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 .
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the lid recess in the outer peripheral edge of the lid as recited in Claim 20 must be shown or the feature canceled from the claims. No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) 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. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. 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.
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 1-17 of U.S. Patent No. 11889949. Although the claims at issue are not identical, they are not patentably distinct from each other because each of the present claim limitations are within the prior issued patent. Please see the attached claim comparison chart for further details.
Regarding Claim 1, the limitations of this claim are disclosed within claims 1 and 8 of US Patent 11889949.
Regarding Claim 2, the limitations of this claim are disclosed within claim 1 of US Patent 11889949.
Regarding Claim 3, the limitations of this claim specifying that the handle recesses are formed in the pair of opposing end walls is a mere variation in the position in the side walls of claim 14 of US Patent 11889949.
Regarding Claim 4, the limitations of this claim is recited in Claim 9 of US Patent 11889949.
Regarding Claim 5, while US patent does not specify that the handle wall portion is not orthogonal to the bottom wall, a person having ordinary skill in the art would recognize and find obvious that the relative form of the recessed handle is an obvious variation handle structure that does not provide any unexpected results or benefits to the handle.
Regarding Claim 6, the limitations of this claim is recited in Claim 11 of US Patent 11889949.
Regarding Claims 7 and 8 the limitations of this claim is recited in Claim 10 of US Patent 11889949.
Regarding Claim 9, this limitation is a restatement of the limitation in Claim 14 of US Patent 11889949.
Regarding Claims 10 and 11, this limitation is a variation in wording of the limitations in Claims 12 and 13 of US Patent 11889949.
Regarding Claim 12, these limitations are present in Claim 1 of US Patent 11889949.
Regarding Claim 13, this limitation is present in Claim 8 of US Patent 11889949.
Regarding Claim 14, this limitation is present in Claim 14 of US Patent 11889949.
Regarding Claim 15, this limitation is present in Claims 1 and 7 of US Patent 11889949. Regarding the limitations that the cover is clear and fabricated from styrene-acrylonitrile, it would have been obvious for one having ordinary skill in the art to make the cover clear in order to exhibit and display the contents of the container as is typically practiced in the art. Please see Dagan (US 2013/0071531) Paragraph 0048.
Regarding Claims 16-18 the limitations regarding the semi-circular outer surface of the lid is a variation on the limitations seen in Claims 2 and 3 of US Patent 11889949.
Regarding Claim 19, the relative position of the living hinge clips is discussed in Claim 1 of US Patent 11889949.
Regarding Claim 20, this limitation is a variation in the attachment mechanism of the lid clips that a person having ordinary skill in the art would recognize and find obvious as an alternate attachment means which provides no unexpected results in the connection between the lid and the container body.
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.
Claims 1-14 and 17-20 are rejected under 35 U.S.C. 103 as being unpatentable over Casey (US 2016/0249768) in view of Persson (US 3809305).
Regarding Claim 12, Casey discloses a decorative holder for foodstuff trays, tins, and pans (14), comprising a receptacle (12) having a bottom wall (16), a pair of opposing side walls, and a pair of opposing end walls (18) wherein the side walls and the end walls extend upwardly from an outer periphery of the bottom wall and terminate in a top edge. Casey also discloses a lid (20) that is hingedly coupled to the top edge of the receptacle (at 32) the lid defining a central opening (24) providing access to an interior region of the decorative holder when disposed atop the receptacle. The receptacle and the lid are configured to securely hold and generally encapsulate one or more foodstuff trays, tins, or pans therebetween (14) (Paragraph 0022).
Casey does not disclose one of the pair of opposing side walls further comprises a plurality of hinge clip recesses that extend into the interior region of the decorative holder and are configured to couple to the plurality of living hinge clips such that the plurality of living hinge clips fit over at least a portion of the top edge.
Persson discloses a similar container tray with sidewalls (58a) with hinge clip recesses (66) that extend into the interior region of the tray for receiving locking tongues (79) of a lid having living hinges (64). The locking tongues fit over at least a portion of the top edge of the tray as shown in Figure 7. The lid is configured to pivot between an opened position and a closed position about pivot points on the plurality of living hinge clips. Casey and Persson are analogous inventions in the art of hinge-mounted covers for trays.
It would have been obvious for one having ordinary skill in the art before the effective filing date of the claimed invention to modify the hinges of Casey with the hinge clip mechanism of Persson in order to provide a releasable, liquid tight interconnection of a lid and a tray at the hinge connection points (Col. 1 Lines 8-12, 22-26).
Regarding Claim 13, while Casey does not disclose a pair of handle recesses formed therein, the pair of handle recesses extending into the interior region of the decorative holder, Casey does disclose a lip (26) which functions in an analogous manner to allow a user to grasp the outer holder/receptacle (12). A person having ordinary skill in the art would recognize and find obvious that the claimed recessed grip may be easily substituted for the lip grip as a variation in handling means for the tray container.
Regarding Claim 14, the lip handles shown in Casey are positioned on opposing end walls.
Regarding Claim 17, Casey discloses the lid is configured to pivot between the opened position and the closed position about pivot axes. Persson discloses pivoting on the plurality of living hinge clips, the pivot axes positioned outside of an outer edge of the one of the pair of opposing side walls comprising the plurality of hinge clip recesses.
Regarding Claim 18, Casey discloses the lid (20) has a generally semi-circular outer surface that extends from an inner peripheral edge to an outer peripheral edge, and wherein the outer peripheral edge is situated vertically below the top edge of the receptacle (at 28) when the lid is in the closed position as shown in cross section in Figure 7.
Regarding Claim 19, Persson discloses at least a portion of each of the two living hinge clips is situated vertically below and inward from the outer peripheral edge of the lid when the lid is in the closed position.
Regarding Claim 20, Persson discloses the lid further comprises at least one lid recess (78) in the outer peripheral edge configured to accommodate the plurality of living hinge clips when the lid is in the closed position.
Claims 15 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Casey (US 2016/0249768) in view of Persson (US 3809305) as applied to claim 12 above, and further in view of Dagan (US 2013/0071531).
Regarding Claim 15, Casey discloses a cover (22) that is detachably coupled to the lid (20) to form a lid assembly, the cover configured to removably attach to the lid to cover the central opening. Casey does not disclose the cover is clear and is fabricated from styrene-acrylonitrile.
Dagan discloses a similar container (210) with a lid (220) configured to hold foodstuff trays (240) wherein the lid includes a removable clear cover (230). Casey and Dagan are analogous inventions in the art of containers having removable lids with additional covers.
It would have been obvious for one having ordinary skill in the art before the effective filing date of the claimed invention to modify the cover of Casey to be clear or transparent as disclosed in Dagan in order to exhibit the items stored within the container to potential customers (Paragraph 0048). Similarly, Casey discloses the holder may be made of a vast array of plastics (Paragraph 0025), a person having ordinary skill in the art would recognize and find obvious that styrene is a known plastic suitable for use in the construction of a food carrying tray.
Regarding Claim 16, Casey discloses the cover is configured to rest atop an outer surface of the lid as shown in Figure 7. A person having ordinary skill in the art would recognize and find obvious that the profile of the lid may be varied to provide alternate shapes for accommodating contents as described in Casey Paragraphs 0029 and 0031.
Claims 1 and 4-11 are rejected under 35 U.S.C. 103 as being unpatentable over Casey (US 2016/0249768) in view of Colonna (US 7288745).
Regarding Claim 1, Casey discloses a decorative holder for foodstuff trays, tins, and pans (14) comprising a receptacle (10) having a bottom wall (16) a pair of opposing side walls, and a pair of opposing end walls (18) wherein the side walls and the end walls extend upwardly from an outer periphery of the bottom wall and terminate in a top edge. Casey also discloses a lid (20) that is hingedly coupled (at 32) to the top edge of the receptacle and configured to pivot between an opened position and a closed position. The lid defines a central opening (24) providing access to an interior region of the decorative holder when disposed atop the receptacle, wherein the receptacle and the lid are configured to hold and generally encapsulate one or more foodstuff trays, tins, or pans therebetween.
While Casey discloses an outer lip of the receptacle which may be gripped by a user, Casey does not disclose the receptacle comprises a pair of handle recesses formed therein, the pair of handle recesses extending into the interior region of the decorative holder.
Colonna discloses a similar lidded serving dish comprising a receptacle body (21) with a pair of handle recesses (57) extending into the interior region. Modified Casey and Colonna are analogous inventions in the art of lidded receptacles.
31. It would have been obvious for one having ordinary skill in the art before the effective filing date of the claimed invention to modify the receptacle of Modified Casey with the handle recesses of Colonna in order to allow a user to grasp and move the pan (Col. 4 Lines 43-51).
Regarding Claims 4-8 the general size and shape of the recessed handle shown in Colonna may be modified as a variation in the construction of the handle that would provide no unexpected results in the function of the handle to hold and manipulate the tray.
Regarding Claim 9, Casey discloses each of the pair of opposing sidewalls is longer than each of the pair of opposing end walls such that the receptacle is rectangular. Similarly, Colonna discloses handle recesses on opposite rectangular sides of the tray.
Regarding Claims 10 and 11, the use of latches and latch protrusions are commonly used in pivoting lids. One having ordinary skill in the art would recognize and find obvious that such latches may be implemented into the container lid and body of Casey to maintain the lid in a closed configuration.
Claims 2 and 3 are rejected under 35 U.S.C. 103 as being unpatentable over Modified Casey (US 2016/0249768) in view of Colonna (US 7288745) as applied to claim 1 above, and further in view of Persson (US 3809305).
Regarding Claim 2, Modified Casey discloses the limitations of Claim 1 as discussed above. While Casey discloses the lid is hingedly coupled to the top edge of the receptacle using hinges, Casey does not disclose a plurality of living hinge clips and wherein one of the pair of opposing side walls further comprises a plurality of hinge clip recesses that extend into the interior region of the decorative holder and are configured to couple to the plurality of living hinge clips such that the plurality of living hinge clips fit over at least a portion of the top edge.
Persson discloses a similar container tray with sidewalls (58a) with hinge clip recesses (66) that extend into the interior region of the tray for receiving locking tongues (79) of a lid having living hinges (64). The locking tongues fit over at least a portion of the top edge of the tray as shown in Figure 7. The lid is configured to pivot between an opened position and a closed position about pivot points on the plurality of living hinge clips. Casey and Persson are analogous inventions in the art of hinge-mounted covers for trays.
It would have been obvious for one having ordinary skill in the art before the effective filing date of the claimed invention to modify the hinges of Casey with the hinge clip mechanism of Persson in order to provide a releasable, liquid tight interconnection of a lid and a tray at the hinge connection points (Col. 1 Lines 8-12, 22-26).
Regarding Claim 3, Colonna discloses the pair of handle recesses are formed in the pair of opposing end walls.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GIDEON R. WEINERTH whose telephone number is (571)270-5121. The examiner can normally be reached Monday-Friday 10AM-6PM EST.
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 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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/GIDEON R WEINERTH/Primary Examiner, Art Unit 3736
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