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
Restriction to one of the following inventions is required under 35 U.S.C. 121:
I. Claims 28-29, drawn to a combination of a stack of nestable holders, classified in B65D 21/0233.
II. Claims 1-27, drawn to a subcombination of a holder, classified in B65D 25/54.
The inventions are independent or distinct, each from the other because:
Inventions I and II are related as combination and subcombination. Inventions in this relationship are distinct if it can be shown that (1) the combination as claimed does not require the particulars of the subcombination as claimed for patentability, and (2) that the subcombination has utility by itself or in other combinations (MPEP § 806.05(c)). In the instant case, the combination as claimed does not require the particulars of the subcombination as claimed because the holders of the combination does not require that each holder is in the form of a frame . The subcombination has separate utility such as a holder used separately from other holders and never placed within a stack of holders.
The examiner has required restriction between combination and subcombination inventions. Where applicant elects a subcombination, and claims thereto are subsequently found allowable, any claim(s) depending from or otherwise requiring all the limitations of the allowable subcombination will be examined for patentability in accordance with 37 CFR 1.104. See MPEP § 821.04(a). Applicant is advised that if any claim presented in a divisional application is anticipated by, or includes all the limitations of, a claim that is allowable in the present application, such claim may be subject to provisional statutory and/or nonstatutory double patenting rejections over the claims of the instant application.
During a telephone conversation with Shlomo Horowitz on 19 February 2026 a provisional election was made with traverse to prosecute the invention of Group II (a holder), claims 1-27. Affirmation of this election must be made by applicant in replying to this Office action. Claims 28-29 have been withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
Claim Objections
Claims 7, 15 and 26 are objected to because of the following informalities:
Claim 7 ends with a comma and this comma should be replaced with a period.
Claim 15 contains an awkward grammatical construction in line 1. The Office believes that the word “than” should be added after “other.”
Claim 26 contains an awkward grammatical construction in line 1. The Office believes that the word “than” should be added after “other.”
Appropriate correction is required.
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 3, 7, 12 and 13 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 3 recites the limitation "the one or more of the bottom wall and the sloping round side wall" in the last two lines. There is insufficient antecedent basis for this limitation in the claim. The claim is clear and definite if the clam ends in line 2 with “the particular wall.”
Claim 7 recites the limitation "the one or more of the bottom wall and the sloping round side wall" in the last two lines. There is insufficient antecedent basis for this limitation in the claim. The claim is clear and definite if the clam ends in line 2 with “the particular wall.”
Claim 12 recites the limitation "the one or more of the bottom wall and the at least one sloping side wall" in the last two lines. There is insufficient antecedent basis for this limitation in the claim. The claim is clear and definite if the clam ends in line 2 with “the particular wall.”
Claim 13 recites the limitation "the one or more of the bottom wall and the at least one sloping side wall" in the last two lines. There is insufficient antecedent basis for this limitation in the claim. The claim is clear and definite if the clam ends in line 2 with “the particular wall.”
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) 1-4, 7, 9-10, 12-19 and 23-27 is/are rejected under 35 U.S.C. 102(a) (1) as being anticipated by Slingerland et al. (US 2004/0238396) (Slingerland).
Slingerland discloses a holder (inner box holder 4, see Fig. 2, 3, 8, 9) of nestable plastic food containers in the form of a frame (see Fig. 2 with holder inverted and bottom wall facing upward), comprising: walls including a bottom wall (bottom wall formed by frame of bottom wall edges of sidewalls 10); at least one sloping side wall (at least one of four sidewalls 10); wherein one or more of the walls has a cut-out, each particular cut-out of the one or more cut-outs (considering only the bottom wall cut-out) occupies at least 40% of a surface area (the cut-out overwhelmingly occupies over two-thirds, over 60 percent and over 40 percent of the surface area as the thickness of the remaining wall surface area is only the thickness of the material or edge thickness of bottom sidewall edges of sidewalls 10) of a particular wall (bottom wall) of the walls that the particular cut-out is cut out of, the one or more cut-outs are shaped so as (a) to define a source identifier (any source logo having a rectangular border, e.g., Toro, Lego, Netflix, you Tube, Avis) associated with the holder and (b) to allow a user to view contents of one of the food containers held by the holder, wherein a size of the holder matches a size of the nestable plastic food containers that the holder holds [the size is matched to the content (inner box 3) which has been functionally claimed and the holder 4 has this capability].
Re claim 2, the at least one sloping side wall is round where the side wall side edge meets another side wall side edge as the corners are rounded.
Re claim 3, at least one of the one or more cut-outs occupies at least a majority (over 50%) of the surface area of the particular wall (bottom wall) of the one or more of the bottom wall and the sloping round side wall.
Re claim 4, one of the one or more cut-outs is situated in the bottom wall.
Re claim 7, at least one of the one or more cut-outs occupies at least 60% of the surface area of the particular wall (bottom wall) of the one or more of the bottom wall and the sloping round side wall.
Re claim 9, at least one of the one or more cut-outs is shaped as a single crown or as a double crown (insofar as a side profile of a crown may be a rectangular shape).
Re claim 10, at least one of the one or more cut-outs comprises a logo (logo having a rectangular border, e.g., Toro, Lego, Netflix, you Tube, Avis) or an alphanumeric character.
Re claim 12, at least one of the one or more cut-outs occupies at least a majority of the surface area of the particular wall (bottom wall) of the one or more of the bottom wall and the at least one sloping side wall.
Re claim 13, at least one of the one or more cut-outs occupies at least two-thirds of the surface area of the particular wall (bottom wall) of the one or more of the bottom wall and the at least one sloping side wall.
Re claim 14, each of the one or more cut-outs that define the source identifier is a single continuous cut-out.
Re claim 15, for each wall, the rest of the wall other than the cut-out is a single solid unit.
Re claim 16, the holder is configured to be lifted by grasping the at least one sloping side wall.
Re claim 17, the bottom wall of the holder is substantially rectangular.
Re claim 18, Slingerland discloses a holder (inner box holder as explained for claim 1) of nestable plastic food containers in the form of a frame, comprising: a bottom wall; a sloping left side wall; a sloping right side wall; a sloping front wall; and a sloping rear wall (four sidewalls 10), wherein one or more of the walls comprises a cut-out, each of one or more cut-outs occupying at least 40% of a surface area of a particular wall (bottom wall) of the one or more of the walls, the one or more cut-outs shaped so as (a) to define a source identifier associated with the holder and(b) to allow a user to view contents of one of the food containers held by the holder, wherein a size of the holder matches a size of the nestable plastic food containers that the holder holds.
Re claim 19, one of the one or more cut-outs is situated in the bottom wall.
Re claim 23, at least one of the one or more cut-outs occupies at least 60% of the surface area of the particular wall (bottom wall) of the one or more of the walls.
Re claim 24, at least one of the one or more cut-outs occupies at least two-thirds of the surface area of the particular wall (bottom wall) of the one or more of the walls.
Re claim 25, the one or more cut-outs that define the source identifier is a single continuous cut-out.
Re claim 26, for each wall, the rest of the wall other than the cut-out is a single solid unit.
Re claim 27, the holder is configured to be lifted by grasping the at least one sloping side wall.
Claim(s) 1-3, 9-12, 14-18 and 25-27 is/are rejected under 35 U.S.C. 102(a) (1) as being anticipated by Kennedy et al. (US 2024/0067398) (Kennedy)(cited by applicant).
Kennedy discloses a holder (container 100, see Fig. 1A, 1B, 2A, 2B and 4) of nestable plastic food containers in the form of a frame, comprising: walls including a bottom wall (114); at least one sloping side wall (102a, 102b, 102c, 102d); wherein one or more of the walls (front wall 102c) has a cut-out, each particular cut-out of the one or more cut-outs occupies at least 40% of a surface area (the cut-out overwhelmingly occupies over 50 percent and over 40 percent of the surface area from top of storage cavity 104 to top rim 106 at front wall 102c) of a particular wall (front wall 102c) of the walls that the particular cut-out is cut out of, the one or more cut-outs are shaped so as (a) to define a source identifier (any source logo having a rectangular border, e.g., Toro, Lego, Netflix, you Tube, Avis) associated with the holder and (b) to allow a user to view contents of one of the food containers held by the holder, wherein a size of the holder matches a size of the nestable plastic food containers that the holder holds [the size is matched to the content which has been functionally claimed and the holder has this capability].
Re claim 2, the at least one sloping side wall is round where the side wall side edge meets another side wall side edge as the corners are rounded.
Re claim 3, at least one of the one or more cut-outs occupies at least a majority (over 50%) of the surface area of the particular wall (front wall) of the one or more of the bottom wall and the sloping round side wall.
Re claim 9, at least one of the one or more cut-outs is shaped as a single crown or as a double crown (insofar as a side profile of a crown may be a rectangular shape).
Re claim 10, at least one of the one or more cut-outs comprises a logo (logo having a rectangular border, e.g., Toro, Lego, Netflix, you Tube, Avis) or an alphanumeric character.
Re claim 11, at least one of the one or more cut-outs of the at least one sloping side wall is located closer to a rim of the holder than to the bottom wall (the rim touches the cut-out).
Re claim 12, at least one of the one or more cut-outs occupies at least a majority of the surface area of the particular wall (front wall) of the one or more of the bottom wall and the at least one sloping side wall.
Re claim 14, each of the one or more cut-outs that define the source identifier is a single continuous cut-out.
Re claim 15, for each wall, the rest of the wall other than the cut-out is a single solid unit.
Re claim 16, the holder is configured to be lifted by grasping the at least one sloping side wall.
Re claim 17, the bottom wall of the holder is substantially rectangular.
Re claim 18, Kennedy discloses a holder (container 100) of nestable plastic food containers in the form of a frame, comprising: a bottom wall; a sloping left side wall; a sloping right side wall; a sloping front wall; and a sloping rear wall, wherein one or more of the walls comprises a cut-out, each of one or more cut-outs occupying at least 40% of a surface area of a particular wall (front wall) of the one or more of the walls, the one or more cut-outs shaped so as (a) to define a source identifier associated with the holder and(b) to allow a user to view contents of one of the food containers held by the holder, wherein a size of the holder matches a size of the nestable plastic food containers that the holder holds.
Re claim 25, the one or more cut-outs that define the source identifier is a single continuous cut-out.
Re claim 26, for each wall, the rest of the wall other than the cut-out is a single solid unit.
Re claim 27, the holder is configured to be lifted by grasp
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) 5, 6, 8, 20 and 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Slingerland.
Slingerland discloses that each of the four sloping sidewalls (sidewalls 10) has one cut-out. However, to the extent that the surface area of the cut-out as compared to total side wall surface area is not disclosed to be 40%, Slingerland fails to disclose the limitation in lines 5-7 of claim 1 for the sidewall cut-outs that “each particular cut-out … occupies at least 40% of the surface area.” It is well known that to increase a viewing area that the cut-out size or surface area would be increased to at least 40%, at least 50%, at least 60%, or at least two-thirds (66.66%) of total wall surface area to provide an acceptable view. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the present invention to increase cut-out surface area for the sidewall cut-outs to at least 40% of the total wall surface area to increase the view of the content or product held within the holder to maximize the view of advertisement or to make the contained object or product appear larger or to prevent an essential or viewable portion of the content product from being hidden.
Claim(s) 7, 13, 23 and 24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kennedy.
Kennedy fails to quantify the amount of surface area covered by the cut-out as occupying at least 60% or at least two-thirds (66.67%) of the total wall surface area. It is well known that to increase a viewing area that the cut-out size or surface area would be increased to at least 60%, or at least two-thirds (66.66%) of total wall surface area to provide an acceptable view. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the present invention to increase cut-out surface area for the sidewall cut-outs to at least 40% of the total wall surface area to increase the view of the content or product held within the holder to maximize the view of advertisement or to make the contained object or product appear larger or to prevent an essential or viewable portion of the content product from being hidden.
Claim(s) 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Slingerland in view of JP P2002-326603 (JP ‘603).
Slingerland fails to disclose the position of the side wall cut-outs as being closer to the rim. JP ‘603 teaches a container 21 having sloping side walls with cutouts 22a, 22b, 22c, 22d, one in each of four side walls with the cut-outs being positioned closer to the rim than the bottom wall 25, see Fig. 4 for side view of container 21. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the present invention to position the cut-outs closer to the rim than to the bottom wall to allow viewing of advertisement, instructions, logo of an inner content or container and to prevent the wall which remains from obscuring the view.
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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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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sjc/STEPHEN J CASTELLANO/ Primary Examiner, Art Unit 3733