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 the Claims
Claims 1-12 are pending and are subject to this Office Action. This is the first Office Action on the merits of the claims.
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 3 and 8 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 3, lines 1-2 is indefinite for reciting “wherein the pick assembly is rotatable by 180 degrees or alternatively is rotatable by 180 degrees.” It is unclear what “or alternatively is rotatable by 180 degrees” is meant to be interpreted as and the alternatively 180 degrees does not clearly impart further structure or capability on the pick assembly. The “alternatively 180 degrees” does not have a definition in the instant specification and is unclear if the pick assembly rotates an additional 180 degrees, for a full 360 degrees or if the pick assembly just rotates 180 degrees.
For purposes of examination, the pick assembly is being interpreted as being rotatable by 180 degrees.
Claim 8, lines 1-3 are indefinite for reciting “wherein a user can place an end of the first gripping area of the top jaw assembly and an end of the second gripping area of the bottom jaw assembly to allow the cigar holder to stand in a vertical direction” because it is unclear where the user is placing an end of the gripping area. There is no area/location defined for the gripping areas to stand on and therefore the claim is unclear.
For purposes of examination, the place is being interpreted as a flat surface and would instead read: “wherein a user can place an end of the first gripping area of the top jaw assembly and an end of the second gripping area of the bottom jaw assembly on a flat surface to allow the cigar holder to stand in a vertical direction.”
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.
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.
Claims 1, 6, and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Thorpe (US-20090032035-A1) and further in view of Ible (US-5489075-A).
In regards to claim 1, Thorpe directed to a cigar holder comprising:
A top jaw assembly, the top jaw assembly including apertured supports 20 and 21 (i.e., first opening on a first side and a second opening on a second side) (Refer to Figures 2 and 4 annotated by the Examiner provided below) ([0020]);
A bottom jaw assembly, the bottom jaw assembly including apertured supports 22 and 23 (i.e., first opening on a first side and a second opening on a second side) (Refer to Figures 2 and 4 annotated by the Examiner provided below) ([0020]);
A spring 25 ([0020]);
A rivet 24, the rivet including a main body and a fixed end and a second end, wherein the rivet is inserted through each of the bottom and top assembly openings (20, 21, 22, and 23) (Figure 4 and [0020]).
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Thorpe does not explicitly disclose a spacer element, wherein the spacer element includes a hollow center and is placed inside an opening in a center of a spring (I) and the rivet comprising a detachable second end wherein the rivet is configured to be positioned in the hollow opening of the spacer element, and the detachable second end configured to be connected to the main body of the rivet to couple the top jaw assembly to the bottom jaw assembly (II).
In regards to (I) Ible, directed to a baby bottle holder, discloses a bottle holder comprising a first clamp member 18 and a second clamp member 20 (i.e., top and bottom jaw assemblies) (column 5, lines 29-34).
Ible further discloses a spacer 130 (i.e., spacer element) comprising a hollow center 132, wherein the spacer element is placed inside an opening in a center of a spring 94 (Figure 4) and positioned adjacent the first and second openings (Figure 4 and column 7, lines 60-67).
Ible further discloses the spacer uniformly retains the spring (Column 7, lines 64-65).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Thorpe by modifying the spring structure of Thorpe to include a spacer element insertable into the spring, as taught by Ible, because both are directed to jaw assemblies for holding objects, Ible teaches the spacer element uniformly retains the spring (column 7, lines 64-65), and this merely involves applying a known technique of adding a spacer element of a similar jaw assembly to yield predictable results.
In regards to (II)
Thorpe discloses the rivet is provided within the first and second openings ([0020]), but does not explicitly disclose a detachable second end wherein the rivet is configured to be positioned in the hollow opening of the spacer element, and the detachable second end configured to be connected to the main body of the rivet to couple the top jaw assembly to the bottom jaw assembly.
Ible discloses the holder further comprising a bolt 124 (i.e., rivet) with a fixed end 122 and a threaded portion 126 (i.e., detachable second end) with a retaining nut 128 for fixing the detachable end (i.e., the detachable second end is connected to the main body of the rivet) to connect both the top and bottom jaw assemblies (Figure 4 and column 7, lines 51-55).
Ible further discloses the detachable second end is what secures the rivet to the jaw assembly (column 7, lines 51-55).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Thorpe by modifying the rivet of Thorpe to further include a detachable second end, as taught by Ible, because both are directed to jaw assemblies for holding objects, Ible teaches the detachable second end secures the rivet to the jaw assembly (column 7, lines 51-55), and this merely involves applying a known technique of adding a detachable second end to a rivet of a similar jaw assembly to yield predictable results.
In regards to claim 6, Thorpe discloses the handles 18 and 19 (i.e., first gripping area and the second gripping area) are pushed together to open the gripping portions 16 and 17 (i.e., the first curved cigar gripping section and the second curved cigar gripping section) and allow a cigar to be placed between the griping sections ([0010] and [0019]).
In regards to claim 8, Modified Thorpe discloses a cigar holder with top and bottom jaw assemblies, but does not explicitly disclose the cigar holder wherein a user can place an end of the first gripping area of the top jaw assembly and an end of the second gripping area of the bottom jaw assembly down to allow the cigar holder to stand in a vertical direction.
However, since Thorpe discloses a cigar holder equal in size and shape on both sides of the top and bottom jaw assemblies (Figure 1), it would be obvious to one of ordinary skill in the art that someone could place the jaws such that they are balanced and standing in a vertical direction, and is therefore considered prima facie obvious.
Claims 2-3 are rejected under 35 U.S.C. 103 as being unpatentable over Thorpe (US-20090032035-A1) in view of Ible (US-5489075-A), as applied to claim 1 above, and further in view of Strasheim et al. (US-20090183742-A1).
In regards to claim 2, Thorpe discloses “it should be obvious that changes, additions and omissions may be made in the details and arrangement of parts without departing from the spirit and scope of the invention as hereinafter claimed” ([0028]), but does not explicitly disclose the cigar holder further comprising a pick assembly, the pick assembly to puncture a cigar at one end or the other end in order to make the cigar easier to smoke.
Strasheim, directed to a cigar multipurpose tool, discloses the cigar multipurpose tool comprising a number of additions, including a cigar holder with gripping elements and a cigar pick assembly (abstract).
Strasheim further discloses the multipurpose tool is designed to be safely carried in the pocket of a user ([0004]-[0005]).
Strasheim further discloses the cigar holder 17 and the pick assembly 18 on opposite ends of one another, joined by the cigar tool body (Figure 1 and [0024]).
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Strasheim further discloses the arm and the pick assembly 18 is for insertion down through the center of a cigar (i.e., puncture a cigar at one end or the other end in order to make the cigar easier to smoke) ([0030]) and pivotally mounted at the left end of the tool ([0031]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Modified Thorpe by adding the cigar holder to a multipurpose tool comprising a pick assembly, as taught by Strasheim because all are directed to holders with gripping means and jaw assemblies, Thorpe teaches additions to the cigar holder that are within the scope of the invention may be made, Strasheim teaches an addition that is within the scope of the invention, Strasheim further discloses an all in one multipurpose tool that is safely carried in the pocket of a user ([0004]), and this merely involves applying the cigar holder of claim 1 to the cigar multipurpose tool body of Strasheim to include a pick assembly to yield predictable results.
In regards to claim 3, Modified Thorpe discloses the cigar holder comprising a pick assembly for puncturing a hole in the cigar (Strasheim [0030]-[0031]).
Strasheim further discloses the cigar poker is pivotably mounted and as shown in Figure 3 below, can open to 180 degrees (i.e., the pick assembly is rotatable by 180 degrees) (Figure 3 and [0031]).
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Claims 4-5 and 9-12 are rejected under 35 U.S.C. 103 as being unpatentable over Thorpe (US-20090032035-A1) in view of Ible (US-5489075-A), as applied to claim 1 above, and further in view of Calhoun (US-20200224685-A1).
In regards to claim 4, Thorpe discloses the top jaw assembly comprising a first gripping area, a first angled section and a first curved cigar gripping section (Refer to Figure 1 annotated by the Examiner provided below).
Thorpe further discloses the bottom jaw assembly comprising a second gripping area, a second angled section and a second curved cigar gripping section (Refer to Figure 1 annotated by the Examiner provided below).
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Thorpe further discloses the first sections and gripping areas are positioned in opposite direction with respect to the second sections and gripping areas and the cigar is held between the first and second curved gripping sections (Figure 5).
Thorpe does not explicitly disclose a first and a second flat section.
Calhoun directed to a clamp for mounting and positioning an article thereon, discloses a spring clamp including two opposing arms (i.e., top and bottom jaw assemblies) with gripping teeth and handle components (abstract).
Calhoun further discloses the top jaw assembly comprising a first gripping area, a first angled section, a first flat section, and a first curved cigar gripping section (Refer to Figure 3 annotated by the Examiner provided below).
Calhoun further discloses the bottom jaw assembly comprising a second gripping area, a second angled section, a second flat section, and a second curved cigar gripping section (Refer to Figure 3 annotated by the Examiner provided below).
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Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify the shape of the clamp design of Modified Thorpe by adding a flat portion, as taught by Calhoun, because all are directed to clamps for holding onto things, Calhoun teaches the design choice of a flat portion is known in the art (Figure 3), and this merely involves applying a change of shape which would be an obvious design choice because both clamps perform the same function, they both hold onto something, and therefore applying a flat portion to the clamp of Thorpe would be a mere change in shape which is a matter of design choice which a person of ordinary skill in the art would have found obvious. See In reDailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (MPEP 2144.04 IV. B).
In regards to claim 5, Modified Thorpe discloses the flat sections are parallel with respect to each other (Calhoun Figure 3).
In regards to claims 9-10, Modified Thorpe does not explicitly disclose when the top and bottom jaw assemblies are placed in a horizontal orientation, their respective gripping areas and angled sections may be positioned between 10 to 20 degrees with respect to a horizontal axis.
However, it would be obvious to one of ordinary skill in the art that one could arrange the jaw assembly in a way that a 10 to 20 degree angle was created between the gripping areas and angled sections by opening and closing the jaws until the desired angle was created.
The Examiner further notes that “may be positioned” is an optional limitation and not required to be taught by the current cited prior art.
In regards to claim 11, Thorpe discloses the first curved gripping section has a first section rising from a horizontal axis, a curved section (i.e., second section), and the bottom of the curved gripping section falling with respect to the horizontal axis (i.e., third section) (Refer to Figure 1 annotated by the Examiner provided below).
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In regards to claim 12, Thorpe discloses the first curved gripping section has a first section falling from a horizontal axis, a curved section (i.e., second section), and the bottom of the curved gripping section rising with respect to the horizontal axis (i.e., third section) (Refer to Figure 1 annotated by the Examiner provided above).
Allowable Subject Matter
Claim 7 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: Regarding claim 7, no prior art alone or in combination with references discloses the pick assembly has an opening, and the rivet is positioned through the pick assembly opening to connect the pick assembly to the cigar holder.
Dolciato (US-20110253154-A1), directed to a holder for a smoking article, discloses the holder comprising jaws for clamping down on the cigar and a shaft at the other end of the holder for inserting the holder into the ground to hold the holder in place (abstract and Figure 4).
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Dolciato differs from the claimed invention in that while Dolciato a shaft at the opposite end of the holder, which could be interpreted as a pick assembly, Dolciato does not explicitly disclose the pick assembly has an opening, and the rivet is positioned through the pick assembly opening to connect the pick assembly to the cigar holder as recited in claim 7.
Strasheim et al. (US-20090183742-A1), directed to a cigar multipurpose tool, discloses the cigar multipurpose tool comprising a number of additions, including a cigar holder with gripping elements and a cigar pick assembly (abstract).
Strasheim further discloses the multipurpose tool is designed to be safely carried in the pocket of a user ([0004]-[0005]).
Strasheim further discloses the cigar holder 17 and the pick assembly 18 on opposite ends of one another, joined by the cigar tool body (Figure 1 and [0024]).
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Strasheim further discloses the arm and the pick assembly 18 has a main body and is for insertion down through the center of a cigar (i.e., puncture a cigar at one end or the other end in order to make the cigar easier to smoke) ([0030]) and pivotally mounted at the left end of the tool ([0031]).
Strasheim differs from the instant invention in that Strasheim does not explicitly disclose the pick assembly has an opening, and the rivet is positioned through the pick assembly opening to connect the pick assembly to the cigar holder as recited in claim 7.
Hodges (US-20240268454-A1), directed to a holding assembly for holding a smoking article like a cigar while playing golf, discloses the holding assembly comprising a holder for holding the cigar and a tip portion (i.e., pick assembly) (abstract and Figure 1).
Hodges differs from the instant invention in that Hodges does not explicitly disclose the pick assembly has an opening, and the rivet is positioned through the pick assembly opening to connect the pick assembly to the cigar holder as recited in claim 7.
Thorpe (US-20090032035-A1) directed to a cigar holder comprising:
A top jaw assembly, the top jaw assembly including apertured supports 20 and 21 (i.e., first opening on a first side and a second opening on a second side) (Refer to Figures 2 and 4 annotated by the Examiner provided below) ([0020]);
A bottom jaw assembly, the bottom jaw assembly including apertured supports 22 and 23 (i.e., first opening on a first side and a second opening on a second side) (Refer to Figures 2 and 4 annotated by the Examiner provided below) ([0020]);
A spring 25 ([0020]);
A rivet 24, the rivet including a main body and a fixed end and a second end, wherein the rivet is inserted through each of the bottom and top assembly openings (20, 21, 22, and 23) (Figure 4 and [0020]).
Thorpe differs from the instant invention in that Thorpe does not teach a pick assembly and therefore not does disclose the pick assembly has an opening, and the rivet is positioned through the pick assembly opening to connect the pick assembly to the cigar holder as recited in claim 7.
As such, no prior art appears to disclose or reasonably suggest a pick assembly and therefore not does disclose the pick assembly has an opening, and the rivet is positioned through the pick assembly opening to connect the pick assembly to the cigar holder as recited in claim 7 and therefore claim 7 is indicated as having allowable subject matter.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Hatcher et al. (US-20130146071-A1), directed to an expandable holder assembly for a cigar, discloses the cigar holder comprising a top and bottom jaw assembly, a screw, and a spring (abstract and Figure 1).
Vigorito (US-3756252-A), directed to a cigarette holder, discloses the cigarette holder having a base retaining a magnet element and an upstanding stem portion which cooperates with a pivotally mounted and spring-urged clamp (abstract).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MADELEINE PAULINA DELACRUZ whose telephone number is (703)756-4544. The examiner can normally be reached Monday - Friday 8-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Philip Louie can be reached at (571)270-1241. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MADELEINE P DELACRUZ/Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755