DETAILED ACTION
Drawings
The drawings are also objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore,
wherein the depth of said recess cutout is at least 35% of the total depth of said seat member of claim 1,
wherein said recess cutout of said platform member has a maximum depth of at least 40% of the maximum depth of the seat member of claim 3,
wherein said recess cutout of said platform member has a maximum depth of at least 50% of the maximum depth of the seat member of claim 4,
wherein the recess cutout has a maximum depth that is at least 60% of the maximum depth of the seat member of claim 6, and,
must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
Specifically, the “attachment means” recited in claim 1, line 5 are being interpreted as invoking 35 U.S.C. 112(f), and accordingly, are limited by the description of the strap in the specification at page 11, paragraphs 3 and 4.
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.
Claims 1-4, 6-9, 11-12, and 14 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. Specifically, is unclear how the term “depth”, fourth line from the last in claim 1, comports with the first incidence of the term “maximum depth” in claims 3, 4, and 6 for determining the metes and bounds of the claimed invention. A similar issue is presented by the term “total depth” in the third line from the last in claim 1 in relation to the last incidence of “maximum depth” in each of claims 3, 4, and 6.
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 1-4, 6-7, 11, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Amacker (US5379861) in view of Hovey (US20100270105) in view of Infalt (US10973224) and further in view of Morris (US6345690).
1: Amacker discloses a climbing treestand (Fig. 1) for demountable attachment to a trunk of a tree, said treestand comprising: a lower main supporting platform member (14), an upper seat member (12), and attachment means (38) connected to each of said platform member and seat member for attaching each of said seat member and platform member to a tree, and wherein said platform member (14) comprises a stabilizer (54) member.
Amacker fails to disclose wherein the seat member comprises a recess cutout which provides the user with more standing room on said support platform. Hovey teaches wherein the seat member comprises a recess cutout (144) which provides the user with more standing room on said support platform. It 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 to have included wherein the seat member comprises a recess cutout which provides the user with more standing room on said support platform in the climbing treestand disclosed by Amacker according to the teachings of Hovey “such that the user can comfortably suspend their legs over the edge of climbing platform 102 for extended periods of time. Additionally, the user can position support platform 104 below climbing platform 102 such that it can be used as a footrest” (Hovey, [0087]).
Amacker in view Hovey do not explicitly disclose wherein the depth of said recess cutout is least 35% of the total depth of the seat member. However, per MPEP 2144.05.I: a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Accordingly, it 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 to have included wherein the depth of said recess cutout is least 35% of the total depth of the seat member in the treestand disclosed by Amacker according to the teachings of Hovey in order for the user “to comfortably suspend their legs over the edge of climbing platform 102 for extended periods of time”. Additionally, the user can position support platform 104 below climbing platform 102 such that it can be used as a footrest” (Hovey, [0087]).
Amacker in view of Hovey fail to disclose wherein said platform member, said seat member, or both said platform member and said seat member are solid and one-piece and are each fabricated from cast aluminum or aluminum alloy or solid aluminum or aluminum alloy stock. Infalt teaches, in the context of treestands, wherein said platform member, said seat member, or both said platform member and said seat member are solid and one-piece and are each fabricated from cast aluminum or aluminum alloy or solid aluminum or aluminum alloy stock (see Infalt at col. 14, lines 38-40: “Platform 1706 and seat 1712 are each machined from a solid plate (either the same plate or different plates) of aluminum alloy or other pre-strengthened metal”). It 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 to have included wherein said platform member, said seat member, or both said platform member and said seat member are solid and one-piece and are each fabricated from cast aluminum or aluminum alloy or solid aluminum or aluminum alloy stockin the treestand disclosed by Amacker in view of Hovey according to the teachings of Infalt in order to render the treestand “aesthetically pleasing to hunters”, see col. 14, lines 24-25 of Infalt.
Amacker in view of Hovey and further in view of Infalt fail to disclose the climbing treestand of claim 1 wherein said stabilizer comprises rounded recess areas configured to accept the shoes/boots of the user. Morris teaches, in the context of climbing treestands, rounded recess areas configured to accept the shoes/boots of the user (see below annotated Fig. 7 of Morris). It 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 to have included wherein the stabilizer of Amacker in view of Hovey and further in view of Morris comprises rounded recess areas configured to accept the shoes or boots of the user according to the teachings of Morris “in order to provide for comfort and enhanced contact between the hunter's boots and the upper support bracket 272”, see col. 9, line 67 to col. 10, line 4 of Morris.
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2: Amacker in view of Hovey in view of Infalt and further in view of Morris disclose the climbing treestand of claim 1 wherein said cutout recess is semi-circular, semi- elliptical, elliptical, multi-angled, semi hexagonal, semi pentagonal, semi-octogonal, boxed, and the like (Hovey, [0086]: “semicircular or semi-elliptical recessed edges 144).
3: Amacker in view of Hovey in view of Infalt and further in view of Morris do not explicitly disclose the climbing treestand of claim 1 wherein said recess cutout of said platform member has a maximum depth of at least 40% of the maximum depth of the seat member. However, per MPEP 2144.05.I: a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Accordingly, it 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 to have included wherein said recess cutout of said platform member has a maximum depth of at least 40% of the maximum depth of the seat member in the treestand disclosed by Amacker in view of Hovey in view of Infalt and further in view of Morris in order for the user “to comfortably suspend their legs over the edge of climbing platform 102 for extended periods of time. Additionally, the user can position support platform 104 below climbing platform 102 such that it can be used as a footrest” (Hovey, [0087]).
4. Amacker in view of Hovey in view of Infalt and further in view of Morris do not explicitly disclose the climbing treestand of claim 1, wherein said recess cutout of said platform member has a maximum depth of at least 50% of the maximum depth of the seat member. However, per MPEP 2144.05.I: a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Accordingly, it 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 to have included wherein said recess cutout of said platform member has a maximum depth of at least 50% of the maximum depth of the seat member in the treestand disclosed by Amacker in view of Hovey in view of Infalt and further in view of Morris in order for the user “to comfortably suspend their legs over the edge of climbing platform 102 for extended periods of time. Additionally, the user can position support platform 104 below climbing platform 102 such that it can be used as a footrest” (Hovey, [0087]).
6: Amacker in view of Hovey in view of Infalt and further in view of Morris do not explicitly disclose the climbing treestand of claim 1 wherein the recess cutout has a maximum depth that is at least 60% of the maximum depth of the seat member. However, per MPEP 2144.05.I: a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Accordingly, it 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 to have included wherein the recess cutout has a maximum depth that is at least 60% of the maximum depth of the seat member in the treestand disclosed by Amacker in view of Hovey in view of Infalt and further in view of Morris in order for the user “to comfortably suspend their legs over the edge of climbing platform 102 for extended periods of time. Additionally, the user can position support platform 104 below climbing platform 102 such that it can be used as a footrest” (Hovey, [0087]).
7: Amacker in view of Hovey in view of Infalt and further in view of Morris disclose the climbing treestand of claim 1 wherein said platform member (14, Amacker) comprises support arms (56, Amacker) on each outer edge of said platform, wherein said support arms are connected to each other by the stabilizer member (54, Amacker).
11: Amacker in view of Hovey in view of Infalt and further in view of Morris disclose the climbing treestand of claim 10 wherein said platform member, said seat member, or both said platform member and said seat member are fabricated from solid aluminum stock by machining or by a waterjet process (col. 13, line 66 to col. 14, line 9: “In the example embodiments shown in FIGS. 13-15, platform 300 and seat 334 are machined (milling, drilling, etc.) from plates using a CNC machine. However, other cutting means can be implemented in place of machining. For example, platform 1300 and seat 334 can be cut from a plate using other processes including, but not limited to, water jet cutting, plasma cutting, flame cutting, laser cutting, stamping/punching, drilling, and/or any other manufacturing process for removing material. Such alternate cutting processes can optionally be automated, using CNC or other systems, or manual”)
14: Amacker in view of Hovey in view of Infalt and further in view of Morris disclose the climbing treestand of claim 13 wherein said dual purpose stabilizer is configured such that when said platform member is collapsed for transport, the stabilizer member pivots or folds to lie flat with the platform member (see Fig. 2 of Hovey, also [0030]: “The climbing and support platforms may be collapsed for simple transportation or storage”).
Claims 8 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Amacker (US5379861) in view of Hovey (US20100270105) in view of Infalt (US10973224) in view of Morris (US6345690 and further in view of Cole (US20140190308)
8: Amacker in view of Hovey in view of Infalt and further in view of Morris disclose the climbing treestand of claim 1 wherein said platform member comprises a plurality of attachment ports (see Hovey [0043]: “Sockets may also be incorporated in the present invention. Such sockets may be inserted in socket apertures located in either or both of the climbing and support platforms”. Amacker in view of Hovey in view of Infalt and further in view of Morris fail to disclose wherein the attachment ports are configured to allow attachment of said seat member to said platform member. However, Amacker in view of Hovey in view of Infalt and further in view of Morris teach generally that the climbing and support platforms may be transformed “into virtually flat objects that may be stacked upon one another to simplify transportation. In this collapsed position, climbing and support platforms may be easily stored under a seat, in an automobile trunk, or in a backpack, duffle bag, or the like during transportation to the user's desired location. Also, this design allows a user to carry the platforms as a backpack or contained within a backpack”, [0030] of Hovey. And Cole teaches that a “male engagement component is configured to interact with a female engagement component. In some embodiments, the male engagement component may be a pin, screw, spike, post, projection, protrusion, rail, or any other suitable structure. The male engagement component may be fixed with respect to a surface or structure (such as a plate or pedal, etc.) or may be connectable to any surface or structure. The male engagement component is dimensioned and otherwise configured to generate a desired, predetermined amount of friction when sufficient force is applied to engage the male engagement component with a female engagement component”. It 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 to have included wherein the attachment ports of Amacker in view of Hovey in view of Infalt and further in view of Morris are configured (i.e., stacked) to allow attachment of said seat member to said platform member according to the teachings of Cole in order to further enhance storage and transportation of the treestand, see Cole at [0003]: “there are many applications (such as sporting applications, the placement of transportable goods in a container or vehicle, the storage of goods in a warehouse or private storage unit, and so forth) where it is desirable for two objects to be connected at a certain position for a certain amount of time without slipping or sliding and for there to be a relatively easy way of fixing and releasing the connection”.
9: Amacker in view of Hovey in view of Infalt in view of Morris and further in view of Cole disclose the climbing treestand of claim 8 wherein said seat member comprises a plurality of plug grommets (see Fig. 17 of Cole) configured to be inserted into the attachment ports (sockets, see e.g., [0110] of Hovey) of said platform member to securely attach said seat member to said platform member.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Amacker (US5379861) in view of Hovey (US20100270105) in view of Infalt (US10973224) and further in view of Morris (US6345690) and further in view of Reich (US2294802).
12: Amacker in view of Hovey in view of Infalt and further in view of Morris disclose wherein the platform member comprises a slotted receiving port (908 in Fig. 9 of Hovey). Also, Amacker in view of Hovey teach that “Such sockets may be inserted in socket apertures located in either or both of the climbing and support platforms”, [0043] of Hovey. Further, Amacker in view of Hovey teach generally that the climbing and support platforms may be transformed “into virtually flat objects that may be stacked upon one another to simplify transportation. In this collapsed position, climbing and support platforms may be easily stored under a seat, in an automobile trunk, or in a backpack, duffle bag, or the like during transportation to the user's desired location. Also, this design allows a user to carry the platforms as a backpack or contained within a backpack”, see [0030] of Hovey.
Amacker in view of Hovey in view of Infalt and further in view of Morris fail to disclose wherein the upper seat member comprises a threaded or unthreaded bolt or thumb screw having a flattened end. Reich teaches a thumbscrew with a flattened end (27, 28), see Fig. 10 of Reich. It 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 to have included wherein the upper seat member comprises a threaded or unthreaded bolt or thumb screw having a flattened end, and the platform member comprises a slotted receiving port configured to receive said flattened-end of said bolt or thumb screw, wherein when said bolt or screw of said seat member is inserted into said slotted receiving port of said platform member and twisted and/or tightened down, the seat and platform members are securely fastened to each other in the treestand disclosed by Amacker in view of Hovey in view of Infalt and further in view of Morris according to the teachings of Reich in order to securely fasten the stacked seat member to the platform member at the slotted receiving port with a fastener having a “head portion which is adapted to be grasped by the hand of the user”, see lines 5-6 of Reich.
Response to Arguments
Applicant's arguments filed 29 May 2026 have been fully considered but they are not persuasive.
With regard to the drawing objection, Applicant points to 37 CFR 1.81(a) and argues that, in view of Figs. 2B and 3, drawings of the recess cutouts of claims 3-6 are not necessary for understanding the subject matter of the invention. However, the objection to Applicant’s drawings is not based on an assertion of 37 CFR 1.81(a).
The objection to Applicant’s drawings is based on 37 CFR 1.83(a) which states that “The drawing in a nonprovisional application must show every feature of the invention specified in the claims”. Accordingly, the specified feature, specifically, wherein the depth of the recess cutout is at least 35%, 40%, 50%, and 60% of the maximum depth of the seat member of amended claims 1, 3, 4, and 6, respectively, must be shown in the drawings per 37 CFR 1.83(a).
In part I, with regard to the rejection of claim 1, Applicant initially argues that since Amacker discloses a platform that “already has a mechanism for increasing the standing room”, there is no motivation to combine the disclosure of Amacker with the teachings of Hovey. However, per MPEP 2144.IV., “The reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant”. Thus, even though Hovey’s stated motivation, specifically, “to comfortably suspend their legs over the edge of the climbing platform” is different from Applicant’s stated motivation, specifically, “more standing room”, the inclusion of Hovey’s recessed cutouts in the seat member of Amacker is suggested by Hovey.
Applicant next argues that the cutouts of Hovey are designed and intended for an entirely different purpose, specifically, Applicant argues that the recessed cutouts of Hovey are for a seated user and not to provide increased standing area. Here again, per MPEP 2144.IV., it is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant. In other words, because Hovey’s recess cutouts help to maintain proper blood circulation, there is motivation for their inclusion to Amacker’s seat platform even if they were not intended to increase standing room on the platform.
Applicant also argues that Hovey’s recess cutouts only have a recessed depth of at most 5-10% of the total depth of the climbing platform, and are thus, not even close to the 35% of the total depth of the seat member per amended claim 1. However, per MPEP 2125, “When the reference does not disclose that the drawings are to scale and is silent as to dimensions, arguments based on measurement of the drawing features are of little value”.
Accordingly, per MPEP 2144.05.I: a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. It 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 to have included wherein the depth of the recess cutout is at least 35, 40, 50, or 60 percent of the total depth of the seat member in the treestand disclosed by Amacker according to the teachings of Hovey in order for the user “to comfortably suspend their legs over the edge of climbing platform 102 for extended periods of time”.
Applicant further requests cites to specific passages of Hovey that are “close” to the recess cutouts of at least 40, 50, and 60 percent. As set forth above, Hovey is silent with respect to dimensions of the cutouts and per MPEP 2125, “When the reference does not disclose that the drawings are to scale and is silent as to dimensions, arguments based on measurement of the drawing features are of little value”.
In parts II – IV, Applicant reiterates arguments to relating to Amack and Hovey.
In part V, Applicant argues that Reich is an old reference. However, contentions that a reference patents is old is not impressive absent a showing that the art tried and failed to solve the same problem notwithstanding its presumed knowledge of the references. See In re Wright, 569 F.2d 1124, 193 USPQ 332 (CCPA 1977).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Baysinger (USD927018) discloses a tree stand.
THIS ACTION IS MADE FINAL. 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 Ben Pezzlo whose telephone number is (571)272-9656. The examiner can normally be reached M to Th 7 to 5.
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/BAP/Examiner, Art Unit 3634
/DANIEL P CAHN/Supervisory Patent Examiner, Art Unit 3634
