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
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) 1-5 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Amirault (US 2021/0059468).
1: Amirault teaches a liner (liner 20 generally shown in Figures 10-12) for a food tray receiver of a food holding apparatus, the food tray receiver having a plurality of food tray receiver side walls defining a food tray receiver cavity for receiving one or more trays of food (unclaimed food tray receiver and its features, capable of interacting with an unclaimed receiver 10), the liner comprising:
a flexible body (flexible, paragraph 0055 where 18, 20 could become warped in shape) sized and shaped to be inserted into the unclaimed food tray receiver cavity of the unclaimed food tray receiver, the flexible body having a base (base indicated as 24) and a plurality of body side walls (sidewalls along 26, Figure 10) extending generally upward from the base, the flexible body having a food receiving cavity (cavity within 24 and 26) defined by the base and the plurality of body side walls, the food receiving cavity having an open top (open top at the top of 26, Figure 10) configured to receive food (capable of receiving food) when the flexible body is disposed in the food tray receiver and food falls toward the flexible body, the body side walls configured to move into engagement with the food tray receiver side walls to generally prevent food from moving between the food tray receiver side walls and the body side walls when the flexible body is disposed in the food tray receiver cavity of the food tray receiver (engagement formed by 22, 38, and 14 blocks food from moving between the liner the unclaimed food tray receiver since the tray top 22 overlays 38 and element 14).
2: Amirault teaches the claimed invention as discussed above for Claim 1 and Amirault further teaches that the body side walls are configured to form a seal with the food tray receiver side walls (engagement formed by 22, 38, and 14 capable of forming a seal with the unclaimed food tray receiver side walls).
3: Amirault teaches the claimed invention as discussed above for Claim 2 and Amirault further teaches that the body side walls are configured to form a complete perimeter seal around the food receiving cavity with the food tray receiver side walls (engagement formed by 22, 38, and 14 capable of forming a complete perimeter seal with the unclaimed food tray receiver side walls which conforms to the shape of the liner).
4: Amirault teaches the claimed invention as discussed above for Claim 1 and Amirault further teaches that the flexible body includes a rim (rim 22), the rim defined by upper edge margins of the plurality of body side walls (22 located at the upper edge of 26), the rim being configured to move into engagement with and form a seal with the food tray receiver side walls (22 is brought into engagement with an unclaimed food tray receiver side walls) to generally capable of preventing food from moving between the unclaimed food tray receiver side walls and the rim of the flexible body when the flexible body is disposed in the unclaimed food tray receiver cavity of the unclaimed food tray receiver.
5: Amirault teaches the claimed invention as discussed above for Claim 1 and Amirault further teaches that the base is configured to be deformed by a raised portion of a floor of the food tray receiver to facilitate the movement of the plurality of side walls into engagement with the food tray receiver side walls (since the floor is unclaimed, the prior art reference is capable of movement of the sidewall into engagement with the unclaimed food tray receiver side walls since the body of the prior art is flexible).
Claim(s) 1-10 and 13-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sarnoff et al. (Sarnoff US 2015/0136633).
1: Sarnoff teaches a liner (liner generally shown as 400, Figures 5B and 5C) for a food tray receiver of a food holding apparatus, the food tray receiver having a plurality of food tray receiver side walls defining a food tray receiver cavity for receiving one or more trays of food (unclaimed food tray receiver and its features, capable of interacting with an unclaimed receiver 100, Figure 5A), the liner comprising:
a flexible body (pan 100 is typically made of stamped aluminum, which is generally flexible to a degree, paragraph 0027) sized and shaped to be inserted into the unclaimed food tray receiver cavity of the unclaimed food tray receiver, the flexible body having a base (line having a base, horizontal planar portion at the bottom of 400) and a plurality of body side walls (continuous four sided sidewalls 410, extending upward from the base planar portion) extending generally upward from the base, the flexible body having a food receiving cavity (cavity within 400) defined by the base and the plurality of body side walls, the food receiving cavity having an open top (open top located at the top of 410) configured to receive food (capable of receiving food) when the flexible body is disposed in the food tray receiver and food falls toward the flexible body, the body side walls configured to move into engagement with the food tray receiver side walls to generally prevent food from moving between the food tray receiver side walls and the body side walls when the flexible body is disposed in the food tray receiver cavity of the food tray receiver (capable of obstructing food from falling between 410 and 100, by contact between the sidewall 410 and 115).
2: Sarnoff teaches the claimed invention as discussed above for Claim 1 and Sarnoff further teaches that the body side walls are configured to form a seal with the food tray receiver side walls (liner sidewalls 410 are configured to form a seal with the food receiver sidewall at 115).
3: Sarnoff teaches the claimed invention as discussed above for Claim 2 and Sarnoff further teaches that the body side walls are configured to form a complete perimeter seal around the food receiving cavity with the food tray receiver side walls (see rim 415 in Figure 5B, where the rim move into engagement with the side walls of the food tray, at least on three side in Figure 5A, is capable of preventing food from moving between the food tray receiver side walls and the rim).
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4: Sarnoff teaches the claimed invention as discussed above for Claim 1 and Sarnoff further teaches that the flexible body includes a rim (see rim in Figure 5B above), the rim defined by upper edge margins of the plurality of body side walls (see Figure 5B above), the rim being configured to move into engagement with and form a seal with the food tray receiver side walls to generally prevent food from moving between the unclaimed food tray receiver side walls and the rim of the flexible body when the flexible body is disposed in the unclaimed food tray receiver cavity of the unclaimed food tray receiver (see rim 415 in Figure 5B, where the rim move into engagement with the side walls of the food tray, at least on three side in Figure 5A, is capable of preventing food from moving between the food tray receiver side walls and the rim).
5: Sarnoff teaches the claimed invention as discussed above for Claim 1 and Sarnoff further teaches that the base is configured to be deformed by a raised portion of a floor of the food tray receiver to facilitate the movement of the plurality of side walls into engagement with the food tray receiver side walls (since the floor is unclaimed, the prior art reference is capable of movement of the sidewall into engagement with the unclaimed food tray receiver side walls since the body of the prior art is flexible).
6: Sarnoff teaches the claimed invention as discussed above for Claim 1 and Sarnoff further teaches that each body side wall of the plurality of body side walls tapers outward as said body side wall extends generally upward away from the base (see Figure 5B, where the liner sidewall 410 tapers outwards from the bottom to the top, upward and away from the base).
7: Sarnoff teaches the claimed invention as discussed above for Claim 1 and Sarnoff further teaches that in combination with the food holding apparatus (assumed to be positively claimed in combination, apparatus shown in Figure 5B-5C), wherein the flexible body has a length and a width, the length measured between upper edges of two opposing body side walls of the plurality of body side walls and the width measured between upper edges of two other opposing body side walls of the plurality of body side walls (see Figure 6 below), and
wherein the length of the flexible body being less than a length of the food tray receiver cavity when the flexible body is at rest outside the food tray receiver cavity and the entirety of the base is supported by a planar surface, or the width of the flexible body being less than a width of the food receiver cavity when the flexible body is at rest outside the food tray receiver cavity and the entirety of the base is supported by the planar surface (the liner is in a tapered shape, see Figure 6, where the length and width at the top of the container is larger than the length and width at the base/bottom portion).
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8: Sarnoff teaches the claimed invention as discussed above for Claim 1 and Sarnoff further teaches that the flexible body has a length and a width, the length measured between upper edges of two opposing body side walls of the plurality of body side walls and the width measured between upper edges of two other opposing body side walls of the plurality of body side walls, wherein the base has a base length and a base width, the base length being less than the length of the flexible body and the base width being less than the width of the flexible body (the liner is in a tapered shape, see Figure 6, where the length and width at the top of the container is larger than the length and width at the base/bottom portion).
9: Sarnoff teaches the claimed invention as discussed above for Claim 1 and Sarnoff further teaches that the base includes opposite front and rear side edge margins and opposite left and right side edge margins, the plurality of body side walls including a front side wall extending from the front edge margin of the base, a rear side wall extending from the rear side edge margin of the base, a left side wall extending from the left side edge margin of the base, and a right side wall extending from the right side edge margin of the base (see Figure 6B below).
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10: Sarnoff teaches the claimed invention as discussed above for Claim 1 and Sarnoff further teaches that the liner is a unitary, one-piece component (see liner 400 in Figure 6, where the liner is a unitary, one piece component).
13: Sarnoff teaches the claimed invention as discussed above for Claim 1 and Sarnoff further teaches that the flexible body includes an interior surface defining the cavity (interior surfaces shown in Figures 5B-5C), the interior surface defined by the base (base of 400) and the plurality of side walls (sidewalls 410), the interior surface being free of any crevices and sharp corners (the sidewalls 410 are continuous and the transition area from the sidewall to the base has an angle of greater than 90 degrees, as shown in Figures 5B-5C, which is considered to be not a “sharp” corner).
14: Sarnoff teaches a liner for an unclaimed food tray receiver of an unclaimed food holding apparatus (liner generally shown as 400, Figures 5B and 5C), the unclaimed food tray receiver having a plurality of unclaimed food tray receiver side walls defining an unclaimed food tray receiver cavity for receiving one or more unclaimed trays of food, the liner comprising:
a flexible body (pan 100 is typically made of stamped aluminum, which is generally flexible to a degree, paragraph 0027) sized and shaped to be inserted into the food tray receiver cavity of the food tray receiver, the flexible body having a base (line having a base, horizontal planar portion at the bottom of 400) and a plurality of body side walls extending generally upward from the base (continuous four sided sidewalls 410, extending upward from the base planar portion), the flexible body having a food receiving cavity (cavity within 400) defined by the base and the plurality of body side walls, the food receiving cavity having an open top (open top located at the top of 410) configured to receive unclaimed food when the flexible body is disposed in the unclaimed food tray receiver and food falls toward the flexible body, the body side walls configured to engage the unclaimed food tray receiver side walls when received in the food tray receiver cavity to obstruct food from moving between the food tray receiver side walls and the body side walls (capable of obstructing food from falling between 410 and 100, by contact between the sidewall 410 and 115), wherein the body side walls taper outward as the body side walls extend generally upward away from the base (see Figure 5B, where the liner sidewall 410 tapers outwards from the bottom to the top, upward and away from the base).
15: Sarnoff teaches the claimed invention as discussed above for Claim 14 and Sarnoff further teaches that the body side walls are configured to form a seal with the food tray receiver side walls (liner sidewalls 410 are configured to form a seal with the food receiver sidewall at 115).
16: Sarnoff teaches the claimed invention as discussed above for Claim 15 and Sarnoff further teaches that the body side walls are configured to form a complete perimeter seal around the food receiving cavity with the food tray receiver side walls (see rim 415 in Figure 5B, where the rim move into engagement with the side walls of the food tray, at least on three side in Figure 5A, is capable of preventing food from moving between the food tray receiver side walls and the rim).
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17: Sarnoff teaches the claimed invention as discussed above for Claim 14 and Sarnoff further teaches that the flexible body includes a rim (see rim in Figure 5B above), the rim defined by upper edge margins of the plurality of body side walls (see Figure 5B above), the rim being configured to move into engagement with and form a seal with the food tray receiver side walls to generally prevent food from moving between the unclaimed food tray receiver side walls and the rim of the flexible body when the flexible body is disposed in the unclaimed food tray receiver cavity of the unclaimed food tray receiver (see rim 415 in Figure 5B, where the rim move into engagement with the side walls of the food tray, at least on three side in Figure 5A, is capable of preventing food from moving between the food tray receiver side walls and the rim).
18: Sarnoff teaches the claimed invention as discussed above for Claim 14 and Sarnoff further teaches that the base is configured to be deformed by a raised portion of a floor of the food tray receiver to facilitate the movement of the plurality of side walls into engagement with the food tray receiver side walls (since the floor is unclaimed, the prior art reference is capable of movement of the sidewall into engagement with the unclaimed food tray receiver side walls since the body of the prior art is flexible).
19: Sarnoff teaches the claimed invention as discussed above for Claim 14 and Sarnoff further teaches that the flexible body is constructed to permit gravity acting on the body side walls to bias the side walls against respective food tray receiver side walls when the liner is in the food tray receiver (since the body is flexible to a degree, gravity acting on the body sidewall is capable of biasing against a respective unclaimed food tray receiver sidewall, when the food tray receiver sidewall is located against wall 410).
20: Sarnoff teaches the claimed invention as discussed above for Claim 14 and Sarnoff further teaches that the base of the flexible body is configured to be deformable to cause the flexible body to deform outward to engage the unclaimed food tray receiver side walls (since the base of the flexible body is flexible to a degree, gravity acting on the base is capable of causing the sidewall to flex against a respective unclaimed food tray receiver sidewall, when the food tray receiver sidewall is located against wall 410. Furthermore, stamped aluminum is a generally known material in the art for steam pan in order to permit ease of manufacture and aluminum permits the pan to be shaped/deformed to a certain degree, which will perform the claimed functional limitation)
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) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sarnoff et al. (Sarnoff US 2015/0136633) in view of Veltrop (US 2019/0290073).
11: Sarnoff teaches the claimed invention as discussed above for Claim 1 except that the flexible body comprises silicone.
Veltrop teaches a liner 52 made from silicon material (paragraph 0045).
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 Sarnoff such that the material of choice for a liner is made from silicone since silicone is known in the art to be heat resistant as well as the material of choice for containers accommodating food and 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. In re Leshin, 125 USPQ 416.
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sarnoff et al. (Sarnoff US 2015/0136633) in view of Conger et al. (WO 2008/021492).
12: Sarnoff teaches the claimed invention as discussed above for Claim 1 except that the base and the plurality of liner side walls are each about 3/32 inch thick.
Conger teaches that food trays are often 0.40 inches to 0.15 inches thick (page 36, ll. 29-35).
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 Sarnoff such that the food trays are 3/32 in thick since Applicant has provided no evidence that different portions of the broad range or values would work differently, here, there is no allegation of criticality or any evidence demonstrating any difference across the range therefore such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-25 of U.S. Patent No. 11,912,465. Although the claims at issue are not identical, they are not patentably distinct from each other because both inventions are directed to a liner for a food tray receiver of a food holding apparatus, the food tray receiver having a plurality of food tray receiver side walls defining a food tray receiver cavity for receiving one or more trays of food, the liner comprising: a flexible body sized and shaped to be inserted into the food tray receiver cavity of the food tray receiver, the flexible body having a base and a plurality of body side walls extending generally upward from the base, the flexible body having a food receiving cavity defined by the base and the plurality of body side walls, the food receiving cavity having an open top configured to receive food when the flexible body is disposed in the food tray receiver and food falls toward the flexible body, the body side walls configured to move into engagement with the food tray receiver side walls to generally prevent food from moving between the food tray receiver side walls and the body side walls when the flexible body is disposed in the food tray receiver cavity of the food tray receiver except for the explicit claim in combination of a food holding apparatus, food tray receiver, and trays of food.
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 Patent such that features such as a food holding apparatus, food tray receiver, and trays of food were 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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/King M Chu/Primary Examiner, Art Unit 3735