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 .
Election/Restrictions
Applicant's election with traverse of Invention I (claims 1-15) in the reply filed on 5/18/02026 is acknowledged. Claims 16-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Applicant timely traversed the restriction (election) requirement in the reply filed on 5/18/02026. The traversal is on the ground(s) that there would be no burden to search both Inventions I and II. This is not found persuasive. Because Applicant has not provided evidence or identified such evidence now of record showing the inventions/species to be obvious variants nor clearly admitted on record that this is the case, the conclusion is made that Applicant considers the inventions/species to be patentably distinct. The different inventions/species contain features which make them distinct and which would therefore require being individually searched or individually addressed in the written Office Action, thus prima facia a serious burden.
The requirement is still deemed proper and is therefore made FINAL.
Claim Objections
Claim 2 is objected to because of the following informalities:
Claim 2 recites: “the side strut defining a top a and a bottom of the side strut”. The “a” between the words “top” and “and” should be removed. 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 4, 6-8, and 11-15 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 4 recites: “wherein the exterior facing surface includes a top taper portion extending outwardly between the top and the bumper and a bottom taper portion extending outwardly between the bottom and the bumper.” The shape described by this claim is not understood. It is believed this shape is best shown in Applicant’s Fig. 7. What is the outward direction? Those having ordinary skill in the art would understand, based on Fig. 7, that the surfaces (116, 118) taper inwardly, since they extend toward a lateral inward side from the bumper (24).
Claim 6 recites:
“the bumper includes a longitudinal side segment and an upright segment,
the longitudinal side segment extends from the exterior facing surface of the base frame, and
the upright segment extends from an exterior facing surface defined by one of the support masts.”
The recitation yields indefiniteness because it is unclear how the segments of the bumper extend away from the exterior surfaces. Claim 1 defines the bumper as a component of the exterior surface of the base frame: “wherein the base frame defines an exterior facing surface having a bumper extending outwardly away from a reminder of the exterior facing surface”.
If the bumper is a component of the exterior facing surface of the base frame, how does the longitudinal side segment extend from the exterior facing surface of the base frame? Claim 6, when considered with the description of the bumper as defined by claim 1, essentially suggests that the bumper extends from itself. Additionally, claim 6 redefines the bumper as a component belonging not just to the base frame, but also the support mast, which contradicts claim 1 (which defines the bumper as a component of the exterior facing surface of the base frame). Claim 6 is indefinite because it includes contradictory limitations. It is unclear whether the bumper is part of the exterior surface of the base frame, or whether it is a component separate from and extending away from the exterior surfaces of the base from and support mast. Clarification is needed.
Claim 7 recites: “wherein the upright segment of the bumper extends away from the exterior facing surface defined by one of the support masts. Claim 7 is indefinite for similar reasons as expressed for claim 6.
Claim 7 recites: “the exterior facing surface defined by one of the support masts tapers outwardly on either side of the upright segment.” The shape described by this claim is not understood. It is believed this shape is best shown in Applicant’s Fig. 8. What is the outward direction? If the upright segment (24) corresponds to the outermost part of the exterior facing surface, those having ordinary skill in the art would understand, based on Fig. 8, that the surfaces (132, 140) taper inwardly, since they extend toward a lateral inward side from the upright segment/bumper (24). Claim 13 is indefinite for the same reasons.
In claim 11, there is improper antecedent basis for “an exterior facing surface” (of the rear leg). This limitation appears to correspond to the same (or part of the same) exterior surface introduced by claim 1.
Claim 11 recites: “the exterior facing surface tapers outwardly to the rearward segment on both sides of the rearward segment of the bumper.” The shape described by this claim is not understood. It is believed this shape is best shown in Applicant’s Fig. 9. What is the outward direction? If the rearward segment (24) corresponds to the outermost part of the exterior facing surface, those having ordinary skill in the art would understand, based on Fig. 9, that the surfaces (158, 160) taper inwardly, since they extend toward a lateral inward side from the rearward segment/bumper (24).
Claim 12 recites: “the bumper includes an upright segment extending from an exterior facing surface defined by one of the support masts”. Claim 12 is indefinite for similar reasons as expressed for claim 6.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-4 and 6-15 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Magnusson (US D800,986).
Regarding claim 1, Magnusson teaches: a shopping cart comprising:
a chassis (A, B, C) including a base frame (A) and support masts (B) extending upwardly from the base frame;
wheels (D) coupled to the chassis; and
a basket (E) supported by the support masts to extend over the chassis, wherein the basket defines a compartment for selectively storing items;
wherein the base frame defines an exterior facing surface having a bumper (F) extending outwardly away from a reminder of the exterior facing surface providing a buffer of space (see the spaces directly outward from portions G and H) between an exterior bumper surface and a remainder of the base frame.
The Figures from Magnusson reveal the frame components (A, B, C) each have a pill-shaped, or stadium-shaped cross section. The exterior of this shape includes a flat vertical face (F) with inwardly-curved top and bottom portions (G and H, respectively). The bumper corresponds to the vertical outward-most portion.
Relevant elements are best shown in the annotated version of Fig. 1, and the magnified annotated version of Fig. 3, below:
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Regarding claim 2, Magnusson further teaches: wherein the base frame defines a side strut (A) extending between a front of the base frame and a rear of the base frame, the side strut defining a top a and a bottom of the side strut, the bumper (F) is positioned between the top and the bottom of the side strut. See the annotated version of Fig. 1, and the magnified annotated version of Fig. 3, above.
Regarding claim 3, Magnusson further teaches: the bumper extends substantially parallel with the top of the side strut for a length of the bumper. See the annotated version of Fig. 1, above.
Regarding claim 4, Magnusson further teaches: the exterior facing surface includes a top taper portion (G) extending outwardly between the top and the bumper and a bottom taper portion (H) extending outwardly between the bottom and the bumper. See the magnified annotated portion from Fig. 3, above.
Regarding claim 6, Magnusson further teaches: the bumper includes a longitudinal side segment (see the bumper along portion A) and an upright segment (see the bumper along portion B), the longitudinal side segment extends from the exterior facing surface of the base frame, and the upright segment extends from an exterior facing surface defined by one of the support masts. See the annotated version of Fig. 1, above.
Regarding claim 7, Magnusson further teaches: wherein the upright segment of the bumper extends away from the exterior facing surface defined by one of the support masts and the exterior facing surface defined by one of the support masts tapers outwardly on either side of the upright segment. See the curvature of the support masts in Figs. 7 and 8.
Regarding claim 8, Magnusson further teaches: wherein the bumper continuously extends from the longitudinal side segment and the upright segment. See at least Fig. 1. Those having ordinary skill in the art would recognize that the bumper continuously extends at least because there is no gap/space between the longitudinal side segment and the upright segment.
Regarding claim 9, Magnusson further teaches: wherein the bumper is integrally molded as a single piece with the base frame and the support mast. See at least Fig. 1. Molding is a process for manufacturing a frame. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). A product in the prior art made by a different process can anticipate a product-by-process claim. See MPEP 2113.
Regarding claim 10, Magnusson further teaches: the base frame includes two opposing side struts (A) and two rear legs (C), each of the rear legs extends downwardly from a different one of the two opposing side struts; the bumper includes a longitudinal side segment extending along a length of one of the two opposing the side struts and a rearward segment extending downwardly along a length of the one of the rear legs extending downwardly from the one of the two opposing side struts; and the bumper is continuous from the longitudinal side segment to the rearward segment. See the annotated version of Fig. 1, above, and Figs. 7-8. Those having ordinary skill in the art would recognize that the bumper continuously extends at least because there is no gap/space between the longitudinal side segment and the rearward segment.
Regarding claim 11, Magnusson further teaches: the rear leg defines an exterior facing surface, the rearward segment of the bumper extends along an interior portion of the exterior facing surface; and the exterior facing surface tapers outwardly to the rearward segment on both sides of the rearward segment of the bumper. See Fig. 1, and see the curvature of the rear legs in Figs. 7 and 8.
Regarding claim 12, Magnusson further teaches: the bumper includes an upright segment extending from an exterior facing surface defined by one of the support masts upwardly along a length of the one of the support masts. See the annotated version of Fig. 1, above.
Regarding claim 13, Magnusson further teaches: the upright segment of the bumper extends away from the exterior facing surface defined by one of the support masts and the exterior facing surface defined by one of the support masts tapers outwardly on either side of the upright segment. See the curvature of the support masts in Figs. 7 and 8.
Regarding claim 14, Magnusson further teaches: wherein the bumper continuously extends to form the longitudinal side segment, the rearward segment, and the upright segment. See the annotated version of Fig. 1, above, and Figs. 7-8. Those having ordinary skill in the art would recognize that the bumper continuously extends as claimed at least because there are no gaps/spaces between the longitudinal side segment, the rearward segment, and the upright segment.
Regarding claim 15, Magnusson further teaches: wherein the bumper is integrally molded as a single piece with the base frame and the support mast. See at least Fig. 1. Molding is a process for manufacturing a frame. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). A product in the prior art made by a different process can anticipate a product-by-process claim. See MPEP 2113.
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.
Regarding claim 5, Magnusson fails to describe wherein a top distance between the top and the bumper and a bottom distance between the bottom and the bumper are both larger than a height of the bumper.
The provision of a top distance between the top and the bumper and a bottom distance between the bottom and the bumper are both larger than a height of the bumper establishes a size and/or shape for parts of the side strut. Before the effective filing date of the claimed invention, it would be obvious to those having ordinary skill in the art to provide a top distance between the top and the bumper and a bottom distance between the bottom and the bumper are both larger than a height of the bumper; the motivation being: for aesthetics and to reduce the vertical dimension of any scuff marks made by the shopping cart. Any such modifications in size and/or shape would be an obvious design choice, yielding the same predictable results. A change in shape is a design consideration within the skill of the art. In re Dailey, 357 F.2d 669, 149 USPQ 47. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Additional prior art made of record relates to carts having frames and bumpers relevant to the claimed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to EMMA K FRICK whose telephone number is (571)270-5403. The examiner can normally be reached 9AM-5PM EST M, T, F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Allen Shriver can be reached at (303) 297-4324. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/EMMA K FRICK/ Primary Examiner, Art Unit 3613
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