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 .
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.
Claim(s) 1, 4-5, and 7-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hibbs (US 2011/0258749 A1) in view of Merikallio (US 3,708,810 A) and Davidson (US 2013/0326810 A1).
Regarding claim 1, Hibbs discloses a survival sack (Fig. 4) comprising, a sack body (50), wherein said sack body defines an opening (55) configured for a user’s body; wherein said sack body comprises a material configured to preserve heat (Abstract), said material comprising a non-laminated sheeting (to the degree that laminated materials are not mentioned), a plurality of cut lines (29) configured for reconfiguring said sack.
To the degree that it can be argued that Hibbs does not specifically disclose a single layer of non-laminated radiant sheeting comprising a woven polyethylene substrate, Merikallio discloses a similar device including a sheet single layer of non-laminated radiant sheeting (abstract, in the form of a fabric substrate treated with aluminum) comprising a woven substrate. Davidson teaches the ability to use a variety of known materials as a base material, including polyethylene (Paragraph 0045)
It would have been obvious to one having ordinary skill in the art before the effective filing date to take the device of Hibbs and use the teaching of Merikallio and Davidson and make the device out of a single layer of woven radiant sheeting including a polyethylene substrate because such a change would have required a mere choice of a known material in the art. 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.
Regarding claim 4, modified Hibbs discloses a flap, wherein said flap (40) is attached proximate to said opening (55), wherein said flap is configured for covering a user’s head when said user is positioned in said sack body (Fig. 4).
Regarding claim 5, modified Hibbs discloses an attachable hood (40, Paragraph 0038), wherein said attachable hood is configured to attach to said sack body proximate to said opening (55).
Regarding claim 7-8, modified Hibbs discloses said material configured to preserve heat is cutable (Paragraph 0033) by a user to create a desired second use out of said survival sack, wherein said sack comprises a plurality of cut lines (29) for cutting said sack into strips.
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hibbs (US 2011/0258749 A1) in view of Merikallio (US 3,708,810 A) and Davidson (US 2013/0326810 A1) as applied to claim 1 above, and further in view of Kuo (US 5,815,833 A).
Regarding claim 2, modified Hibbs discloses a secondary opening that is structurally capable of attaching to a properly configured vehicle heating vent, but does not specifically disclose a sleeve with one end configured for attaching to the sack at a first end.
Kuo teaches a similar device including a pair of removable sleeve portions (16) having a proximal end that is configured (via 161) to attach to a main portion of a sack.
It would have been obvious to one having ordinary skill in the art before the effective filing date to take the modified device of Hibbs and use the teaching of Kuo and include a pair of removable sleeves in order to have a portion that closely fits to a wearer’s arm that can be removed when it is not needed as demonstrated by Kuo.
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hibbs (US 2011/0258749 A1) in view of Merikallio (US 3,708,810 A) and Davidson (US 2013/0326810 A1) as applied to claim 1 above, and further in view of Carrasco (US 6,216,296 B1).
Regarding claim 3, modified Hibbs does not specifically disclose sack body comprises a first and second pole sleeve, wherein said first and second pole sleeves are attached at opposite edges of said sack body, wherein said first and second pole sleeves are configured for attaching a first and second pole.
Carrasco demonstrates a wearable device including a first and second pole sleeve, wherein said first and second pole sleeves (120) are attached at opposite edges of said sack body (Fig. 13), wherein said first and second pole sleeves are configured for attaching a first and second pole (Col. 6; Ll. 26-34) to help the device form a bed or carrier.
It would have been obvious to one having ordinary skill in the art before the effective filing date and take the modified device of Hibbs and include a pair of pole sleeves attached at opposite edges of the sack to allow the device to function as a bed or a person carrier as taught by Carrasco, which would allow the device to be more versatile. It would have been obvious to one having ordinary skill in the art before the effective filing date to make the pole sleeves from said single layer of non-laminated radiant sheeting because such a change would merely require them to be made of the same material as the sheet or the mere choice of a known suitable material. 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.
Claim(s) 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hibbs (US 2011/0258749 A1) in view of Merikallio (US 3,708,810 A) and Davidson (US 2013/0326810 A1) as applied to claim 1 above, and further in view of Jones (US 2008/0054032 A1).
Regarding claim 6, modified Hibbs does not specifically disclose said survival the further comprises straps, wherein said straps attach to said sack body, wherein said straps are configured to attach to a user such that said survival sack can be used as a backpack.
Jones teaches a similar device (Fig. 11) including a pair of shoulder straps (120) allowing the device to attach to a user in the form of a backpack (Figs. 1 and 2).
It would have been obvious to one having ordinary skill in the art before the effective filing date to take the modified device of Hibbs and use the teaching of Jones and configure the device to be maintained in a folded state and include shoulder straps such that the folded device can be carried in the form of a backpack because such a change would allow the device to be easily transported and/or carried when not in use.
It would have been obvious to one having ordinary skill in the art before the effective filing date to make the straps from said single layer of non-laminated radiant sheeting because such a change would merely require them to be made of the same material as the sheet or the mere choice of a known suitable material. 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.
Response to Arguments
Applicant's arguments filed 30 December 2025 have been fully considered but they are not persuasive.
Applicant argues that the cited references fail to teach or disclose a non-laminated radiant sheeting. Examiner respectfully disagrees and notes specifically Merikallio demonstrates a fabric having a coating, and does not teach laminated materials. Examiner notes that the rejections do not assert official notice.
Applicant recites “A nonlaminated sheeting, such as Applicant's, would not require the loops and instead would function with integral loops formed within the material, as shown in the Applicant's Figures 6 and 7. In contrast, the Applicant's laminated material can be cannibalized and support weight without further peeling or ripping, as shown, e.g., in Applicant's Figs 20-22, whereas laminated material rips and is weak”. Examiner disagrees, and notes that including loops is independent of a material being formed of laminated or nonlaminated material. Further it is again noted that Merikallio demonstrates a thin fabric and therefore is a nonlaminated material.
Examiner notes that the limitation of “configured for attaching to said sack at a first end of said heating sleeve and to a vehicle heating vent at a second end” merely required the structural ability to be attached at one end to the sack and at the other end to a properly configured vehicle heating vent and as the specific structure in order to cause this configuration is not recited, this limitation is considered fairly broadly, as the vent itself could include any significant attachment structures.
Examiner notes that the overall configuration of Merikallio is not intended to be bodily incorporated into the device of Hibbs, but rather a teaching of a known suitable material (i.e. a radiant fabric).
Examiner notes that Hibbs teaches a cuttable survival sack that is structurally capable of being used in a different way when it is cut, further the material that is removed and also be used for a second purpose.
In response to applicant's argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, one having ordinary skill in the art would recognize the ability to use the material as taught by Merikallio (radiant fabric) and Davidson (specifically a polyethylene base).
There is no reason using known suitable materials in the art would harm the success of the device.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). Examiner notes that one having ordinary skill in the art would recognize the ability to modify the Hibbs device using known suitable materials and/or including additional known features in the art. One having ordinary skill in the art would recognize the ability to weight the pros and cons of said materials and/or features based on their benefits versus cost or complexity.
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 MATTHEW T THEIS whose telephone number is 571-270-5700. The examiner can normally be reached 7:00 am - 5:00 pm Monday - Thursday.
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/M.T.T./Examiner, Art Unit 3734
/NATHAN J NEWHOUSE/Supervisory Patent Examiner, Art Unit 3734