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 .
DETAILED ACTION
Restriction
Applicant's election with traverse of Invention I, Claims 1-3, 5, 7-10, 14, 16, 17, 19, and 32-34, in the reply filed on May 26, 2026 is acknowledged. The traversal is on the ground(s) that there is no difficulty in finding both inventions {Remarks, Page 2 Lines 13-23}. This is not found persuasive because the structure of the second invention is not found within or required in the first invention.
The requirement is still deemed proper and is therefore made FINAL.
Claims 21-23, 25, and 28 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, with there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on May 26, 2026.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Abstract
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because the length of the abstract is 163 words. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
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:
Ref. No 668b [Figs. 15 and 17],
Ref. No. 670b [Figs. 15 and 18], and
Ref. No. 672b [Fig. 15].
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 Objections
Claims 10 and 34 are objected to because of the following informalities. Appropriate correction is required.
Amended Claim 10 should end with a period. See MPEP 608.01(m).
Amended Claim 34 could read, “A mould arranged to form plastic material into ….”
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.
Claim 32 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 32, the phrase "such as" [Line 2] renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
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.
Claims 1-3, 5, 7-10, 14, 16, 17, and 33 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Malcolm (2018/0057240).
Re Claim 1, Malcolm – a produce container – discloses a punnet [40] for packaging food [Title, produce], the punnet comprising: a base having one or more side walls [100] extending therefrom, the base and the one or more side walls together defining a receptacle for holding food [Fig. 7], wherein the base comprises: a peripheral region arranged to contact a surface on which the punnet is supported, in use, and defining a ground contact plane [Fig. 8]; and an inner region bounded by and integrally formed with the peripheral region and extending inwardly from the peripheral region into the receptacle, wherein the inner region provides at least one of: one or more connecting portions together separating two or more areas of the inner region, the connecting portions [270] extending towards the ground contact plane relative to the respective areas separated thereby; and at least one protrusion extending from the inner region by at least a third of the distance from a peak height of the inner region off the ground contact plane to the ground contact plane [Fig. 16].
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 32 is rejected under 35 U.S.C. 103 as being unpatentable over Malcolm as applied to Claim 1 above in view of Kidd et al. (2009/0152158) [Kidd].
Malcolm does not expressly disclose that the punnet is made from a recyclable material made of polyethylene terephthalate (PET). However, Kidd – a carrier tray for fresh food – discloses the container is made of PET [Kidd, 200, Paragraph 38 Lines 1-9]. The Applicant believes the claimed invention has an improvement over the prior art, when the prior art discloses the material of the container can be made of PET. See MPEP 2143 (I)(B) and (C). One of ordinary skill would be able to make the Malcolm container out of PET, before the effective filing date of the invention with predictable and obvious results, in order for the container to be recyclable [Kidd, Paragraph 38 Line 9], and since 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 as a matter of obvious design choice. See MPEP 2144.07.
Claim 34 is rejected under 35 U.S.C. 103 as being unpatentable over Malcolm as applied to Claim 1 above in view of Demarest et al. (WO 2019/125908) [Demarest].
Malcolm does not expressly disclose a mould arranged to form plastic materials into the punnet; however, Demarest – a durable container – discloses that the container can be made in a mold [Demarest, Paragraph 21]. The Applicant believes the claimed invention has an improvement over the prior art, when the prior art discloses the container can be made in a mold to form the container. See MPEP 2143 (I)(D) . One of ordinary skill would be able to make the Malcolm container in a mold, before the effective filing date of the invention with predictable and obvious results, in order to make the container to be elastically deformable [Demarest, Paragraph 6].
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.
Allowable Subject Matter
Amended Claim 19 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Re Amended Claim 19, the prior art discloses most of the claimed invention. However, the prior art does not expressly disclose a projection of each line defining a border between the one or more connecting portions and each respective one of the two or more areas of the inner region onto the ground contact plane each include one or more bends.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: see PTO-892 Notice of References Cited.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT J HICKS whose telephone number is (571)270-1893. The examiner can normally be reached Mon - Fri 8:30-5:00.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Orlando Aviles-Bosques can be reached at 571-270-5531. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ROBERT J HICKS/Primary Examiner, Art Unit 3736
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