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 .
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 1-3 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 puts forth that the wrapping layer is composed of a thermoplastic polyolefin, a polyethylene, and a cork. The limitation is indefinite because it is unclear whether Applicant is asserting that the composition is a thermoplastic polyolefin other than polyethylene, or whether polyethylene is included amongst potential thermoplastic polyolefin, as polyethylene is a thermoplastic polyolefin. Would two compositions of polyethylene satisfy the limitation? What are the bounds of the limitation?
Claim 1 puts forth that the nozzle is made of injection molding. The limitation is indefinite because it is unclear whether the material is to be an injection molding material or injection molding is the process by which the nozzle is formed. If the latter, Examiner recommends amending the limitation to put forth “the hose nozzle is made by injection molding.” Examiner notes that the limitation is a product by process limitation, and will be subject to treatment as such. If the former, Examiner recommend amending the limitation to put forth that the hose nozzle is made of an injection molded material.
The remaining claims are rejected due to dependency from claim 1.
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) 1-3 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Eley (US 2013/0140382) in view of Nakanishi (WO 2021100805).
Regarding claims 1-2, Eley discloses a garden hose nozzle, comprising a hose nozzle, wherein:
the hose nozzle is made of injection molding (As best understood, the limitation is a product-by-process limitation. "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. 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). The claimed structure is the same as or obvious from the prior art structure, and is therefore rejected even though the product may be made by a different process)
and comprises a body part (12), one end of the body part is connected to a water spray part for spraying water (Paragraph 41, 82 and spray tip), the other end of the body part is equipped with a water supply part (22) used to supply water (Paragraph 32), the surfaces of the body part (12), are covered with at least one wrapping layer (72) for protection and holding (The limitations are interpreted as a recitation of intended use, and therefore afforded limited patentable weight (Paragraph 34)), but fails to disclose the wrapping layer is composed of a thermoplastic polyolefin, a polyethylene, and a cork, the proportions of the thermoplastic polyolefin, the polyethylene, and the cork in the wrapping layer are 15%, 54%, and 30% respectively;
or as to claim 2 wherein the wrapping layer further comprises a colorant, and the proportion of the colorant in the wrapping layer is 1%.
Nakanishi discloses a material that may be applied to a molded article, in order to provide for effective anti-vibration, the material being made of thermoplastic polyolefin (Lines 84-86), a polyethylene (line 259), and a cork (line 240), and as to claim 2 wherein the layer comprises a colorant (Line 234).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Eley with the disclosures of Nakanishi, providing the material of the wrapping layer to be made of thermoplastic polyolefin (Lines 84-86), a polyethylene (line 259), a cork (line 240), and colorant, since it has been held to be within the general skill of a worker in the art to select a known component or material on the basis of suitability for the intended use as a matter of obvious mechanical design expediency. In re Leshin, 125 USPQ 416. Also see MPEP 2144.07. Sinclair & Carroll Co. v. Interchemical Corp. states "Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” 325 U.S. at 335, 65 USPQ at 301. Further one of ordinary skill in the art would have appreciated that use of the material combination would provide for anti-vibration and moldability benefit.
Eley in view of Nakanishi fails to disclose the claimed proportions of material. Nakanishi suggests that the proportion of materials will affect performance, and provides testing to show the effect of adjusting proportion. Proportion is put forth as a result-effective variable, as adjusting the proportion adjusts the performance of the material. Further, it appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying the Eley in view of Nakanishi device to have proportions within the claimed range, as it involves only adjusting the proportion of a component disclosed to require adjustment. Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Eley in view of Nakanishi to feature a material with the claimed proportions as a matter of routine optimization since it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Eley in view of Nakanishi also fails to disclose the material applied to the water spray part and the water supply part.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Eley in view of Nakanishi to include the material applied to the water spray part and supply part since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70.
Regarding claim 3, Eley in view of Nakanishi discloses the garden hose nozzle of claim 1, wherein the hose nozzle comprises a rotary handle for controlling water spray (Figure 1 depicts the rotary handle at the top of the gun), and the position of the rotary handle is at a point where the user can push the body part with his thumb (Figure 1), but fails to disclose the surface of the rotary handle is also covered with the wrapping layer.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Eley in view of Nakanishi to include the material applied to the wrapping layer since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTOPHER R. DANDRIDGE whose telephone number is (571)270-1505. The examiner can normally be reached M-T 9am-7pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Arthur O. Hall can be reached at (571)270-1814. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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CHRISTOPHER R. DANDRIDGE
Primary Examiner
Art Unit 3752
/CHRISTOPHER R DANDRIDGE/Primary Examiner, Art Unit 3752