1DETAILED 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 Objections
Claim 1 is objected to because of the following informalities: In line 4 the phrase “connected to exit of the compressed gas module” would be clearer as “connected to the outlet of the compressed gas module”. Appropriate correction is required.
Claims 6 and 15 are objected to because of the following informalities: The phrase “said elongate tubing” would be clearer as “said elongate tube” for consistency. Appropriate correction is required.
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, 2, 4, 10 and 15 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Mushenski (8051806). Mushenski discloses an animal motivation device kit (Figs. 1-3) that can include a plurality of noisemaking tips (46, 18), a removable compressed gas module (24) in the form of a canister that provides a source of compressed gas (column 2 lines 38-51), an outlet (25) through which the compressed gas exits the source and enters the device (Fig. 3), an actuator (22) with a valve (29) operably coupled to the outlet of the compressed gas module and configured (26) for being switched between a closed position that blocks the flow of gas and an open position that can allow the passage of gas therethrough (Fig. 3, column 2 lines 55-63) and an elongate tube (16) having an inlet end (35) extending from the valve and a distal end (37) having one of the tips (46) affixed thereto (Fig. 3). The tips are shaped and configured such that gas flow exiting the tips (12) generates a sound and provides a tactile sensation to an animal when the animal is contacted by the gas flow exiting the tips (column 2 lines 19-30, column 3 line 45 -column 4 line 26). At least one of the tips (Fig. 3) includes an inlet with a screw thread forming extension tubing for removably affixing to the elongate tube in a manner that is capable of extending an effective path length of the elongate tube, a hollow passage in an end of which mechanisms (34,38,42) for imparting sound are located (column 3 lines 45-56) and an outlet (48). In regard to the device being used with livestock, the examiner notes that a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
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.
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mushenski as applied above and further in view of Scrivner (6488558). Mushenski discloses the basic inventive concept with the exception of the gas compressor module including an air compressor with a reservoir that is in fluid communication with the elongate tube. Scrivner discloses a noisemaker that uses compressed gas (abstract) having a compressed gas module in the form of an air compressor connected with a reservoir (104) to form a canister of compressed gas (Fig. 2, column 5 lines 8-17). It would have been obvious to one of ordinary skill in the art from the teaching of Scrivner to form the compressed gas module of Mushenski as and air compressor with a reservoir for the predictable result of forming the gas module in a known manner for use in a noisemaker device to produce the desired sound effects.
Claim(s) 5-6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mushenski and Scrivner as applied for claim 3 above and further in view of Vidovic (4967684). Mushenski and Scrivner disclose the basic inventive concept with the exception of one of the tips including a whistle. Vidovic discloses a compressed gas noisemaker wherein a tip (81) can be configured to include a horn or whistle for generating sound when gas flows through the tip (column 3 line 38-column 4 line 16). Although Vidovic does not disclose an animal motivation device it does teach incorporating a whistle into a tip of a compressed gas powered device where sound is desired to be created and as such it would have been obvious to one of ordinary skill in the art to configure the tips of Mushenski and Scrivner to include a whistle for the predictable result of generating a sound in combination with a compressed gas flow.
Claim(s) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mushenski as applied for claim 10 above and further in view of Vidovic (4967684). Mushenski discloses the basic inventive concept with the exception of one of the tips including a whistle. Vidovic discloses a compressed gas noisemaker wherein a tip (81) can be configured to include a horn or whistle for generating sound when gas flows through the tip (column 3 line 38-column 4 line 16). Although Vidovic does not disclose an animal motivation device it does teach incorporating a whistle into a tip of a compressed gas powered device where sound is desired to be created and as such it would have been obvious to one of ordinary skill in the art to configure the tips of Mushenski to include a whistle for the predictable result of generating a sound in combination with a compressed gas flow.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-6, 10, 11 and 15 have been considered but 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.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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/A.M.H/
Examiner, Art Unit 3711 /EUGENE L KIM/Supervisory Patent Examiner, Art Unit 3711