DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of Application
Claims 1-17 are pending and have been examined in this application. This communication is the first action on the merits. As of the date of this communication, Information Disclosure Statement (IDS) has been filed with this application.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-17 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
A) In Claims 1, 4, 8, 10-11 & 16-17 all contain “the air intake openings”. This renders the claims indefinite because it assumes there are more than one intake opening despite all independent claims stating, “one or more air intake openings”. For the purposes of examination, “the air intake openings” has been construed to be “the one or more air intake openings”.
B) Claims 2-3, 5-7, 9 & 12-15 are also rejected due to their dependency on Claims 1 or 11.
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 1-2 & 11-17 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-19 of copending Application No. 18/533866 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because they all claim the same features even if they are in different orders throughout the claims.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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 –
(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.
Claim(s) 1-2 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US Patent Publication Number 2014/0065939 A1 to Dietz.
A) As per Claim 1, Dietz teaches a vent assembly (Dietz: Figure 4), comprising:
a vent flapper (Dietz: Figure 4, Item 58); and
one or more air intake openings (Dietz: Figure 4, Item 59) formed within the vent flapper, wherein the air intake openings allow air to flow both in and out.
B) As per Claim 2, Dietz teaches a removable cover attachable to the vent flapper (Dietz: Figure 4, Item 72).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 3-7 & 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dietz.
A) As per Claims 3 & 9, Dietz teaches a tube opening (Dietz: Figure 4, opening at Item 32); and
a vent flapper area (Dietz: Figure 4, area of Item 58), wherein the vent flapper area is larger than the tube opening.
Dietz does not explicitly teach that the flapper area is at least 80% larger than the tube opening.
However, it would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to make the flapper 80% larger than the tube opening, since it has been held that where the general conditions of a claim are disclosed in the prior art (larger flapper than tube opening), discovering the optimum or workable ranges involves (MPEP 2144.05 II. A) only routine skill in the art.
In addition, it is observed that relative size is a result effective variable because the bigger the flapper area, the better a seal can be made, but the more costly the flapper. It would have been obvious to one of ordinary skill in the art at the time the invention was made to make the flapper at least 80% larger than the tube opening, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. (In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980)).
B) As per Claim 4, Dietz teaches all the limitations except that the air intake openings are hexagonal.
However, Applicant has not disclosed that having hexagonal openings solves any stated problem or is for any particular purpose. Moreover, it appears that hexagonal openings would perform equally well with Dietz. Accordingly, it would have been a matter of obvious design choice to one of ordinary skill in the art before the effective filing date of the claimed invention to make the opening of Dietz hexagonal because the shape of the opening does not appear to provide any unexpected results.
C) As per Claim 5, Dietz teaches that the vent flapper area is non-circular (Dietz: Figure 4, Item 58).
D) As per Claim 6, Dietz teaches all the limitations except that the vent flapper area is substantially square.
However, Applicant has not disclosed that having a square flapper solves any stated problem or is for any particular purpose. Moreover, it appears that square flapper would perform equally well with Dietz. Accordingly, it would have been a matter of obvious design choice to one of ordinary skill in the art before the effective filing date of the claimed invention to make the flapper of Dietz square because the shape of the flapper does not appear to provide any unexpected results.
E) As per Claim 7, Dietz teaches a flapper recess, formed on the vent flapper; and a flapper hinge, wherein the flapper recess substantially ensures the vent flapper rotates around the flapper hinge (Dietz: Figure 4, items 42 & 50 with recesses on flapper in top left of flap best shown in Figure 5).
Claim(s) 8 & 10-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dietz in view of US Patent Number 11,402,111 B2 to Vogel.
A) As per Claims 8 & 10-11, Dietz teaches a vent assembly (Dietz: Figure 4), comprising:
a vent flapper (Dietz: Figure 4, Item 58);
one or more air intake openings (Dietz: Figure 4, Item 59 or opening Item 72) formed within the vent flapper, wherein the air intake openings allow air to flow both in and out.
Dietz does not teach a removable cover configured to block the air intake openings formed within the vent flapper.
However, Vogel teaches a removable cover configured to block the air intake openings formed within the vent flapper (Vogel: Figures 10-11, Item 200).
At the time the invention was effectively filed, it would have been obvious for one of ordinary skill in the art to have modified the teachings of Dietz by add a removable cover, as taught by Vogel, with a reasonable expectation of success of arriving at the claimed invention. At the time the invention was effectively filed, it would have been obvious to one of ordinary skill in the art to have modified Dietz with these aforementioned teachings of Vogel with the motivation of adjusting the maximum airflow allowed through the opening.
Claim(s) 12-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dietz in view of Vogel as applied to claim 11 above, and further in view of US Patent Publication Number 2008/0185055 A1 to Niedermair.
A) As per Claims 12-17, Dietz teaches a vent assembly (Dietz: Figure 4), comprising:
a vent flapper (Dietz: Figure 4, Item 58);
one or more air intake openings (Dietz: Figure 4, Item 59 or hole in Item 72) formed within the vent flapper, wherein the air intake openings allow air to flow both in and out;
a backplate (Dietz: Figure 4, Item 24c);
a tube (Dietz: Figure 4, Item 30);
a face plate (Dietz: Figure 4, Item 42);
Dietz does not teach a removable cover configured to block the air intake openings formed within the vent flapper.
However, Vogel teaches a removable cover configured to block the air intake openings formed within the vent flapper (Vogel: Figures 10-11, Item 200).
At the time the invention was effectively filed, it would have been obvious for one of ordinary skill in the art to have modified the teachings of Dietz by add a removable cover, as taught by Vogel, with a reasonable expectation of success of arriving at the claimed invention. At the time the invention was effectively filed, it would have been obvious to one of ordinary skill in the art to have modified Dietz with these aforementioned teachings of Vogel with the motivation of adjusting the maximum airflow allowed through the opening.
Dietz in view of Vogel does not teach the backplate having a plurality of concentric cylinders arranged in an order of decreasing diameter; and
the tube configured to attach to one of the concentric cylinders, the concentric cylinders are separated by dual-sided score lines and at least one of the concentric cylinders is recessed from the backplate;
a tooth formed on the backplate; and
a tooth receiver formed on the face plate.
However, Niedermair teaches the backplate having a plurality of concentric cylinders arranged in an order of decreasing diameter (Niedermair: Figures 2 & 4, Item 30); and
the tube configured to attach to one of the concentric cylinders, the concentric cylinders are separated by dual-sided score lines and at least one of the concentric cylinders is recessed from the backplate (Niedermair: Paragraph 0021);
a tooth formed on the faceplate (Niedermair: Figure 4, Item 68); and
a tooth receiver formed on the backplate (Niedermair: Figure 4, Item 60).
At the time the invention was effectively filed, it would have been obvious for one of ordinary skill in the art to have modified the teachings of Dietz in view of Vogel by having a connection mechanism, as taught by Niedermair, with a reasonable expectation of success of arriving at the claimed invention. At the time the invention was effectively filed, it would have been obvious to one of ordinary skill in the art to have modified Dietz in view of Vogel with these aforementioned teachings of Niedermair with the motivation of being able to connect to many different sizes of duct.
Dietz in view of Vogel and Niedermair does not explicitly teach that the tooth is on the backplate and the receiver is on the faceplate.
However, Applicant has not disclosed that having the tooth and receiver any particular direction solves any stated problem or is for any particular purpose. Moreover, it appears that switching the tooth and receiver would perform equally well with Dietz in view of Vogel and Niedermair. Accordingly, it would have been a matter of obvious design choice to one of ordinary skill in the art before the effective filing date of the claimed invention to make the tooth on the backplate of Dietz in view of Vogel and Niedermair because the particular connection type does not appear to provide any unexpected results.
Dietz in view of Vogel and Niedermair does not explicitly teach that the score-lines are dual sided.
However, Applicant has not disclosed that having dual-sided core lines solves any stated problem or is for any particular purpose. Moreover, it appears that dual-sided score lines would perform equally well with Dietz in view of Vogel and Niedermair. Accordingly, it would have been a matter of obvious design choice to one of ordinary skill in the art before the effective filing date of the claimed invention to make the score lines of Dietz in view of Vogel dual sided because the type of score lines does not appear to provide any unexpected results.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALLEN SCHULT whose telephone number is (571)272-8511. The examiner can normally be reached M-F 9AM-5PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, STEVE MCALLISTER can be reached at 571-272-6785. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Allen R. B. Schult/Primary Examiner, Art Unit 3762