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 .
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 16-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 9-18 of U.S. Patent No. 12,344,474, and claims 9-16 of U.S. Patent No. 11,939,159. Although the claims at issue are not identical, they are not patentably distinct from each other because the application claims are merely broader than the patent claims.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1, 6, 9, 11, 16, and 20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Herbert (8,616,250).
In re claim 1, Herbert discloses a computer-implemented method when executed on data processing hardware causes the data processing hardware to perform operations comprising:
receiving an order identifying a first ingredient and a second ingredient (col.13 ln.22-30);
operating a first ejector (150) to dispense the first ingredient from a first container (inherent containers of “flavoring product dispensers” col.5 ln.14-36) to a bin (130) disposed within a dispensing region (col.13 ln.31-64); and
operating a second ejector (160 or 155) to dispense the second ingredient from a second container (165 or inherent container of product dispenser 155) to the bin within the dispensing region (figs. 1-4, 10, 21).
In re claim 6, Herbert discloses the method of claim 1, wherein the operations further include:
operating a conveyor to move the bin within the dispensing region to a first position corresponding to the first ingredient (at least fig.21); and
operating the conveyor to move the bin within the dispensing region to a second position corresponding to the second ingredient (at least fig.21).
In re claim 8, Herbert discloses the method of claim 6, wherein the operations further include operating the conveyor to move the bin to a third position outside of the dispensing region for retrieval of the bin by a user (col.11 ln.33-47).
In re claim 9, Herbert discloses the method of claim 1, wherein the first ejector is operated to dispense a metered amount of the first ingredient from the first container based on a sensor detecting the first ingredient dispensed from the first container.
In re claim 11, Herbert discloses a system comprising:
memory hardware storing instructions that, when executed on data processing hardware in communication with the memory hardware, cause the data processing hardware to perform the method of claim 1 (see the rejection, supra).
In re claim 16, see the rejection of claim 1 above as similar reasoning applies.
In re claim 20, see the rejection of claim 6 above as similar reasoning applies.
Claim(s) 16-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Maurantonio (4,748,902).
In re claim 16, Maurantonio discloses a system for dispensing ingredients, the system comprising:
a dispensing region (region having bin 152);
a first container (one of 123) holding a first ingredient;
a second container (another of 123) holding a second ingredient;
a first ejector (a first one of 124 or 173) operable to dispense the first ingredient from the first container to the dispensing region; and
a second ejector (a second one of 124 or 173) operable to dispense the second ingredient from the second container to the dispensing region.
In re claim 17, Herbert discloses. The system of claim 16, wherein the first container and the second container are accommodated within a cabinet (111) disposed above the dispensing region (fig.5).
In re claim 19, Herbert discloses. The system of claim 17, wherein the cabinet includes a first chute (chute at a first one of 178) configured to direct the first ingredient dispensed from the first container toward the dispensing region, and the cabinet includes a second chute (chute at a second one of 178) configured to direct the second ingredient dispensed from the second container toward the dispensing region.
In re claim 20, Herbert discloses. The system of claim 16, further comprising a conveyor (128) operable to move a bin within the dispensing region between at least a first position corresponding to the first ingredient and a second position corresponding to the second ingredient.
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.
Claim(s) 1-3, 5, 12-13, and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Herbert in view of Maurantonio.
In re claims 2 and 12, Herbert discloses the method of claim 1, wherein the first container and the second container are accommodated within a cabinet (200). However, Herbert discloses the cabinet is below the dispensing region and utilized pumps to bring the fluid up.
Maurantonio teaches another dispensing method wherein the containers (22) are in a cabinet (11) disposed above the dispensing region (fig.2).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to utilize the teachings of Maurantonio for the purpose gravity dispensing the ingredients thereby of eliminating the need for pumps.
In re claims 3 and 13, Herbert discloses the method of claim 2, wherein the cabinet is refrigerated via a cooling system (col.5 ln.54-60).
In re claims 5 and 15, Herbert discloses the method of claim 2, wherein the cabinet includes a first chute (chute shown as 150) configured to direct the first ingredient dispensed from the first container toward the dispensing region, and the cabinet includes a second chute (chute shown as 160 or 155) configured to direct the second ingredient dispensed from the second container toward the dispensing region.
In re claim 17, see the rejection of claim 2 above as similar reasoning applies.
In re claim 18, see the rejection of claim 3 above as similar reasoning applies.
In re claim 19, see the rejection of claim 5 above as similar reasoning applies.
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Herbert in view of Dresser (10,239,742)
In re claim 7, Herbert discloses the use of weight sensors which detect the container it fails to explicitly discloses wherein operating the first ejector to dispense the first ingredient is responsive to a sensor detecting presence of the bin at the first position of the dispensing region.
Dresser teaches another method of dispensing ingredients wherein operating the first ejector to dispense the first ingredient is responsive to a sensor detecting presence of the bin at the first position of the dispensing region (col.7 ln.26-49).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to utilize the teachings of Dresser in Herbert for the purpose of reducing spills and errors and accidently dispensing when no container is present.
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Herbert in view of Hamon (10,588,322).
In re claim 10, Herbert fails to explicitly disclose wherein the order comprises a customer order for a pizza, the pizza including at least the first ingredient and the second ingredient.
Hamon teaches another method of dispensing ingredients wherein the order comprises a customer order for a pizza, the pizza including at least the first ingredient and the second ingredient (whole disclosure).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to utilize the teachings of Hamon in Herbert for the purpose of designing a system for the intended end use. Hamon teaches pizza ingredients are another type of food dispensing system. Selection of the specific ingredients dispensed is a design choice based on the desired product to be made. This requires only routine and ordinary skill.
Allowable Subject Matter
Claims 4, 14 and 18 are 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 and once a Terminal Disclaimer is filed to obviate the NSDP rejections.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Timothy P. Kelly whose telephone number is (571)270-7615. The examiner can normally be reached from 8:30 a.m. to 4:30 p.m. (ET) on Monday, Thursday, and Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Craig M Schneider can be reached at (571) 272-3607. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Timothy P. Kelly/Primary Examiner, Art Unit 3753
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