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 .
Specification
The disclosure is objected to because of the following informalities:
All patent applicants should use the metric (S.I.) units followed by the equivalent English units when describing their inventions in the specifications of patent applications. MPEP 608.01 (IV)
Appropriate correction is required.
Claim Objections
Claim 37 is objected to because of the following informalities:
All patent applicants should use the metric (S.I.) units followed by the equivalent English units when describing their inventions in the specifications of patent applications, and the claims are included within the specification section of the patent application.
Appropriate correction is required.
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.
Claims 36-37 are rejected under 35 U.S.C. 103 as being unpatentable over Barr (US 2014/0196669) in view of MacNeil et al. (US 2018/0020637), Elfindale (US 2018/0199537), Shri&Sam (https://shriandsam.com/products/measuring-bowl?srsltid=AfmBOopCXLdDHLsKg7AR4FG_bq5QP-5IFz1qtnJbS6kYyOPnoUcfl7Gr), and Morand (WO 2019/006558).
Regarding Claim 36, Barr discloses an animal litter device, comprising:
a circular floor (base 14);
a sidewall (wall 16) extending up from around a perimeter of the circular floor forming cylindrical container with an open top area (Figure 1), wherein the cylindrical container is seamless and creviceless (“The base 14 and the wall 16 may be formed integrally” Paragraph [0029]; Figure 1);
a rounded curved edge formed at an intersection of the circular floor and sidewall, the rounded edge preventing a buildup of materials stored in the animal litter device (“an existing plastic cylindrical, drum-shaped, or capsule-shaped container may be used to form the litter container” Paragraph [0030]; capsule shape has rounded edges);
a single "U" shaped opening (opening 18) formed in the sidewall in a front area of the animal litter device and at least 4" above the floor (“The bottom edge 20 of the notch opening 18 may be positioned about 7 inches above the base 14 as it rests on a floor.” Paragraph [0036]) forming a single entry way for entering and exiting the cylindrical container (Figure 1).
Barr fails to disclose the container formed of at least 316 stainless steel; a fill line formed on the cylindrical container, wherein the fill line is embossed in the thin sheet stainless steel material of the container to create a raised area along an exterior perimeter of the container and the embossing on the exterior creates a visible depression along an interior perimeter of the container in a corresponding position and wherein the fill line curves raised on the exterior in a semi-ellipse shape relative to the plane of the container and a corresponding semi-ellipse channel is formed on the corresponding interior aspect; and a pair of handle openings formed on opposing sides of the sidewall.
However, MacNeil teaches a similar receptacle for use with pets (bowls 102, 104; Figure 2), wherein the floor and sidewalls are formed of 300 series stainless steel (“The bowls may be formed from stainless steel. More particularly, bowls 102, 104 and the other bowls described in the specification below may be stamped or formed from 300-series stainless steel, such as Type 301 or Type 304” Paragraph [0047]).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have to have modified the container of Barr, to be made of 300 series stainless steel as taught by MacNeil, with reasonable expectation of success, in order to help ensure the bowls are corrosion resistant while also safe for use with pets (MacNeil Paragraph [0047]).
Additionally, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have to have modified the 300 series stainless steel of MacNeil, to be specifically 316 stainless steel, with reasonable expectation of success, in order to help further increase corrosion resistance as well as increase the overall longevity of the device, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Additionally, Elfindale teaches a similar pet litter box comprising a fill line formed on the cylindrical container (“The basket may include a “fill line” or other indicator of the appropriate fill depth for the litter.” Paragraph [0087]).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided the litter box of Barr, with the fill line of Elfindale, with reasonable expectation of success, in order to help prevent the user from using excessive amounts of litter which can lead to an increase in odor build up.
Additionally, Shri&Sam teaches a similar stainless steel container wherein the fill line is embossed in the thin sheet stainless steel material of the container to create a raised area along an interior perimeter of the container and the embossing on the interior creates a visible depression along an exterior perimeter of the container in a corresponding position (fill lines shown on Pages 1 and 4-6) wherein the fill line curves raised on the interior in a semi-ellipse shape relative to the plane of the container and a corresponding semi-ellipse channel is formed on the corresponding exterior aspect (fill lines shown on Pages 1 and 4-6).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided the container of Barr, with the embossed, semi-ellipse shaped fill line of Shri&Sam, with reasonable expectation of success, in order to help prevent the user from using excessive amounts of litter which can lead to an increase in odor build up, while also increasing the durability of the fill line.
Additionally, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the fill line of Shri&Sam, to have the raised area on the exterior and the depression on the interior, with reasonable expectation of success, in order to help increase the visibility of the fill line from the exterior, since there is no invention in merely changing the shape or form of an article without changing its function except in a design patent. Eskimo Pie Corp. v. Levous et al., 3 USPQ 23.
Additionally, Morand teaches a similar cat litter box comprising a pair of handle openings formed on opposing sides of the sidewall (handle holes 18; Figure 1).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have to have provided the container of Barr, with the handles of Morand, with reasonable expectation of success, in order to allow the user to easily lift and clear the container, or transport the container.
Regarding Claim 37, Barr as modified teaches the animal litter device of claim 36.
Barr fails to disclose the animal litter device, wherein the fill line is positioned on the sidewall at least two inches above the floor.
However, Elfindale teaches a similar animal litter device wherein the fill line is positioned on the sidewall at least two inches above the floor (“The litter is provided in the basket to a depth of between about 1″ and 4″, with a depth of about 2″ to about 3″ being preferred. The basket may include a “fill line” or other indicator of the appropriate fill depth for the litter.” Paragraph [0087])
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have to have provided the container of Barr, with the fill line at least two inches above floor as taught by Elfindale, with reasonable expectation of success, in order to help prevent the user from using excessive amounts of litter which can lead to an increase in odor build up, since it has been held that rearranging parts of an invention involves only routine skill in the art. See MPEP § 2144.04(VI)(C); In re Japikse, 86 USPQ 70 (CCPA 1950); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975).
Response to Arguments
Applicant’s arguments, see Affidavit and remarks pages 4-7, filed 12/3/25, with respect to the 35 USC 112(a) Rejection have been fully considered and are persuasive. The 112(a) Rejection has been withdrawn. A copy of https://americansteel.com/embossing-mills/ has been attached as NPL for clarity of the record.
Applicant's arguments filed 12/3/25 have been fully considered but they are not persuasive.
In response to applicant's argument on pages 8-10 that modifying the litter box of Barr to be made of stainless steel would change the shape, construction and mechanism of Barr, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). In this instance, the shape as claimed is already taught by Barr, and the secondary reference of MacNeil, is simply teaching that it is well known in the art to have pet appliances made of stainless steel. Applicant further argues that Barr’s housing is structurally dependent on being made of plastic. The Office respectfully disagrees. Making Barr out of any type of metal would not destroy Barr, as it would not change the function or purpose of the container. While applicant argues that working with metal in creating certain shapes is more difficult, this does not mean that changing the material of Barr would destroy the invention.
Applicant’s arguments with respect to the reference Zahn have been considered but are moot because the new ground of rejection does not rely on any combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Newly added references MacNeil et al. (US 2018/0020637), Elfindale (US 2018/0199537), and Shri&Sam (https://shriandsam.com/products/measuring-bowl?srsltid=AfmBOopCXLdDHLsKg7AR4FG_bq5QP-5IFz1qtnJbS6kYyOPnoUcfl7Gr) in combination with previously used references, teach the currently amended claims as discussed above.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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/A.K.P./Examiner, Art Unit 3642
/JOSHUA D HUSON/Supervisory Patent Examiner, Art Unit 3642