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 .
Response to Amendment
This action is responsive to communication filed on 01/14/2026. Claims 1-33 remain pending, with claims 32-33 newly added.
Terminal Disclaimer
The terminal disclaimer filed on 01/14/2026 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of USPN 11927001 has been reviewed and is accepted. The terminal disclaimer has been recorded.
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 26-33 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 26 recites the limitation "the top surface of the second rod engagement location" in 16. There is insufficient antecedent basis for this limitation in the claim. A top surface has been previously presented but it was in relation to the lever rod, not the second rod engagement location. Accordingly, it is unclear whether this was an error and should be referencing the top surface of the lever rod portion, or if a top surface of the second rod engagement location is being introduced. Clarification is required. Claims 27-33 will inherit this same issue since they depend from the rejected claim.
Claim Rejections - 35 USC § 102
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 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) 26-27 and 32-33 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US Patent Application Publication 2014/0165275 (hereinafter Zito).
Regarding claim 26, Zito discloses a pop up stopper for a basin drain opening, the pop up stopper comprising:
a body (note annotated fig. 4 below) comprising a first rod engagement location (note annotated fig. 4 below) and a second rod engagement location (note annotated fig. 4 below);
a cap (25) disposed above the body;
a seal (note annotated fig. 4 below) disposed around an upper portion of the body below the cap;
wherein the first rod engagement location and the second rod engagement location are spaced apart from each other longitudinally on the body (note annotated fig. 4 below); wherein the first rod engagement location is configured to be engageable with a top surface of a portion of a lever rod and a bottom surface of the portion of the lever rod to selectively actuate the pop up stopper between an open position and a closed position (“going-through” type installation; see fig. 4);
wherein the second rod engagement location is configured to be engageable with the top surface of the portion of the lever rod but not engageable with the bottom surface of the portion of the lever rod to selectively actuate the pop up stopper to an open position and allow the pop up stopper to fall to a closed position by gravity (“sitting-on” type installation; see fig. 4); wherein the second rod engagement location is further configured to prevent the lever rod from slipping when engaged with the top surface of the portion of the lever rod (via notch/arc shape); and
wherein the seal is configured to engage with the basin drain opening to close the basin drain opening to flow when the pop up stopper is in the closed position and to disengage with the basin drain opening to open the basin drain opening to flow when the pop up stopper is the open position (par. 31).
PNG
media_image1.png
564
706
media_image1.png
Greyscale
Regarding claim 27, Zito discloses wherein the cap and body are integrally formed (i.e. components connected together so as to make up a single piece or unit) (see fig. 4).
Regarding claim 32, Zito discloses wherein the body comprises a connector plate (27) disposed below the seal; and wherein the second rod engagement location comprises a notch disposed in a bottom surface of the connector plate (see annotated fig. 4 above).
Regarding claim 33, Zito discloses wherein the body comprises a connector body (27) disposed below the seal; wherein the second rod engagement location comprises an arced bottom end of the connector body (see annotated fig. 4 above).
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.
Claim(s) 31 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zito.
Regarding claim 31, Zito shows the widest part of the stopper below the seal is narrower than the drain pipe (par. 31) but fails to show wherein the body has a maximum width as measured in cross-section of 1.04 inches and wherein the cap has a diameter of 1.3 to 1.4 inches. Applicant has not disclosed that sizing the stopper body widest part measured in cross-section is no more than 1.04 inches and the cap has a diameter of 1.3 to 1.4 inches provides an advantage, is used for a particular purpose, or solves a stated problem; Applicant recites instead that the dimension is merely preferable. Furthermore, one of ordinary skill in the art would have expected the pop up stopper assembly to perform the same function of selectively opening and closing a drain structure with the required dimension given the typical drain diameters for household plumbing and the teachings of showing the stopper body being spaced from the drain pipe wall (see fig. 1). It would have been obvious to one having ordinary skill in the art before the effective filing of the claimed invention to configure the dimensions such that the body has a maximum width as measured in cross-section of 1.04 inches and wherein the cap has a diameter of 1.3 to 1.4 inches because such a modification would have been considered a mere design consideration which fails to patentably distinguish over the prior art of Zito (MPEP 2144.04(IV)(A)).
Allowable Subject Matter
Claims 1-25 are allowed.
Claims 28-29 are 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 and the 112b rejection addressed for the parent claim 26.
Response to Arguments
Applicant’s arguments with respect to the pending claim(s) 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JANIE M LOEPPKE whose telephone number is (571)270-5208. The examiner can normally be reached M-F 9AM-5PM ET.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Angwin can be reached at (571) 270-3735. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JANIE M LOEPPKE/Primary Examiner, Art Unit 3754