and wherein the baking container is configured to be completely separated into two distinct parts via the rupture line except wherein the baking container is made of a single layer of baking paper and the perforations are formed by dots, pinholes, circular holes, depressions or scores.
Brust teaches that the edges of portions 142, 144 of strip 110 (Figure 1) can be perforated or scored (paragraph 0032).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the prior Patent such that the teaching of the rupture line is formed by depressions or scores were applied since such a method of using depressions or scores to form perforations are known in the art to facilitate tearing, as taught by Brust, paragraph 0032.
Henke teaches a plurality of holes, such as punched holes, e.g. circular or pin holes forming the perforations, having a diameter between 0.25 and 0.05 mm.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the prior Patent such that the teaching of the perforations comprise dots, pinholes, or circular holes, wherein the dots, pinholes, or holes have inner diameter of 0.05 – 1.00mm were applied since such a method of using punched, pin, or circular holes to form perforations are known in the art to facilitate tearing, as taught by Henke, paragraph 0044-0046.
Furthermore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the prior Patent such that the baking container is made of a single layer of baking paper was omitted since omission of an element and its function is obvious if the function of the element is not desired, In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KING M CHU whose telephone number is (571)270-7428. The examiner can normally be reached Monday - Friday 10AM - 6PM EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anthony Stashick can be reached at (571) 272 - 4561. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/King M Chu/Primary Examiner, Art Unit 3735
Prosecution Insights