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 .
Status of Claims
This action is in reply to the Request for Continued Examination filed on May 21, 2026. Claims 1, 4, 7, and 15-16 have been amended and are hereby entered. Claims 5-6, 9, and 20 have been canceled. Claims 1-4, 7-8, and 10-19 are currently pending and have been examined.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 May 21, 2026 has been entered.
Drawings
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 plurality of “tensioning adjustors” as described in claim 4 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered. The Examiner notes that although multiple “tension members” (cables 52 and winch 74) are shown in Fig. 1 of the most recent set of drawings, filed October 06, 2025, only one “tensioning adjustor” (winch 74) appears to be shown.
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
Claims 1, 8, and 11-12 are objected to because of the following informalities:
In claim 1, line 4, Applicant is suggested to amend “An” to --an-- in order to utilize more consistent formatting throughout the claims.
In claim 1, line 12, it appears the phrase “first and second portons” should read as --first and second portions--.
In claim 8, lines 1-2, Applicant is suggested to amend the phrase “the hanging members is selected from…” to --the hanging members are selected from…-- in order to improve readability of the claim.
In claim 11, line 1, Applicant is suggested to amend the phrase “the hanging members includes…” to --the hanging members include…-- to improve readability of the claim.
In claim 12, line 2, Applicant is suggested to amend the phrase “the reflective portion comprise…” to --the reflective portion comprises…-- in order to improve readability of the claim.
Appropriate correction is required.
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.
Claims 1-4, 7-8, 10-15, and 17-19 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.
Claim 1, lines 4-6, recites “An inelastic elongate flexible member extending between first and second ends…and secured by tension members to said first and second ends”. However, it is unclear as to which “ends” the claim limitation refers: whether it refers to first and second ends of the inelastic elongate flexible member or to first and second ends of the system as a whole. As such, the structure of the system, particularly the structural relationship between the elongate flexible member, the tension members, and other surrounding structures, is also unclear. For at least these reasons, the scope of the claim is rendered indefinite. Claims 2-4, 7-8, 10-15, and 17-19 are similarly rejected by virtue of dependency upon claim 1.
Claim 7, lines 2-3, recites “the group consisting of nylon, polyester propylene, plastics or fabrics”. However, it is unclear as to why “nylon” and “polyester propylene” are separated out from the later-listed broader category of “plastics” when both nylon and polyester propylene are considered plastics. Therefore, it is unclear whether a device must be made of nylon or polyester polypropylene in order to meet the claimed limitation, or whether the device may be made of any type of plastic. For at least these reasons, the scope of the claim is rendered indefinite. The Examiner additionally notes that, regarding claim 8, it is unclear whether or not a comma was intended to be omitted between the words “propylene” and “plastic”, based on the presentation of the similar listing in claim 7.
Claim 15, lines 1-2, recites “wherein the hanging members are secured to the elongate flexible member by stitching”. However, it is unclear whether the limitation “stitching” refers to the same “securing member” introduced in claim 1, or whether the limitation “stitching” refers a means of securing separate from the “securing member” of claim 1. As such, the structural relationship of the hanging members and the elongate flexible member is also unclear. For at least these reasons, the scope of the claim is rendered indefinite.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1-4, 7-8, 10, and 14-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Davis (US 2018/0016801 A1), hereinafter Davis, in view of Electro Tape (https://www.electrotape.com/product/pennant-flags-osha-rated/, last visited 06/09/2026), hereinafter Electro Tape, Meaux et al. (US 2008/0173854 A1), hereinafter Meaux, and Jang (KR 100559187 B1), hereinafter Jang.
Regarding claim 1, as best understood based on the 35 U.S.C. 112(b) issue(s) identified above, Davis discloses a tensioned system for deterring animals from entering a protected region and spanning the protected region (shown in fig. 1, note that the device taught by Davis is capable of deterring animals from entering a protected region, note that the protected region may be broadly interpreted as the space below and directly around the device of Davis) comprising:
An elongate flexible member (flag line 14) extending between first and second ends (upper ends of stanchions 18, fig. 1) formed of a length of flat material (para [0042], flag line 14 is described as “flat”) and secured to said first and second ends (fig. 1); and
a plurality of flexible elongate hanging members (“pennant flags” para [0042]) each formed of a length of flat material secured to and suspended from the elongate flexible member (fig. 1-2; para [0042], note that hanging members may be “any shaped flag”),
wherein the plurality of flexible elongate hanging members are permanently secured to the elongate flexible member at a fixed substantially perpendicular orientation thereto at a connection location therebetween (fig. 1, longitudinal axes of pennant flags are perpendicular to longitudinal axis of flag line 14; pennant flags are fixed to flag line 14 with no mechanisms for detachability disclosed).
Davis does not appear to specifically disclose:
wherein the elongate flexible member is an inelastic elongate flexible member;
wherein the elongate flexible member is formed of a length of webbing strap material and secured by tension members to said first and second ends;
wherein the plurality of flexible elongate hanging members are each formed of a length of rectangular shaped webbing strap material;
wherein the plurality of flexible elongate hanging members are permanently secured to the elongate flexible member via first and second portons on opposite sides of the elongate flexible member having a securing member extending through the first and second portions and the elongate flexible member.
However, Electro Tape is in the field of high visibility flag systems (see Description, “highly effective at drawing attention for protection, traffic or other events where safety is of utmost concern”) and teaches:
wherein the elongate flexible member (see Description, “poly rope”) is an inelastic elongate flexible member (see Description, “pennants carried on a sturdy poly rope to prevent draping”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system for deterring animals comprising an elongate flexible member of Davis to have made the elongate flexible member inelastic as taught by Electro Tape with a reasonable expectation of success to make the overall system more sag-resistant such that it can be more effectively strung across an extended area (see Description, “pennants carried on a sturdy poly rope to prevent draping”).
Additionally, Meaux is in the field of barrier systems (title; abstract) and teaches:
wherein the elongate flexible member (strap 12) is formed of a length of webbing strap material (para [0018], “straps 12 and 14 may be manufactured of material similar to a seat belt, another cloth material, a woven type of material, synthetic materials, or any combination thereof…”) and secured by tension members (ratchets 8 and fasteners 20) to said first and second ends (upper ends of poles 2; fig. 1A; para [0017], ratchets 8 may be included at both ends of strap 12);
wherein the plurality of flexible elongate hanging members (straps 14) are each formed of a length of rectangular shaped webbing strap material (fig. 1A; para [0018], “straps 12 and 14 may be manufactured of material similar to a seat belt, another cloth material, a woven type of material, synthetic materials, or any combination thereof…”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system for deterring animals comprising an elongate flexible member and flexible elongate hanging members of Davis to have made the members of webbing strap material as taught by Meaux with a reasonable expectation of success to utilize well-understood materials such as woven cloth to improve durability, strength, and comfortability of the device during handling and use (para [0018]). One would further have been motivated to incorporate the teaching of tension members as taught by Meaux with a reasonable expectation of success in order to more easily adjust the tension of the elongate hanging member across the protected region as needed (para [0017]-[0018]).
Furthermore, Jang is in the field of hanging flag systems (title; see “Background of the Invention”) and teaches:
wherein the plurality of flexible elongate hanging members (flags 10) are permanently secured to the elongate flexible member (connecting member 20) via first and second portons (portions of flag 10 shown to the left and right of connecting member 20 in fig. 5) on opposite sides of the elongate flexible member (fig. 5) having a securing member extending through the first and second portions and the elongate flexible member (page 12/14, ninth paragraph, “after folding the corner portion of the flag 10, the connecting member 20 is positioned between the folded and sewn connecting member 20 together with the flag 10”; fig. 5, see stitching extending through folded flag 10 and connecting member 20).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system for deterring animals comprising an elongate flexible member and flexible elongate hanging members of Davis to incorporate the first and second portions having a securing member extending therethrough as taught by Jang with a reasonable expectation of success to utilize a well-understood attachment mechanism to securely integrate the flexible elongate hanging members and the elongate flexible member (page 12/14, ninth paragraph, “By doing so, the flag 10 and the connecting member 20 are integrally fixed”).
Regarding claim 2, as best understood based on the 35 U.S.C. 112(b) issue(s) identified above, Davis as modified discloses the system of claim 1 and further discloses further comprising anchors (from Davis, stanchions 18) secured to a surface (from Davis, stand bases 26) to either side of the protected region (from Davis, fig. 1-2, area shown beneath flag line 14 may be interpreted as a protected region).
Regarding claim 3, as best understood based on the 35 U.S.C. 112(b) issue(s) identified above, Davis as modified discloses the system of claim 2 and further discloses wherein the anchors (from Davis, stanchions 18) comprise posts (from Davis, stanchions 18 comprise rigid, vertical, elongate tubing and are thus interpreted as posts).
Regarding claim 4, as best understood based on the 35 U.S.C. 112(b) issue(s) identified above, Davis as modified discloses the system of claim 3 and further discloses wherein said tension members (from Meaux, ratchets 8 and fastener connections 20) comprise tensioning adjustors (from Meaux, ratchets 8) extending from at least one of the posts (from Meaux, poles 2) to the elongate flexible member (from Meaux, strap 12; fig. 1A).
Regarding claim 7, as best understood based on the 35 U.S.C. 112(b) issue(s) identified above, Davis as modified discloses the system of claim 1 and further discloses wherein the strap material (from Meaux, material of strap 12) of the elongate flexible member (from Meaux, strap 12) is selected from the group consisting of nylon, polyester polypropylene, plastics or fabrics (from Meaux, para [0018], strap 12 may be formed of a “cloth material”).
Regarding claim 8, as best understood based on the 35 U.S.C. 112(b) issue(s) identified above, Davis as modified discloses the system of claim 1 and further discloses wherein the hanging members (from Meaux, straps 14) is selected from the group consisting of nylon, polyester polypropylene plastics or fabrics (from Meaux, para [0018], straps 14 may be formed of a “cloth material”).
Regarding claim 10, as best understood based on the 35 U.S.C. 112(b) issue(s) identified above, Davis as modified discloses the system of claim 8 and further discloses wherein the hanging members have a different color than the elongate flexible member (from Electro Tape, see “Physical Properties” section, “Multi-Color” embodiment has blue rope and an assortment of flags in varying colors, thus the color of at least some hanging members differs from that of the elongate flexible member).
Regarding claim 14, as best understood based on the 35 U.S.C. 112(b) issue(s) identified above, Davis as modified discloses the system of claim 1 and further discloses wherein the hanging members (from Davis, “pennant flags” para [0042]) are spaced along the elongate flexible member (from Davis, flag line 14) at regular intervals (from Davis, fig. 1).
Regarding claim 15, as best understood based on the 35 U.S.C. 112(b) issue(s) identified above, Davis as modified discloses the system of claim 1 and further discloses wherein the hanging members (from Jang, flags 10) are secured to the elongate flexible member (from Jang, connection member 20) by stitching (from Jang, page 12/14, ninth paragraph, “after folding the corner portion of the flag 10, the connecting member 20 is positioned between the folded and sewn connecting member 20 together with the flag 10”; fig. 5).
Regarding claim 16, Davis discloses a method of deterring animals from entering a protected region (shown in fig. 1, note that the method of Davis would naturally deter some types of animals from entering a protected region, note that the protected region may be broadly interpreted as the space below and directly around the device of Davis) comprising:
providing an elongate flexible member (flag line 14) with a plurality of hanging members (“pennant flags” para [0042]) therefrom (fig. 1), wherein the elongate flexible member is formed of a length of flat material (para [0042], flag line 14 is described as “flat”); and wherein the plurality of hanging members are each formed of a length of flat material (fig. 1-2; para [0042], note that hanging members may be “any shaped flag”) and permanently secured to the elongate flexible member at a fixed substantially perpendicular orientation thereto at a connection location therebetween (fig. 1, longitudinal axes of pennant flags are perpendicular to longitudinal axis of flag line 14; pennant flags are fixed to flag line 14 with no mechanisms for detachability disclosed);
extending the elongate flexible member across the protected region (fig. 1, area shown beneath flag line 14 may be interpreted as a protected region); and
securing the ends of the elongate flexible member to an anchor (stanchions 18) so as to suspend the elongate flexible member above the protected region (fig. 1).
Davis does not appear to specifically disclose:
wherein the elongate flexible member is a substantially inelastic elongate flexible member;
wherein the elongate flexible member is formed of a length of webbing strap material; and wherein the plurality of hanging members are each formed of a length of rectangular shaped webbing strap material;
wherein the plurality of hanging members are permanently secured to the elongate flexible member via first and second portions of the hanging members positioned on opposite sides of the elongate flexible member; and
securing the ends of the elongate flexible member via tension members to the anchor.
However, Electro Tape is in the field of high visibility flag systems (see Description, “highly effective at drawing attention for protection, traffic or other events where safety is of utmost concern”) and teaches:
wherein the elongate flexible member (see Description, “poly rope”) is a substantially inelastic elongate flexible member (see Description, “pennants carried on a sturdy poly rope to prevent draping”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of deterring animals comprising providing an elongate flexible member of Davis to have made the elongate flexible member substantially inelastic as taught by Electro Tape with a reasonable expectation of success to make the overall system more sag-resistant such that it can be more effectively strung across an extended area (see Description, “pennants carried on a sturdy poly rope to prevent draping”).
Additionally, Meaux is in the field of barrier systems (title; abstract) and teaches:
wherein the elongate flexible member (strap 12) is formed of a length of webbing strap material (para [0018], “straps 12 and 14 may be manufactured of material similar to a seat belt, another cloth material, a woven type of material, synthetic materials, or any combination thereof…); and wherein the plurality of hanging members (straps 14) are each formed of a length of rectangular shaped webbing strap material (fig. 1A; para [0018], “straps 12 and 14 may be manufactured of material similar to a seat belt, another cloth material, a woven type of material, synthetic materials, or any combination thereof…”);
securing the ends of the elongate flexible member via tension members (ratchets 8 and fasteners 20) to the anchor (poles 2; fig. 1A; para [0017], ratchets 8 may be included at both ends of strap 12).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of deterring animals comprising providing an elongate flexible member and hanging members of Davis to have made the members of webbing strap material as taught by Meaux with a reasonable expectation of success to utilize well-understood materials to improve durability, strength, and comfortability of the device during handling and use (para [0018]). One would further have been motivated to incorporate the teaching of securing ends of the elongate flexible member via tension members as taught by Meaux with a reasonable expectation of success in order to more easily adjust the tension of the elongate hanging member across the protected region as needed (para [0017]-[0018]).
Furthermore, Jang is in the field of hanging flag systems (title; see “Background of the Invention”) and teaches:
wherein the plurality of hanging members (flags 10) are permanently secured to the elongate flexible member (connection member 20) via first and second portions (portions of flag 10 shown to the left and right of connecting member 20 in fig. 5) of the hanging members positioned on opposite sides of the elongate flexible member (fig. 5; page 12/14, ninth paragraph, “after folding the corner portion of the flag 10, the connecting member 20 is positioned between the folded and sewn connecting member 20 together with the flag 10”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of deterring animals comprising providing an elongate flexible member and flexible elongate hanging members of Davis to incorporate the first and second portions on opposite sides of the elongate flexible member as taught by Jang with a reasonable expectation of success to utilize a well-understood attachment mechanism to securely integrate the flexible elongate hanging members and the elongate flexible member (page 12/14, ninth paragraph, “By doing so, the flag 10 and the connecting member 20 are integrally fixed”).
Claim(s) 11-13 is/are rejected under 35 U.S.C. 103 as being obvious over Davis (US 2018/0016801 A1), hereinafter Davis, in view of Electro Tape (https://www.electrotape.com/product/pennant-flags-osha-rated/, last visited 06/09/2026), hereinafter Electro Tape, Meaux et al. (US 2008/0173854 A1), hereinafter Meaux, and Jang (KR 100559187 B1), hereinafter Jang, as applied to claim 8 above, and further in view of Elam (US 2009/0199762 A1), hereinafter Elam.
Regarding claim 11, as best understood based on the 35 U.S.C. 112(b) issue(s) identified above, Davis as modified discloses the system of claim 8 but does not appear to specifically disclose wherein the hanging members includes a bright or reflective portion.
However, Elam is in the field of high visibility flag systems (title; abstract) and teaches wherein the hanging members (flag 100) includes a bright or reflective portion (border bars 175; fig. 1 and 5; para [0036], bars 175 may be made of reflective material).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system for deterring animals comprising hanging members of Davis as modified to incorporate bright or reflective portions as taught by Elam with a reasonable expectation of success to increase visibility of the device in low-lighting conditions (abstract) .
Regarding claim 12, as best understood based on the 35 U.S.C. 112(b) issue(s) identified above, Davis as modified discloses the system of claim 11 and further discloses wherein the reflective portion (from Elam, border bars 175) comprise strips (from Elam, fig. 5) along the length of the hanging members (from Elam, flag 100; fig. 1 and 5; para [0036]).
Regarding claim 13, as best understood based on the 35 U.S.C. 112(b) issue(s) identified above, Davis as modified discloses the system of claim 12 and further discloses wherein the strips (from Elam, lengths of border bars 175) are proximate to each of a first and second edge of the hanging members (from Elam, top and bottom edges of flag 100; shown in fig. 1 and 5).
Claim(s) 17-19 is/are rejected under 35 U.S.C. 103 as being obvious over Davis (US 2018/0016801 A1), hereinafter Davis, in view of Electro Tape (https://www.electrotape.com/product/pennant-flags-osha-rated/, last visited 06/09/2026), hereinafter Electro Tape, Meaux et al. (US 2008/0173854 A1), hereinafter Meaux, and Jang (KR 100559187 B1), hereinafter Jang, as applied to claim 15 above, and further in view of Butterfield (US 5,253,657 A), hereinafter Butterfield.
Regarding claim 17, as best understood based on the 35 U.S.C. 112(b) issue(s) identified above, Davis as modified discloses the system of claim 15 but does not appear to specifically disclose wherein the stitching extends through the hanging members and the elongate flexible member along at least first and second stitch sides proximate to side edges of the hanging members across the width of the elongate flexible member.
However, Butterfield is in the field of strap systems (abstract) and teaches wherein the stitching (belt attachment point 15) extends through the hanging members (shoulder strap 12) and the elongate flexible member (belt 3) along at least first and second stitch sides proximate to side edges of the hanging members across the width of the elongate flexible member (fig. 3).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system for deterring animals comprising an elongate flexible member and hanging members of Davis as modified to incorporate securement via stitching on first and second stitch sides as taught by Butterfield with a reasonable expectation of success to utilize attachment means well understood in the art to more securely connect elements of the system to one another (col 4, lines 14-20 and col 4, lines 45-51).
Regarding claim 18, as best understood based on the 35 U.S.C. 112(b) issue(s) identified above, Davis as modified discloses the system of claim 17 and further discloses wherein the stitching (from Butterfield, belt attachment point 15) extends along first and second cross lengths between opposite ends of the first and second stitch sides so as to form an x-shape therebetween (from Butterfield, fig. 3).
Regarding claim 19, as best understood based on the 35 U.S.C. 112(b) issue(s) identified above, Davis as modified discloses the system of claim 17 and further discloses wherein the stitching (from Butterfield, belt attachment point 15) forms a box defined by the first and second stitch sides and third and fourth stitch sides proximate to side edges of the elongate flexible member (from Butterfield, belt 3) across the hanging members (from Butterfield, shoulder strap 12; fig. 3).
Response to Arguments
Applicant’s arguments (Remarks, pages 1-3 of 4), filed May 21, 2026, regarding the rejection of claim(s) at least claims 1 and 16 under §103 have been fully considered, but they are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Regarding claim 1, Applicant argues that Davis (US 2018/0016801 A1) as modified by Meaux et al. (US 2008/0173854 A1) and Electro Tape (https://www.electrotape.com/product/pennant-flags-osha-rated/) does not teach “an inelastic elongate flexible member secured by tension members to first and second ends, and the hanging members are permanently secured to the elongate flexible member via first and second position on opposite sides of the elongate flexible member having a securing member extending through the first and second positions and the elongate flexible member” (Remarks, page 1-2 of 4). However, in the instant rejection, Jang (KR 100559187 B1) has been included in addition to Electro Tape and Meaux to further modify Davis for teaching the limitation in question, thereby rendering Applicant’s arguments against Davis as modified in the previous Office Action moot.
Regarding claim 16, Applicant argues that Davis as modified by Meaux and Electro Tape does not teach wherein “the plurality of hanging members are permanently secured to the elongate flexible member via first and second portions of the hanging members positioned on opposite sides of the elongate flexible member and the elongate flexible member is secured by tension members to anchors” (Remarks, page 2 of 4). However, in the instant rejection, Jang (KR 100559187 B1) has been included in addition to Electro Tape and Meaux to further modify Davis for teaching the limitation in question, thereby rendering Applicant’s arguments against Davis as modified in the previous Office Action moot.
Additionally, Applicant’s arguments presented in the declaration under 37 CFR 1.132 filed May 21, 2026 are considered moot in light of the new grounds of rejection necessitated by the claim amendments in the Request for Continued Examination also filed on May 21, 2026. Regardless, the aforementioned declaration would still have been considered insufficient to overcome the rejection of at least claims 1 and 16 based upon 35 U.S.C. §103 over Davis in view of Meaux and Electro Tape as set forth in the last Office action for the following reasons:
The declaration refer(s) only to the system described in the above referenced application and not to the individual claims of the application. Thus, there is no showing that objective evidence of nonobviousness is commensurate in scope with the claims. See MPEP § 716. For instance, Applicant discusses generalized aspects of the invention referred to throughout by its commercial name of “Rise Tape”, but Applicant does not provide remarks directed to specific aspects of the invention as claimed. Furthermore, although Applicant broadly refers to commercial success and customer demand for the generalized invention, Applicant does not present objective evidence in relation to the invention as claimed. See MPEP § 716.03.
The declaration states that the invention solved a problem that was long standing in the art and met a long-felt but unmet need. The declaration further states that the others had failed to solve the problem resolved by the instant invention. However, there is no showing that others of ordinary skill in the art were working on the problem and if so, for how long. In addition, there is no evidence that if persons skilled in the art who were presumably working on the problem knew of the teachings of the above cited references, they would still be unable to solve the problem. See MPEP § 716.04.
The declaration states that the invention produced unexpected results. However, evidence of unexpected results is frequently in the form of a direct comparison of the claimed invention with the closest prior art which is commensurate in scope with the claims. See e.g., In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). Such a comparison requires descriptions of what was tested, conditions under which testing was performed, test results, and an analysis of said test results. Although Applicant broadly describes other techniques in the art used for animal deterrence, Applicant does not provide objective evidence comparing the claimed invention to the prior art. Broad statements describing reactions by the inventor or others in the art (e.g., industry praise) about the performance of the invention compared to that of the prior art are not considered objective evidence sufficient to overcome the obviousness rejection.
Finally, the Examiner notes that although opinions may be taken into consideration in a declaration, the potential interest of the expert in the outcome of the case should be taken into consideration. See MPEP §716.01(c), Section III. In this case, the declaration is provided by the inventor himself, who holds significant interest in the outcome of the case, which is considered to minimize the weight afforded to opinions provided in the declaration.
In view of the foregoing, when all of the evidence is considered, the totality of the rebuttal evidence of nonobviousness fails to outweigh the evidence of obviousness.
Conclusion
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/E.M.H./Examiner, Art Unit 3647
/KIMBERLY S BERONA/Supervisory Patent Examiner, Art Unit 3647
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