Patentability Opinion Form Letter by cfr19480

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									February 12, 2002


Mr. Art F. Snakking
Department of Research and Development
SnakMore Corporation
Syracuse, NY 13210


RE:    Invention disclosure for Pouch with Internal Partition
       Contributor(s): Art F. Snakking
       Our File No. 05202003


Dear Mr. Snakking:

       We received the results of the search conducted by our patent searcher on the above-
referenced invention. This letter will report the results of the search and provide you with our
opinion on the patentability of this invention.

Summary

        The search references show that it is known to use a flexible pouch for delivery of foods
extruded by squeezing the pouch. It is also known to separately pack two different foods or
other components in a single dispenser, and to mix or join the different components after
extrusion. None of these references, however, appear to teach using a plastic squeezable pouch
with an interior partition for the delivery of two complementary food components, where the
pouch is opened by cutting or tearing and the food thus consumed without the need for utensils
or serving dishes. The references neither teach the method of controlling the relative extrusion
rate by varying the water contents of the components. Accordingly, patent protection appears to
be available for this pouch as well as for the method of controlling the extrusion rate of the
components.

Invention Searched

        The invention relates to a single use, squeezable, food compatible flexible plastic package
in form of a pouch with an internal partition. The partition defines two impervious adjacent
compartments each holding different, but complementary, substantially liquid or semi-solid, base
and enhancement components of food. The foods are consumed by cutting or tearing off the end
of the package and simultaneously extruding the foods by squeezing the pouch. The relative
extrusion rate is controlled, among other ways, by varying the relative water content of each
food. Mixing or joining of the two foods is accomplished after extrusion from the pouch. The
pouch represents a convenient, nutritionally sound, portable food product that can be consumed
without utensils or serving dishes.
Mr. Art. F. Snakking
February 12, 2002
Page 2

Results of the Search

       The following references were located in the search:

               U.S. Patent No. 4,844,917 to DeLorimiere (“DeLorimiere”)1989
               U.S. Patent No. 2,739,751 to Bailey (“Bailey”)1956
               International Patent Application No. WO 95/01287 to Mark (“Mark”) 1995
               U.S. Patent No. 3,892,058 to Komatsu (“Komatsu”) 1975

Copies of these references are enclosed.

        DeLorimiere teaches a flexible, disposable, though re-closable single compartment
pouch, holding cake frosting mix and separate individual squeezable tubes holding colorings
and/or flavorings. The coloring and/or flavoring are delivered into the cake frosting by inserting
the tube into the cake frosting pouch and squeezing some or all of its contents into the frosting.
The cake frosting and flavoring and/or coloring are then mixed inside the pouch by kneading.
The cake frosting mix is delivered by squeezing the pouch and extruding the contents through a
nozzle with diverse nozzle tips. The extrusion rate is controlled by the squeezing pressure and
the particular nozzle tip used. A screw cap can be used for re-closing the pouch for storage of
leftover contents.

        Bailey describes a combination container consisting of a main body portion or cup base,
containing a base component such as ice cream, and a hollow closure or cover containing an
enhancement such as syrup or topping. The hollow cover is filled with the enhancement and
sealed with an interlocking sealing disk. The filled hollow cover is then used to seal the main
body portion, maintaining the base and enhancement components separate. The food is
consumed by detaching the cover from the cup, removing the interlocking sealing disk from the
cover, pouring its contents into the cup containing the base component and mixing or consuming
with an utensil.

        Mark relates to a dual chamber dispenser simultaneously delivering two compositions
from separate chambers. The dispenser is particularly useful for certain health and beauty aids,
cleaning compositions and dental formulas. The dispenser includes a cap having a dispenser
base and a hingedly attached cover, and a pair of elongated hollow tubes attached to the
underside of the dispensing base. The upper dispensing end of each of the tubes has an exit
orifice and a coupling mechanism for attachment to the underside of the dispensing base. After
filling with a product, the lower ends of the pair of hollow tubes are crimped together to form a
seal. The dispensing base has a circular spout with an opening bisected by a divider wall,
defining two channels. Each channel communicates with the exit orifice in the upper dispensing
end of one of the tubes. The delivery of the contents is accomplished by extrusion by squeezing
the tubes. Further, the rate of extrusion of the components may be adjusted by adjusting the size
of the exit orifices. The mixing or joining or the components is accomplished after extrusion.
Mr. Art. F. Snakking
February 12, 2002
Page 3

         Komatsu discloses a single compartment, flexible bag-like container or pouch for food
which is heat-sealed. It also discloses a semi-rigid container including a container proper having
a space for containing the food and sealed with a heat-sealed lid. The food is consumed after
lifting the lid of the semi rigid container.

        In assessing the results of the search, you should understand that the enclosed references
do not represent all of the references in the area. Instead, these references were selected by the
searcher as being the most pertinent from a patentability standpoint. In this case, the searcher
has reported that the classes searched are quite lengthy and available for searching only in the
Examiner's search area. Furthermore, as this is a very active art, it is likely that the integrity of
the searched subclasses is less than desirable. Additionally, a search of this nature does not
cover technical literature or pending U.S. patent applications. Within these limitations, it has
been our experience that these searches usually provide a good guide to assess patentability.

Opinion

        In order for an invention to be lacking in novelty, "the invention" must be identically
disclosed in a single prior art reference.

        Based upon the search results, it appears that the broad concept of using a plastic
squeezable pouch for delivery of foods extruded by squeezing the pouch is known, as shown in
the above discussed patents. These references also show that to separately pack two different
foods or other components in a single dispenser, and to mix or join the different components
after extrusion are known. None of these references, however, appear to teach using a plastic
squeezable pouch with an interior partition for the delivery of two complementary food
components, where the pouch is opened by cutting or tearing and the food thus consumed
without the need for utensils or serving dishes. The references neither teach the method of
controlling the relative extrusion rate by varying the water contents of the components.
Accordingly, since no single patent or publication discloses every aspect of your invention, the
assessment of patentability turns on whether the invention would have been obvious to one
having ordinary skill in the art of packing food components at the time that your invention was
made.

        Under Section 103 of the patent laws, an invention will be considered obvious if the
differences between the claimed invention and the prior art are such that the invention as a whole
would have been obvious to a person of ordinary skill in the pertinent art at the time that the
invention was made. Under this test, the U.S. P.T.O. assumes the existence of a hypothetical
person of ordinary skill in the art who has knowledge of all relevant prior art in existence at the
time the invention was made. This is a legal fiction created for the purposes of analysis only.

       In considering the patentability of your invention, the PTO will take the position that
packing different foods or other components in separate compartments in a single dispenser is
known from Bailey and Mark, that using a pouch for the dispensing of food is known from
Mr. Art. F. Snakking
February 12, 2002
Page 4

DeLorimiere and Komatsu, and that dispensing components by extrusion is known from
DeLorimiere and Mark; and therefore, that it would have been obvious to one of ordinary skill in
the art to prepare a pouch with an internal partition for the dispensing of separate food
components by extrusion. Nevertheless, none of Bailey, Mark, Komatsu or DeLorimiere shows
an un-resealable plastic pouch with an internal partition that is opened by cutting or tearing and
the extruded food consumed without the need for utensils or serving dishes. The references do
not show either the control of the rate of extrusion by varying the water content of the
component foods. Thus, it is my opinion that the Bailey, Mark, Komatsu and DeLorimiere
references do not render obvious the plastic pouch with an internal partition nor the method of
controlling the rate of extrusion by varying the water content of the component foods.

        If you wish for us to prepare a patent application, please let me know. If your decision is
to proceed, I estimate that the cost of preparing and filing a patent application on your invention
will be approximately $10,000. This includes the cost of our services for preparing the
application, the cost of the patent drawings, and the filing fee. In addition to the cost of
preparing the application, there will be additional fees associated with prosecution and issuance
of the application.

       Please keep in mind that any patent application must be filed within one year of the first
time that you used your invention in public or offered it for sale, placed it in commercial use, or
described it in a printed publication. Additionally, if you desire foreign patent protection, most
countries require that the application be filed in advance of any of these events. We would be
happy to provide you with additional information concerning such matters.

       We will not, of course; take any further action until you authorize us to do so.


Very truly yours,


Pedro J. Rodríguez Esquerdo

Enclosures

								
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