DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. 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 § 112
2. 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.
3. Claims 1-20 are 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.
Regarding claim 1, from which claims 2-20 depend, it is not clear how any extension strap extends from a first edge of the base to another. Examiner notes the extension straps are disclosed as elements (36a-36f; para. [0051]); however, none of these straps appears to extend from one side of the base to the other. Instead, each appears to extend from a periphery of the base to hooks (42) which are not labeled in Figure 1, but appear to be located where each extension strap (36a-36f) points in the figure.
Regarding claim 17, it is not clear how the first extension strap comprises a connection element on an end thereof, if it extends from a first edge of the base to a second edge of the base. Examiner notes there does not appear to be any support for a connection element located at the edge.
Claim Rejections - 35 USC § 103
4. 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.
5. Claims 1, 3-9, 11, 12, and 17-20 are rejected under 35 U.S.C. 103 as being unpatentable over US 3,987,592 (Herminghaus) in view of US 6,003,929 (Birdsell).
Regarding claim 1, Herminghaus teaches a tarp apparatus for disposing over an opening comprising:
a base (1) comprising a fabric (col. 1, lines 5-6); and
a first reinforcement strap (2; taught to reinforce in col. 2, line 54) extending from a first edge of the base to a second edge of the base (the width measurement of the straps extends from a first edge in a direction towards the second edge), wherein the first reinforcement strap is rigidly held along its length to the base (taught to be secured with non-weldable material, including sewing; see col. 2, lines 64-68).
Herminghaus fails to teach a first extension strap extending from the first edge of the base, wherein the first extension strap extends from the first reinforcement strap and is adjustable in its length.
Birdsell, analogous to tarps, teaches a first extension strap (20) extending from the first edge of a base (22; Examiner notes the tarp is also rectangular, and the extension is perpendicular across the width of the tarp as oriented in Figure 2, thus extending from a first edge e.g. left side to a second edge e.g. right side), wherein the first extension strap extends from the first reinforcement strap and is adjustable in its length (col. 5, lines 8-13).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the tarp of Herminghaus, providng adjustable length straps as taught by Birdsell, motivated by the benefit of allowing the tarp to conform to various sized spaces, having a predictable outcome absent a teaching of an unexpected result. See KSR International Co. v. Teleflex Inc. et al. No. 04-1350, 550 U.S. 2007 at 13, lines 22-25 which states, “When a work is available in one field of endeavor, design incentives ...can prompt variations of it, either in the same field or a different one. Furthermore, see id. at 13, lines 27-31 which states “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious”. Furthermore, regarding the physical combination, the question is not whether the prior art devices can be physically combined, but whether a person of ordinary skill in the art would have found it obvious to combine different features or elements of known devices in a predictable way. See Orthopedic Equip. Co. v. United States, 702 F.2d 1005, 1013 (Fed. Cir. 1983): "There is a distinction between trying to physically combine the two separate apparatus disclosed in two prior art references on the one hand, and on the other hand trying to learn enough from the disclosures of the two references to render obvious the claims in suit. ...Claims may be obvious in view of a combination of references, even if the features of one reference cannot be substituted physically into the structure of the other reference." See MPEP 2145(III).
As such, after modification, the extension straps of Birdsell, extending perpendicularly from the edge, would overlap and thus extend from the reinforcement straps of Herminghaus, which run along the edge, i.e. the straps would form a “T-shape”. See annotated Birdsell Figure 2 with Herminghaus straps.
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Regarding claim 3, the first extension strap is connected through a cam buckle or a ratchet for adjusting the length of the extension strap (see cam buckle in Birdsell Figure 7; col. 4, lines 54-56).
Regarding claim 4, the cam buckle or the ratchet is attached to a base strap (Birdsell 23 connected to buckle 40; see Figure 2) but fails to teach that it is rigidly held to the first reinforcement strap.
However, Examiner notes Birdsell teaches the base strap (tension member 23) is fixed to the tarp by a variety of means (col. 4, lines 20-25). Examiner notes that because (23) clearly traverses the edge of the tarp as seen in Figure 2, it would be fixed to the first reinforcement member (2) of Herminghouse since the reinforcement member runs along that location.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the instant invention to rigidly hold the base strip and cam buckle of Birdsell to the first reinforcement strap of Herminghaus, because these elements are each taught to be fixed at their respective locations, which overlap each other in the combined prior art device, having a predictable outcome absent a teaching of an unexpected result.
Regarding claim 5, the first reinforcement strap is stitched to the base (Herminghaus reinforcement strap 2 taught to be secured with non-weldable material, including sewing; see col. 2, lines 64-68).
Regarding claim 6, Herminghaus in view of Birdsell as applied above fails to teach the base strap being stitched to the first reinforcement strap.
Examiner notes Birdsell teaches the base strap (tension member 23) is fixed to the tarp by a variety of means including sewing (col. 4, lines 20-25). Examiner notes that because (23) clearly traverses the edge of the tarp as seen in Figure 2, it would be fixed to the first reinforcement member (2) of Herminghouse since the reinforcement member runs along that location.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the instant invention to stitch the base strap of Birdsell to the first reinforcement strap of Herminghaus, because these elements are each taught to be fixed at their respective locations, which overlap each other in the combined prior art device, having a predictable outcome absent a teaching of an unexpected result.
Regarding claim 7, the first reinforcement strap extends from a first side of the base to a second side of the base (see extension of 2 in Herminghaus Figure 1 extending the full length of all sides, and thus from any one side to the opposing second side).
Regarding claim 8, the first reinforcement strap extends from a first corner of the base to a second corner of the base (see Herminghaus Figure 1 showing reinforcement strap 2 extends along all sides, and thus from corner to corner).
Regarding claim 9, further comprising:
a first edge reinforcement strap disposed along a first edge of the base (Examiner reads this as another edge length of reinforcement strap 2 in Herminghaus Figure 1 different from that used in claim 1, i.e. a left-to-right section, if the vertical section is used for claim 1).
Regarding claim 11, the tarp further comprising:
a first loop extending from the base (Examiner notes Birdsell teaches the straps form “an adjustable strap loop of variable size”; because a plurality of straps are taught by Birdsell, one can be read as a loop extending from the base).
Regarding claim 12, Herminghaus in view of Birdsell fails to teach the first loop extending from beneath the first edge reinforcement strap.
However, Examiner notes Birdsell teaches the base strap (tension member 23, which is a component of the overall extension strap 20) is fixed to the tarp by a variety of means including sewing (col. 4, lines 20-25). Examiner notes that because (23) clearly traverses the edge of the tarp as seen in Figure 2, it would be fixed to the first reinforcement member (2) of Herminghouse since the reinforcement member runs along that location. Additionally, a simple reversal of parts could locate the base strap (23) underneath the reinforcement strap (Herminghaus 2).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the instant invention the first loop (comprising one of the reinforcement straps of Herminghaus) underneath the reinforcement strap of Birdsell, because these elements are each taught to be fixed at their respective locations, which overlap each other in the combined prior art device, having a predictable outcome absent a teaching of an unexpected result. It has been held that a mere reversal of the essential working parts of a device involves only routine skill in the art. In re Einstein, 8 USPQ 167. See MPEP 2144.04(VI)(A).
Regarding claim 17, the first extension strap comprises a connection element on an end thereof (Birdsell hook 42; see col. 4, lines 29-32).
Regarding claim 18, the connection element is a hook (Birdsell hook 42; see col. 4, lines 29-32).
Regarding claim 19, further comprising:
a second extension strap (a second of Birdsell straps 20) extending from the second edge of the base (previously interpreted above with regard to claim 1 to extend from the first edge to the second edge, which can also be interpreted as extending from the second edge to the first edge), wherein the second extension strap extends from the first reinforcement strap and is adjustable in its length (by extending from the second edge to the first edge, i.e. right-to-left in Birdsell Figure 2, the extension strap 20 extends between reinforcement straps 2 of Herminghaus, thus meeting the claimed limitation).
Regarding claim 20, Herminghaus in view of Birdsell teaches a system comprising:
a waste hauler or a receiver box having an opening and an amount of waste within the waste hauler or the receiver box (read as the bed of the pickup truck A; Birdsell teaches a “load” in col. 1, line 14, which can be considered waste as there are no structural or functional features read into the term “waste” beyond those explicitly claimed); and the tarp apparatus of claim 1 (the combined tarp of Hermingaus in view of Bridsell as combined above with regard to claim 1) wherein the tarp apparatus is disposed over the opening, wherein the first extension strap is attached to a connection element on the waste hauler or the receiver box (see Birdsell Figure 9 where hook 42 secures to lip B; see col. 4, lines 34-36).
6. Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over US 3,987,592 (Herminghaus) in view of US 6,003,929 (Birdsell) as applied above to claim 1, and further in view of US 2007/0245479 (Schroeder).
Regarding claim 2, Herminghaus in view of Birdsell as applied above fails to teach the base being made from a geotextile.
Schroeder, analogous to protective covers, teaches it is known to form such covers of a geotextile, and further teaches they are flexible and can conform to uneven surfaces without being punctured.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the tarp of Herminghaus in view of Birdsell, forming it of a geotextile such as that taught by Schroeder, motivated by the benefit of allowing it to conform to uneven surfaces without being punctured, having a predictable outcome absent a teaching of an unexpected result. See KSR International Co. v. Teleflex Inc. et al. No. 04-1350, 550 U.S. 2007 at 13, lines 22-25 which states, “When a work is available in one field of endeavor, design incentives ...can prompt variations of it, either in the same field or a different one. Furthermore, see id. at 13, lines 27-31 which states “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious”.
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. See MPEP 2144.07.
7. Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over US 3,987,592 (Herminghaus) in view of US 6,003,929 (Birdsell) as applied above to claims 4 and 9, and further in view of US 1,964,555 (Barbour).
Regarding claim 10, Herminghaus in view of Birdsell as applied above fails to teach the first edge reinforcement strap being folded over the first edge of the base and rigidly held to both the top of the base and the bottom of the base.
Examiner notes Herminghaus teches providing reinforcement strips (2) on both the upper and lower surfaces as seen in Figure 3, but does not teach a single strip folded over the base edge.
Barbour (Figure 7) teaches a reinforcing strip (3) folded around an edge creating an upper side (4) and lower side (5) which are stitched (6).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the tarp of Herminghaus in view of Birdsell, providing the reinforcement strip as a single strip folded over the first edge of the base as taught by Barbour, motivated by the benefit of using a single piece instead of having to form multiple pieces, having a predictable outcome absent a teaching of an unexpected result. See KSR International Co. v. Teleflex Inc. et al. No. 04-1350, 550 U.S. 2007 at 13, lines 22-25 which states, “When a work is available in one field of endeavor, design incentives ...can prompt variations of it, either in the same field or a different one. Furthermore, see id. at 13, lines 27-31 which states “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious”.
8. Claims 13-16 are rejected under 35 U.S.C. 103 as being unpatentable over US 3,987,592 (Herminghaus) in view of US 6,003,929 (Birdsell) as applied above to claim 1, and further in view of US 5,050,924 (Hansen).
Regarding claim 13, Herminghaus in view of Birdsell as applied above fails to teach the tarp further comprising a reflective material on the base.
Hansen, analogous to tarps which cover truck beds, teaches the tarp may comprise a reflective paint or reflector a safety feature (col. 7, line 62 through col. 8, line 12).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the tarp of Herminghaus in view of Birdsell, providing a reflective material on the base as taught by Hansen, motivated by the benefit of providing a safety feature, having a predictable outcome absent a teaching of an unexpected result. See KSR International Co. v. Teleflex Inc. et al. No. 04-1350, 550 U.S. 2007 at 13, lines 22-25 which states, “When a work is available in one field of endeavor, design incentives ...can prompt variations of it, either in the same field or a different one. Furthermore, see id. at 13, lines 27-31 which states “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious”.
Regarding claim 14, Herminghaus in view of Birdsell as applied above teaches the tarp further comprising:
a second reinforcement strap (Herminghaus 2), wherein the second reinforcement strap is rigidly held along its length to the base (taught to be secured with non-weldable material, including sewing; see Herminghaus col. 2, lines 64-68); and
a second extension strap (one of Birdsell straps 20) extending from the second edge of the base, wherein the second extension strap extends from the second reinforcement strap and is adjustable in its length (previously taught above with regard to the rejection of claim 1), but fails to teach:
the second reinforcement strap extending from a second edge of the base to a third edge of the base.
Examiner notes the orientation used by the Examiner for claim 1 above requires opposing sides of a rectangle as being the first and second sides, and thus for this claim, the straps would have to instead extend to adjacent sides.
Hansen teaches a tarp for covering a bed of a truck, and further shows how securing straps can be located such that they extend diagonally from a second edge (e.g. second side) to a third side (e.g. a side adjacent to the second side), as clearly seen by the crisscrossing arrangement of the straps in Figures 1 and 2. Moreover, the reference teaches the configuration provides reinforcement (see Abstract).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the tarp of Herminghaus in view of Birdsell, forming a second reinforcement strap to extend from a second edge to a third edge as taught by Hansen, motivated by the benefit of reinforcing the tarp, having a predictable outcome absent a teaching of an unexpected result. See KSR International Co. v. Teleflex Inc. et al. No. 04-1350, 550 U.S. 2007 at 13, lines 22-25 which states, “When a work is available in one field of endeavor, design incentives ...can prompt variations of it, either in the same field or a different one. Furthermore, see id. at 13, lines 27-31 which states “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious”.
Moreover, a rearrangement of the parts of the prior art is obvious, absent a teaching of an unexpected result. See MPEP 2144.04(VI)(C). In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice).
Regarding claim 15, the second reinforcement strap is stitched to the base (taught to be secured with non-weldable material, including sewing; see Herminghaus col. 2, lines 64-68).
Regarding claim 16, Herminghaus in view of Birdsell and Hansen, as applied above, fails to teach the first reinforcement strap and the second reinforcement strap cross each other on the base.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the tarp of Herminghaus in view of Birdsell, forming the first reinforcement strap and the second reinforcement strap cross each other on the base as taught by Hansen, motivated by the benefit of reinforcing the tarp, having a predictable outcome absent a teaching of an unexpected result. See KSR International Co. v. Teleflex Inc. et al. No. 04-1350, 550 U.S. 2007 at 13, lines 22-25 which states, “When a work is available in one field of endeavor, design incentives ...can prompt variations of it, either in the same field or a different one. Furthermore, see id. at 13, lines 27-31 which states “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious”.
Moreover, a rearrangement of the parts of the prior art is obvious, absent a teaching of an unexpected result. See MPEP 2144.04(VI)(C). In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES N SMALLEY whose telephone number is (571)272-4547. The examiner can normally be reached M-F 9:00 am to 6:00 pm.
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/JAMES N SMALLEY/Examiner, Art Unit 3733