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
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) 1-3, 5-8, 10-11, 15, and 17-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Gokhale (US 2009/0057381).
1: Gokhale teaches a food container (food container 10) comprising: a base (base 2) comprising: a top surface having a perimeter (top surface generally indicated as areas between 4 and 16, Figure 1, having a perimeter along the edges of 16); and at least one of: a circular groove in the top surface, the circular groove extending around a center of the top surface and positioned between the perimeter and the center of the top surface; a plurality of partial circumferential grooves extending along circles centered on the center of the top surface; or a plurality of protrusions (protrusion 8 with rounded edges, protruding upward forming a dome shape, see Figure 1) extending upward from the top surface, wherein the plurality of protrusions are dome-shaped.
2: Gokhale teaches the claimed invention as discussed above for Claim 1 and Gokhale further teaches that the base comprises compostable fiber (made from molded paper pulp, which is a fibrous material, paragraph 0038-0039).
3: Gokhale teaches the claimed invention as discussed above for Claim 1 and Gokhale further teaches that the base comprises at least one of molded sugarcane fiber, molded wood fiber, molded bamboo fiber, or molded paper (made from molded paper pulp, which is a fibrous material, paragraph 0038-0039).
5: Gokhale teaches the claimed invention as discussed above for Claim 1 and Gokhale further teaches that the top surface is planar and upwardly facing (the surface at 16 and between 4 is planar, see Figure 2).
6: Gokhale teaches the claimed invention as discussed above for Claim 1 and Gokhale further teaches that the perimeter is circular (see circular perimeter at 16, Figure 1).
7: Gokhale teaches the claimed invention as discussed above for Claim 1 and Gokhale further teaches that the base comprises the circular groove (groove formed between 8 and the sidewall of 20).
8: Gokhale teaches the claimed invention as discussed above for Claim 1 and Gokhale further teaches that the base comprises a central well at the center of the top surface (a central well formed from portions 8, located centrally at the base of 2, surrounding the well, in the top surface, see Figure 1A below).
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10: Gokhale teaches the claimed invention as discussed above for Claim 1 and Gokhale further teaches that the base comprises a plurality of radial grooves in the top surface (radially extending, from the center out to the perimeter, grooves between portions 8, see Figure 1A above).
11: Gokhale teaches the claimed invention as discussed above for Claim 1 and Gokhale further teaches that the base comprises a central well at the center of the top surface, and wherein the plurality of radial grooves comprise first radial grooves extending from the perimeter to the central well (grooves between 8 extend from the perimeter at 16, to the central well, located at the center of 2, see Figure 1A above).
15: Gokhale teaches the claimed invention as discussed above for Claim 1 and Gokhale further teaches that the base comprises the plurality of partial circumferential grooves (see Figure 1A above), and wherein each partial circumferential groove from the plurality of partial circumferential grooves extends from a respective radial groove from the plurality of radial grooves (see Figure 1A above).
17: Gokhale teaches the claimed invention as discussed above for Claim 1 and Gokhale further teaches that the base comprises the plurality of protrusions (protrusion 8 with rounded edges, protruding upward forming a dome shape, see Figure 1).
18: Gokhale teaches the claimed invention as discussed above for Claim 1 and Gokhale further teaches that the base comprises a sidewall extending upward from the perimeter (sidewall below 28, Figure 1).
19: Gokhale teaches the claimed invention as discussed above for Claim 1 and Gokhale further teaches a cover (lid 12) sized and shaped to provide an interior chamber with the base (chamber formed by the interior of 2 and 12) when the cover is engaged with the base to close the interior chamber (closed interior chamber when 12 and 2 are bought together).
20: Gokhale teaches the claimed invention as discussed above for Claim 19 and Gokhale further teaches the cover comprises: a central planar portion; an outer circumferential portion outside of and raised above the central planar portion; and a side wall depending from the outer circumferential portion (see Markup Figure 1B below).
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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(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gokhale (US 2009/0057381) in view of Chiang et al. (Chiang US 2017/0275077).
4: Gokhale teaches the claimed invention as discussed above for either interpretation of Claim 1 except for the explicit teaching of the base includes at least one of molded plastic, molded biodegradable plastic, molded thermoplastic, molded bio-based plastic, molded recycled plastic, or molded recyclable plastic.
Chiang teaches that the material of choice for compostable food containers are molded plastic or molded paper, abstract.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Gokhale such that the material of choice is of a molded plastic since paper or plastics are known substitute for one another in the art since such materials are known equivalent in the art. Furthermore, 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. In re Leshin, 125 USPQ 416.
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 1-21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 12,466,603 and claims 1-20 of U.S. Patent No. 11,999,525. Although the claims at issue are not identical, they are not patentably distinct from each other because the inventions are directed to a food container comprising: a base comprising: a food-receiving portion comprising a planar surface that is upwardly facing and has a perimeter; a central well extending into the planar surface; first radial grooves extending into the planar surface, the first radial grooves extending from the perimeter to the central well; and at least one of: a circular groove in the planar surface, the circular groove extending around the central well and positioned between the perimeter and the central well, the groove being in fluid communication with the first radial grooves and having a closed shape; a plurality of partial circumferential grooves extending along circles centered on a center of the central well; or a plurality of protrusions extending upward from the planar surface, wherein the plurality of protrusions are dome-shaped
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KING M CHU whose telephone number is (571)270-7428. The examiner can normally be reached Monday - Friday 10AM - 6PM EST.
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/King M Chu/Primary Examiner, Art Unit 3735
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