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 .
Drawings
The drawings are objected to because the drawings have a line and shading quality that is too dark distinguish between different features and too dark to be reproduced. Refer to 37 CFR1.84(l). See Figures 1-6 and 12. The applicant has submitted color drawings for Figures 1-6 and 12. 37 CFR 1.84(a)(2) states in relevant part: The Office will accept color drawings in utility patent applications only after granting a petition filed under this paragraph explaining why the color drawings are necessary. Color drawings are permitted on rare occasions in a utility patent application only if the color drawings are of sufficient quality such that all the details in the drawings are reproducible in black and white in the printed patent. See 37 CFR 1.84(a). In the present application, the color drawings are not of sufficient quality. In corresponding US 2024/0009534 A1, Figures 1-6 and 12 have a line and shading quality that is too dark to distinguish between different features. Furthermore, no petition has been received. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the first diameter being equal to the second diameter as recited in claim 12, the first diameter being less than the second diameter as recited in claim 13, and the top and bottom being polygonal in shape as recited in claim 14 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claim 9 is objected to because of the following informalities: Regarding claim 9, line 2, “the plane” and “the edge” should be changed to a plane and an edge, respectively, since neither has been previously introduced. Appropriate correction is required.
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.
Claims 16-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more. Claims 16-20 are directed to an idea in the form of rules for playing a game. The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because a bucket does not add a meaningful limitation to the abstract idea because buckets/cups are routine in many known yard and drinking games such as beer pong, yard pong, flip cup, and bucket ball. These claims are essentially an abstract idea in the form of organizing human activity as rules for participating in/playing a game.
Claims 16-20 recite providing a bucket, flipping a bucket, determining the position of the bucket, and determining success. These steps describe the concept of steps and rules for playing/participating in a game. An example of a claim reciting following rules or instructions is In re Marco Guldenaar Holding B.V., 911 F.3d 1157, 1161, 129 USPQ2d 1008, 1011 (Fed. Cir. 2018). The patentee claimed a method of playing a dice game including placing wagers on whether certain die faces will appear face up. 911 F.3d at 1160; 129 USPQ2d at 1011. The Federal Circuit determined that the claims were directed to the abstract idea of "rules for playing games," which the court characterized as a certain method of organizing human activity. See MPEP 2106.04(a)(2) II C.
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements when considered both individually and as an ordered combination do not amount to significantly more than the abstract idea. The additional element of a bucket is recited at a high level of generality and performs generic functions. Thus, taken alone, the additional elements do not amount to significantly more than the above identified judicial exception (the abstract idea). Looking at the additional elements in an ordered combination adds nothing that is not already present when looking at the elements taken individually. There is nothing particular to the bucket that makes it specific to this method. The claims, as a whole, are directed to the abstract concept of rules for participating in/playing a game. These abstract concepts are not patent eligible.
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.
Claims 1-9 and 14-15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Campbell (“Everything You Need For a Fun Beach Vacation for the Whole Family”).
Regarding claim 1, Campbell discloses a device (pail and shovel toy set) for a flipping game or contest, comprising: a bucket (“bucket;” hereinafter see annotated Figure below for all reference labels) with a top (“top”) and a bottom (“bottom”), wherein the bottom has an outer perimeter; at least one cutout (“cutout”) in the outer perimeter of the bottom, said at least one cutout having a depth extending a distance inward (Campbell and annotated Figure below). Regarding the recitation that the device is “for a flipping game or contest,” it has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. See MPEP 2111.02 II. Furthermore, Campbell’s device is capable of performing this use.
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Regarding claim 2, Campbell discloses the device of claim 1, where there are at least two cutouts (see annotated Figure above; wherein each of the four sides has a cutout).
Regarding claim 3, Campbell discloses the device of claim 1, where there are at least four cutouts (see annotated Figure above; wherein each of the four sides has a cutout).
Regarding claim 4, Campbell discloses the device of claim 3, wherein the cutouts are the same size, and are equally spaced around the outer perimeter (see annotated Figure above).
Regarding claim 5, Campbell discloses the device of claim 1, wherein the at least one cutout has a height and length sufficient to receive the ends of a user's fingers (note size of children’s fingers in banner photo of Campbell, also see annotated Figure above). Although, shown in Campbell, it should be appreciated that the applicant’s functional language in the claim (having a height and length sufficient to receive the ends of a user’s fingers) does not serve to impart patentability. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. Apparatus claims cover what a device is, not what a device does. A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior apparatus teaches all the structural limitations of the claims. See MPEP 2114.
Regarding claim 6, Campbell discloses the device of claim 1, wherein the bottom is closed and the top is open (see annotated Figure above).
Regarding claim 7, Campbell discloses the device of claim 1, further comprising at least one opening (“opening;” specifically, see hole in tab near top of bucket) in a side of the bucket proximate the top (see annotated Figure above).
Regarding claim 8, Campbell discloses the device of claim 1, wherein the top is flat (see annotated Figure above).
Regarding claim 9, Campbell discloses the device of claim 1, wherein the top does not have a handle or tabs extending above the plane formed by the edge of the top (see far right bucket in banner photo of Campbell; wherein no handle or tabs extend above the plane formed by the edge of the top when the handle is lowered).
Regarding claim 14, Campbell discloses the device of claim 1, wherein the top is polygonal in shape (square), and the bottom is polygonal in shape (square) (see banner photo of Campbell).
Regarding claim 15, Campbell discloses the device of claim 1, further comprising one or more liquid level indicators (“indicators”) on the inside and/or outside of the bucket (see annotated Figure above).
Claims 1-6, 8-9, and 15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Koennecke et al. (US D622,105 S; hereinafter Koennecke).
Regarding claim 1, Koennecke discloses a device (Figure 1) for a flipping game or contest, comprising: a bucket [A] (see annotated Figure 1 below for all reference letters) with a top [B] and a bottom [C], wherein the bottom [C] has an outer perimeter [D]; at least one cutout [E] in the outer perimeter [D] of the bottom [C], said at least one cutout [E] having a depth extending a distance inward (Figures 2-5 and annotated Figure 1 below).
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Regarding claim 2, Koennecke discloses the device of claim 1, where there are at least two cutouts [E] (Figures 3, 5, and annotated Figure 1 above; wherein there are four cutouts).
Regarding claim 3, Koennecke discloses the device of claim 1, where there are at least four cutouts [E] (Figures 3, 5, and annotated Figure 1 above; wherein there are four cutouts).
Regarding claim 4, Koennecke discloses the device of claim 3, wherein the cutouts [E] are the same size, and are equally spaced around the outer perimeter [D] (Figures 3, 5, and annotated Figure 1 above).
Regarding claim 5, Koennecke discloses the device of claim 1, wherein the at least one cutout [E] has a height and length sufficient to receive the ends of a user's fingers (annotated Figure 1 above). It should be appreciated that the applicant’s functional language in the claim (having a height and length sufficient to receive the ends of a user’s fingers) does not serve to impart patentability. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. Apparatus claims cover what a device is, not what a device does. A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior apparatus teaches all the structural limitations of the claims. See MPEP 2114. Furthermore, Koennecke’s cup is able to perform this function as the tip of a user’s finger could rest in the cutout.
Regarding claim 6, Koennecke discloses the device of claim 1, wherein the bottom [C] is closed and the top [B] is open (annotated Figure 1 above).
Regarding claim 8, Koennecke discloses the device of claim 1, wherein the top [B] is flat (Figures 2, 4, and annotated Figure 1 above).
Regarding claim 9, Koennecke discloses the device of claim 1, wherein the top [B] does not have a handle or tabs extending above the plane formed by the edge of the top [B] (Figures 2, 4, and annotated Figure 1 above).
Regarding claim 15, Koennecke discloses the device of claim 1, further comprising one or more liquid level indicators [F] on the inside and/or outside of the bucket [A] (annotated Figure 1 above).
Claims 1-3, 5-6, 8-11, and 15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Smith et al. (US D516,378 S; hereinafter Smith).
Regarding claim 1, Smith discloses a device (Figure 1) for a flipping game or contest, comprising: a bucket [G] (see annotated Figure 1 below for all reference letters) with a top [H] and a bottom [I], wherein the bottom [I] has an outer perimeter [J]; at least one cutout [K] in the outer perimeter [J] of the bottom [I], said at least one cutout [K] having a depth extending a distance inward (Figures 2-5 and annotated Figure 1 below).
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Regarding claim 2, Smith discloses the device of claim 1, where there are at least two cutouts [K] (Figure 4 and annotated Figure 1 above; wherein there are four cutouts).
Regarding claim 3, Smith discloses the device of claim 1, where there are at least four cutouts [E] (Figure 4 and annotated Figure 1 above; wherein there are four cutouts).
Regarding claim 5, Koennecke discloses the device of claim 1, wherein the at least one cutout [E] has a height and length sufficient to receive the ends of a user's fingers (annotated Figure 1 above). It should be appreciated that the applicant’s functional language in the claim (having a height and length sufficient to receive the ends of a user’s fingers) does not serve to impart patentability. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. Apparatus claims cover what a device is, not what a device does. A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior apparatus teaches all the structural limitations of the claims. See MPEP 2114. Furthermore, Smith’s cup is able to perform this function as the tip of a user’s finger could rest in the cutout.
Regarding claim 6, Smith discloses the device of claim 1, wherein the bottom [H] is closed and the top [I] is open (annotated Figure 1 above).
Regarding claim 8, Smith discloses the device of claim 1, wherein the top [H] is flat (Figures 2-3 and annotated Figure 1 above).
Regarding claim 9, Koennecke discloses the device of claim 1, wherein the top [H does not have a handle or tabs extending above the plane formed by the edge of the top [G] (Figures 2-3 and annotated Figure 1 above).
Regarding claim 10, Smith discloses the device of claim 1, wherein the top [H] is circular with a first diameter, and the bottom [I] is circular with a second diameter (see Figures 2-4 and annotated Figure 1 above).
Regarding claim 11, Smith discloses the device of claim 10, where the first diameter is greater than the second diameter (Figures 2-4 and annotated Figure 1 above).
Regarding claim 15, Koennecke discloses the device of claim 1, further comprising one or more liquid level indicators [L] on the inside and/or outside of the bucket [G] (annotated Figure 1 above).
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.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Koennecke as applied to claim 1 above, and further in view of JP 3227310 U using machine translation; hereinafter JP.
Regarding claim 7, Koennecke does not disclose at least one opening in a side of the bucket proximate the top. JP, however, teaches a similar bucket (“cup”) further comprising at least one opening (“hole”) in a side of the bucket proximate the top (pages 1-2 and Figures 1, 2, and 5). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to configure Koennecke’s cup to have a hole because JP teaches that plastic disposable cups for beverages are commonly used for urinalysis and that a hole allows a finger to be put therein for stably handling the cup with one hand (page 1).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Smith as applied to claim 1 above, and further in view of JP.
Regarding claim 7, Smith does not disclose at least one opening in a side of the bucket proximate the top. JP, however, teaches a similar bucket (“cup”) further comprising at least one opening (“hole”) in a side of the bucket proximate the top (pages 1-2 and Figures 1, 2, and 5). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to configure Smith’s cup to have a hole because JP teaches that plastic disposable cups for beverages are commonly used for urinalysis and that a hole allows a finger to be put therein for stably handling the cup with one hand (page 1).
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Smith as applied to claim 10 above, and further in view of Guo (CN 201238918 Y using machine translation).
Regarding claim 12, Smith does not disclose the first diameter being equal to the second diameter. Guo, however, teaches a similar bucket [1] having a top with a first diameter and a bottom with a second diameter, where the first diameter is equal to the second diameter (pages 1-2 and Figure 1; wherein the cup is cylindrical). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to configure Smith’s first diameter to be equal to the second diameter such that the cup is cylindrical because Guo teaches that this configuration has the advantages of practicability, beauty, and function (pages 1-2).
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Smith as applied to claim 10 above, and further in view of Tang et al. (CN 110436058 A using machine translation; hereinafter Tang).
Regarding claim 13, Smith does not disclose the first diameter being less than the second diameter. Tang, however, teaches a similar bucket [1] having a top [5] with a first diameter and a bottom [10] with a second diameter, where the first diameter is less than the second diameter (pages 1-2, 4, and Figures 1 and 3). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to configure Smith’s first diameter to be less than the second diameter because Tang teaches that this configuration preserves heat for a long time and prevents spilling (pages 1-2).
Claims 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Koennecke as applied to claim 1 above, and further in view of “Flip Cup.”
Regarding claims 16-20, Koennecke is silent regarding a method for playing a game with a bucket. Flip Cup, however, teaches a method for playing a game with a bucket (“cup”), comprising: providing a bucket (“cup”); placing the bucket (“cup”) on a surface (“table”) with the bottom in contact with the surface (“table”); placing, by a first user, one or more fingers on a hand of the first user on the bottom of the bucket (“cup”); and moving, by the first user, his or her hand in an upward direction, causing the bucket (“cup”) to flip (“flip”) or rotate in the air; further comprising the step of determining success (“flip is achieved”) if the bucket (“cup” lands in a pre-determined position (“it lands straight up or down”); wherein the pre-determined position (“it lands straight up or down”) is top-down (“down”); wherein the pre-determined position (“it lands straight up or down”) is bottom-down (“up”); further comprising the step of filling the bucket (“cup”) with a liquid (“fill all the cups approximately half way with fluids”) (Flip Cup). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to use Koennecke’s bucket as the cup in Flip Cup since it is notoriously well known in the art to use disposable cups to play flip cup. A user is more than capable of inserting a finger into Koennecke’s cutout [E] while flipping if so desired and would likely occur spontaneously after repetition of the fast-paced game.
Claims 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Smith as applied to claim 1 above, and further in view of “Flip Cup.”
Regarding claims 16-20, Smith is silent regarding a method for playing a game with a bucket. Flip Cup, however, teaches a method for playing a game with a bucket (“cup”), comprising: providing a bucket (“cup”); placing the bucket (“cup”) on a surface (“table”) with the bottom in contact with the surface (“table”); placing, by a first user, one or more fingers on a hand of the first user on the bottom of the bucket (“cup”); and moving, by the first user, his or her hand in an upward direction, causing the bucket (“cup”) to flip (“flip”) or rotate in the air; further comprising the step of determining success (“flip is achieved”) if the bucket (“cup” lands in a pre-determined position (“it lands straight up or down”); wherein the pre-determined position (“it lands straight up or down”) is top-down (“down”); wherein the pre-determined position (“it lands straight up or down”) is bottom-down (“up”); further comprising the step of filling the bucket (“cup”) with a liquid (“fill all the cups approximately half way with fluids”) (Flip Cup). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to use Smith’s bucket as the cup in Flip Cup since it is notoriously well known in the art to use disposable cups to play flip cup. A user is more than capable of inserting a finger into Smith’s cutout [K] while flipping if so desired and would likely occur spontaneously after repetition of the fast-paced game.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See Reimann (US 2020/0391135 A1), Brownsberger (US 2022/0215191 A1), Smith et al. (US 2005/0061821 A1), Heimsoth et al. (US D769,070 S), Donovan (GB 183,053 A), “Rainbow BigTop Bucket Bonanza Set,” and “200 oz Party Plastic Ice Bucket W/ Handles,” which all disclose similar cups/buckets.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AUDREY B. WALTER whose telephone number is (571)270-5286. The examiner can normally be reached Monday - Friday: 8:30 am - 4:30 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eugene Kim can be reached at 571-272-4463. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AUDREY B. WALTER/Primary Examiner, Art Unit 3711