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 .
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 and 17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 20 of U.S. Patent No. 10,449,558. In claim 1, although the claims at issue are not identical, they are not patentably distinct from each other because they both claim a handheld spray wand comprising: a handle portion configured to be in fluid communication with a water source; and a nozzle wand portion configured to be in selective fluid communication with the handle portion, the nozzle wand portion comprising at least one row of nozzles; wherein the nozzle wand portion has a first end and a second end and is configured to couple to the handle portion at the first end, the nozzle wand portion has a continuous curvature along a length of the nozzle wand portion extending between the first end and the second end. Claim 1 is encompassed in claims 1 and 20 of U.S. Patent No. 10,449,558.
In claim 17, although the claims at issue are not identical, they are not patentably distinct from each other because they both claim a handheld sprayer comprising: a handle configured to fluidly connect to a fluid source; a selector coupled to a distal end of the handle and configured to selectively control a flow rate of fluid from the fluid source; and a wand extending distally from the selector in an elongated arcuate form, wherein the elongated arcuate form has a continuous curve along an entire length of the wand defined between a proximal end and a distal end of the wand. Claim 17 is encompassed in claims 1 and 20 of U.S. Patent No. 10,449,558.
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 –
Claim(s) 1-3, 6, 7 and 17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Nelson ‘043.
As to claim 1, Nelson ‘043 discloses a handheld spray wand comprising: a handle portion 58 configured to be in fluid communication with a water source at 66; and a nozzle wand portion 14 configured to be in selective fluid communication with the handle portion, the nozzle wand portion comprising at least one row of nozzles 22; wherein the nozzle wand portion has a first end and a second end and is configured to couple to the handle portion at the first end, the nozzle wand portion has a continuous curvature 20 along a length of the nozzle wand portion extending between the first end and the second end, see Figures 1 and 2.
As to claims 2 and 3, see mode selector portion 62 and col. 4, lines 19-33.
As to claims 6 and 7, see Figures 1 and 2.
As to claim 17, Nelson ‘043 discloses a handheld spray wand comprising: a handle portion 58 configured to be in fluid communication with a water source at 66; a selector 62 coupled to a distal end of the handle and configured to selectively control a flow rate of fluid from the fluid source, see col. 4, lines 19-33; and a wand 14 extending distally from the selector in an elongated arcuate form, wherein the elongated arcuate form has a continuous curve 20 along an entire length of the wand defined between a proximal end and a distal end of the wand, see Figures 1 and 2.
Allowable Subject Matter
Claims 8-16 are allowed.
The following is a statement of reasons for the indication of allowable subject matter claims 8-16: The prior art did not teach or suggest a spray wand as claimed by the applicant, specifically a spray wand wherein the nozzle array extending along the bottom housing and configured to be in fluid communication with a water source; wherein: the arcuate form of the top housing curves in a corresponding manner with the arcuate form of the bottom housing; and the top housing and the bottom housing couple together to define a water path to the nozzle array there between.
Claims 4, 5, 18 and 19 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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEVEN J GANEY whose telephone number is (571)272-4899. The examiner can normally be reached M-F 9am-5:30pm.
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, Arthur Hall can be reached at (571)270-1814. 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.
STEVEN J. GANEY
Primary Examiner
Art Unit 3752
/STEVEN J GANEY/ Primary Examiner, Art Unit 3752