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.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over
Mobley (US 5,622,261) in view of Rene (FR 2929131) further in view of Applicant’s Admitted Prior Art of Fig. 1 (AAPA Fig.1), Oas (US 7,931,402) and Hamm (US 20100101661).
Regarding claim 7, Mobley (figs. 1-5) discloses an inflatable apparatus 20 capable of being used as a pop-out ball shaped birthday cake, the apparatus consisting of:
an inflatable housing composed of a pliable material, an inner surface 22, and an outer surface 24, the inflatable housing stores and releases a gas between the inner surface and the outer surface such that the inflatable housing is inflatable to an inflated erect configuration and deflatable to a deflated collapsed configuration by the gas; and
an inner opening 28 extending through the inflatable housing, wherein the inner surface 22 surrounds the inner opening 28;
wherein the inner opening 28 is entirely surrounded by the inflatable housing and extends through the uppermost surface and the bottommost surface of the inflatable housing;
the outer surface 24 consists of a bottom portion, a middle portion, and a top portion;
the inflatable apparatus 20 is sized and shaped to receive and store an object 12 in the inner opening 28 and the inflatable housing conceals the object within the inner opening when the inflatable housing is inflated;
wherein a deflation opening is positioned on the inner surface of the inner opening of the inflatable housing (col. 4, lines 22-26); and
wherein the inflatable housing collapses along and around the inner opening to reveal the object in the inner opening when the deflation opening is engaged; and
wherein the inner opening is elongated, cylindrical shaped, and extends through the uppermost surface and the bottommost surface of the inflatable housing.
Mobley fails to disclose:
the width of the bottom portion is greater than the width of the middle portion and the width of the middle portion is greater than the width of the top portion such that the inflatable housing is multi-tiered;
wherein the deflation opening is an elongated zippered slot extending horizontally across the inner opening; and
an access opening having a surrounding surface extending from the outer surface to the inner surface, wherein the access opening is such that the object is moved through the access opening from outside of the inflatable pop-out birthday cake apparatus to within the inner opening when the inflatable housing is inflated;
wherein the bottom portion consisting a first zippered opening, the middle portion consisting a second zippered opening, and the top portion consisting a third zippered opening, wherein the first, second, and third zippered openings are unzipped to deflate the inflatable housing; and
the gas discussed above being nitrogen.
However, Rene teaches an inflatable device having a rapid deflation opening wherein the opening is a horizontally elongated zipper 6 (fig. 1).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed, to have made the deflation opening of Mobley, a horizontally elongated zipper, as taught by Rene, for providing a rapid deflation. Also, it has been held that when a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result. KSR, 127 S.Ct. at 1740, 82 USPQ2d at 1395 (citing United States v. Adams, 383 U.S. 50-51, 148 USPQ 479, 483 (1966)).
Further, AAPA Fig. 1 teaches a decorating inflatable device having the shape of a multitiered cake.
It would have been obvious to one of ordinary skill in art at the time the invention was filed, to have made the shape of the inflatable housing of the modified Mobley, the shape of a multitiered cake, as taught by AAPA Fig. 1, since a change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. In re Dailey et al., 149 USPQ 47.
Oas teaches a side of an inflatable device having an access opening covered by a flap 150 (fig. 3).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed, to have provided the device of the modified Mobley, an access opening and a flap, in order to access and view a portion of the item covered by the apparatus without having to deflate.
Regarding each portion having a zippered opening, it has been held that mere duplication of the essential working parts of a device involves only routine skill in the art. St. Regis Paper Co. v. Bemis Co., 193 USPQ 8.
Further, Hamm teaches air, nitrogen, or other inert gases being introduced into an inflatable decorative covering (paragraph 0010).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed, to have made the gas of the modified Mobley, nitrogen, to provide longer inflation retention.
Response to Argument
Applicant's arguments filed 10/14/25 have been fully considered but they are not persuasive.
Regarding applicant’s argument that claim 7 recites Nitrogen. It is noted that Hamm also teaches air, nitrogen, or other inert gases being introduced into an inflatable decorative covering (paragraph 0010).
Regarding applicant’s argument of the use of the transitional phrase “consisting of”, it is noted that the applied references also teach structures that consist of the same components/ elements as recited in claim 7. Therefore, the limitation introduced by “consisting of” does not distinguish the claimed invention from the prior art. The presence of other items in the Mobley reference is unrelated to the claimed invention.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BLAINE GIRMA NEWAY whose telephone number is (571)270-5275. The examiner can normally be reached Monday - Friday 9:00 AM- 5:00PM.
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/BLAINE G NEWAY/Examiner, Art Unit 3735
/Anthony D Stashick/Supervisory Patent Examiner, Art Unit 3735