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
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 and 8 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bernstein et al. (US Patent 5,253,801) hereinafter referred to as Bernstein.
Regarding claim 1, Bernstein discloses a cardboard tray (figs. 1-8; col. 1 lines 65-66 – “paperboard”; The word “cardboard” is understood to be a generic term for heavy paper-based products ranging from a thick paper known as paperboard to corrugated fiberboard (for definition see https://en.wikipedia.org/wiki/Cardboard). As such, Bernstein is deemed to read on the limitation of a “cardboard tray”) comprising:
a bottom (18);
upstanding walls (20) arranged along a periphery of the bottom;
a horizontal flange (30) arranged along upper edges of the upstanding walls; and
plastic foil (14) lined against an inside of the cardboard tray (figs. 5-7; col. 2 lines 6-13, col. 2 line 41 – col. 3 line 2), which the plastic foil extends at least onto the horizontal flange and extends, in view of a direction perpendicular to the horizontal flange, at least partially outside of the area of the horizontal flange (figs. 5-7).
Regarding claim 2, Bernstein discloses wherein the plastic foil (14) extends from the inside of the cardboard tray, onto the horizontal flange and at least partially beyond an outer edge of the horizontal flange (30; figs. 5-7).
Regarding claim 3, Bernstein discloses wherein the cardboard tray is folded from a cardboard blank (10; figs. 1, 3 and 4), wherein the horizontal flange is composed out of horizontal flange portions (30), which are each arranged on an upper edge of a respective upstanding wall.
Regarding claim 4, Bernstein discloses wherein at a transition from one horizontal flange portion to an adjacent horizontal flange portion an opening is provided in the horizontal flange (30; figs. 1, 3 and 4), and wherein the plastic foil liner covers said opening (col. 2 lines 6-13).
Regarding claim 8, Bernstein discloses wherein the cardboard tray is configured to be arranged (The phrase “configured to be arranged” is a limitation of Intended Use. The structures that follow this phrase are thus not being positively recited.) in a lower sealing tool member (52) having a compressible support edge for sealing the cardboard tray, wherein at least the horizontal flange is supported by a compressible support edge of a lower sealing tool member, wherein, during performance of a method (This is the beginnings of a product by process limitation. The method being described is thus not being positively recited. It is both part of a limitation of Intended Use and additionally any product which could result from such a method which is otherwise not structurally distinct is deemed to read on such a limitation) for top sealing the cardboard tray, when a heated upper sealing tool member (50; col. 2 lines 55-64) is pressed onto the lower sealing tool member, a cover foil arranged over the cardboard tray in a lower sealing member covering an opening of the tray defined by the upper edges of the upstanding walls, a plastic foil and the horizontal flange are pressed together to seal the cover foil onto the plastic foil along the horizontal flange, wherein, in view of the pressing direction, an overlapping area of the plastic foil, the cover foil and the compressible support edge of the lower sealing member extends at least partially outside of an area of the horizontal flange, and the compressible support presses directly against both the plastic foil and the horizontal flange (figs. 5-7).
The presence of process limitations on product claims, which product does not otherwise patentably distinguish over prior art, cannot impart patentability to the product. In re Stephens 145 USPQ 656 (CCPA 1965).
It has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. Ex Parte Masham, 2 USPQ F.2d 1647 (1987).
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.
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) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bernstein (US Patent 5,253,801) in view of Dropsy et al. (FR 2826938 A1) hereinafter referred to as Dropsy.
Regarding claim 5, Bernstein discloses wherein between two upstanding walls (20) with a horizontal flange portion (30) arranged thereto, but fails to disclose an upstanding wall without a horizontal flange portion is provided and wherein at least part of the upper edge of the upstanding wall without the horizontal flange portion is spaced apart from the horizontal flange, such that an opening is provided between the upstanding wall and the horizontal flange.
However, Dropsy teaches a cardboard tray (fig. 1; Abstract) wherein between two upstanding walls (10, 11, fig. 1; or 10’, 11’; fig. 5) with a horizontal flange portion (5, 7) arranged thereto, an upstanding wall (12) without (figs. 3-5) a horizontal flange portion is provided and wherein at least part of the upper edge of the upstanding wall without the horizontal flange portion is spaced apart from the horizontal flange (figs. 3-5), such that an opening is provided between the upstanding wall and the horizontal flange (figs. 3-5).
Given the teachings of Dropsy, it would have been obvious to one of ordinary skill in the art before the time of effective filing to modify the invention of Bernstein such that it had a intervening upstanding wall without a horizontal flange portion that is spaced from the two other adjacent side walls. Doing so would allow for the other side walls to be brought closer together and make for a tighter corner which may be desired depending on the intended application.
Claim(s) 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bernstein (US Patent 5,253,801) in view of Zwaga et al. (US 2013/0327821 A1) hereinafter referred to as Zwaga.
Regarding claim 6, Bernstein discloses wherein in view of a direction perpendicular to the bottom, the shape of the bottom is a polygon (figs. 1 and 4), but fails to disclose the shape of the bottom is an octagon having four sets of parallel edges of equal length.
However, Zwaga teaches a cardboard tray (paragraph 0049, 0051; fig. 6) wherein in view of a direction perpendicular to the bottom, the shape of the bottom is an octagon having four sets of parallel edges of equal length (fig. 6; paragraph 0073).
Given the teachings of Zwaga, it would have been obvious to one of ordinary skill in the art before the time of effective filing to modify the polygon of Bernstein to be an octagon as in Zwaga. Bernstein already teaches having between 6 and 18 sizes. The number of sides that a container has is a matter of obvious design choice as it may be necessary to have a certain number of sides to fit the tray into a desired mating carrier or have a nearly circular package.
Wherein the Applicant may argue the octagonal sides of Bernstein in view of Zwaga are not specifically disclosed as being equal length, the Office alternatively takes official notice that it would have been obvious to one of ordinary skill in the art before the time of effective filing to have the octagonal sides be of equal length. Doing so would help to make the tray symmetrical and thus allow it to be effectively in the same orientation at multiple locations which can aid in placement during filling or storage.
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bernstein et al. (US Patent 5,253,801) in view of Baugus (US Patent 5,326,018).
Regarding claim 7, Bernstein discloses wherein the upstanding walls (20) are completely covered by the plastic foil lining (14; figs. 5-7), but fails to disclose wherein at least one of the upstanding walls is provided with a flap arranged on the edge of the upstanding wall bordering an adjacent upstanding wall, wherein the flap overlaps and abuts said adjacent upstanding wall, wherein the flap is provided with an opening, which is covered by the plastic foil lining, such that the plastic foil lining is attached to the adjacent upstanding wall via the opening in the flap.
However, Baugus teaches a cardboard tray (figs. 1 and 6; col. 1 lines 8-12) wherein at least one of the upstanding walls (6 or 7) is provided with a flap (19-22) arranged on the edge of the upstanding wall bordering an adjacent upstanding wall (2 or 3), wherein the flap overlaps and abuts said adjacent upstanding wall (fig. 6), wherein the flap is provided with an opening (19a).
Given the teachings of Baugus, it would have been obvious to one of ordinary skill in the art before the time of effective filing to incorporate the flap and flap openings of Baugus with the cardboard tray and plastic liner of Bernstein. Doing so would provide an alternative automated means of folding the tray ahead of it being fitted with a liner. Given that Bernstein covers the entirety of the upstanding walls with plastic foil lining, this would result in a combination where the opening of the flap is covered by the plastic foil lining, such that the plastic foil lining is attached to the adjacent upstanding wall via the opening in the flap.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See Notice of References Cited. The art not relied upon pertains to the field of cardboard trays made from blanks and linings thereof.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW M TECCO whose telephone number is (571)270-3694. The examiner can normally be reached M-F 11a-7p.
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/ANDREW M TECCO/ Primary Examiner, Art Unit 3731