DETAILED ACTION
The Office acknowledges receipt of the Applicant’s response and amendments filed 5 June 2026.
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 .
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description: 57. Corrected drawing sheets in compliance with 37 CFR 1.121(d), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.121(b) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 112
Claim 5 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Regarding claim 5, the claim recites, “the opening is defined between the upstanding wall and the inside edge of the horizontal flange” (as seen depicted as #63 in Applicant’s fig. 4A). However, this is written as the same “opening” already recited in parent claim 1 which reads “an opening extending from a top surface of the horizontal flange to a bottom surface thereof (i.e. a bottom surface of the flange) defined at the transition point of two adjacent flange portions” (as seen depicted as #45 in Applicant’s fig. 3A).
The “opening” (63) is not deemed to extend from a top surface of the flange (59, 60) to a bottom surface thereof (i.e. a bottom surface of 59, 60) as recited in claim 1. This is only depicted as the opening (45) in fig. 3A. Furthermore, in paragraph 0057 of the Applicant’s specification it recites, “The upstanding wall 54, arranged adjacent to both the upstanding walls 53, 55 does not have a horizontal flange part, such that an opening 63 is formed.” The original specification specifically denotes that the opening 63 is formed via an upstanding wall absent a flange. As such, this is further evidence that the limitations of claim 5 are not compatible with those of claim 1.
The specification does not provide for these two different openings to be considered the same “opening” as claimed. Nor are these two distinct embodiments depicted or disclosed as being useable together. In short, claim 1 recites limitations that are exclusive to the embodiment shown in fig. 3A. Claim 5 depends from claim 1 but recites limitations which conflict with those already cited in claim 1 and are directed toward a different embodiment (fig. 4A). For these reasons the claimed subject matter is deemed to contain new matter and the Office will interpret as best understood in that the opening of claim 5 need not be the same opening recited in claim 1.
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.
Claim 5 is 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.
Regarding claim 5, the claim recites, “the opening is defined between the upstanding wall and the inside edge of the horizontal flange” (as seen depicted as #63 in Applicant’s fig. 4A). However, this is written as the same “opening” already recited in parent claim 1 which reads “an opening extending from a top surface of the horizontal flange to a bottom surface thereof (i.e. a bottom surface of the flange) defined at the transition point of two adjacent flange portions” (as seen depicted as #45 in Applicant’s fig. 3A).
The “opening” (63) is not deemed to extend from a top surface of the flange (59, 60) to a bottom surface thereof (i.e. a bottom surface of 59, 60) as recited in claim 1. This is only depicted as the opening (45) in fig. 3A. Furthermore, in paragraph 0057 of the Applicant’s specification it recites, “The upstanding wall 54, arranged adjacent to both the upstanding walls 53, 55 does not have a horizontal flange part, such that an opening 63 is formed.” The original specification specifically denotes that the opening 63 is formed via an upstanding wall absent a flange. As such, this is further evidence that the limitations of claim 5 are not compatible with those of claim 1.
The specification does not provide for these two different openings to be considered the same “opening” as claimed. Nor are these two distinct embodiments depicted or disclosed as being useable together. In short, claim 1 recites limitations that are exclusive to the embodiment shown in fig. 3A. Claim 5 depends from claim 1 but recites limitations which conflict with those already cited in claim 1 and are directed toward a different embodiment. For these reasons the claimed subject matter is deemed to be indefinite and the Office will interpret as best understood in that the opening of claim 5 need not be the same opening recited in claim 1.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1 and 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bernstein et al. (US Patent 5,253,801) hereinafter referred to as Bernstein in view of Maeaettae et al. (US Patent 8,011,568 B2) hereinafter referred to as Maeaettae.
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) beyond an outer edge of the horizontal flange (30; figs. 5-7);
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 (20), wherein an opening (space between adjacent flanges 30 covered in film 14 depicted in figs. 1 and 4; “gaps” – col. 2 lines 6-40, claim 1) extending from a top surface of the horizontal flange to a bottom surface thereof is defined at the transition point of two adjacent flange portions between the outer edge of the horizontal flange and the inside of the cardboard tray, wherein the plastic foil liner (14) covers said opening.
Wherein the Applicant has argued that the openings are not present “in a folded cardboard tray configuration”, the Office further points to Maeaettae.
Maeaettae (figs. 6-7) teaches a similar cardboard tray (7; fig. 2; col. 3 line 45 – col. 4 line 6) wherein, in a folded cardboard tray configuration (fig. 2; col. 5 lines 9-15), an opening (figs. 6-7; cuts - #6) extending from a top surface of the horizontal flange (5) to a bottom surface thereof (figs. 6-7; col. 4 lines 45-56; col. 5 lines 5-7) is defined at the transition point (corners of tray 7; fig. 2) of two adjacent flange portions (5; fig. 2) between the outer edge of the horizontal flange (5) and the inside of the cardboard tray, wherein the plastic foil liner (9; col. 2 lines 49-51- “plastic film”; col. 4 lines 3-6, 40-44; col. 5 lines 5-16) covers said opening.
Given the teachings of Maeaettae (col. 1 lines 7-15; col. 2 lines 7-23; col. 4 lines 17-56), it would have been obvious to one of ordinary skill in the art before the time of effective filing to have the film-covered openings of Bernstein be present in a folded cardboard tray configuration as in Maeaettae. Doing so would help the plastic film better grab the board material and help the tray to maintain its shape while still maintaining a smooth surface for tighter seals of cover films.
Regarding claim 4, Bernstein as modified by Maeaettae discloses wherein the opening (Maeaettae - 6) is defined through the horizontal flange (Maeaettae - 5) and between the outer edge of the horizontal flange and an inside edge of the horizontal flange (Maeaettae – figs. 2 and 6-7).
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 Maeaettae (US Patent 8,011,568 B2) 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 the opening is defined between the upstanding wall and an inside edge of 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 (12 is a separate element from #3, 14 and 15 which the Applicant argues is a flange. Wall 12 is not deemed to comprise a horizonal flange in that it does not have an integral structure that protrudes horizontally from it) 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 the opening (“opening” - 13) is defined between the upstanding wall (12) and an inside edge of the horizontal flange (5, 7; 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 an 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 Maeaettae (US Patent 8,011,568 B2) 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 previously took official notice in the Office Action of 10 March 2026 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. The common knowledge or well-known in the art statement is taken to be admitted prior art because applicant failed to traverse the examiner’s assertion of official notice (MPEP 2144.03 C).
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bernstein (US Patent 5,253,801) in view of Maeaettae (US Patent 8,011,568 B2) 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.
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bernstein (US Patent 5,253,801) in view of Suokas (WO 2017/158239 A1).
Regarding claim 9, 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;
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), at least partially beyond an outer edge of the horizontal flange (30; figs. 5-7); and
a cover foil (72), positioned on top of the horizontal flange (fig. 9).
Bernstein fails to disclose the cover foil extends, in view of a direction perpendicular to the horizontal flange, at least partially outside of the area of the horizontal flange beyond an outer edge of the horizontal flange, wherein, the plastic foil and cover foil are sealed together outside the area of the horizontal flange beyond the outer edge of the horizontal flange around the periphery of the cardboard tray.
However, Suokas teaches a cardboard tray (1, figs. 1 and 4-8; pg. 12 line 34 – p. 12 line 3) comprising: a cover foil (11), positioned on top of the horizontal flange (5a; or 7”) and extending, in view of a direction perpendicular to the horizontal flange, at least partially outside of the area of the horizontal flange beyond an outer edge of the horizontal flange (fig. 4 or fig. 8), wherein, the plastic foil (3, 4) and cover foil are sealed together (@ #4; pg. 9 lines 13-23; claim 10; pg. 10 lines 28-35) outside the area of the horizontal flange beyond the outer edge of the horizontal flange around the periphery of the cardboard tray (figs. 4 and 8).
Given the teachings of Suokas (pg. 9 lines 16-19), 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 to locate the plastic foil, cover foil and heat sealing outside of the area of the horizontal flange (i.e. top edge of the tray). Performing heat sealing directly onto the thin plastic of the inner lining 3 is considerably easier and more dependable compared to if there were a thicker edge flange under the plastic. Thus locating those elements of Bernstein outside the area of the horizontal flange of Bernstein could allow for easier and more dependable sealing of the cover with the foil/liner.
Response to Arguments
Applicant's arguments filed 5 June 2026 have been fully considered but they are not persuasive.
Applicant’s arguments as they pertain to claim 1 are dependent on amendments to the claims which have been addressed with a new art rejection necessitated by those amendments. Maeaettae is deemed to teach the claimed opening in a folded cardboard tray configuration as detailed in the rejection above.
Regarding claim 5, the Applicant’s amendments to the claims are deemed to raise 35 USC 112a/b issues of new matter and indefiniteness as detailed in the rejection above.
Those 35 USC 112a/b issues aside, the Office is still not persuaded by the Applicant’s arguments. The Applicant argues that Dropsy’s elements 14, 15 constitute a “horizontal flange”. The Office contends that these are elements which are separate and distinct from upstanding wall 12. While the top (4’) of the wall 12 is listed as a flange, this is just an end of the wall as shown in fig. 4 and would not constitute a “horizontal flange” as it does not protrude horizontally and would be no more a horizontal flange than the top (57) of Applicant’s upstanding wall (54; fig. 4A).
As interpreted, Dropsy teaches a horizontal flange portion (5, 7), an upstanding wall (12) without (figs. 3-5) a horizontal flange portion 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 the opening (“opening” - 13) is defined between the upstanding wall (12) and an inside edge of the horizontal flange (5, 7; figs. 3-5).
Regarding claim 9, the Applicant’s arguments rely on amendments which have been addressed with a new ground of rejection in which Suokas teaches the newly claimed seal location.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 ANDREW M TECCO whose telephone number is (571)270-3694. The examiner can normally be reached M-F 11a-7p.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anna Kinsaul can be reached at (571) 270-1926. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREW M TECCO/Primary Examiner, Art Unit 3731
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