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 § 112
Claims 13-21, 23-30 and 32 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 13 recites wherein the projection is free of any aperture, but the projection has an internal channel which is an aperture. It is unclear how the projection can be free of any aperture if it is formed by an aperture.
Claim Rejections - 35 USC § 103
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 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) 1-5, 9, 11-12 and 31 is/are rejected under 35 U.S.C. 103 as being unpatentable over Borowski et al. (US-8042704-B2) in view of Shendelman (US-11147403-B1) and Bosio et al. (US-20180127178-A1).
Borowski discloses a container (10) for use with a utensil, the container comprising: a closed lower end (12), an upper end (16) with an opening and a peripheral wall (14) extending between the upper and lower ends defining an interior of the container and comprising an outer surface (Fig. 1); and a first projection (36) extending from the peripheral wall into an interior of the container, a second projection (36) , structurally distinct from the first projection (Fig. 2), and extending from the peripheral wall into the interior of the container, wherein the first and second projections each have a first end adjacent an inner surface of the peripheral wall and a second end within the interior of the container (Fig. 2), the first and second projections being configured to removably retain the utensil within the interior of the container (col. 3, lines 9-19), a mating feature (20) for cooperating with a lid (26), wherein the first and second projections are disposed between the mating feature and the closed lower end (Fig. 1), wherein the first and second projections each comprise an elongate body that forms a space (38) between the elongate body and an inner surface of the peripheral wall, wherein the space is sized to receive a portion of the utensil (Fig. 2), wherein the at least a portion of the utensil extends through the space between the elongate body of the first and second projections and the inner surface of the peripheral wall such that the utensil is retained below the upper end of the container (col. 3, lines 9-19), wherein the first and second projections are configured such that the utensil extends through the space in a direction having an angle of about 45 degrees to about 90 degrees relative to the closed lower end (Fig. 1), a sealable lid (26) coupled to the container, wherein the utensil is disposed below the sealable lid within the interior of the container when the utensil is retained by the projection and wherein the lid and the projections are sized to create a space between a bottom of the lid and an end of the utensil small enough to inhibit or prevent the utensil from becoming loose (col. 3, lines 9-19).
Borowski fails to teach wherein the second end of the first projection is in contact with the second end of the second projection, and wherein the first and second projections are formed by indentations in the outer surface of the peripheral wall.
Shendelman teaches that it is known in the art to manufacture a utensil holder with a second end (102) of a first projection that is in contact with a second end (104) of a second projection (Fig. 3).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to have manufactured the projections such that they were in contact, in order to adjust the container for different shaped utensils or to more securely hold a utensil.
Bosio teaches that it is known in the art to manufacture utensil holding projections (42) formed by indentation sin an outer surface of a wall (par. 0062).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to have manufactured the projections as indentations, as taught by Bosio, in order to reduce the amount of material used and since such a modification would be the use of a known technique to produce a known structure for the same purpose. The modified projections of Borowski would each comprise an internal channel, wherein the internal channel of each of the first and second projections extends from the outer surface to the second end (based on the modified structure since the projections extend inward from the peripheral wall).
Claim(s) 13-18, 20, 21, 23-27, 29 and 32 is/are rejected under 35 U.S.C. 103 as being unpatentable over Borowski et al. (US-8042704-B2) in view of Bosio et al. (US-20180127178-A1).
Borowski discloses a container (10) having a closed lower end (12), an upper end (16) with an opening and a peripheral wall (14) extending between the upper and lower ends defining an interior of the container (Fig. 1); a utensil (30), wherein a portion of the peripheral wall extends inwardly toward the interior of the container to form a projection (36), the projection being configured to removably retain the utensil within the interior of the container without insertion through an opening in the projection (col. 3, lines 9-19) and free of any apertures (Fig. 2, the apertures formed are not in the projection), a mating feature (20) for cooperating with a lid (26), wherein the projection is disposed between the mating feature and the closed lower end (Fig. 1), wherein the projection comprises an elongate body that forms a space (38) between the elongate body and an inner surface of the peripheral wall, wherein the space is sized to receive a portion of the utensil, wherein the at least a portion of the utensil extends through the space between the elongate body of the projection and the inner surface of the peripheral wall such that the utensil is retained below the upper end of the container (col. 3, lines 9-19), wherein projection is configured such that the utensil extends through the space in a direction having an angle of about 45 degrees to about 90 degrees relative to the closed lower end (Fig. 1), wherein the projection is a first projection, the container further comprising a second projection (36) extending from the peripheral wall to the interior of the container, wherein the first and second projections each comprise an elongate body that together form a space (38) between the projections and an inner surface of the peripheral wall, wherein the space is sized to receive a portion of the utensil, wherein the first and second projections each have a first end adjacent an inner surface of the peripheral wall and a second end within the interior of the container, wherein the second ends are adjacent to each other (Fig. 2), a sealable lid (26) coupled to the container, wherein the utensil is disposed below the sealable lid within the interior of the container when the utensil is retained by the projection and wherein the lid and the projections are sized to create a space between a bottom of the lid and an end of the utensil small enough to inhibit or prevent the utensil from becoming loose and fall into the media (col. 3, lines 9-19), wherein the first and second projections are substantially aligned with each other (Fig. 2), wherein the container comprises a first portion and a second portion, wherein the first projection is molded with the first portion and the second projection is molded with the second portion (col. 2, lines 39-42), wherein the utensil comprises a scoop having a handle (32) and a bowl (34), wherein the handle extends through the space between the peripheral wall of the container and the projection and the bowl of the utensil rests on the projection below the upper end of the container (col. 3, lines 9-19), and a powdered infant formula (col. 2, lines 58-60).
Borowski fails to teach wherein the projection is formed by a continuous inward deformation of the peripheral wall, wherein the peripheral wall has an outer surface and the first and second projections each comprise an internal channel, wherein the internal channel of each of the first and second projections extends from the outer surface to the second end.
Bosio teaches that it is known in the art to manufacture utensil holding projections (42) formed by a continuous inward deformation of peripheral wall (par. 0062).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to have manufactured the projections as deformations, as taught by Bosio, in order to reduce the amount of material used and since such a modification would be the use of a known technique to produce a known structure for the same purpose. The modified projections of Borowski would each comprise an internal channel, wherein the internal channel of each of the first and second projections extends from the outer surface to the second end (based on the modified structure since the projections extend inward from the peripheral wall).
Claim(s) 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Borowski et al. (US-8042704-B2) in view of Bosio et al. (US-20180127178-A1), as applied above, and further in view of Shendelman (US-11147403-B1).
The modified container of Borowski teaches all the claimed limitations as shown above but fails to teach wherein the first and second ends contact each other.
Shendelman teaches that it is known in the art to manufacture a utensil holder with a second end (102) of a first projection that is in contact with a second end (104) of a second projection (Fig. 3).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to have manufactured the projections such that they were in contact, in order to adjust the container for different shaped utensils or to more securely hold a utensil.
Claim(s) 28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Borowski et al. (US-8042704-B2) and Bosio et al. (US-20180127178-A1), as applied above, and further in view of Mutschlechner (US-20110198262-A1).
Borowski fails to teach wherein the utensil comprises tweezers.
Mutschlechner teaches that tweezers can be used as a utensil in a container (par. 0013).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to have manufactured the container with tweezers, in order to adjust for different container contents an tweezers are a known utensil.
Claim(s) 30 is/are rejected under 35 U.S.C. 103 as being unpatentable over Borowski et al. (US-8042704-B2) and Bosio et al. (US-20180127178-A1), as applied above, and further in view of Zastar (US-20230312178-A1).
Borowski fails to teach wherein the container has cannabis.
Zastar teaches that containers can hold cannabis (par. 0004).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to have manufactured the container with cannabis, in order to store cannabis and such a material is known in the art.
Response to Arguments
Applicant's arguments filed 2/10/2026 have been fully considered but they are not persuasive.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, the motivation provided above is within the level of ordinary skill in the art.
Applicant’s remaining arguments have been addressed in the modified rejection above.
Conclusion
THIS ACTION IS MADE FINAL. 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 JEFFREY R ALLEN whose telephone number is (571)270-7426. The examiner can normally be reached 9:00 am - 5:00 pm, Monday-Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nathan Jenness can be reached at (571)270-5055. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JEFFREY R ALLEN/Primary Examiner, Art Unit 3733
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