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 § 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.
Claims 1-5 are rejected under 35 U.S.C. 103 as being unpatentable over Sanchez et al. (US 8,689,972) in view of Benjamin (US 2022/0265072).
Regarding claim 1, Sanchez discloses a packaging (at 30 in Figs. 9-10) capable of holding condiments, comprising: a condiment receptacle (receptacle 3 at the left side of Fig. 9) having an upper planar portion (See Fig. 9 labeled below) and four sidewalls (See Fig. 9 labeled below) in a rectangular arrangement, the four sidewalls extending downwards substantially transverse relative to the upper planar portion (as shown in Fig. 9 labeled below), wherein: the four sidewalls define a top-side opening (See Fig. 9 labeled below); and the four sidewalls define a hollow area (at 3 in Fig. 9); a condiment reservoir (receptacle 3 at the right side of Fig. 9) attached to the condiment receptacle, wherein: the condiment reservoir defines a hollow area (at 3) and a top-side opening (See Fig. 9 labeled below) into the hollow area; at least one peelable top (lid film) adapted to fit over and seal the openings of the receptacle and the reservoir.
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Sanchez discloses the claimed invention except for the specific contents of the hollow areas. However, Benjamin discloses it is well known in the art that soy sauce and wasabi are condiments used with a main dish such as sushi, wherein the condiments are held within separate compartments 16 (See [0026]). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided the receptacle/reservoir of the packaging of Sanchez with any type of product such as soy sauce and wasabi as taught by Benjamin in order to provide the user with desired condiments to be used with their meal.
Regarding claims 2-4, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the top-side opening of the receptacle of Sanchez-Benjamin to be any size such as having an area ranging from about 1.56 inches2 to about 4.38 inches2 and the hollow areas of the condiment receptacle/reservoir having a depth ranging from about 0.75 inches to about 1.25 inches and about 0.33 inches to about 0.75 inches, respectively, in order to allow for storage of a desired product. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
Regarding claim 5, Sanchez discloses said reservoir is substantially permanently adjoined to and adjacent to said receptacle (as shown in 9).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Sanchez et al. (US 8,689,972) in view of Benjamin (US 2022/0265072) as applied to claim 1 above, and further in view of Gherdan et al. (US 7,325,703). As described above, Sanchez-Benjamin discloses the claimed invention except for the specific depths of the hollow areas relative to one another. However, Gherdan teaches it is well known in the art for a packaging (at 10 – See Fig. 1) having first (at 160) and second (at 170) receptacles for storing first and second substances to have different depths (See Figs. 4-5 wherein second receptacle 170 has a depth that is less than the depth of first receptacle 160) for the purpose of sizing the receptacles corresponding to the amount of substance contained therein. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the condiment reservoir to have a depth less than the condiment receptacle of the condiment packaging of Sanchez-Benjamin as taught by Gherdan in order to accommodate the desired amount of contents in the receptacle/reservoir. Furthermore, a change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
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 1-7 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5 of U.S. Patent No. 12,486,069. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claim 1, Patent ‘068 (claim 1) discloses the claimed subject matter.
Regarding claim 2, Patent ‘068 (claim 1) discloses the claimed subject matter.
Regarding claim 3, Patent ‘068 (claim 1) discloses the claimed subject matter.
Regarding claim 4, Patent ‘068 (claim 5) discloses the claimed subject matter.
Regarding claim 5, Patent ‘068 (claim 4) discloses the claimed subject matter.
Regarding claim 6, Patent ‘068 (claim 2) discloses the claimed subject matter.
Regarding claim 7, Patent ‘068 (claim 1) discloses the claimed subject matter.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEVEN A REYNOLDS whose telephone number is (571)272-9959. The examiner can normally be reached M-F 9am-5pm.
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/STEVEN A. REYNOLDS/Primary Examiner, Art Unit 3735
