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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114 was filed in this application after a decision by the Patent Trial and Appeal Board, but before the filing of a Notice of Appeal to the Court of Appeals for the Federal Circuit or the commencement of a civil action. Since this application is eligible for continued examination under 37 CFR 1.114 and the fee set forth in 37 CFR 1.17(e) has been timely paid, the appeal has been withdrawn pursuant to 37 CFR 1.114 and prosecution in this application has been reopened pursuant to 37 CFR 1.114. Applicant’s submission filed on 04/06/2026 has been entered.
For Applicant’s convenience, the Board has decided:
“Appellant argues claims 1-3, 8-12, and 17 together. Appeal Br. 2.
We select independent claim 1 as the representative claim. Independent
claim 9 and dependent claims 2, 3, 8, 10-12, and 17 stand or fall with
independent claim 1. 37 C.F.R. § 41.37(c)(1)(iv) (2023).
As to claim 1, the Examiner finds that Apps discloses a storage unit
(rack 10) for storing one or more storable members (water bottle 20) having
a maximum radius, in which the storage unit comprises a housing supporting
at least one storage tunnel (space within cylindrical bay 16 which is labeled
in Figure 5). Final Act. 4 (citing Apps Figs. 1-14). The Examiner finds that
Apps's storage tunnel is defined by a circumferential wall extending about a
central axis, in which the circumferential wall has a minimum distance from
the central axis of the storage tunnel and extends from a front end to a rear
end of the storage unit. Id. The Examiner finds that Apps's storage unit
further comprises a support cradle defined along a lower portion of the
tunnel (portions of upper section 22 shown in Figure 2 that are adjacent to
and hold inflatable clamping chamber 30), in which the support cradle
includes a plurality of longitudinal rails (inflatable clamping chambers 30).
Id. The Examiner finds that Apps's plurality of longitudinal rails extend
continuously from the front end to the rear end of the storage unit. Id. The
Examiner finds that Apps's plurality of longitudinal rails have a support
surface which is at a distance from the central axis and is less than the
minimum distance of the circumferential wall. Id. (citing Apps Figs. 2, 2a).
Finally, the Examiner finds that Apps's plurality of longitudinal rails is
configured to maintain the one or more storable members spaced from the
circumferential wall. Id.
"plurality of longitudinal rails"
Appellant contends that Apps does not disclose a plurality of
longitudinal rails because the Examiner only identifies a single
corresponding longitudinal rail, i.e., a single inflatable clamping
chamber 30. Appeal Br. 2.
This argument is unpersuasive. Each of Apps's Figures 2 and 5a
shows two inflatable clamping chambers 30. To the extent Appellant is
arguing that Apps does not disclose a plurality of longitudinal rails in a
single storage tunnel, the Examiner correctly responds that such is not
required of claim 1. Ans. 5-6; see also In re Self, 671 F.2d 1344, 1348
(CCPA 1982) ("[A]ppellant's arguments fail from the outset because
they are not based on limitations appearing in the claims.").
"storable members spaced from the circumferential wall"
Appellant contends that Apps does not disclose that its storable
members are maintained such that they are spaced from the circumferential
wall. Appeal Br. 2.
This argument is also unpersuasive. The Examiner reproduces and
annotates a portion of Apps's Figure 5 to show that at least a portion of the
corresponding storable member (water bottle 20) is spaced from the
circumferential wall. Ans. 6. To the extent Appellant is arguing that Apps
does not disclose the entirety of its storable member (water bottle 20) is
spaced from the circumferential wall, such is also not required of claim 1.
"radially inward" support surface
Appellant argues that Apps does not disclose each of the plurality of
longitudinal rails has a "support surface which is radially inward from the
remainder of the circumferential wall" because Apps's wall supports the
bottles. Appeal Br. 2.
Apps's Figure 5a shows a curved surface of the inflatable clamping
chamber 30 which clearly meets this requirement of a support surface that is
radially inward from the circumferential wall (i.e. closer to the central axis).
Thus, Appellant's contention does not appraise us of Examiner error.
improper designation of the Office Action as being "Final"
Appellant argues that the Examiner incorrectly designates the Office
Action as a "Final" Office Action. Appeal Br. 3.
The Examiner correctly responds that such issue is a petitionable
matter, rather an appealable matter. Ans. 7; see also 37 C.F.R. § 41.40(a).
arguments in the Reply Brief
In the Reply Brief, Appellant argues that (1) Apps's corresponding
longitudinal rails (inflatable clamping chambers 30) are deployed "above"
the corresponding storable member (water bottles 20) and thus do not
support them and (2) Apps's corresponding support cradle is not defined
along a "lower" portion of the corresponding storage tunnel. Reply Br. 2.
There is no point of reference in claim 1 to define which portion of a
cradle or which portion of a storage tunnel is the "lower" portion and, thus,
provides support. That a certain portion of Apps device is deemed to be an
upper section and an opposing portion is deemed to be a lower section does
not actually impose any structural limitations on the storage rack, but instead
reflects how the storage rack may be oriented in use. The particular manner
in which a device is intended to be employed, however, cannot by itself be
relied on to distinguish structure from the prior art. See, e.g., In re
Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997). Further, if the front view
of the rack depicted in Apps's Figure 5a is flipped over, Apps's rack would
be reasonably regarded as having a corresponding support cradle that is
defined along a "lower" portion of the corresponding storage tunnel because
the rack or cradle encloses the lower portion of the storage tunnel, in that
view or point of reference.
Appellant also argues that Apps does not disclose the corresponding
storable member is supported "away from" the circumferential wall so that it
does not contact the circumferential wall. Reply Br. 2-3 (emphasis
omitted). Appellant asserts that instead "the storable member of Apps is in
contact with at least a portion of the wall, as evidenced by at least Fig. 5a."
Id. at 3. There is nothing in claim 1 that requires the entire storable member
to be supported away from the circumferential wall, similar to the "storable
members spaced from the circumferential wall" language discussed above. 3
As to Appellant's contention that Figure 2a of Apps "shows that the
expandable chamber 30 is flush with the inner surface of the storage tunnel,
forming a smooth, continuous curvature" (Reply Br. 3), we note that at least
Figure 5a of Apps shows that inflatable clamping chamber, when inflated, is
not flush with the inner surface of the storage tunnel and would cause a
storable member to be supported away from the circumferential wall, at least
in those areas adjacent the inflatable clamping member.
Accordingly, Appellant does not apprise us of error in the Examiner's
determination that the Apps anticipates the subject matter of claim 1. Thus,
we sustain the rejection of claims 1-3, 8-12, and 17.”
Claim Rejections - 35 USC § 102
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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.
Claim(s) 1-3, 8-12, 17-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Apps (20080083683).
Apps discloses:
1. A storage unit (figs 1-14) for storing one or more storable members having a maximum radius (capable of performing the above intended use of holding the above item), the storage unit comprising: a housing supporting at least one storage tunnel (10 with pocket within, such as within 16), the storage tunnel defined by a circumferential wall extending about a central axis with the circumferential wall having a minimum distance from the central axis and extending from a front end to a rear end (walls relating to a circumference such as walls around perimeter of tunnel, such as within 16);
and a support cradle defined along a lower portion of the tunnel (lower end such as in fig 2 such as portions adjacent holding 30/130/229 as in figs 3-14), the support cradle including a plurality of longitudinal rails (30s/130s/230s), the rails extending continuously from the front end to the rear end and having a support surface which is at a distance from the central axis which is less than the minimum distance of the circumferential wall (as shown in figs 2, 2a, and also in figs 11-14), the rails configured to maintain the members spaced from the wall (capable of performing the above intended use, as for example the space provided between the wall adjacent the rail and the member, a space exists as the rail is between the wall and member; furthermore, though not required, the Office notes that the members are not positively claimed and therefore based on the size and shape of the member, more spaces may exist depending on the intended contents).
The Office notes Applicant’s amendment to “rails in each storage tunnel of the at least one storage tunnel”. It is well within the skill of one of ordinary skill in the art to provide another rail within the tunnel, as well as two more or three more in order to further enhance the stabilization of the intended contents. The Office further notes that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the device because it has been held that the duplication of parts on the basis of its suitability for the intended use was an obvious extension of the prior teachings. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960).
2. The storage unit of claim 1 wherein the rails include first and second longitudinal rails with the first longitudinal rail positioned on a first lateral side of the tunnel and the second longitudinal rail positioned on an opposite lateral side of the tunnel (as in fig 2 of which are located opposite lateral sides).
3. The storage unit of claim 1 wherein the rails has a smooth arcuate surface (as in fig 2a in order to hold smooth contents).
8. The storage unit of claim 1 wherein the maximum radius of the storable member is less than the minimum distance of the circumferential wall (capable of performing the above intended use, as the item is not positively claimed as already outlined above).
9. A storage unit (figs 1-14) for storing one or more storable members (capable of performing the above intended use of holding the above item), the storage unit comprising: a housing supporting at least one storage tunnel extending longitudinally from a front end to a rear end wherein the storage tunnel is defined by a circumferential wall (walls relating to a circumference such as walls around perimeter of tunnel, such as within 16, and also in figs 1-14 such as adjacent 130/230), and a plurality of first longitudinal rail extends along the storage tunnel from the front end to the rear end and has a support surface which is radially inward from the circumferential wall (30s/130s/230s).
The Office notes Applicant’s amendment to “rails in each storage tunnel of the at least one storage tunnel”. It is well within the skill of one of ordinary skill in the art to provide another rail within the tunnel, as well as two more or three more in order to further enhance the stabilization of the intended contents. The Office further notes that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the device because it has been held that the duplication of parts on the basis of its suitability for the intended use was an obvious extension of the prior teachings. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960).
10. The storage unit of claim 1 wherein the circumferential wall has an arcuate configuration (as in fig 2a).
11. The storage unit of claim 9 further comprising a second longitudinal rail and a first rail wherein the first longitudinal rail is positioned on a first lateral side of the tunnel and the second longitudinal rail is positioned on an opposite lateral side of the tunnel (30s are on opposite lateral sides).
12. The storage unit of claim 9 wherein the first longitudinal rail has a smooth arcuate surface (as in fig 2a).
17. The storage unit of claim 9 wherein the circumferential wall has an arcuate configuration (as in fig 2a).
18. (New) The storage unit of claim 1 wherein the plurality of longitudinal rails are configured to contact the one or more storable members and prevent contact between the circumferential wall and the one or more storable members (capable of performing the above intended use; the Office note that for example multiple elements are provided above of which are capable of prevent contact between the intended contents and the wall).
19. (New) The storage unit of claim 9 wherein the plurality of longitudinal rails are configured to contact the one or more storable members and prevent contact between the circumferential wall and the one or more storable members (capable of performing the above intended use; the Office note that for example multiple elements are provided above of which are capable of prevent contact between the intended contents and the wall).
Claim(s) 1-3, 8-12, 17-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Apps (20080083683) and further in view of Syvuk (US 6290074 B1)
Apps discloses:
1. A storage unit (figs 1-14) for storing one or more storable members having a maximum radius (capable of performing the above intended use of holding the above item), the storage unit comprising: a housing supporting at least one storage tunnel (10 with pocket within, such as within 16), the storage tunnel defined by a circumferential wall extending about a central axis with the circumferential wall having a minimum distance from the central axis and extending from a front end to a rear end (walls relating to a circumference such as walls around perimeter of tunnel, such as within 16);
and a support cradle defined along a lower portion of the tunnel (lower end such as in fig 2 such as portions adjacent holding 30/130/229 as in figs 3-14), the support cradle including a plurality of longitudinal rails (30s/130s/230s), the rails extending continuously from the front end to the rear end and having a support surface which is at a distance from the central axis which is less than the minimum distance of the circumferential wall (as shown in figs 2, 2a, and also in figs 11-14), the rails configured to maintain the members spaced from the wall (capable of performing the above intended use, as for example the space provided between the wall adjacent the rail and the member, a space exists as the rail is between the wall and member; furthermore, though not required, the Office notes that the members are not positively claimed and therefore based on the size and shape of the member, more spaces may exist depending on the intended contents).
The Office notes Applicant’s amendment to “rails in each storage tunnel of the at least one storage tunnel”. It is well within the skill of one of ordinary skill in the art to provide another rail within the tunnel, as well as two more or three more in order to further enhance the stabilization of the intended contents. The Office further notes that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the device because it has been held that the duplication of parts on the basis of its suitability for the intended use was an obvious extension of the prior teachings. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960). If there is any question to the above, Syvuk discloses similar art and further discloses multiple rails within a tunnel (50/52 as in figs 1-11 and also 56/54 in figs 1-11). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify Apps in view of Syvuk (by providing multiple rails within the same tunnel) in order to enhance the receipt and retaining of cylindrical bottles, for example.
Apps further discloses:
2. The storage unit of claim 1 wherein the rails include first and second longitudinal rails with the first longitudinal rail positioned on a first lateral side of the tunnel and the second longitudinal rail positioned on an opposite lateral side of the tunnel (as in fig 2 of which are located opposite lateral sides).
3. The storage unit of claim 1 wherein the rails has a smooth arcuate surface (as in fig 2a in order to hold smooth contents).
8. The storage unit of claim 1 wherein the maximum radius of the storable member is less than the minimum distance of the circumferential wall (capable of performing the above intended use, as the item is not positively claimed as already outlined above).
9. A storage unit (figs 1-14) for storing one or more storable members (capable of performing the above intended use of holding the above item), the storage unit comprising: a housing supporting at least one storage tunnel extending longitudinally from a front end to a rear end wherein the storage tunnel is defined by a circumferential wall (walls relating to a circumference such as walls around perimeter of tunnel, such as within 16, and also in figs 1-14 such as adjacent 130/230), and a plurality of first longitudinal rail extends along the storage tunnel from the front end to the rear end and has a support surface which is radially inward from the circumferential wall (30s/130s/230s).
The Office notes Applicant’s amendment to “rails in each storage tunnel of the at least one storage tunnel”. It is well within the skill of one of ordinary skill in the art to provide another rail within the tunnel, as well as two more or three more in order to further enhance the stabilization of the intended contents. The Office further notes that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the device because it has been held that the duplication of parts on the basis of its suitability for the intended use was an obvious extension of the prior teachings. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960). If there is any question to the above, Syvuk discloses similar art and further discloses multiple rails within a tunnel (50/52 as in figs 1-11 and also 56/54 in figs 1-11). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify Apps in view of Syvuk (by providing multiple rails within the same tunnel) in order to enhance the receipt and retaining of cylindrical bottles, for example.
Apps further discloses:
10. The storage unit of claim 1 wherein the circumferential wall has an arcuate configuration (as in fig 2a).
11. The storage unit of claim 9 further comprising a second longitudinal rail and a first rail wherein the first longitudinal rail is positioned on a first lateral side of the tunnel and the second longitudinal rail is positioned on an opposite lateral side of the tunnel (30s are on opposite lateral sides).
12. The storage unit of claim 9 wherein the first longitudinal rail has a smooth arcuate surface (as in fig 2a).
17. The storage unit of claim 9 wherein the circumferential wall has an arcuate configuration (as in fig 2a).
18. (New) The storage unit of claim 1 wherein the plurality of longitudinal rails are configured to contact the one or more storable members and prevent contact between the circumferential wall and the one or more storable members (capable of performing the above intended use; the Office note that for example multiple elements are provided above of which are capable of prevent contact between the intended contents and the wall).
19. (New) The storage unit of claim 9 wherein the plurality of longitudinal rails are configured to contact the one or more storable members and prevent contact between the circumferential wall and the one or more storable members (capable of performing the above intended use; the Office note that for example multiple elements are provided above of which are capable of prevent contact between the intended contents and the wall).
Response to Arguments
Applicant's arguments with respect to the claims have been considered, but are moot because in view of the amendment the search has been updated, new prior art has been identified and a new rejection has been made.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW D PERREAULT whose telephone number is (571)270-5427. The examiner can normally be reached Monday - Friday 7:00am-5:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anthony Stashick can be reached at (571)272-4561. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREW D PERREAULT/Primary Examiner, Art Unit 3735
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