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 Objections
Claim 16 is objected to because of the following informalities: repeated word “including” in line 4. Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
The claim limitation(s) is/are: “product support means… to support cut product” in claim 16, and meets the three-prong test, and is interpreted as the islands of Applicant’s paragraph 0080 of the Specification that supports the recited function.
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 1-15, and 17-20 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 1 recites the limitation "a peripheral sidewall”, followed by recitation of “the sidewall”, and further recitation of “the peripheral sidewall". It is unclear whether “the sidewall” is to refer to “a peripheral sidewall”, since the limitation is followed by specific references to “the peripheral sidewall”. For the purposes of examination, the limitation “the sidewall” will be interpreted as referring to “a peripheral sidewall”.
Claims 4, 8, and 19 recite the limitation "the reservoir". However, it is unclear which reservoir of “an at least one reservoir” of claims 1 and 16 is being referenced by the limitation. For the purposes of examination, the limitation will be interpreted as “the at least one reservoir”.
Claims 7 and 9 recite the limitation “the peripheral support surface”. There is insufficient antecedent basis for this limitation in the claim.
Claims 15 recites the limitation "a container interior". However, it is unclear which whether the limitation is in reference to the container interior of claim 1, or a new and additional container interior. For the purposes of examination, the limitation will be interpreted as referring to the container interior of claim 1.
Claims 17 recites the limitation "said product support means". There is insufficient antecedent basis for this limitation in the claim.
Claim 18 recites the limitation "the peripheral product support surface". There is insufficient antecedent basis for this limitation in the claim.
Claim 19 recites the limitation " the peripheral product support surface ". There is insufficient antecedent basis for this limitation in the 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-12 and 16-21 is/are rejected under 35 U.S.C. 103 as being unpatentable over US Patent No. 2,814,381 (Stevick hereinafter).
In re claim 1, with reference to Figs. 1 and 2, Stevick discloses: A container for cut product comprising: a peripheral sidewall (25, 26) and a floor panel (remainder of base 12) integrally formed from polymer material (“acetate” column 2, lines 34-39), said floor panel extending inward from the sidewall to define a container interior, the floor panel including at least one island (see Fig. 2 below), the least one island including a product support surface elevated relative to a base surface of the container (see Figs. 1 and 2 below) and at least partially surrounded by at least one reservoir (16), said product support surface distributed across the floor panel to support cut product placed in the container interior above the at least one reservoir (column 3, lines 60-62), said product support surface being interrupted or discontinuous in a direction parallel to the base surface of the container (e.g. by channel 19 between annotated islands in Fig. 1 below), wherein the container interior defines a product volume above the product support surface of the at least one island and the at least one reservoir (16) defines a fluid volume for liquid released from the cut product, said fluid volume within the container interior and below the product support surface (see Fig. 2 below).
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Stevick discloses wherein the fluid volume is significantly smaller than the product volume gleaned from Figs. 1 and 2 above, but fails to disclose specifically wherein said fluid volume being between 3% and 15% of said product volume.
However, it would have been obvious to one having ordinary skill in the art at the time the invention was made to formed the fluid volume a specific percentage of the product volume, depending upon the expected fluid retention required by the reservoir for accommodating different types of food, since 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. Please note that in the instant application, paragraph 0090, applicant has not disclosed any criticality for the claimed limitations.
In re claim 2, with reference to Figs. 1 and 2, Stevick discloses the claimed invention including wherein said floor panel includes a radially inward projecting shoulder defining a peripheral product support surface (15) extending inwardly from a lower end of the peripheral side wall (see Figs. 1 and 2 above).
In re claim 3, with reference to Figs. 1 and 2, Stevick discloses the claimed invention including wherein the peripheral product support surface extends continuously around the lower end of the peripheral side wall (See Figs. 1 and 2 above).
In re claim 4, with reference to Figs. 1 and 2, Stevick discloses the claimed invention including wherein the peripheral product support surface is sloped toward the reservoir to guide liquid released from the cut product into the one or more reservoirs (16) (See figs. 1 and 2 above).
In re claim 5, with reference to Figs. 1 below, Stevick discloses the claimed invention including wherein the peripheral product support surface is interrupted around the lower end of the side wall (this alternative embodiment of the peripheral support surface is interpreted below, and shown between the dotted lines as a rectangular ring).
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In re claim 6, with reference to Figs. 1 and 2, Stevick discloses the claimed invention including wherein the at least one island comprises a plurality of islands, each island at least partially surrounded by the at least one reservoir (see Figs. 1 and 2 above).
In re claim 7, with reference to Figs. 1 and 2, Stevick discloses the claimed invention including wherein the product support surface of one or more of the plurality of islands is connected to the peripheral support surface (i.e. by the material of the reservoir, since the container is of one piece, all of the surfaces are connected absent any specific delineation of the boundaries of the elements).
In re claim 8, with reference to Figs. 1 and 2, Stevick discloses the claimed invention including wherein the product support surface has a height above the base surface of the container and includes product support surface portions spaced from each other a lateral distance by the at least one reservoir, the height of the product support surface corresponding to a depth of the reservoir (see Figs. 1 and 2 above).
Stevick discloses wherein the depth of the reservoir is slightly smaller than the lateral distance as can be gleaned from Figs. 1 and 2 above, but fails to disclose specifically the depth of the reservoir being no greater than 75% of the lateral distance between product support surface portions.
However, it would have been obvious to one having ordinary skill in the art at the time the invention was made to formed the reservoir depth and lateral distance a specific ratio range, depending upon the expected fluid retention required by the reservoir for accommodating different types of food, since 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. Please note that in the instant application, paragraphs 0083 and 0093, applicant has not disclosed any criticality for the claimed limitations.
In re claim 9, with reference to Figs. 1 and 2, Stevick discloses the claimed invention except wherein the product support surface and the peripheral support surface have a combined surface area between approximately 27% and approximately 47% of an area of the floor panel.
However, it would have been obvious to one having ordinary skill in the art at the time the invention was made to formed the combined surface area to a specific range of ratios, depending upon the expected fluid retention required by the reservoir for accommodating different types of food (i.e. larger reservoirs for foods with a high liquid content and are expected to drip more fluid), since 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. Please note that in the instant application, paragraphs 0099 and 0102, applicant has not disclosed any criticality for the claimed limitations.
In re claim 10, with reference to Figs. 1 and 2, Stevick discloses the claimed invention including wherein cut product rests directly on the product support surface (column 3, lines 60-66) and the floor panel consists essentially of a single thickness of polymer material (see Fig. 2, and column 3, lines 60-62).
In re claim 11, with reference to Figs. 1 and 2, Stevick discloses the claimed invention including wherein the at least one island includes a channel (19) interrupting the product support surface, said channel defined above a bottom of the at least one reservoir and providing a flow path for fluid flow between regions of the at least one reservoir (see Figs. 1 and 2 above).
In re claim 12, with reference to Figs. 1 and 2, Stevick discloses the claimed invention including wherein the at least one reservoir is interrupted by the at least one island into a plurality of reservoirs (16), said channels (19) connecting the plurality of reservoirs into a single connected volume (See Figs. 1 and 2 above).
In re claim 16, with reference to Figs. 1 and 2, Stevick discloses: A container for cut product comprising: a sidewall and a floor panel formed from polymer material, said floor panel extending inward from the sidewall to define a container interior (as in re claim 1 above), the floor panel including [including] product support means (islands, see Figs. 1 and 2 above) elevated relative to a base surface of the container and at least partially surrounded by at least one reservoir, said product support means distributed across the floor panel to support cut product placed in the container interior above the at least one reservoir (See Figs. 1 and 2), said product support means being interrupted or discontinuous in a direction parallel to the base surface of the container, wherein the container interior defines a product volume above the product support means and the at least one reservoir defines a fluid volume within the container interior and below the product support means, said fluid volume being between 3% and 15% of said product volume (as in re claim 1 above).
In re claim 17, with reference to Figs. 1 and 2, Stevick discloses the claimed invention including wherein said product support means includes a radially inward projecting shoulder defining a peripheral product support surface extending inwardly from a lower end of the sidewall (as in re claim 2 above, as best understood in light of the antecedent basis issues noted above).
In re claim 18, with reference to Figs. 1 and 2, Stevick discloses the claimed invention including wherein the product support means comprises at least one island including a product support surface elevated above the base surface of the container, the product support surface of the at least one island cooperating with the peripheral product support surface to support cut product above the at least one reservoir (See Fig. 1, as in re claims 1 and 2 above).
In re claim 19, with reference to Figs. 1 and 2, Stevick discloses the claimed invention including wherein the peripheral product support surface is sloped toward the reservoir to guide liquid released from the cut product into the at least one reservoir (as in re claim 4 above, as best understood in light of the antecedent basis issues noted above).
In re claim 20, with reference to Figs. 1 and 2, Stevick discloses the claimed invention including wherein the peripheral product support surface is interrupted around the lower end of the side wall (as in re claim 5 above).
In re claim 21, with reference to Figs. 1 and 2, Stevick discloses A method of extending shelf-life of stored cut product, said method comprising: providing a container having a sidewall and a floor panel defining a container interior, said floor panel including a base surface configured to support the container in a horizontal position; configuring the floor panel to include an interrupted or discontinuous product support surface, said product support surface elevated relative to the base surface of the container, said floor panel defining at least one reservoir inward of the sidewall and below the product support surface (as in re claim 1 above); storing cut product in the container with the cut product supported by the product support surface (column 3, lines 60-66); wherein liquid released from the cut product during storage descends into the at least one reservoir and the cut product is supported above the liquid during storage (column 2, lines 55-60).
Claim(s) 13 and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Stevick as applied to claim 1 above, and further in view of US PG Pub No. 2018/0273232 (Wallace hereinafter).
In re claims 13 and 14, with reference to the Figs. noted above, Stevick discloses the claimed invention except wherein the container is thermoformed from a sheet of thermoplastic material, or wherein the container is injection molded from thermoplastic material.
However, Wallace discloses a container having a drain reservoir and a product support surface, wherein the container is thermoformed of a thermoplastic sheet (paragraph 0039).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention to have formed the container of Stevick of a known material and by a known process, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. MPEP 2144.07. Please note that in the instant application, paragraphs 0014, 0078, and 0080 applicant has not disclosed any criticality for the claimed limitations.
Further, In accordance to MPEP 2113, the method of forming the device is not germane to the issue of patentability of the device itself. Therefore, this limitation has not been given patentable weight. Please note that even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product, i.e. the thermoplastic container, does not depend on its method of production, i.e. injection molding. In re Thorpe, 227 USPQ 964, 966 (Federal Circuit 1985).
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Stevick as applied to claim 1 above, and further in view of US PG Pub no. 2003/0077363 (Cadiente et al. hereinafter).
In re claim 15, with reference to the Figs. noted above, Stevick discloses the claimed invention including a lid (14) connected to an upper end of the sidewall, said sidewall upper end including a rim (26) configured to mate with a complementary lip (28) on the lid (14) to close a [the] container interior, the lid defining a vent (31/34/35) allowing gas exchange between the container interior and the ambient environment (column 3, lines 32-47).
Stevick fails to disclose wherein the lid is hingedly connected to the sidewall, and said rim and said lip cooperatively defining a vent allowing gas exchange between the container interior and the ambient environment.
However, with reference to Figs. 1 and 2, Cadiente et al. teaches a food holding container (1) which includes a lid (11) having ventilation holes (22) and being hingedly connected to an upper end of a sidewall of body (10), said sidewall upper end including a rim configured to mate with a complementary lip on the lid (16/17) to close a container interior, said rim and said lip cooperatively defining a vent (5a, 5b) allowing gas exchange between the container interior and the ambient environment (paragraph 0047).
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Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention to have modified the lid of the container of Stevick to have been hingedly connected as taught by Cadiente et al. for the purposes of facilitating opening of the container while preventing loss or misplacement of the lid by maintaining a connection between the lid and container even when the container is open.
It also would have been obvious to one of ordinary skill in the art at the time of the invention to have located one of the sets of ventilation holes (31) at the lid/container junction on the device of Stevick as taught by Cadiente et al., since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70. Please note that in the instant application, paragraphs 0085-86 applicant has not disclosed any criticality for the claimed limitations.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW T KIRSCH whose telephone number is (571)270-5723. The examiner can normally be reached Mon-Fri, 9a-5p EST.
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/ANDREW T KIRSCH/Primary Examiner, Art Unit 3733