DETAILED ACTION
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
As per the submission to the Office filed on 03/09/2026 the following represents the changes from the previous claims: Claims 1, 12, 17, 19 and 23 were amended, Claims 6, 13, 18 was canceled. Claims 1-5, 7-12, 14-17, 19-24 are presented for examination.
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 following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
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.
In claim 17, line 6, and claim 22 the limitation “a means for coarse adjustment of the interior volume” and in claim 17, line 7 the limitation “means for fine adjustment of the interior volume” have been interpreted under 112f as a means plus function limitation because of the combination of a non-structural term “means” and functional language “adjustment” without reciting sufficient structure to achieve the function. As found in paragraph [0018] of the present specification, the “means for adjustment of the interior volume” is read as described as “the adjustment features 115 may include one or more hook elements 125 and one or more corresponding elongated openings 130”.
In claim 19, line 1, the limitation “the means for coarse adjustment” has been interpreted under 112f as a means plus function limitation because of the combination of a non-structural term “means” and functional language “adjustment” without reciting sufficient structure to achieve the function. As found in paragraph [0018] of the present specification, the “the means for coarse adjustment” is read as described as “Each hook element 125 may be positioned or locked into any of the corresponding elongated openings 130 to provide a coarse adjustment”.
In claim 20, line 1, the limitation “the means for fine adjustment” has been interpreted under 112f as a means plus function limitation because of the combination of a non-structural term “means” and functional language “adjustment” without reciting sufficient structure to achieve the function. As found in paragraph [0025] of the present specification, the “the means for fine adjustment” is read as described as “The adjustment openings 255 and the fastening devices, such as the zip ties 260, form a secondary or fine adjustment”.
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.
Claims 1-4, 7-8, 10-11, 17, 19-23 are rejected under 35 U.S.C. 103 as being unpatentable over Heartway Farms (YouTube: “How to make a Kill Cone for Chicken or Turkey Processing | Butchering DIY”, November 16, 2022; https://www.youtube.com/watch?v=UKJDa8W4zWM) in view of Briggs (US 20130074784 A1).
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Regarding claim 1, Heartway Farms teaches a restraint device for harvesting a bird (title), wherein when in use, the restraint device is wrapped around a portion of the bird's body with the bird's head or neck protruding from the device to aid in harvesting the bird (see timestamps 0:04-0:05), the device comprising:
a flexible sheet (see timestamps 0:57-1:00 as the sheet is rolled and so is a flexible sheet) having a first side (see screenshot of timestamp 0:56), a second side (see screenshot of timestamp 0:56) adjoining the first side and extending transversely to the first side (see screenshot of timestamp 0:56), a third side (see screenshot of timestamp 0:56) adjoining the first side and extending transversely to the first side (see screenshot of timestamp 0:56), and a fourth side (see screenshot of timestamp 0:56) joining the second side and the third side on an opposite side of the flexible sheet from the first side (see screenshot of timestamp 0:56); and
two or more openings extending along (see timestamp 2:00-2:25 and see screenshot of timestamp 2:24), and adjacent to, the second side and positionable (see screenshot of timestamp 2:24), wherein a first opening (top opening of the openings in screenshot of timestamp 2:24) of the two or more openings is near a second opening (bottom opening of the openings in screenshot of timestamp 2:24) of the two or more openings and the second side (see screenshot of timestamp 2:24); wherein:
the flexible sheet is adaptable between a first configuration in which the flexible sheet is planar (see timestamps 0:57-1:00 as the sheet is flexible and so is adaptable to be in a planar configuration when the user flattens out the sheet), and a second configuration in which the flexible sheet is curled upon itself to form a conical shape (see timestamps 0:57-1:10);
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when the flexible sheet is in the second configuration, the first side forms an upper edge (see timestamp 0:05 as the first side forms an upper edge) of the conical shape (see timestamp 0:05) and the fourth side forms a lower edge (see timestamp 0:05 as the fourth side forms a lower edge) of the conical shape; when the flexible sheet is in the second configuration, the device has an interior volume (interior volume of timestamp 0:05) that tapers from the upper edge to the lower edge (see timestamp 0:05); when the flexible sheet is in the second configuration, the lower edge of the conical shape forms an opening having a perimeter in a plane that is oriented at an oblique angle (see screenshot of timestamp 4:24) relative to a central longitudinal axis of the conical shape (see screenshot of timestamp 4:24); the interior volume is adjustable between a first interior volume and a second interior volume (see timestamps 2:30-2:55 as the user can adjust the interior volume based on the tightness of the zip ties, creating a first interior volume and a second interior volume), wherein the second interior volume is less than the first interior volume (see timestamps 2:30-2:55 as the second interior volume will be less than the first interior volume when the user tightens the zip ties); and
the flexible sheet includes a plurality of additional openings (see screenshot of timestamps 1:31 and 4:23) positioned at each intersection of the first (see screenshot of timestamp 4:23 as the second
side is behind the third side and has additional openings passing through the third and the second sides), second (see screenshot of timestamps 1:31 and 4:23), third (see screenshot of timestamps 1:31 and 4:23), and fourth sides (see screenshot of timestamp 1:31), wherein the additional openings are configured and positionable to receive one or more fastener devices (the zip ties in timestamps 1:31 and 2:25-2:35) to selectively increase or decrease the interior volume relative to the first interior volume or the second interior volume (see timestamps 1:31, 2:25-2:35 and 4:23 as the user can adjust the volume
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based on which openings the fasteners are placed and/or the tightness of the fasteners).
However, Heartway Farms is silent about the fourth side being arcuate; one or more hook elements extending from the third side, wherein at least one of the hook elements comprises a first portion and a second portion extending transversely from the first portion; two or more elongated openings to receive the at least one hook element, wherein a first elongated opening of the two or more elongated openings is between a second elongated opening; the interior volume is adjustable between the first interior volume when the at least one of the hook elements is in the first elongated opening, and the second interior volume when the at least one of the hook elements is in the second elongated opening.
Briggs teaches a restraint device (title and abstract) the fourth side being arcuate (28 and [0034]); one or more hook elements (31) extending from the third side (see examiner’s illustration of fig. 4), wherein at least one of the hook elements comprises a first portion (see examiner’s illustration of fig. 4) and a second portion (see examiner’s illustration of fig. 4) extending transversely from the first portion (see examiner’s illustration of fig. 4); two or more elongated openings (see examiner’s illustration of fig. 4), to receive the at least one hook element (see examiner’s illustration of fig. 4 and [0035]), wherein a first elongated opening (see examiner’s illustration of fig. 4) of the two or more elongated openings is between a second elongated opening (see examiner’s illustration of fig. 4); the interior volume is adjustable between the first interior volume when the at least one of the hook elements is in the first elongated opening ([0035]), and the second interior volume when the at least one of the hook elements is in the second elongated opening ([0035]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the restraint device of Heartway Farms to include the fourth side being arcuate; one or more hook elements extending from the third side, wherein at least one of the hook elements comprises a first portion and a second portion extending transversely from the first portion; two or more elongated openings, to receive the at least one hook element, wherein a first elongated opening of the two or more elongated openings is between a second elongated opening; the interior volume is adjustable between the first interior volume when the at least one of the hook elements is in the first elongated opening, and the second interior volume when the at least one of the hook elements is in the second elongated opening as taught by Briggs in order to allow the user to easily adjust the size of the cone ([0035] of Briggs) and the arcuate shape helps to restrict the movement of the animals neck ([0034] of Briggs).
Regarding claim 2, Heartway Farms as modified by Briggs teaches the restraint device of claim 1, and Heartway Farms further teaches wherein the one or more fastener devices includes one or more zip ties (see timestamps 1:31 and 2:25-2:40).
Regarding claim 3, Heartway Farms as modified by Briggs teaches the restraint device of claim 1, and Briggs further teaches wherein the one or more hook elements comprises two hook elements (fig. 4).
Regarding claim 4, Heartway Farms as modified by Briggs teaches the restraint device of claim 3, but is silent further comprising two or more additional elongated openings extending along, and adjacent to, the second side and positionable to receive at least one of the hook elements, wherein the two or more additional elongated openings are positioned between the two or more elongated openings and the fourth side.
Briggs further teaches further comprising two or more additional elongated openings (see examiner’s inset illustration of Fig. 4) extending along, and adjacent to, the second side (see examiner’s inset illustration of Fig. 4) and positionable to receive at least one of the hook elements ([0035]), wherein the two or more additional elongated openings are positioned between the two or more elongated openings and the fourth side (see examiner’s illustration of Fig. 4 as the additional elongated openings are between the between the two or more elongated openings and the fourth side).
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It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the restraint device of Heartway Farms as modified by Briggs to include two or more additional elongated openings extending along, and adjacent to, the second side and positionable to receive at least one of the hook elements, wherein the two or more additional elongated openings are positioned between the two or more elongated openings and the fourth side as taught by Briggs in order to allow the user to easily adjust the size of the cone ([0035] of Briggs).
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Regarding claim 7, Heartway Farms as modified by Briggs teaches the restraint device of claim 1, and Heartway Farms further teaches wherein when the flexible sheet is in the second configuration, each of the intersection of the first side and the second side and the intersection of the first side and the third side extends above a remainder of the upper edge of the conical shape to form a mounting point (see screenshot of timestamp 4:23 above) for attaching the restraint device to a support structure (see screenshot of timestamp 4:23 above as the support structure is the wooden fence).
Regarding claim 8, Heartway Farms as modified by Briggs teaches the restraint device of claim 1, but is silent wherein the two or more elongated openings comprises three or more elongated openings, wherein the first and second elongated openings are positioned between a third elongated opening of the three or more elongated openings and the second side.
Briggs further teaches wherein the two or more elongated openings comprises three or more elongated openings (see examiner’s illustration of fig. 4), wherein the first and second elongated openings are positioned between a third elongated opening of the three or more elongated openings and the second side (see examiner’s illustration of fig. 4).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the restraint device of Heartway Farms as modified by Briggs to include the two or more elongated openings comprises three or more elongated openings, wherein the first and second elongated openings are positioned between a third elongated opening of the three or more elongated openings and the second side as taught by Briggs in order to allow the user to easily adjust the size of the cone ([0035] of Briggs).
Regarding claim 10, Heartway Farms as modified by Briggs teaches the restraint device of claim 1, and Briggs further teaches wherein the second portion of the at least one hook element extends parallel to the third side (see examiner’s illustration of fig. 4).
Regarding claim 11, Heartway Farms as modified by Briggs teaches the restraint device of claim 1, and Briggs further teaches wherein the two or more elongated openings extend parallel to the second side (see examiner’s illustration of fig. 4).
Regarding claim 17, Heartway Farms teaches a restraint device for harvesting birds (title), the device comprising: a flexible sheet (see timestamps 0:57-1:00 as the sheet is rolled and so is a flexible sheet) configurable between a first configuration in which the flexible sheet is planar (see timestamps 0:57-1:00 as the sheet is flexible and so is adaptable to be in a planar configuration when the user flattens out the sheet), and a second configuration in which the flexible sheet is formed into a conical shape (see timestamps 0:57-1:10) having an interior volume (interior volume of timestamp 0:05), an upper opening (see timestamp 0:05), and a lower opening smaller than the upper opening (see timestamp 0:05); a means for coarse adjustment of the interior volume (see timestamps 1:31, 2:25-2:35 and 4:23 as the user can adjust the volume based on which openings the fasteners are placed and/or the tightness of the fasteners); and a means for fine adjustment of the interior volume (see timestamps 1:31, 2:25-2:35 and 4:23 as the user can adjust the volume based on which openings the fasteners are placed and/or the tightness of the fasteners and have a fine adjustment); wherein when the flexible sheet is in the second configuration, the lower opening has a perimeter in a plane that is oriented at an oblique angle (see screenshot of timestamp 4:24) relative to a central longitudinal axis of the conical shape (see screenshot of timestamp 4:24).
However, Heartway Farms does not explicitly state wherein the flexible sheet is flat.
Briggs teaches a restraint device (title and abstract) wherein the flexible sheet is flat (fig. 4).
It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the sheet of Heartway Farms to flat as taught by Briggs in order to make the restraint device more compact and easier to store as it is well known in the art, since a mere change in size or shape of a component is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
Regarding claim 19, Heartway Farms as modified by Briggs teaches the restraint device of claim 17, but is silent wherein the means for coarse adjustment comprise one or more hook elements and one or more slits, wherein the one or more hook elements are positioned toward an opposite side of the flexible sheet from the one or more slits.
Briggs teaches wherein the means for coarse adjustment comprise one or more hook elements (31) and one or more slits (32), wherein the one or more hook elements are positioned toward an opposite side of the flexible sheet from the one or more slits (fig. 4).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the restraint device of Heartway Farms as modified by Briggs to include wherein the means for coarse adjustment comprise one or more hook elements and one or more slits, wherein the one or more hook elements are positioned toward an opposite side of the flexible sheet from the one or more slits as taught by Briggs in order to allow the user to easily adjust the size of the cone ([0035] of Briggs).
Regarding claim 20, Heartway Farms as modified by Briggs teaches the restraint device of claim 19, and Heartway Farms further teaches wherein the means for fine adjustment comprises two or more holes (see screenshots of timestamps 1:31 and 2:24) in the flexible sheet and one or more fastener devices (the zip ties in timestamps 1:31 and 2:25-2:35) positionable to connect two of the two or more holes to each other (see screenshots of timestamps 1:31 and 2:24 and timestamps 2:25-2:35).
Regarding claim 21, Heartway Farms as modified by Briggs teaches the restraint device of claim 20, and Heartway Farms further teaches wherein the one or more fastener devices comprises one or more zip ties (see timestamps 1:31 and 2:25-2:40).
Regarding claim 22, Heartway Farms as modified by Briggs teaches the restraint device of claim 17, and Heartway Farms further teaches wherein the interior volume is a first interior volume (see timestamps 2:30-2:55 as the user can adjust the interior volume based on the tightness of the zip ties, creating a first interior volume), and wherein the flexible sheet is configurable into a third configuration in which the flexible sheet is formed into a conical shape having a second interior volume that is larger or smaller than the first interior volume (see timestamps 2:30-2:55 as the second interior volume will be less than the first interior volume when the user tightens the zip ties).
Regarding claim 23, Heartway Farms teaches a restraint device for harvesting birds (title), the device comprising:
a flexible sheet (see timestamps 0:57-1:00 as the sheet is rolled and so is a flexible sheet) having a first side (see screenshot of timestamp 0:56), a second side (see screenshot of timestamp 0:56) adjoining the first side and extending transversely to the first side (see screenshot of timestamp 0:56), a third side (see screenshot of timestamp 0:56) adjoining the first side and extending transversely to the first side (see screenshot of timestamp 0:56), and a fourth side (see screenshot of timestamp 0:56) joining the second side and the third side on an opposite side of the flexible sheet from the first side (see screenshot of timestamp 0:56); and
two or more openings extending along (see timestamp 2:00-2:25 and see screenshot of timestamp 2:24), and adjacent to, the second side and positionable (see screenshot of timestamp 2:24) wherein a first opening (top opening of the openings in screenshot of timestamp 2:24) of the two or more openings is near a second opening (bottom opening of the openings in screenshot of timestamp 2:24) of the two or more openings and the second side (see screenshot of timestamp 2:24); wherein:
the flexible sheet is adaptable between a first configuration in which the flexible sheet is planar (see timestamps 0:57-1:00 as the sheet is flexible and so is adaptable to be in a planar configuration when the user flattens out the sheet), and a second configuration in which the flexible sheet is curled upon itself to form a conical shape (see timestamps 0:57-1:10);
when the flexible sheet is in the second configuration, the first side forms an upper edge (see timestamp 0:05 as the first side forms an upper edge) of the conical shape (see timestamp 0:05) and the fourth side forms a lower edge (see timestamp 0:05 as the fourth side forms a lower edge) of the conical shape;
when the flexible sheet is in the second configuration, the device has an interior volume (interior volume of timestamp 0:05) that tapers from the upper edge to the lower edge (see timestamp 0:05);
the interior volume is adjustable between a first interior volume, and a second interior volume (see timestamps 2:30-2:55 as the user can adjust the interior volume based on the tightness of the zip ties, creating a first interior volume and a second interior volume), wherein the second interior volume is less than the first interior volume (see timestamps 2:30-2:55 as the second interior volume will be less than the first interior volume when the user tightens the zip ties);
the flexible sheet includes additional openings (see screenshot of timestamps 1:31 and 4:23), wherein a plurality of the additional openings is positioned at each intersection of the first (see screenshot of timestamp 4:23 as the second side is behind the third side and has additional openings passing through the third and the second sides), second (see screenshot of timestamps 1:31 and 4:23), third (see screenshot of timestamps 1:31 and 4:23), and fourth sides (see screenshot of timestamp 1:31), wherein the additional openings are configured and positionable to receive one or more fastener devices (the zip ties in timestamps 1:31 and 2:25-2:35) to selectively increase or decrease the interior volume relative to the first interior volume or the second interior volume (see timestamps 1:31, 2:25-2:35 and 4:23 as the user can adjust the volume based on which openings the fasteners are placed and/or the tightness of the fasteners); and
when the flexible sheet is in the second configuration, each of the intersection of the first side and the second side and the intersection of the first side and the third side extends above a remainder of the upper edge of the conical shape to form a mounting point (see screenshot of timestamp 4:23 above for attaching the restraint device to a support structure (see screenshot of timestamp 4:23 above as the support structure is the wooden fence).
However, Heartway Farms is silent about the fourth side being arcuate; two or more hook elements extending from the third side, wherein at least one of the hook elements comprises a first portion and a second portion extending transversely from the first portion; and two or more elongated openings; positionable to receive the at least one of the hook elements, wherein a first elongated opening of the two or more elongated openings is between a second elongated opening of the two or more elongated openings and the second side; the interior volume is adjustable between the first interior volume when the at least one of the hook elements is in the first elongated opening, and the second interior volume when the at least one of the hook elements is in the second elongated opening.
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Briggs teaches a restraint device (title and abstract) the fourth side being arcuate (28 and [0034]); two or more hook elements (31) extending from the third side (see examiner’s illustration of fig. 4), wherein at least one of the hook elements comprises a first portion (see examiner’s illustration of fig. 4) and a second portion (see examiner’s illustration of fig. 4) extending transversely from the first portion (see examiner’s illustration of fig. 4); and two or more elongated openings (see examiner’s illustration of fig. 4), positionable to receive the at least one of the hook elements (see examiner’s illustration of fig. 4 and [0035]), wherein a first elongated opening (see examiner’s illustration of fig. 4) of the two or more elongated openings is between a second elongated opening (see examiner’s illustration of fig. 4) of the two or more elongated openings and the second side (see examiner’s illustration of fig. 4); the interior volume is adjustable between the first interior volume when the at least one of the hook elements is in the first elongated opening ([0035]), and the second interior volume when the at least one of the hook elements is in the second elongated opening ([0035]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the restraint device of Heartway Farms to include the fourth side being arcuate; two or more hook elements extending from the third side, wherein at least one of the hook elements comprises a first portion and a second portion extending transversely from the first portion; and two or more elongated openings; positionable to receive the at least one of the hook elements, wherein a first elongated opening of the two or more elongated openings is between a second elongated opening of the two or more elongated openings and the second side; the interior volume is adjustable between the first interior volume when the at least one of the hook elements is in the first elongated opening, and the second interior volume when the at least one of the hook elements is in the second elongated opening as taught by Briggs in order to allow the user to easily adjust the size of the cone ([0035] of Briggs) and the arcuate shape helps to restrict the movement of the animals neck ([0034] of Briggs).
Claims 12, 14-16 and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Heartway Farms (YouTube: “How to make a Kill Cone for Chicken or Turkey Processing | Butchering DIY”, November 16, 2022; https://www.youtube.com/watch?v=UKJDa8W4zWM) in view of Briggs (US 20130074784 A1) and Marschall (US 5797354 A).
Regarding claim 12, Heartway Farms teaches a restraint device for harvesting a bird (title), wherein the restraint device is configured to be wrapped around a portion of the bird's body with the bird's head or neck protruding from the device to aid in harvesting the bird (see timestamps 0:04-0:05), the device comprising:
a flexible sheet (see timestamps 0:57-1:00 as the sheet is rolled and so is a flexible sheet) configurable between a first configuration in which the flexible sheet is planar (see timestamps 0:57-1:00 as the sheet is flexible and so is adaptable to be in a planar configuration when the user flattens out the sheet), and a second configuration in which the flexible sheet is formed into a conical shape (see timestamps 0:57-1:10) having an interior volume (interior volume of timestamp 0:05), an upper opening (see timestamp 0:05), and a lower opening smaller than the upper opening (see timestamp 0:05);
two or more openings (see timestamp 2:00-2:25 and see screenshot of timestamp 2:24) positioned adjacent to a first side (see screenshot of timestamp 0:56) of the flexible sheet and extending parallel to the first side (see timestamp 2:00-2:25 and see screenshot of timestamp 2:24); and
wherein engagement between fasteners (the zip ties in timestamps 1:31 and 2:25-2:35) and the two or more openings forms a seam (see timestamps 2:25-2:40 as the seam is where the second side and third side are attached to each other via the zip ties) along a length of the restraint device (see timestamps 2:25-2:40), and wherein the restraint device further comprises one or more fastener devices (the zip ties in timestamps 1:31 and 2:25-2:35) positionable along the seam to connect the first side and the second side (see timestamps 2:25-2:51 as the zip ties are positionable along the seam to connect the first side and the second side); and a third side (see screenshot of timestamp 0:56).
However, Heartway Farms is silent wherein the flexible sheet is flat; two or more elongated openings; and two or more hook elements extending from a second side of the flexible sheet; wherein the hook elements are positionable in the elongated openings to hold the flexible sheet in the second configuration by moving the hook elements into the elongated openings and sliding the hook elements downward to extend below and out of the elongated openings; and wherein the third side of the flexible sheet comprises two lobes and an arc between the two lobes, wherein at least one of (a) each lobe includes one or more additional openings for receiving the one or more fastener devices or (b) each lobe includes one or more mounting holes.
Briggs teaches a restraint device (title and abstract) the flexible sheet is flat (25 and [0029] and fig. 4); two or more elongated openings (see examiner’s illustration of fig. 4); and two or more hook elements (31) extending from a second side (see examiner’s illustration of fig. 4) of the flexible sheet; wherein the hook elements are positionable in the elongated openings to hold the flexible sheet in the second configuration by moving the hook elements into the elongated openings ([0035]) and sliding the hook elements downward to extend below and out of the elongated openings (Briggs is capable of sliding the hook elements downward to extend below and out of the elongated openings as the hooks 31 are inserted into the elongated openings 32 [0035]).
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It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the restraint device of Heartway Farms to include the flexible sheet is flat; two or more elongated openings; and two or more hook elements extending from a second side of the flexible sheet; wherein the hook elements are positionable in the elongated openings to hold the flexible sheet in the second configuration by moving the hook elements into the elongated openings and sliding the hook elements downward to extend below and out of the elongated openings as taught by Briggs in order to allow the user to easily adjust the size of the cone ([0035] of Briggs).
Marschall teaches wherein the third side (see examiner’s illustration of fig. 1) of the flexible sheet comprises two lobes (12 and see examiner’s illustration of fig. 1) and an arc (see examiner’s illustration of fig. 1) between the two lobes (see examiner’s illustration of fig. 1), wherein at least one of each lobe includes one or more additional openings for receiving the one or more fastener devices (Col. 2, lines 51-53) or each lobe includes one or more mounting holes.
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It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the third side of Heartway Farms to include and wherein the third side of the flexible sheet comprises two lobes and an arc between the two lobes, wherein at least one of (a) each lobe includes one or more additional openings for receiving the one or more fastener devices or (b) each lobe includes one or more mounting holes as taught by Marschall in order to provide smoother and rounded edges to improve the safety of the user when handling the animal as it is well known in the art.
Regarding claim 14, Heartway Farms as modified by Briggs and Marschall teaches the restraint device of claim 12, wherein the one or more fastener devices comprises one or more zip ties (see timestamps 1:31 and 2:25-2:40).
Regarding claim 15, Heartway Farms as modified by Briggs and Marschall teaches the restraint device of claim 12, and Heartway Farms further teaches wherein the interior volume or a contour of an interior surface (interior volume of timestamp 0:05) of the conical shape is variable via positioning the one or more fastening devices (see timestamps 1:31, 2:25-2:35 and 4:23 as the user can adjust the volume based on which openings the fasteners are placed and/or the tightness of the fasteners).
Regarding claim 16, Heartway Farms as modified by Briggs and Marschall teaches the restraint device of claim 12, and Heartway Farms further teaches wherein the interior volume is a first interior volume (see timestamps 2:30-2:55 as the user can adjust the interior volume based on the tightness of the zip ties, creating a first interior volume), and wherein the flexible sheet is configurable into a third configuration in which the flexible sheet is formed into a conical shape having a second interior volume that is larger or smaller than the first interior volume (see timestamps 2:30-2:55 as the second interior volume will be less than the first interior volume when the user tightens the zip ties).
Regarding claim 24, Heartway Farms as modified by Briggs and Marschall teaches the restraint device of claim 12, and Marschall further teaches wherein at least one of the lobes extends beyond a remainder of the third side when the flexible sheet is in the second configuration (figs. 1 and 3 as the lobe 12 extends extends beyond a remainder of the third side when the flexible sheet is in the second configuration).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Heartway Farms as modified by Briggs as applied to claim 1 above, and further in view of Anderson (NZ 617906 A).
Regarding claim 5, Heartway Farms as modified by Briggs teaches the restraint device of claim 1, and Heartway Farms further teaches wherein the flexible sheet is formed with a plastic material (see screenshot of timestamp 0:28 as the bucket appears to be made of plastic and the bottom of the bucket displays the triangular plastic symbol).
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However, Heartway Farms as modified by Briggs is silent about comprising carbon black.
Anderson teaches comprising carbon black (see machine translation “Each plant retaining device 201 according to Figs 2-5 may be cut out of a black polyethylene sheet, preferably including anti-weathering materials such as carbon black”).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the plastic material of Heartway Farms as modified by Briggs to comprise carbon black as taught by Anderson so that the device can withstand the weather (see machine translation “preferably including anti-weathering materials such as carbon black” of Anderson), since 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 9 is rejected under 35 U.S.C. 103 as being unpatentable over Heartway Farms as modified by Briggs as applied to claim 1 above, and further in view of Stampoultzis (US 20080121193 A1).
Regarding claim 9, Heartway Farms as modified by Briggs teaches the restraint device of claim 1, but is silent wherein at least one of the two or more elongated openings comprises two rounded openings positioned at ends of the at least one elongated opening, wherein the rounded openings are wider than the at least one elongated opening.
Stampoultzis wherein at least one of the two or more elongated openings (11) comprises two rounded openings (openings at ends of 11 in fig. 1) positioned at ends of the at least one elongated opening (fig. 1), wherein the rounded openings are wider than the at least one elongated opening (fig. 1).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention include two rounded openings as taught by Stampoultzis into the two or more elongated openings of Heartway Farms as modified by Briggs in order to provide more flexibility to the two or more elongated openings.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-5, 7-12 and 14-17, 19-24 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant argues “For each of the independent claims: The Office acknowledges that Heartway Farms fails to disclose all the limitations. To attempt to resolve the various deficiencies in Heartway Farms, the Office turns to Briggs. But as a general matter, it would not have been obvious to modify Heartway Farms based on Briggs at least because Briggs is not analogous art to Applicant's claimed invention.” and
“Applicant's field of endeavor relates to slaughtering birds (e.g., poultry) for consumption. In extreme contrast, Briggs relates to pet recovery cones. Clearly, slaughtering birds for consumption is not in the same field of endeavor as helping pets heal. Accordingly, Briggs is not in the same field of endeavor as Applicant's claimed invention. Moreover, Briggs is not reasonably pertinent to the problem to be solved by Applicant's invention(s). Applicant's technology solves several problems associated with conventional cones for dispatching birds upside down, including providing adjustability to restrain a bird's body, enabling improved efficiency for shipping multiple devices, and improving sanitation of the device. See Applicant's Specification at [0002]. Briggs is not pertinent to any of these problems or other problems associated with restraining a bird's body upside down with its neck protruding for slaughter, and the Office does not provide any evidence otherwise. Instead, Briggs is configured to cover a pet's head, leaving the body uncovered so the pet can move, which is undesirable in a bird slaughter cone. Accordingly, Briggs would not "have commended itself to an inventor's attention in considering his problem." MPEP 2141.01(a). Because Briggs is neither in the same field of endeavor as Applicant's invention(s), nor reasonably pertinent to the problems to be solved by Applicant's invention(s), Briggs is not analogous art, so reliance on Briggs renders the rejections of claims 1, 12, 17, and 23 improper.”.
In response to applicant's argument that Briggs is nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, Briggs comprises of a similar structure to Heartway Farms and the claimed limitations of applicant’s invention in that Briggs teaches a restraint device (title and abstract) that is a flexible sheet comprising of hook elements and elongated openings which can be folded around an animal’s neck, thus making Briggs analogous art.
Applicant further argues “Additionally, each of the rejections of claims 1, 12, 17, and 23 requires modifications to the Heartway Farms homemade/DIY device that would increase the difficulty in making the devices and which are simply not feasible to do to the cut bucket of Heartway Farms. Critically, the Heartway Farms device starts as a bucket, which is cut by hand in a relatively crude and makeshift manner. For claims 1, 12, and 23 the Office proposes adding hook elements to a side of the Heartway Farms cut bucket. But none of the references enable adding hook elements to a side of a cut bucket. What exactly is the Office proposing to do to "add" hook elements to the side of a cut bucket? The Office does not explain. For claim 17, the Office proposes making the Heartway Farms cut bucket "flat." Clearly the bucket in Heartway Farms remains curved even when cut, with ridges/lips at the top that further reinforce that curvature. A person of ordinary skill in the art would not have found it reasonable to mash it into the flat configuration the Office proposes. In general, each of the modifications the Office proposes for modifying Heartway Farms' cut bucket would increase the difficulty in performing the DIY design to the point that a person of ordinary skill in the art simply would not have found it obvious to do so.”.
The examiner respectfully disagrees. The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain.” In re Heck, 216 USPQ 1038, 1039.
While Heartway Farms is a DIY design, it still reads on the claimed limitations. Adding the additional features taught by Briggs would not be difficult as it is well known to include hook elements onto a flexible sheet so that when in a conical configuration, the restraint will hold in place without the use of the user having to hold the restraint. Claims directed to apparatus must be distinguished from the prior art in terms of structure rather than how the apparatus is produced.
Also, in response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). As stated above, while a user can flatten the sheet of Heartway Farms to be in a planar configuration as the sheet is flexible, Briggs is relied upon to teach wherein the flexible sheet is flat (fig. 4 of Briggs).
Applicant further argues “Even if the Heartway Farms device was modified as the Office proposes (which would not have been obvious, as explained above), the resulting device would not have such an oblique opening.
For example, in the rejection of claim 1, the Office implemented Briggs' edge to try to provide the "arcuate" side, and in the rejection of claim 6, the Office relied on the bottom edge of Heartway Farms to try to allege the oblique angle. But the Office could not have relied on the bottom edge of Heartway Farms for the oblique angle because the Office had replaced that bottom edge with Briggs' edge to get the alleged "arcuate" side. In contrast, Applicant's technology includes an arcuate fourth side and the oblique angle, which, along with other aspects of the bottom edge, helps result in the unique bottom opening shape of Applicant's design. See, e.g., Applicant's Figures 2 and 4 (portions below).”.
The examiner respectfully disagrees. Simply that there are differences between two references is insufficient to establish that such references "teach away" from any combination thereof. In re Beattie, 974 F.2d 1309, 1312-13, 24 USPQ2d 1040, 1042 (Fed. Cir. 1992).
Heartway Farms would still comprise of the oblique angle as shown in screenshot of timestamp 4:24 above once modified with the arcuate fourth side of Briggs as there is no reason as to why the combination would not work. Examiner would also like to state the bottom edge of Heartway Farms is not being replaced by Briggs, it is only being modified to teach it to be arcuate, and so Heartway Farms would still teach an oblique angle.
Applicant further argues “Accordingly, the "tightness of the fasteners" is irrelevant under the Examiner's own position. And Heartway Farms does not teach, suggest, or enable adjustment of volume based on which openings the user selects because Heartway Farms does not have multiple opening options (unlike Applicant's technology, which includes multiple adjustment openings 255, see, e.g. Applicant's Figure 2). In other words, Heartway Farms does not have adjustability, and any assertion otherwise is based on speculation and/or hindsight-based recreation of Applicant's technology.”.
Applicant's arguments do not comply with 37 CFR 1.111(c) because they do not clearly point out the patentable novelty which he or she thinks the claims present in view of the state of the art disclosed by the references cited or the objections made. Further, they do not show how the amendments avoid such references or objections.
Heartway Farms is capable of teaching a means for coarse adjustment of the interior volume and a means for fine adjustment of the interior volume (see timestamps 1:31, 2:25-2:35 and 4:23) as Heartway Farms comprises of zip ties, thus allowing the user to adjust the volume based on which openings the fasteners are placed and adjust the the tightness of the fasteners. The user can either make coarse or fine adjustments to increase or reduce the interior volume based on how tight the fasteners are.
Applicant further argues “In addition, claim 17 recites "wherein when the flexible sheet is in the second configuration, the lower opening has a perimeter in a plane that is oriented at an oblique angle relative to a central longitudinal axis of the conical shape." The references do not teach or suggest these additional limitations.”.
Applicant's arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references.
Applicant further argues “The cited references do not teach or suggest each intersection having a plurality of additional openings that are also configured and positionable to receive a fastener device to selectively increase or decrease the interior volume. Instead, even if Heartway Farms is deemed to disclose adjusting tightness of the zip ties (which Applicant does not concede), Heartway Farms still fails to disclose adjustment by selecting holes for the zip ties. Accordingly, amended claim 23 is allowable over Heartway Farms and Briggs, whether considered alone or in combination.”.
Applicant's arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references.
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SAHAR ALMATRAHI whose telephone number is (571)272-2470. The examiner can normally be reached M-F 7:30-5:30.
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/SAHAR ALMATRAHI/Examiner, Art Unit 3643
/DAVID J PARSLEY/Primary Examiner, Art Unit 3643
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