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 .
Status of Claims
This is a FINAL Rejection to Amendments and Arguments filed by Applicant on 05/16/2025. Claims 1-14 have been amended. Claims 15-20 have been added. Currently pending for review are Claims 1-20.
Response to Amendment
Regarding the Claim Objections made in the Office Action filed on 05/07/2025. Amendments/Remarks & Arguments filed by Applicant on 05/16/2025 correct the objection and/or are persuasive. Therefore, the Claim Objections made in the Office Action filed on 05/07/2025 has been withdrawn unless otherwise indicated below.
Regarding the 35 U.S.C. 112(b) Rejections made in the Office Action filed on 05/07/2025. Amendments/Remarks & Arguments filed by Applicant on 05/16/2025 correct the rejection and/or are persuasive. Therefore, the 35 U.S.C. 112(b) Rejections made in the Office Action filed on 05/07/2025 has been withdrawn unless otherwise indicated below.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 17-20 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claims 17-20 recite limitations that are considered new matter since they claim elements more broadly using language that are not supported in the original disclosure.
Claim 17 recites “at least one attachment element” and “underlying support”.
Claim 18 recites “buoyant element”.
Claim 19 recites “allowing the infants head and/or lower body to extend through one or both open ends”.
Claim 20 recite “density greater than density of a material forming at least one of the side walls”. Applicant may overcome the rejection by clearly pointing out support in the original disclosure, amending, or cancelling the claims.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 17 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 17 recites the limitation "the first surface" in line 2. There is insufficient antecedent basis for this limitation in the claim. In order to proceed, “the” will be replaced with --a--.
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.
This application includes one or more claim limitations that use the word “means,” are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “suction means” in Claims 5, 6, 12, and 13
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. Paragraph [0032] In some embodiments, the base10 is secured to the floor of a bathtub with one or more suction cups connected to the underside of the base10..”.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1 and 15-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Warmuth-Rued (US 20120015571 A1).
Regarding Claim 1, Warmuth-Rued teaches a water skills training device comprising: a base 2, the base having a lower portion and an upper portion, the lower portion having an outer rim and a first width, the upper portion having a top surface and a second width, the first width being greater than or equal to the second width; and
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a receptacle 10 removably engaged connected to the upper portion of the base 2, the receptacle having a floor 10, two opposing ears 12,13 extending from the floor, and two longitudinally open ends (Refer to Fig. 1 to depict that a longitudinal opening runs between the ears 12,13).
Regarding Claim 15, Warmuth-Rued teaches a water skills training device comprising: a base 2 having a lower portion and an upper portion (Refer to annotated Fig. 2 above); and at least two spaced-apart side walls 10,12,13 extending upwardly from the base 2 and cooperatively defining a generally U-shaped cradle that is open at opposite longitudinal ends (Refer to Fig. 1).
Regarding Claim 16, Warmuth-Rued continues to teach wherein the base 2 includes a peripheral rim forming a footprint wider than a footprint of the cradle 10,12,13 (Refer to annotated Fig. 1 above).
Regarding Claim 17, Warmuth-Rued continues to teach further comprising at least one attachment element 22 on the first surface configured to releasably secure the device to an underlying support 8.
Regarding Claim 18, Warmuth-Rued continues to teach further comprising a buoyant element 8 tethered 18,19 to the device.
Regarding Claim 19, Warmuth-Rued continues to teach wherein the cradle 10,12,13 is sized and configured to laterally support a torso region of an infant while allowing the infant's head and/or lower body to extend through one or both open ends (Refer to Figs. 1&2, the Office takes the position that the device is capable of supporting a torso of an infant).
Regarding Claim 20, Warmuth-Rued continues to teach wherein the base 2 is formed of a material having a density greater than a density of a material forming at least one of the side walls 12,13 (Refer to Paragraph [0033]:” The wall of the ring 2 is advantageously made from plastic material and may include reinforcement material.”..& Paragraph [0036]:” The walls of the hollow wings 12, 13 and of the hollow base component 8 are advantageously made from plastic material and may include reinforcement material.”..The Office takes the position that the base 2 is made with the reinforcement material and the wings 12,13 are not and therefore the base will have a density greater than the walls).
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.
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(s) 3 and 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Warmuth-Rued (US 20120015571 A1).
Regarding Claim 3, Warmuth-Rued teaches the claimed invention as noted above wherein Warmuth-Rued teaches the base made of a plastic material and reinforced plastic material and receptacle 10 made of a plastic material (Refer to Paragraph [0033]:” The wall of the ring 2 is advantageously made from plastic material and may include reinforcement material.”..& Paragraph [0036]:” The walls of the hollow wings 12, 13 and of the hollow base component 8 are advantageously made from plastic material and may include reinforcement material.”). Although Warmuth-Rued does not expressly disclose wherein the lower portion of the base is constructed of a denser material than the upper portion of the base and the receptacle. The Office takes the position that it would have been obvious to modify the materials of Warmuth-Rued such that the lower portion of the base is constructed of a denser material of plastic including the reinforcement material and the upper portion of the base and the receptacle are constructed of the plastic material since Warmuth-Rued teaches that such materials of differing densities are suitable for the device and 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.
Regarding Claim 4, Warmuth-Rued teaches the claimed invention as noted above wherein Warmuth-Rued teaches the receptacle ears 12,13 have a shape but fails to teach wherein the receptacle's ears are hexagonally shaped. The Office takes the position that Applicant does not provide criticality to the hexagonal shape and indicates any shape is suitable (Refer to Paragraph [0028]), and therefore it would have been obvious to modify the receptacle ears 12,13 or be hexagonal or any shape since the changes in shape claimed represent a design choice, and so a person of ordinary skill in the art at the time of invention would have found that the change in shape did not sufficiently alter the device as it was an obvious change motivated by manufacturing parameters or user preference. See re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1996).
Allowable Subject Matter
Claim 14 is allowed.
Claims 2 and 5-13 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is an examiner’s statement of reasons for allowance: Warmuth-Rued is the closest prior art to the claimed invention but fails to teach the claimed invention as a whole being water skills training device comprising: a base, the base having a lower portion and an upper portion, the lower portion having an outer rim and a first width, the upper portion having a top surface and a second width, the first width being greater than or equal to the second width; and a receptacle connected to the upper portion of the base, the receptacle having a floor, two opposing ears extending from the floor, and two longitudinally open ends, further comprising a tether with a first end and a second end removably engaged to the outer rim of the base's lower portion with at least one fastener selected from the group consisting of hook-and-loop fasteners, magnets, latches, and carabiners;a floatation cushion removably engaged to the tether with at least one fastener selected from the group consisting of hook-and-loop fasteners, magnets, latches, and carabiners;wherein the floatation cushion is constructed of a buoyant material and is configured to support an infant's head or upper torso during water skills training; a suction means connected to the underside of the base; 7. (Amended) The water skills training device of claim 1,further comprising: - 2 - Mary Eileen Taylor Appl. No. 17/716,509 a first tether removably engaged to the outer rim of the base's lower portion with at least one fastener selected from the group consisting of hook-and-loop fasteners, magnets, latches, and carabiners; a second tether removably engaged to the outer rim of the base's lower portion with at least one fastener selected from the group consisting of hook-and-loop fasteners, magnets, latches, and carabiners; a floatation cushion having a first end and a second end; wherein the first end is removably engaged to the first tether with at least one fastener selected from the group consisting of hook-and-loop fasteners, magnets, latches, and carabiner; wherein the second end is removably engaged to the second tether with at least one fastener selected from the group consisting of hook-and-loop fasteners, magnets, latches, and carabiners; and wherein the floatation cushion is constructed of a buoyant material and is configured to support an infant's head or upper torso during water skills training; and/or a method of training one or more infants water skills comprising: obtaining a water skills training device comprising: a base, said base having a lower portion and an upper portion, said lower portion having an outer rim and a first width, said upper portion having a top surface and a second width, the first width being greater than or equal to the second width; a receptacle removably engaged to the upper portion of the base, the receptacle having a floor and two opposing ears extending from the floor; and a floatation cushion removably engaged to the base with one or more tethers and configured to configured to support an infant's head or upper torso during water skills training; and placing an infant in the receptacle with their back or tummy in contact with the floor of the receptacle.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Response to Arguments
Applicant’s arguments filed on 05/16/2025 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
In regards to the 112(f) Interpretation, reconsideration has been made and applied to the limitation of “suction means” as disclosed 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NYCA T NGUYEN whose telephone number is (571)272-7168. The examiner can normally be reached Mon-Fri 9:00-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Loan Jimenez can be reached at 571-272-4966. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/NYCA T NGUYEN/ Primary Examiner, Art Unit 3784