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 Claims
Claims 1-20, filed 11/17/2023, are pending and are currently being examined.
Specification
The abstract of the disclosure is objected to because it exceeds 150 words. Correction is required. See MPEP § 608.01(b).
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
Claim Rejections - 35 USC § 102 and 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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
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 1-8 and 13-14 are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Munro US Pat. No. 4,505,687.
In Reference to Claim 1
Munro teaches:
A children’s toy (child’s toy 10, Fig. 1-6) comprising:
a shell defining a hollow interior space (body 14 having a tubular outer covering 16 formed of fabric 17 defining a hollow interior for fill material 18, Fig. 1-6, Col. 3 lines 6-41);
a filling housed by the shell, the filling situated within the hollow interior space (filling 18 occupies the interior space of the body, Col. 3 lines 6-41, Col. 4 line 57 – Col. 6 line 18); and
a band extending through the hollow interior space, the band coupled at a first end to a first interior surface of the shell, and the band coupled at a second end to a second interior surface of the shell (elastic band 22 secured within the interior cavity (coupled via sewing) near the inner seam 23 and longitudinally extends along the body (in the vertical direction through the body of Fig. 1) from the first secured end near head 12 to a second secured end at the bottom of the body, Fig. 1-6, Col. 3 line 42 – Col. 4 line 56),
wherein the shell and the band are configured to stretch from a contracted state to an expanded state in at least a first direction, the first direction being generally parallel with a direction in which the band longitudinally extends through the hollow interior space (the body and band are biased to the contracted state of Fig. 1/6, and may be stretched longitudinally against the elastic bias in a first direction parallel or along the same direction as the band extends (band 22 also extends longitudinally along the body about and long the vertical center/vertical direction of the body), Fig. 5),
in the contracted state, a length of the shell is less than a length of the shell in the expanded state (the body in the extended state of Fig. 5 is longer than the contracted state of Fig. 1, 6), and
the band being biased to the contracted state and the band biasing the shell to the contracted state (the body is biased to the contracted/coiled state, Fig. 1, 6, Col. 3 lines 6-17).
In Reference to Claim 2
Munro teaches:
The children’s toy of claim 1, wherein the shell comprises a material selected from the group consisting of long pile polyester, short pile polyester, velvet, velboa, shag, animal fur, artificial fur, cotton, silk, wool, bamboo, nylon, rayon, spandex, acrylic, and combinations thereof (fabric 17 is compliant fabric material of which listed pile polyester, furs, cotton, nylon, spandex, etc. are known and commonly used resilient/compliant flexible fabric materials in the art, wherein flexible fabric 17 is at least a velboa or artificial fur to simulate the look of an animal as shown, Col. 1 line 51 – Col. 2 line 45, Col. 3 lines 18-41, Col. 4 line 65 – Col. 5 line 18).
Further, it would have been obvious to one having ordinary skill in the art to have modified the selection of a material used for portions of the toy to have been any of the listed commonly known materials in the art as it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice (In re Leshin, 125 USPQ 416). In this case, the listed materials are commonly known and used materials in the plush toy art and therefore the selection of any of these materials is merely a matter of obvious design choice.
In Reference to Claim 3
Munro teaches:
The children’s toy of claim 1, wherein the filling comprises a material selected from the group consisting of polyester, polyethylene, polypropylene, cotton, bamboo, wool, polyethylene foam, polyurethane foam, polystyrene foam, and combinations thereof (the filling 18 may be cotton, nylon, polyester fiber fill, or the like, Col. 1 line 62 – Col. 2 line 45, Col. 3 lines 30-36, Col. 4 lines 57-64, Col. 6 line 3-17).
Further, it would have been obvious to one having ordinary skill in the art to have modified the selection of a material used for portions of the toy to have been any of the listed commonly known materials in the art as it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice (In re Leshin, 125 USPQ 416). In this case, the listed materials are commonly known and used materials in the plush toy art and therefore the selection of any of these materials is merely a matter of obvious design choice.
In Reference to Claim 4
Munro teaches:
The children’s toy of claim 1, wherein the band comprises an elastic material (elastic band 22 inherently formed of elastic material, Col. 3 line 42 – Col. 5 line 46).
In Reference to Claim 5
Munro teaches:
The children’s toy of claim 4, wherein the elastic material is flat braid elastic or round elastic cord (flat elastic band 22, Col. 3 line 42 – Col. 5 line 46).
Further, it would have been obvious to one having ordinary skill in the art to have modified the exact shape of elastic band of the toy to have been a flat braid or round as it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice (In re Leshin, 125 USPQ 416) and it has been held that the configuration of a claimed product is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration is significant (In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966)) and it has been held that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art (In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947)). In this case, elastic bands being flat, rounded, or flat braids does not change the function of the toy and each of these shapes/materials are commonly known and used in the art and therefore the selection of any of these materials/shapes is merely a matter of obvious design choice.
In Reference to Claim 6
Munro teaches:
The children’s toy of claim 1, wherein the filling is configured to stretch along with the band and the shell from the contracted state to the expanded state (filling 18 is flexible to move/stretch within the body with the band 22 and fabric body 17 between the contracted and expanded states, Fig. 1-6, Col. 3 lines 6-41, Col. 4 line 57 – Col. 6 line 18)).
In Reference to Claim 7
Munro teaches:
The children’s toy of claim 1, wherein the first end is mechanically coupled to the first interior surface (the band 22 is mechanically coupled to the interior surface of the body from the first end to the second end via sewing/seam 23, Col. 3 line 42 – Col. 4 line 56).
In Reference to Claim 8
Munro teaches:
The children’s toy of claim 7, wherein the second end is mechanically coupled to the second interior surface (the band 22 is mechanically coupled to the interior surface of the body from the first end to the second end via sewing/seam 23, Col. 3 line 42 – Col. 4 line 56).
In Reference to Claim 13
The children’s toy of claim 1, wherein the first interior surface is located at a first longitudinal end of the shell (the elastic band 22 secured within the interior cavity (coupled via sewing) near the inner seam 23 and longitudinally extends along the body (in the vertical direction through the body of Fig. 1) from the first secured end near head 12 to a second secured end at the bottom of the body, Fig. 1-6, Col. 3 line 42 – Col. 4 line 56)).
In Reference to Claim 14
The children’s toy of claim 13, wherein the second interior surface is located at a second longitudinal end of the shell, the second longitudinal end being opposite the first longitudinal end (the elastic band 22 secured within the interior cavity (coupled via sewing) near the inner seam 23 and longitudinally extends along the body (in the vertical direction through the body of Fig. 1) from the first secured end near head 12 to a second secured end at the bottom/tail of the body, Fig. 1-6, Col. 3 line 42 – Col. 4 line 56)).
Claims 9-11 are rejected under 35 U.S.C. 103 as being unpatentable over Munro as applied to claim 1 above, and further in view of Cabrera US Pat. No. 8,628,372.
In Reference to Claims 9-11
Munro teaches:
The children’s toy of claim 1, wherein the first end is mechanically to the first interior surface and wherein the second end is mechanically coupled to the second interior surface (the band 22 is mechanically coupled to the interior surface of the body from the first end to the second end via sewing/seam 23, Col. 3 line 42 – Col. 4 line 56).
Munro fails to teach:
The ends being chemically coupled or head bond coupled to the interior surfaces.
Further, Cabrera teaches:
A similar child’s toy having a stuffed plush body and a movable actuated wire (toy body 10 with substrate/inner surface 14 and movable wire(s) 14 coupled at ends 16a/b to the substrate, Fig. 1-10) therein to cause movement of the toy during use, the wire being coupled to the substrate using mechanical coupling/thread, thermal/head bonding, chemical bonding, or any other similar known means, Col. 8 lines 22-32).
Though Munro doesn’t specifically teach the band being coupled to the first and second ends of the body using chemical or head bonding couplings, it would have been obvious to one having ordinary skill in the art to have used a different known coupling means, such as thermal/heat bonding or chemical bonding as these are known and commonly used equivalent coupling means in the art as taught by Cabrera (Col. 8 lines 22-32), and further the selection of a coupling material or means used to couple the band to the body of the toy to have been any of the commonly known means or materials in the art is obvious as it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice (In re Leshin, 125 USPQ 416). In this case, the band coupling means being heat-bonding, chemical, or mechanically bonding does not change the function of the toy and each of these types/materials are commonly known and used in the art as taught by Cabrera and therefore the selection of any of these couplings/materials is merely a matter of obvious design choice.
Claims 12, 15-16, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Munro as applied to claim 1 above, and further in view of Holland US Pat. No. 1,436,258.
In Reference to Claim 12
Munro teaches:
The children’s toy of claim 1, wherein the shell comprises a plurality of curved portions ordered longitudinally along the shell (the body 10 has a plurality of curved sections extending along the longitudinal axis of the body).
Munro fails to teach:
The shell having distinct lobes ordered longitudinally along the shell body.
Further, Holland teaches:
A similar child’s toy having a stuffed plush body having a plurality of lobes and an elastic member extending through a length of the body (the body 1 has a plurality of connected lobes/body portions 6 along a length of the body and may be positioned/oriented longitudinally along the length of the internal elastic member 1 to form a desired animal shape, Fig. 1-5).
Though Munro doesn’t specifically teach the body having a plurality of lobes, it would have been obvious to one having ordinary skill in the art to have formed the body as a plurality of lobes in order to allow the body to deform and take different shapes more easily as is known in the art or to allow the toy to take the shape of essentially any desired animal (including a generally linear longitudinally extended shape, ex. caterpillar/glow worm) as taught by Holland (page 1, line 19 – page 2 line 34). Further, modification of the shape of the body portions or orientation of the body portions is merely a matter of obvious design choice and it has been held that rearranging parts of an invention involves only routine skill in the art (In re Japikse, 86 USPQ 70), it has been held that the configuration of a claimed product is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration is significant (In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966)), and it has been held that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art (In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947)). In this case, body being formed of longitudinally/linearly connected lobes is known in the art as taught by Holland, Holland further teaches that the shape or animal shape is an obvious modification, and the shape/design of the body does not materially change the function of the toy (resiliently movable and biased to the rest state) and each of these shapes/orientations are commonly known and used in the art and therefore the selection of any of these orientations/shapes is merely a matter of obvious design choice.
In Reference to Claim 15
Munro teaches:
The children’s toy of claim 1, wherein the shell comprises a plurality of curved portions ordered longitudinally along the shell (the body 10 has a plurality of curved sections extending along the longitudinal axis of the body).
Munro fails to teach:
The shell having distinct lobes ordered longitudinally along the shell body.
Further, Holland teaches:
A similar child’s toy having a stuffed plush shell body having a plurality of lobes and an elastic member extending through a length of the body, the shell comprises a frontal lobe, a rear lobe, and a plurality of generally spherical segments, the generally spherical segments coupling the frontal lobe to the rear lobe (the body 1 has a plurality of connected spherical lobes/body portions 6 between a first frontal head lobe and a rear end lobe (opposite end near a tail/rear) along a length of the body and may be positioned/oriented longitudinally along the length of the internal elastic member 1 to form a desired animal shape, Fig. 1-5).
Though Munro doesn’t specifically teach the body having a plurality of spherical lobes, it would have been obvious to one having ordinary skill in the art to have formed the body with a plurality of lobes in order to mimic the shape of another similar animal, such as a caterpillar, and further to allow the body to deform and take different shapes more easily as is known in the art or to allow the toy to take the shape of essentially any desired animal (including a generally linear longitudinally extended shape, ex. caterpillar/glow worm) as taught by Holland (page 1, line 19 – page 2 line 34). Further, modification of the shape of the body portions or orientation of the body portions is merely a matter of obvious design choice and it has been held that rearranging parts of an invention involves only routine skill in the art (In re Japikse, 86 USPQ 70), it has been held that the configuration of a claimed product is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration is significant (In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966)), and it has been held that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art (In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947)). In this case, body being formed of longitudinally/linearly connected lobes is known in the art as taught by Holland, Holland further teaches that the shape or animal shape is an obvious modification, and the shape/design of the body does not materially change the function of the toy (resiliently movable in a longitudinal direction and biased to the rest state) and each of these shapes/orientations are commonly known and used in the art and therefore the selection of any of these orientations/shapes is merely a matter of obvious design choice.
In Reference to Claim 16
Munro as modified by Holland teaches:
The children’s toy of claim 15, wherein the frontal lobe and the rear lobe maintain their shape when the children’s toy transitions from the contracted state to the expanded state (the front and rear lobes/ends of the body maintain their shape while the main body/lobes are moved/expanded/contracted, Munro Fig. 1-6, and also would be the case with Holland, Fig. 1-5).
In Reference to Claim 20
Munro as modified by Holland teaches:
The children’s toy of claim 15, wherein each generally spherical segment is mechanically coupled to an adjacent segment at a seam (Munro: seams 23/25 extend along the inside and outside of the fabric shell of the body to connect the adjacent spherical segments/portions of the toy body of Holland to each other as modified by Holland above).
Claims 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Munro and Holland as applied to claim 15 above, and further in view of Lee KR No. 20080044949.
In Reference to Claim 17
Munro as modified by Holland teaches:
The children’s toy of claim 15, wherein the frontal lobe comprises an appendage extending from the frontal lobe (ears, or other appendages, such as the bulbous appendage/ossicones of a giraffe, may be included on the frontal lobe/head member of the chosen animal shape used for the toy, Holland, Fig. 3).
Further, Lee teaches:
A similar child’s toy having a stuffed plush shell body having a plurality of spherical lobes, the frontal lobe including a bulbous extending member extending from a stem connected to the frontal lobe/head to represent a caterpillar design (Fig. 1-5, wherein the head/frontal lobe has an extended stem and bulbous member as is known and common when representing a caterpillar or similar animal design).
Though Munro and Holland do not specifically teach the head portion body including an extended bulbous member aesthetically representing a caterpillar, it would have been obvious to one having ordinary skill in the art to have formed the body with a head with features of a caterpillar or any other similar aesthetic design (ossicones of a giraffe) in order to mimic the shape of another similar animal, such as a caterpillar, as changing the shape to represent a known animal is known in the art and taught by Holland (page 1, line 19 – page 2 line 34)
Further, modification of the shape of the body portions to represent a known animal or known aesthetic feature or orientation of the body portions is merely a matter of obvious design choice and it has been held that rearranging parts of an invention involves only routine skill in the art (In re Japikse, 86 USPQ 70), it has been held that the configuration of a claimed product is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration is significant (In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966)), and it has been held that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art (In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947)). In this case, body having a frontal lobe/head with a bulbous extending member (such as known on a giraffe or caterpillar etc.) is known in the art as taught by Holland, Holland further teaches that the shape or animal shape is an obvious modification, and the shape/design of the body does not materially change the function of the toy (resiliently movable in a longitudinal direction and biased to the rest state resembling a known animal (ex. caterpillar or the like)) and each of these shapes/orientations are commonly known and used in the art and therefore the selection of any of these orientations/shapes is merely a matter of obvious design choice.
In Reference to Claim 18
Munro as modified by Holland and Lee teaches:
The children’s toy of claim 17, wherein the appendage comprises a stem coupled to the frontal lobe at a first end of the appendage, and a bulb situated at a second end of the appendage, the second end of the appendage opposite the first end of the appendage (Holland shows a stem and bulbous end extending from the head/frontal lobe for a giraffe head, Fig. 3, and Lee also teaches a bulbous portion extending from a stem extending from a caterpillar head, Fig. 1-5).
In Reference to Claim 19
Munro as modified by Holland and Lee teaches:
The children’s toy of claim 18, wherein the bulb comprises a diameter greater than a diameter of the stem (the front lobe may take the shape of any animal, such as a caterpillar or giraffe which have frontal lobes having extended members having stems extending from the lobe/head and a bulbous end with a larger diameter, see Fig. 3 of Holland or see Fig. 1-5 of Lee as discussed above).
Brief Discussion of Other Prior Art References
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See the references cited page for publications that are noted for containing similar subject matter as the applicant. For example, Kazakoff (2008/0305712), Chianese (6,174,216), Wright (5,194,033), Hodes (3,557,436), Bischoff (2,853,831), Delhome (FR2663555), Janas (2,224,456), O’Neill (1,644,027), and Bradish (1,355,799) teach similar resilient/stretchable toys and Hillis (9,259,658), Summers (2016/0158112), and Cogliano (6,074,212) teach similarly shaped animal body toys.
Conclusion
If the applicant or applicant’s representation has any questions or concerns regarding this office action or the application they are welcome to contact the examiner at the phone number listed below and schedule and interview to discuss the outstanding issues and possible amendments to expedite prosecution of this application.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALEXANDER R NICONOVICH whose telephone number is (571)270-7419. The examiner can normally be reached Mon - Fri 8-6 MST.
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/ALEXANDER R NICONOVICH/Primary Examiner, Art Unit 3711