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 .
Status of Application
Claims 1-10 are pending and have been examined in this application. This communication is the first action on the merits. As of the date of this communication, no Information Disclosure Statement (IDS) has been filed with this application.
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 1-10 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-8 of U.S. Patent No. 11,788,766 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because all limitations are exactly the same in the claim sets, though they are in different orders.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1-6 & 8-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Applicant’s Admitted Prior Art [Specifically Figures 2a-2b], hereafter referred to as APA, in view of US Patent Number 10,024,560 B2 to Schneider.
A) As per Claims 1 & 9, APA teaches a Heating Ventilation and Air Conditioning (HVAC) unit comprising:
an HVAC housing (APA: Figure 2a, Item 2) comprising a first portion (APA: Figure 2a, Item 2a) and a second portion (APA: Figure 2a, Item 2b) defining an enclosure “E”;
at least one flap (APA: Figure 2a, Item 3) adapted to be received inside the enclosure “E” with a first extreme end (APA: Figure 2a, Item 3a) thereof adapted to engage with the first portion and a second extreme end (APA: Figure 2a, Item 3b) thereof adapted to engage with the second portion via an intermediate lever (APA: Figure 2a, Item 4); and
an actuator (APA: Figure 2a, Item 5) corresponding to the flap and disposed outside the enclosure “E”, the actuator is connected to and adapted to drive the flap via the intermediate lever,
wherein the intermediate lever comprises a stopper (APA: Figure 2b, Item 4a) radially extending from at least a portion of a periphery thereof.
APA does not teach the stopper is disposed between the second portion of the HVAC housing and the flap to limit axial movement of the intermediate lever.
However, Schneider teaches the stopper is disposed between the second portion of the HVAC housing and the flap to limit axial movement of the intermediate lever (Schneider: Figure 1, Item 28 on inside of housing 12).
At the time the invention was effectively filed, it would have been obvious for one of ordinary skill in the art to have modified the teachings of APA by having the stopper on the inside of the housing, as taught by Schneider, with a reasonable expectation of success of arriving at the claimed invention. At the time the invention was effectively filed, it would have been obvious to one of ordinary skill in the art to have modified APA with these aforementioned teachings of Schneider since each individual element and its function are shown in the prior art, albeit shown in separate references, the difference between the claimed subject matter and the prior art rests not on any individual element or function but in the very combination itself- that is in the substitution of the stopper position of Schneider for the stopper position of APA.
Thus, the simple substitution of one known element for another producing a predictable result renders the claim obvious.
B) As per Claim 2, APA in view of Schneider teaches that the first portion and the second portion are separate from each other and adapted to be assembled to each other to define the enclosure “E” (APA: Figure 2a, Items 2a-2b).
C) As per Claim 3, APA in view of Schneider teaches that the stopper is at least one radially extending element (APA: Figure 2b, Item 4a; Schneider: Figure 4, Item 28) adapted to interact with a pair of depressions (Schneider: two protrusions inward to stop Item 28 at both extreme rotation positions , best shown in Figure 4, Item 38) inwardly extending from the second portion of the HVAC housing into the enclosure “E” to define angular movement of the flap.
D) As per Claim 4, APA in view of Schneider teaches that the intermediate lever comprises a first engagement element and a second engagement element on opposite sides of the stopper and adapted to engage with the actuator and the flap respectively (APA: Figure 2b, Items 4b & 4c respectively; Schneider: Figure 3, Items 34 & 36).
E) As per Claim 5, APA in view of Schneider teaches that at least one of the first engagement element and the second engagement element is a male feature adapted to engage with a complementary female feature formed on at least one of the respective actuator and the flap (APA: Figure 2b, Item 4b & 4c; Schneider: Figure 3, Items 34 & 36).
F) As per Claim 6, APA in view of Schneider teaches that the first engagement element is a male star drive (Schneider: Figure 3, Items 34 & 36).
H) As per Claim 8, APA in view of Schneider teaches that the flap is of polypropylene, polypropylene reinforced with 40 percent talcum, PPT 40 material whereas the intermediate lever is of reinforced glass fiber resin selected from one of PA66 GF30 material and PBT GF30 material (APA: pg. 3, lines 5-11 of Applicant’s disclosure).
I) As per Claim 10, APA in view of Schneider teaches mounting a protection cover over the actuator (APA: Figure 2a, Item 2c).
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over APA in view of Schneider as applied to claim 4 above, and further in view of US Patent Publication Number 7,699,690 B2 to Spryshak.
A) As per Claim 7, APA in view of Schneider teaches all the limitations except that that at least one of the first engagement element and the second engagement element is a female feature adapted to engage with complementary male feature formed on at least one of the respective actuator and the flap.
However, Spryshak teaches at least one of the first engagement element and the second engagement element is a female feature adapted to engage with complementary male feature formed on at least one of the respective actuator and the flap (Spryshak: best shown in Figure 3a, Item 44 with female feature to attach to actuator).
At the time the invention was effectively filed, it would have been obvious for one of ordinary skill in the art to have modified the teachings of APA in view of Schneider by having one of the connectors be female on the lever, as taught by Spryshak, with a reasonable expectation of success of arriving at the claimed invention. At the time the invention was effectively filed, it would have been obvious to one of ordinary skill in the art to have modified APA in view of Schneider with these aforementioned teachings of Spryshak since each individual element and its function are shown in the prior art, albeit shown in separate references, the difference between the claimed subject matter and the prior art rests not on any individual element or function but in the very combination itself- that is in the substitution of the having the one female connection on the lever in Spryshak for the male connectors on the lever of APA in view of Schneider.
Thus, the simple substitution of one known element for another producing a predictable result renders the claim obvious.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
A) US Patent Number 7,563,159 B2 to Newman
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALLEN SCHULT whose telephone number is (571)272-8511. The examiner can normally be reached M-F 9AM-5PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, STEVE MCALLISTER can be reached at 571-272-6785. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Allen R. B. Schult/Primary Examiner, Art Unit 3762