DETAILED ACTION
This Office Action is responsive to application number 18/234,249 - NON-INFLATABLE ABOVE-GROUND POOL, filed on 8/15/23. Claims 1-22 are pending.
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Applicant's election with traverse of Species A, sub-species c in the reply filed on 12/23/25 is acknowledged.
Claims 3-4, 6 and 13-22 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected Species and subspecies, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 12/23/25. The traversal is on the ground(s) that the for the sub-species a-f, the Office has not established that there is a search or examination burden. It is further argued that the sub-species do not change the underlying structure or formation of the pool. This is not found persuasive because the claims are drawn to several sub-species, requiring different search queries for each sub-species’ structural difference. Several of the different sub-species are mutually exclusive according to the shown structural characteristics of each sub-species, which would require at least different search queries and different examination consideration. Applicant argues that the resulting product or underlying structure or formation of the pool would require examination of the same core limitations, however, the different structures and characteristics of the sub-species are claimed and would require different queries and examination. A claim with similar core limitations across species would be considered a generic claim, and does not negate the propriety of a restriction requirement between species. The requirement is still deemed proper and is therefore made FINAL.
Claim Rejections - 35 USC § 102
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.
Claim(s) 1, 2, 5, 9 and 12 is/are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Softub, Inc. (WO 94/0368) (hereinafter Softub also known as US 5,283,915 to Idland et al.).
Regarding Claim 1 Softub shows a non-inflatable above-ground pool (10; Figs. 1-3 and 12-14), comprising: a pool bottom (13) comprising an upper bottom sheet (at 23d) and a lower bottom sheet (13a; Fig. 3) connected to each other (Fig. 3); and a pool wall (12) connected to an edge of the pool bottom (Fig. 3), such that the pool bottom and pool wall together enclose a water storage cavity (shown at 34; Fig. 2), wherein the pool wall comprises: an inner wall (23a; towards water storage cavity) comprising a lower edge (connected to the bottom; Figs. 2 & 3) connected to the lower bottom sheet (at 23d, via 13a), an outer wall (23b; away from the water storage cavity), a top sheet (23c; Fig. 3) connected to an upper edge of each of the inner wall and the outer wall, such that the inner wall, the outer wall, and the top sheet together enclose a filling chamber (at 14), and a support wall body (14) disposed within the filling chamber (Figs. 2-3).
Regarding Claim 2 Softub shows the non-inflatable above-ground pool according to claim 1, wherein the outer wall comprises a lower edge (at 23e) connected to the lower bottom sheet (where 23e and 13a connect).
Regarding Claim 5 Softub shows the non-inflatable above-ground pool according to claim 1, wherein the lower edge of the inner wall is bent in one of a direction towards and a direction away (Fig. 3) from the outer wall, at a location at which the lower edge of the inner wall is connected to the lower bottom sheet (via 23d via 13a).
Regarding Claim 9 Softub shows the non-inflatable above-ground pool according to claim 1, wherein the support wall body is made of an expanded polyethylene foam (pages 6 -7).
Regarding Claim 12 Softub shows the non-inflatable above-ground pool according to claim 1, further comprising: a water discharge pipe (at 301, 303) extending through the pool wall and through a third opening (at 301 and 303) in the support wall body passes.
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.
Claim(s) 7 and 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Softub, Inc. (WO 94/0368) in view of Lin et al. (US Pub. 2019/0085576).
Regarding Claim 7 Softub shows the non-inflatable above-ground pool according to claim 1, but fails to show wherein the pool bottom further comprises a surrounding strip, which is connected to an edge of the upper bottom sheet and connected to the lower bottom sheet to thereby enclose a wave-making channel that is in fluid communication with the water storage cavity. However, Lin teaches a pool bottom having a surrounding strip (shown at 388 and 390; Fig. 24), which is connected to an edge of the upper bottom sheet and connected to the lower bottom sheet (Fig. 24) to thereby enclose a wave-making channel (390) that is in fluid communication with the water storage cavity (via 392). Lin suggests that the usage of the wave making channel provides, the benefit of discharging air to the water storage cavity to create massaging air bubbles (¶ [0140]). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Softub to include a surrounding strip connected to the upper and bottom sheet for the purpose of providing wave-like massaging bubbles in the pool as shown by Lin.
Regarding Claim 8 Softub as combined above with Lin shows the non-inflatable above-ground pool according to claim 7, wherein the surrounding strip comprises an outer edge portion extending from a position where the surrounding strip is connected to the lower bottom sheet toward the pool wall, and wherein the outer edge portion is connected to the lower edge of the inner wall (Fig. 24 shown at 388).
Claim(s) 10 and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Softub, Inc. (WO 94/0368).
Regarding Claim 10 Softub shows the non-inflatable above-ground pool according to claim 1, further comprising: a control box (60) comprising a water pump (40); a water inlet pipe (31) extending through the pool wall and through a first opening (at 31; Fig. 3) in the support wall body and a water outlet pipe (30a) extending through the pool wall and through
Regarding Claim 11 Softub shows the non-inflatable above-ground pool according to claim 10, wherein the control box further comprises: an air pump (610 acts as an air pump via venturi and 633; note, pages 23-24); an air inlet pipe (632) extending through the pool wall and through a second opening in the support wall body (Fig. 31), wherein the air pump is in fluid communication with the water storage cavity via the air inlet pipe (Fig. 31).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 2, 5, 7-12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3, 5, 6 and 11 of copending Application No. 18/107,064 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because they include similar in scope limitations.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Liu (US 7,464,417) shows a connecting strip; Hald et al. (US 6,003,166) shows the general state of the art.
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/CHRISTINE J SKUBINNA/Primary Examiner, Art Unit 3754 1/22/2026