Detailed Action
Amendment
1. This office action is in response to applicant’s response dated 8-12-26 and this office action is a final rejection.
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Double Patenting
2. 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 1-13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-8 of U.S. Patent No. 11,758,960. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-8 of the ‘960 patent are substantially similar to claims 1-13 of the present application.
Claim Rejections - 35 USC § 103
3. 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.
Claim(s) 1, 5 and 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 5,893,173 to Bray in view of KR Patent No. 20-0420923 “Safety Cap having Anti-static Function” (hereinafter referred to as Safety Cap).
Referring to claims 1 and 13, Bray discloses A headwear apparatus for positioning on the head of an animal comprising, a body – at 14,50,52, the body having a first side portion opposite a second side portion – see the side portions of 14,50,52 in figures 1-4, the body having a front side extending between the first side portion and the second side portion – see the front portions of 14,50,52 in figures 1-4, the front portion positioned opposite a rear side of the body – see rear portions of 14,50,52 in figures 1-4, a first strap – at 32,40,44, having a first end thereof in a first connection to the first side portion at a position thereon adjacent the front side of the body – see at 24c and 60c in figures 2 and 4, and having a second end thereof opposite the first end thereof, the second end of the first strap having a second connection thereof to the first side portion at a position thereon adjacent the rear side of the body – see at 24d and 60d in figures 2 and 4, a second strap – at 32,42,46, having a first end thereof engaged in a first connection to the second side portion at a position thereon adjacent the front side of the body – see at 34b,60b in figures 2 and 4, and having a second end thereof opposite the first end thereof, the second end of the second strap in a second connection thereof to the second side portion at a fixed position thereon adjacent the rear side of the body – see at 24a,60a in figures 2 and 4 with items 24a,60a in fixed position on the body, a fastener – see the knot (not labeled but shown under the neck and back of the jaw of the animal in figure 1), the fastener extending between a first end thereof and a second end thereof – see ends of knot in figure 1, the fastener having a first fastener portion which is engageable in a removable engagement with a second fastener portion – see ends of the strap removably engaged via the knot in figure 1, and the fastener – the knot in figure 1, is configured to substantially engage the underside of the neck of the animal between the first and second end of the fastener when the fastener is at the frontal location – see knot in relation to the animal in figure 1. Bray does not disclose the first end of the fastener in a first sliding engagement upon the first strap, the second end of the fastener in a second sliding engagement upon the second strap, the fastener being slidable along the first sliding engagement and along the second sliding engagement, between a frontal location below a bill projecting from the front side of the body and a rearward positioning adjacent the rear side of the body. Safety Cap does disclose the first end of the fastener – at either one of items 50, in a first sliding engagement upon the first strap – at 55, the second end of the fastener – other of items 50, in a second sliding engagement upon the second strap – other of items 55, the fastener being slidable along the first sliding engagement and along the second sliding engagement – see at 50 in figures 1-3, between a frontal location below a bill – at 10, front of 10, projecting from the front side of the body – at 10 – see figures 1-3, and a rearward positioning adjacent the rear side of the body – rear of 10 – see figures 1-3, and the fastener – at 50, is configured to substantially engage the underside of the neck of the animal between the first and second end of the fastener – at 50, when the fastener is at the frontal location – see figures 1-3. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Bray and add the fastener of Safety Cap, so as to yield the predictable result of removably securing the body to the animal in different positions/orientations as desired.
Referring to claim 5, Bray as modified by Safety Cap further discloses the removable engagement between the first fastener portion – at 50, and the second fastener portion – at the other of 50, having cooperative fasteners positioned in each of said first fastener portion – see at 50, and the second fastener portion – at 50, the cooperative fasteners being from a group including hook and loop fabric, snaps, buttons, clips, magnets, or grommets – see snaps/clips in figures 1-3 of Safety Cap. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Bray and add the fastener of Safety Cap, so as to yield the predictable result of removably securing the body to the animal in different positions/orientations as desired.
Claim(s) 2-3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bray as modified by Safety Cap as applied to claim 1 above, and further in view of U.S. Patent No. 5,031,388 to Ode.
Referring to claim 2, Bray as modified by Safety Cap does not disclose a first curved recess formed through the first side portion of the body, a second curved recess formed through the second side portion of the body, and wherein the first curved recess is adapted for positioning around a first ear of an animal wearing the headwear, and the second curved recess is adapted for positioning around a second ear of the animal wearing the headwear. Ode does disclose a first curved recess – at 16, formed through the first side portion of the body – at 10,14 – see figures 1-2 and 4, a second curved recess – at 18, formed through the second side portion of the body – at 10,14 – see figures 1-2 and 4, and wherein the first curved recess is adapted for positioning around a first ear of an animal wearing the headwear – see figure 4, and the second curved recess is adapted for positioning around a second ear of the animal wearing the headwear – see figure 4. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Bray as modified by Safety Cap and add the first and second recesses allowing for positioning of the animal’s ears therethrough as disclosed by Ode, so as to yield the predictable result of better securing the device to the animal during use.
Referring to claim 3, Bray as modified by Safety Cap and Ode further discloses the first curved recess – at 16, defined by a first curved edge formed in the first side portion – see at 14,16 in figures 1-2 and 4 of Ode, the second curved recess – at 18, defined by a second curved edge formed in the second side portion – see at 14,18 in figures 1-2 and 4, and the first curved edge extending above and around the first ear of the animal wearing the headwear – see at 16 in figure 4 of Ode, and the second curved edge extending above and around the second ear of the animal wearing the headwear – see at 18 in figure 4 of Ode. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Bray as modified by Safety Cap and add the first and second recesses allowing for positioning of the animal’s ears therethrough as disclosed by Ode, so as to yield the predictable result of better securing the device to the animal during use.
Claim(s) 4, 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bray as modified by Safety Cap and Ode as applied to claim 3 above, and further in view of U.S. 100,000 to Anderson.
Referring to claim 4, Bray as modified by Safety Cap and Ode does not disclose the first curved edge extending in between the first connection of the first strap to the first side portion and the second connection of the first strap to the first side portion, and the second curved edge extending in between the first connection of the second strap to the second side portion and the second connection of the second strap to the second side portion. Anderson does disclose Therefore it would have been obvious to one of ordinary skill in the art to take the device of Bray as modified by Safety Cap and Ode and add the curved edges in relation to the straps as disclosed by Anderson, so as to yield the predictable result of better securing the hat to the animal’s ear area during use.
Referring to claim 6, Bray as modified by Safety Cap, Ode and Anderson further discloses the removable engagement between the first fastener portion – at 50, and the second fastener portion – at the other of 50, having cooperative fasteners positioned in each of said first fastener portion – see at 50, and the second fastener portion – at 50, the cooperative fasteners being from a group including hook and loop fabric, snaps, buttons, clips, magnets, or grommets – see snaps/clips in figures 1-3 of Safety Cap. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Bray as modified by Safety Cap, Ode and Anderson and add the fastener of Safety Cap, so as to yield the predictable result of removably securing the body to the animal in different positions/orientations as desired.
Claim(s) 7 and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bray as modified by Safety Cap as applied to claims 1 or 5 above, and further in view of U.S. Patent No. 5,515,546 to Shifrin.
Referring to claims 7 and 11, Bray as modified by Safety Cap does not disclose a first slide adjuster in a sliding engagement with both of a first portion of the first strap and a second portion of the first strap, the first portion of the first strap extending between the first connection of the first strap to the first side portion and the first slide adjuster, the second portion of the first strap extending between the second connection of the first strap to the first side portion and the first slide adjuster, a second slide adjuster in a sliding engagement with both of a first portion of the second strap and a second portion of the second strap, the first portion of the second strap extending between the first connection of the second strap to the second side portion and the second slide adjuster, and the second portion of the second strap extending between the second connection of the second strap to the second side portion and the second slide adjuster. Shifrin does disclose a first slide adjuster – at 46, in a sliding engagement with both of a first portion of the first strap – at 42, and a second portion of the first strap – at 42 – see figures 1-2, the first portion of the first strap extending between the first connection of the first strap to the first side portion – see item 34 in figure 1 which would have a corresponding component on the other side of the device with respect to the strap – at 42, and the first slide adjuster – at 46 – see figures 1-2 the second portion of the first strap – at 42, extending between the second connection of the first strap to the first side portion – see item 36 in figure 1 which would have a corresponding component on the other side of the device with respect to the strap – at 42, and the first slide adjuster – at 46 – see figures 1-2, a second slide adjuster – at 48, in a sliding engagement with both of a first portion of the second strap – at 40, and a second portion of the second strap – at 40 – see figures 1-2, the first portion of the second strap – at 40, extending between the first connection of the second strap to the second side portion – at 34, and the second slide adjuster – at 48 – see figures 1-2, and the second portion of the second strap extending between the second connection of the second strap to the second side portion – at 36, and the second slide adjuster – at 48 – see figures 1-2. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Bray as modified by Safety Cap and add the slide adjusters of Shifrin, so as to yield the predictable result of fitting the device to animals of different sizes as desired.
Claim(s) 8-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bray as modified by Safety Cap and Ode as applied to claims 2 and 3 above, and further in view of Shifrin.
Referring to claims 8 and 9, Bray as modified by Safety Cap and Ode does not disclose a first slide adjuster in a sliding engagement with both of a first portion of the first strap and a second portion of the first strap, the first portion of the first strap extending between the first connection of the first strap to the first side portion and the first slide adjuster, the second portion of the first strap extending between the second connection of the first strap to the first side portion and the first slide adjuster, a second slide adjuster in a sliding engagement with both of a first portion of the second strap and a second portion of the second strap, the first portion of the second strap extending between the first connection of the second strap to the second side portion and the second slide adjuster, and the second portion of the second strap extending between the second connection of the second strap to the second side portion and the second slide adjuster. Shifrin does disclose a first slide adjuster – at 46, in a sliding engagement with both of a first portion of the first strap – at 42, and a second portion of the first strap – at 42 – see figures 1-2, the first portion of the first strap extending between the first connection of the first strap to the first side portion – see item 34 in figure 1 which would have a corresponding component on the other side of the device with respect to the strap – at 42, and the first slide adjuster – at 46 – see figures 1-2 the second portion of the first strap – at 42, extending between the second connection of the first strap to the first side portion – see item 36 in figure 1 which would have a corresponding component on the other side of the device with respect to the strap – at 42, and the first slide adjuster – at 46 – see figures 1-2, a second slide adjuster – at 48, in a sliding engagement with both of a first portion of the second strap – at 40, and a second portion of the second strap – at 40 – see figures 1-2, the first portion of the second strap – at 40, extending between the first connection of the second strap to the second side portion – at 34, and the second slide adjuster – at 48 – see figures 1-2, and the second portion of the second strap extending between the second connection of the second strap to the second side portion – at 36, and the second slide adjuster – at 48 – see figures 1-2. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Bray as modified by Safety Cap and Ode and add the slide adjusters of Shifrin, so as to yield the predictable result of fitting the device to animals of different sizes as desired.
Claim(s) 10 and 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bray as modified by Safety Cap, Ode and Anderson as applied to claims 4 and 6 above, and further in view of Shifrin.
Referring to claims 10 and 12, Bray as modified by Safety Cap, Ode and Anderson does not disclose a first slide adjuster in a sliding engagement with both of a first portion of the first strap and a second portion of the first strap, the first portion of the first strap extending between the first connection of the first strap to the first side portion and the first slide adjuster, the second portion of the first strap extending between the second connection of the first strap to the first side portion and the first slide adjuster, a second slide adjuster in a sliding engagement with both of a first portion of the second strap and a second portion of the second strap, the first portion of the second strap extending between the first connection of the second strap to the second side portion and the second slide adjuster, and the second portion of the second strap extending between the second connection of the second strap to the second side portion and the second slide adjuster. Shifrin does disclose a first slide adjuster – at 46, in a sliding engagement with both of a first portion of the first strap – at 42, and a second portion of the first strap – at 42 – see figures 1-2, the first portion of the first strap extending between the first connection of the first strap to the first side portion – see item 34 in figure 1 which would have a corresponding component on the other side of the device with respect to the strap – at 42, and the first slide adjuster – at 46 – see figures 1-2 the second portion of the first strap – at 42, extending between the second connection of the first strap to the first side portion – see item 36 in figure 1 which would have a corresponding component on the other side of the device with respect to the strap – at 42, and the first slide adjuster – at 46 – see figures 1-2, a second slide adjuster – at 48, in a sliding engagement with both of a first portion of the second strap – at 40, and a second portion of the second strap – at 40 – see figures 1-2, the first portion of the second strap – at 40, extending between the first connection of the second strap to the second side portion – at 34, and the second slide adjuster – at 48 – see figures 1-2, and the second portion of the second strap extending between the second connection of the second strap to the second side portion – at 36, and the second slide adjuster – at 48 – see figures 1-2. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Bray as modified by Safety Cap, Ode and Anderson and add the slide adjusters of Shifrin, so as to yield the predictable result of fitting the device to animals of different sizes as desired.
Response to Arguments
4. It is noted that applicant will address the non-statutory double patenting rejections when all other rejections are overcome.
Regarding the prior art rejections of claims 1, 5 and 13, the Safety Cap reference KR 20-0420923 discloses the first end of the fastener – at either one of items 50, in a first sliding engagement upon the first strap – at 55, the second end of the fastener – other of items 50, in a second sliding engagement upon the second strap – other of items 55, the fastener being slidable along the first sliding engagement and along the second sliding engagement – see at 50 in figures 1-3. Further, Safety Cap reference is analogous art in that the Safety Cap reference is in the same field of endeavor being protective headgear for animals and is also reasonably pertinent to the problem being solved of providing a headgear that is adjustably secured to fit animals of different sizes and orientations as seen in figures 1-2 of Safety Cap. Further, Safety Cap discloses a bill at the front of item 10 as seen in figures 1-2 with reference numeral and lead line for reference numeral 10 pointing directly to the bill. Therefore, Safety Cap discloses the fastener being slidable along the first sliding engagement and along the second sliding engagement – see at 50 in figures 1-3, between a frontal location below a bill – at 10, front of 10, projecting from the front side of the body – at 10 – see figures 1-3. Further, Safety cap discloses the fastener – at 50, is slidable to a rearward position adjacent the rear side of the body – at 10 – see figures 1-3, where the fastener – at 50 can slide along item 55 to be at a position at the rear of item 10. Further, there is a motivation/rationale to combine the device of Safety Cap with the device of Bray US 5893173, with the motivation/rationale being providing a device that is removably secured the body to the animal in different positions/orientations as desired.
Regarding the prior art rejections of claims 2 and 3, applicant relies upon the same arguments with respect to parent claim 1 discussed earlier.
Regarding the prior art rejections of claims 4 and 6, the Anderson reference US 100,000, is not used to disclose the straps connected at their ends to a side portion of the body as seen in paragraph 3 of this office action. Further, Anderson does disclose the first curved edge – at either of F, extending in between the first connection of the first strap to the first side portion and the second connection of the first strap to the first side portion – see either strap at I connecting to B in figures 1-2 with the curved edge of F positioned between items I along the width of the device, and the second curved edge – other of items F, disposed between the first connection of the second strap to the second side portion and the second connection of the second strap to the second side portion – see other of items I connecting to B in figures 1-2 – see item F on the other side of the device that is disposed between items I as seen in figures 1-2.
Regarding the prior art rejections of claims 7 and 11, the Shiffrin reference US 5515546 is analogous prior art in that the device of Shiffrin is in the same field of endeavor being protective head gear and is also reasonably pertinent to the problem being solved being of providing a headgear that is adjustably secured to fit animals of different sizes and orientations as seen in figures 1-2 of Shiffrin.
Regarding the prior art rejections of claims 8 and 9 applicant relies upon the same arguments with respect to claims 1-3, 7 and 11 discussed earlier.
Regarding the prior art rejections of claims 10 and 12, applicant relies upon the same arguments with respect to claims 1-7 and 11 discussed earlier.
Conclusion
5. THIS ACTION IS MADE FINAL. 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.
6. Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID J PARSLEY whose telephone number is (571)272-6890. The examiner can normally be reached Monday-Friday, 8am-4pm EST.
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, Peter Poon can be reached at (571) 272-6891. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DAVID J PARSLEY/Primary Examiner, Art Unit 3643
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