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 .
Election/Restrictions
Newly submitted claim 36 directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: Applicant has provided a method claim.Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claim 36 withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03. To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention. Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Claim Rejections - 35 USC § 102
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 26-35 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Oakes (WO0009297).
Oakes discloses:
26. A system (figs 1-10) comprising a conveying apparatus and a container (adjacent 60 and adjacent 61/13), the container comprising a wall arrangement defining a load receiving space (vertical elements and containing area within), and a support member attached on the wall arrangement (adjacent 15 and “bale arms” in fig 9-11), the support member being movable between a support position and a non-support position (capable of performing the above intended use), wherein, in the support position, the support member extends at least partially across the load receiving space (as in fig 2, 4, 5, 10), the support member having a planar portion to support a further container in a stacked condition on the container (portion of 15 for example that lies in a plane in fig 2, 4, 5, 10), the conveying apparatus comprising a conveyor and an urging member to urge the support member from the non-support position to the support position (60 and portion adjacent 77 capable of performing the above intended use), wherein the urging member is configured so that while the container is being conveyed on the conveyor, the support member of the container is moved into contact with urging member, which urges the support member to its support position (capable of performing the above intended use, as for example shown with elements of 77 which engage and embrace with the support members/bale arms).
27. The system of claim 26, wherein in the support position, the support member extends transverse to the wall arrangement (as in figs 2, 4, 5, 10), and wherein in the non-support position, the support member extends upwardly relative to the wall arrangement (relatively upward in fig 1 for example).
28. The system of claim 26, wherein in the non-support position, the support member projects above the wall arrangement (above in fig 1).
29. The system of claim 26, wherein a portion of the urging member is sloped so that while the container is being conveyed on the conveyor, the support member of the container is moved into contact with the sloped portion of the urging member, which urges the support member to its support position (sloping angles shown in fig 11 of portions of 77 such as adjacent 79 for example of which permit the device to perform its intended use of repositioning).
30. The system of claim 26, wherein the container comprises two of the aforesaid support member and the conveying apparatus comprises two of said urging members, to urge the support members from the non-support position to the support position (as in fig 10 capable of performing the above intended use).
31. The system of claim 30, wherein the support members are arranged opposite to each other (as in fig 10).
32. The system of claim 31, wherein the wall arrangement comprises two opposite first and second walls, and wherein the support members are arranged on the opposite first walls (as in figs 1-5, the Office notes that in different positions the members are arranged on either walls).
33. The system of claim 32, wherein the support members are pivotally attached to upper edge regions of the opposite first walls (pivot region such as adjacent 17).
34. The system of claim 32, wherein each support member is pivotally attached to the respective first wall by a hinge and a hinge member, wherein the hinge is provided on the first wall, and wherein the hinge member extends from the planar portion (hinge such as adjacent 17 in fig 4 and member such as member adjacent “27” of support that extends from adjacent “15” in fig 4, where member extends from planar portion).
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) 35 is/are rejected under 35 U.S.C. 103 as being unpatentable over Oakes as applied to claim 32 above, and further in view of Hisatoshi (JP 2009126574 A)
Oakes discloses wherein the container has a first dimension extending across the top of the load receiving space between the first walls, and a second dimension extending across the top of the load receiving space between the second walls, wherein each planar portion has a width extending between the first walls, and wherein the width of each planar portion is such that (as shown in figs 1-5), in the support position, with the exception of the following which is disclosed by Histaoshi: planar portions of both support members extend across an aggregate of 15% to 25% of the first dimension of the container (fig 1). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify Oakes in view of Hisatsohi (by adjusting shape or replacing support to that with more surface area) in order to provide more surface area to provide additional support surfaces to stabilize the attachment. Though not required, the Office merely notes that it would have been obvious to one of ordinary skill in the art at the time of the invention to provide a specific range because it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges was an obvious extension of the prior teachings. In re Aller, 105 USPQ 233.
Response to Arguments
Applicant's arguments with respect to the claims have been considered but are moot because in view of the amendment the search has been updated and a new rejection has been made. Nevertheless, Applicant states that the prior art does not disclose does not disclose the newly added intended use of claim 1. The prior art for example is capable of moving the support member via contact with the urging member. The Office notes that the claim is to a system and not to a method of steps. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
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 ANDREW D PERREAULT whose telephone number is (571)270-5427. The examiner can normally be reached Monday - Friday 7:00am-5:30pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anthony Stashick can be reached at (571)272-4561. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREW D PERREAULT/Primary Examiner, Art Unit 3735