DETAILED ACTION
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 .
Election/Restrictions
Applicant's election with traverse of Invention II Species 13 in the reply filed on 4/13/24 is acknowledged.
The traversal is on the ground(s) that all embodiments and variations disclosed by Applicant are obvious variants.
This is not found persuasive because while Applicant’s assertion that all of their disclosed embodiments are obvious variants the differences between the variants, the number of variants and the amount of possible combination of variants as described in the Requirement for Restriction/Election dated 11/14/23 establish a serious search and/or examination burden requiring such an election of invention and species.
Applicant is reminded that upon allowance of a generic or linking claim all withdrawn claims will be considered for rejoinder.
The requirement is still deemed proper and is therefore made FINAL.
Claims 1-2, 10 and 12-24 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention and/or species, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 4/13/24.
Response to Amendment
Applicant’s Claim submission dated 6/12/24 comprises a number of claims which have been amended from their original language. While the claims have been properly identified with a status identifier of ‘Amended’ it is noted that markings are required to provide indications as to what has been changed within the claim language. See MPEP 714(II)(C).
It appears the inventor(s) filed the current application pro se (i.e., without the benefit of representation by a registered patent practitioner). While inventors named as applicants in a patent application may prosecute the application pro se, lack of familiarity with patent examination practice and procedure may result in missed opportunities in obtaining optimal protection for the invention disclosed. The inventor(s) may wish to secure the services of a registered patent practitioner to prosecute the application, because the value of a patent is largely dependent upon skilled preparation and prosecution. The Office cannot aid in selecting a patent practitioner.
A listing of registered patent practitioners is available at https://oedci.uspto.gov/OEDCI/. Applicants may also obtain a list of registered patent practitioners located in their area by writing to Mail Stop OED, Director of the U.S. Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450.
Specification
The following guidelines illustrate the preferred layout for the specification of a utility application. These guidelines are suggested for the applicant’s use.
Arrangement of the Specification
As provided in 37 CFR 1.77(b), the specification of a utility application should include the following sections in order. Each of the lettered items should appear in upper case, without underlining or bold type, as a section heading. If no text follows the section heading, the phrase “Not Applicable” should follow the section heading:
(a) TITLE OF THE INVENTION.
(b) CROSS-REFERENCE TO RELATED APPLICATIONS.
(c) STATEMENT REGARDING FEDERALLY SPONSORED RESEARCH OR DEVELOPMENT.
(d) THE NAMES OF THE PARTIES TO A JOINT RESEARCH AGREEMENT.
(e) INCORPORATION-BY-REFERENCE OF MATERIAL SUBMITTED ON A READ-ONLY OPTICAL DISC, AS A TEXT FILE OR AN XML FILE VIA THE PATENT ELECTRONIC SYSTEM.
(f) STATEMENT REGARDING PRIOR DISCLOSURES BY THE INVENTOR OR A JOINT INVENTOR.
(g) BACKGROUND OF THE INVENTION.
(1) Field of the Invention.
(2) Description of Related Art including information disclosed under 37 CFR 1.97 and 1.98.
(h) BRIEF SUMMARY OF THE INVENTION.
(i) BRIEF DESCRIPTION OF THE SEVERAL VIEWS OF THE DRAWING(S).
(j) DETAILED DESCRIPTION OF THE INVENTION.
(k) CLAIM OR CLAIMS (commencing on a separate sheet).
(l) ABSTRACT OF THE DISCLOSURE (commencing on a separate sheet).
(m) SEQUENCE LISTING. (See MPEP § 2422.03 and 37 CFR 1.821 - 1.825). A “Sequence Listing” is required on paper if the application discloses a nucleotide or amino acid sequence as defined in 37 CFR 1.821(a) and if the required “Sequence Listing” is not submitted as an electronic document either on read-only optical disc or as a text file via the patent electronic system.
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Claim Objections
Claims 4-9, 11 and 25 are objected to because of the following informalities:
Applicant’s claims repeatedly used the phrase “can be” prior to describing a limitation which is not a definitive phrase. For the purpose of examination ‘can be’ claim language is being interpreted in the same manner as ‘configured to’ claim language.
Applicant’s claim language is often narrative in nature making it unclear whether an apparatus is being further defined or a method/process is being claimed/described. Applicant is advised that a single claim which claims both an apparatus and the method steps of using the apparatus is indefinite under 35 USC 112(b). See MPEP 2173.05(p).
Claim 3 is directed to a ‘siphon actuated shower’. Claims 4-5 are directed to ‘The water source’, claim 6 to ‘The reservoir’, claims 7-9 to ‘The drain’ and claim 11 to ‘The siphon’. The application is directed at a single invention which should be reflected in the claims such as ‘The siphon actuated shower of claim 3, wherein the siphon further comprises’.
Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claims 3-9, 11 and 25 are rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101).
Regarding claim 3, Claim 3 line 6 positively recites that the claimed siphon actuated shower comprises “e. a user”. The claiming of ‘a user’ is an attempt to claim a human organism.
Claims 4-9, 11 and 25 are rejected due to their dependency from claim 3.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claims 3-9 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over US 10,704,237 (Wu) in view of US 2019/0368167 (Ridell).
Regarding claim 3, Wu discloses a siphon actuated shower comprising:
a water source (not labelled; supplies water to device of Fig. 1 and 2 through structures 6/8/A);
a siphon (E/83); and
a reservoir (F).
Wu, however, does not explicitly disclose other parts of the shower structure such as a drain.
Ridell teaches a shower comprising a water source (111), an outlet (102) and a drain (104/200) connected to a waste system (106).
It would have been obvious to one of ordinary skill in the art to provide the shower with a drain, as taught by Ridell, so as to efficiently/automatically dispose of the waste water to a designated waste reservoir or external waste system.
Regarding claim 4, Wu states that the shower system is configured for use with an existing plumbing system (In so much as Applicant’s device is configured for such use. The shower can be coupled to a new or existing plumbing supply system).
Regarding claim 5, Wu states that the shower system is configured for use with a purpose built/new plumbing system (In so much as Applicant’s device is configured for such use. The shower can be coupled to a new or existing plumbing supply system).
Regarding claim 6, Wu states that the reservoir is configured to be manufactured as a new product and installed on an existing or new system (it attaches by standard/typical plumbing connections to a plumbing connection/supply point).
Regarding claim 7, the shower as taught by Wu in view of Ridell is configured for use with an existing plumbing fixture drain as any drain would serve the purpose of the teaching/modification to drain away waste fluid for disposal or recycling.
Regarding claim 8, the shower as taught by Wu in view of Ridell is configured for use with a newly constructed/installed plumbing fixture drain as any drain would serve the purpose of the teaching/modification to drain away waste fluid for disposal or recycling.
Regarding claim 9, Wu does not state the inclusion of a measurement device in the drain of a shower.
Ridell teaches a shower assembly as previously discussed comprising a water supply (111), a water outlet/dispenser (102) and a drain (104/200). Ridell further teaches the provision of a measuring sensor within the drain for monitoring water passing through the drain (Para. 0047).
It would have been obvious to one of ordinary skill in the art to utilize a drain assembly with measurement capabilities, as taught by Ridell, so as to facilitate automation of the shower functions, facilitate recycling/reuse of the water and/or monitor for other water quality aspects.
Regarding claim 25, the reservoir of Wu is configured to be mounted horizontally across interior walls of a bath tub shower compartment.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Wu in view of Ridell as applied to claim 3 above, and further in view of US 8,876,012 (McMurtry).
Regarding claim 11, Wu does not explicitly state the inclusion of a means to adjust the temperature of the dispensed water.
McMurtry teaches a shower assembly comprising a water supply (38/39), a reservoir (30), an outlet/shower (20), a means for controlling the temperature of water supplied to the shower (40) and wherein the reservoir can be emptied through a siphon action (C6 L3-21).
It would have been obvious to one of ordinary skill in the art to provide a means for controlling the temperature of water supplied to the shower assembly, as taught by McMurtry, so that a user can utilize the shower at a desired temperature.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
EP3258019 (Burkhardt) is a shower apparatus comprising a water supply connected to a reservoir and a siphon connected the reservoir which transfers fluid from the reservoir to a showerhead.
US 2009/0300839 (Gay) is a shower assembly comprising a water supply, a drain, a water sensor, a temperature control device and an outlet.
US 4,998,836 (Seripnick) is a shower device comprising a water source, a reservoir, a shower outlet and a siphon which delivers fluid from the reservoir to the shower outlet.
US 6,317,903 (Brunelle) is a bathing facility for use with thermotherapy.
US 11,903,871 (Haneckow) is a siphon apparatus.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NICHOLAS A ROS whose telephone number is (571)270-3577. The examiner can normally be reached Mon.-Fri. 9:00-6:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Angwin can be reached at 571-270-3735. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/NICHOLAS A ROS/Examiner, Art Unit 3754
/DAVID P ANGWIN/Supervisory Patent Examiner, Art Unit 3754