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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 11/10/2025 has been entered.
Claim Rejections - 35 USC § 112
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 10 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 10 recites “wherein each of the apertures of the hose extends along an axis not in perpendicular to the axis along which the hose extends” however it is unclear if “an axis” is meant to refer back to the now claimed “minor axis” of claim 1 or to a completely separate axis and further, with the uncertainty created by that limitation, it is also unclear if “the axis” is then meant to refer back to the now claimed “major axis” of claim 1 or to a completely separate axis. As such, the metes and bounds of the claim cannot be determined and the claim is rendered indefinite.
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 1 and 3-10 are rejected under 35 U.S.C. 103 as being unpatentable over Green (US Pat No 3,946,762) in view of Ingham et al. (US Pat No 2,631,058). All citations to Green unless specified otherwise.
Re claim 1, Green shows a soak-away (Figs. 1-3) comprising:
a hose (15) for allowing liquid to travel in and along it, wherein the hose (15) extends along a major axis (see annotated figure) and comprises a wall and apertures (26) each of which extends through the wall of the hose along a minor axis (see annotated figure) that is slant relative to the major axis in a plane (see annotated figure) perpendicular to the major axis to allow some of the liquid to travel through each of the apertures (26) of the hose along the corresponding minor axis, which remains slanted relative to the major axis in the plane as the liquid travels in and along the hose; and
a soak-away sleeve (24) for wrapping the hose (15), wherein the soak-away sleeve (24) comprises apertures (col. 2, lines 51-59) through which the liquid is allowed to go out of the soak-away sleeve (24), wherein the apertures of the soak-away sleeve are smaller than the apertures (26) of the hose (15).
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Green does not teach a thickened portion formed on the wall, and apertures each of which extends through the thickened portion of the wall.
However, Ingham et al. show a hose (Figs. 5 & 6) with a thickened portion formed on the wall (Fig. 6) and apertures (16) each of which extends through the thickened portion of the wall.
Therefore, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to have the motivation to have the hose of Green include a thickened portion as taught by Ingham et al. which allows nozzle liners to be easily inserted to provide nozzles of different material than the spray tube body (col. 3, lines 65-70).
Re claim 3, Green as modified by Ingham et al. show the thickened portion (Ingham – Fig. 6) of the hose is formed on an internal face of the wall of those.
Re claim 4, Green as modified by Ingham et al. disclose the soak-away sleeve (24) is a woven element (col. 2, lines 47-51) made by twill weave.
As to the recited process of twill weave such is a product-by-process recitation. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or an obvious variant from a product in the prior art, the claim is unpatentable even though the prior product was made by a different process (See MPEP 2113). Further, it is well known in the art to utilize a woven material with interstices to provide capillary action for a uniform distribution of irrigation liquid. Further, no criticality is apparent for the claimed process.
Re claim 5, Green as modified by Ingham et al. disclose all aspects of the claimed invention but does not teach the apertures of the soak-away sleeve are rhombus.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the small apertures be rhombus, 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. Further, no criticality is apparent for the claimed shape.
Re claim 6, Green as modified by Ingham et al. disclose the soak-away sleeve (24) is a woven element (col. 2, lines 47-51) made by cross weave.
As to the recited process of cross weave such is a product-by-process recitation. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or an obvious variant from a product in the prior art, the claim is unpatentable even though the prior product was made by a different process (See MPEP 2113). Further, it is well known in the art to utilize a woven material with interstices to provide capillary action for a uniform distribution of irrigation liquid. Further, no criticality is apparent for the claimed process.
Re claim 7, Green as modified by Ingham et al. disclose all aspects of the claimed invention but does not teach the apertures of the soak-away sleeve are rectangular.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the small apertures be rectangular, 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. Further, no criticality is apparent for the claimed shape.
Re claim 8, Green as modified by Ingham et al. disclose the soak-away sleeve (24) is a woven element (col. 2, lines 47-51) made by twill weave and cross weave.
As to the recited process of twill weave and cross weave such is a product-by-process recitation. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or an obvious variant from a product in the prior art, the claim is unpatentable even though the prior product was made by a different process (See MPEP 2113). Further, it is well known in the art to utilize a woven material with interstices to provide capillary action for a uniform distribution of irrigation liquid. Further, no criticality is apparent for the claimed processes.
Re claim 9, Green as modified by Ingham et al. disclose all aspects of the claimed invention but does not teach some of the apertures caused by the twill weave are smaller than some others of the apertures made by the cross weave.
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to utilize smaller apertures for the twill weave since our reviewing courts have held that where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984). Further, no criticality is apparent for the claimed relative dimensions.
Re claim 10, Green as modified by Ingham et al. show each of the apertures (26) of the hose extends along an axis (“minor axis” in annotated figure) not in perpendicular to the axis (“major axis in annotated figure) along which the hose extends.
Response to Arguments
Applicant's arguments filed 11/10/2025 have been fully considered but they are not persuasive. Regarding applicant’s argument of Green in view of the newly amended claim 1, applicant’s merely state on page 5 that “Green obviously fails to disclose the above-caption features at all” which refers to the paragraph above on page 5 that merely repeats the newly amended claim limitations. This is merely a conclusory statement with no actual evidence or reason as to why Green does not teach these limitations and further, as demonstrated by the annotated figure above, Green does in fact teach these limitations. The Ingham reference is not being relied upon for these specific limitations.
In light of applicant’s remarks, all prior art rejections shall be maintained.
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 STEVEN MICHAEL CERNOCH whose telephone number is (571)270-3540. The examiner can normally be reached Mon-Fri; 8am-5pm.
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STEVEN MICHAEL CERNOCH
Primary Examiner
Art Unit 3752
/STEVEN M CERNOCH/Primary Examiner, Art Unit 3752