Appeal No. 2005-1180
Application No. 09/791,298
In a store without a cooking space like in a convenient store, for example,
rice (3) may be cooked and sauce (4) may be prepared in a factory, for example,
the rice (3) and the sauce are first packed in a container (2) and frozen, and then
shipped to each store, thawed by a microwave, for example, and then offered.
The examiner concludes that it would have been obvious to one having ordinary skill in
the art to incorporate the cup-shaped container of JP '628A into the aperture in the first
compartment of the meal carton disclosed in Peiker to prevent possible spillage of the cooked
meal contained therein. See Answer, pp. 5-6.
There appears to be no dispute that the cup-shaped container in JP '628A is a "heating
container."6 Nevertheless, appellants argue that the container disclosed in JP '628A is not "a
heating container from a self-heating meal assembly." According to appellants, the phase "from
a self-heating meal assembly" is a structural limitation. See Brief, p. 15.
However, the examiner argues, and we agree, that (Answer, p. 12):
Phrases such as "from a self-heating meal assembly" are merely preferred
methods of using the claimed product. A claim containing a "recitation with
respect to the manner in which a claimed apparatus is intended to be employed
does not differentiate the claimed apparatus from a prior art apparatus" if the
prior art apparatus teaches all the structural limitations of the claim. Ex parte
Masham, 2 USPQ2d 1647. MPEP 2114.
In this case, JP '628A discloses a heating container as required by claim 50. As for the
6 The examiner argues, and appellants do not dispute, that the broadest reasonable
interpretation of the term "heating container" is a vessel which can be heated. Since food was
heated in the cup-shaped container of JP '628A, we agree with the examiner that the container of
JP '628A is a "heating container." See Answer, p. 12.
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