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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 5/4/2026 has been entered.
Response to Amendment
This action is in response to Amendments made on 5/4/2026, in which: claims 48, 50-52 are previously presented and claims 1-47, 49 are cancelled.
Double Patenting
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 48, 50-52 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 12, 34, 45 of U.S. Patent No. 11882810. Although the claims at issue are not identical, they are not patentably distinct from each other because the subject matter of the instant invention is the same but is presented in broader form.
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.
Claims 48, 50 are rejected under 35 U.S.C. 103 as being unpatentable over Conger (US 2011/0061600) in view of KMH182 (Multi-Layer Bin, 2010).
Regarding claim 48, Conger discloses a method for manufacturing an animal cage comprising the step of: removing material from a perforation section (119) of the cage (101, 102) to form a plurality of apertures (119A), wherein the apertures (119A) are formed by removing material of the cage (101, 102), but does not expressly disclose wherein the material is removed from the inside to the outside of the cage by the material being drilled, milled or punched.
However, KMH182 discloses a similar method of manufacturing a container by removing the material from the inside to the outside by being drilled, milled or punched (Steps 2 and 3, see below).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the invention/application, to modify Conger, by removing material from the inside to the outside by being drilled, milled or punched, as taught by KMH182, for the purpose of providing apertures in the device for drainage and airflow.
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Regarding claim 50, Conger discloses wherein the cage (101, 102) comprises a cage top (102), the cage top (102) including one or more walls (walls around the exterior of element 102 and around element 105) extending from a ceiling (surface of element 102, Fig. 3), the perforation section (107, Fig. 7A) is positioned in the ceiling (surface of element 102, Fig. 3) of the cage top (102).
Claims 48, 51 are rejected under 35 U.S.C. 103 as being unpatentable over Chang (US 2016/0174519) in view of KMH182 (Multi-Layer Bin, 2010).
Regarding claim 48, Chang discloses a method for manufacturing an animal cage comprising the step of: removing material from a perforation section (400) of the cage (100) to form a plurality of apertures (410, and apertures of 600), wherein the apertures (410, and apertures of 600) are formed by removing material of the cage (100), but does not expressly disclose wherein the material is removed from the inside to the outside of the cage by the material being drilled, milled or punched.
However, KMH182 discloses a similar method of manufacturing a container by removing the material from the inside to the outside by being drilled, milled or punched (Steps 2 and 3, see above).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the invention/application, to modify Chang, by removing material from the inside to the outside by being drilled, milled or punched, as taught by KMH182, for the purpose of providing apertures in the device for drainage and airflow.
Regarding claim 51, Chang discloses wherein the cage (100) comprises a cage top (300), the cage top (300) including one or more walls (walls extending from the exterior portion of element 300 and walls of element 600) extending from a ceiling (surface of element 300), the perforation section (410, and apertures of 600) is positioned in the one or more walls (walls extending from the exterior portion of element 300 and walls of element 600) of the cage top (300).
Claims 48, 52 are rejected under 35 U.S.C. 103 as being unpatentable over Harada (US 10687509) in view of KMH182 (Multi-Layer Bin, 2010).
Regarding claim 48, Harada discloses a method for manufacturing an animal cage comprising the step of: removing material from a perforation section (150) of the cage (100) to form a plurality of apertures (112), wherein the apertures (112) are formed by removing material the cage (100), but does not expressly disclose wherein the material is removed from the inside to the outside of the cage by the material being drilled, milled or punched.
However, KMH182 discloses a similar method of manufacturing a container by removing the material from the inside to the outside by being drilled, milled or punched (Steps 2 and 3, see above).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the invention/application, to modify Harada, by removing material from the inside to the outside by being drilled, milled or punched, as taught by KMH182, for the purpose of providing apertures in the device for drainage and airflow.
Regarding claim 52, Harada discloses wherein the cage (100) comprises a cage base (bottom of element 100), the cage base (bottom of element 100) including one or more walls (110) extending from a floor (floor of element 100), the perforation section (150) is positioned in the one or more walls (110) of the cage base (bottom of element 100).
Response to Arguments
Applicant’s arguments with respect to claim(s) 48, 50-52 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
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AARON M RODZIWICZ whose telephone number is (571)272-6611. The examiner can normally be reached Monday - Friday 10 am - 6 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joshua Michener can be reached at (571) 272-1467. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AARON M RODZIWICZ/Examiner, Art Unit 3642
/MONICA L PERRY/Primary Examiner, Art Unit 3644
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