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 .
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.
Election/Restrictions
Applicant’s election without traverse of Group II (claim 12; it is noted that applicant has added new claims by amendment) and Species II as represented by Figs. 3, 5, and 7 in the reply filed on 11/7/25 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 23-24 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 11/7/25.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the anchoring member must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claims 12 and 31 are objected to because of the following informalities: typographical errors. The wherein clause and all paragraphs within and below it should not be indented under the “at least one connecting member” paragraph because that makes it appear, incorrectly, as if it all subsequently recited elements are limited to the “at least one connecting member.” Similarly, the indentation level with regard to the paragraphs under the barrier member need to be corrected. Appropriate correction is required.
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 12, 21-22, and 25-39 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.
Claim 12 recites the limitation “wherein the weighted ballast is positioned near the bottom portion…” The term “near” is recited several additional times in the claim. Each recitation suffers from the same issue as described below. The term “near” is a relative term which renders the claim indefinite. The term is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claims 21-22 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite in that it fails to point out what is included or excluded by the claim language. This claim is an omnibus type claim. See MPEP 2173.05(r).
Claims 21-22 each recite the limitation “substantially…” Each recitation suffers from the same issue. The term is a relative term which renders the claim indefinite. The term is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claim 25 recites the limitation "the barrier member." There is insufficient antecedent basis for this limitation in the claim. It is not clear as to which barrier member the recitation is referring. Multiple barrier members have been previously introduced. See the recitations of “comprising at least two devices, each device comprising: a barrier member.” This issue is found throughout the claim set.
Claim 26 recites the limitation "the weighted ballast." There is insufficient antecedent basis for this limitation in the claim.
Claim 26 recites the limitation "the bottom portion of the barrier member" twice. There is insufficient antecedent basis for each limitation in the claim.
Claim 31 recites limitations which introduce numerous issues throughout it and its dependents. For example, in the second half of the claim, applicant recites “the barrier member” and later “the first side and the second side” as well as “the top portion, the bottom portion, the first end, and the second end.” Each recitation lacks proper antecedent basis as it is unclear which of the previously recited elements is being referred to in each instance. For example, there have been two introductions of “a first side.”
Claim 32 recites the limitation "the barrier member." There is insufficient antecedent basis for this limitation in the claim.
Claim 33 recites the limitation "the weighted ballast," “the bottom portion,” and “the barrier member.” There is insufficient antecedent basis for this limitation in the claim.
The above are merely examples and it is incumbent upon applicant to review the claim set in its entirety to identify and correct all issues which are the same or similar to those identified above.
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.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “at least one connecting member” and “anchoring member.”
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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.
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) 12, 21-22, and 25-39 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bowles (US Patent No. 0329261) in view of Zapf (US Patent No. 3951453).
Re Claim 12
Bowles discloses:
A system for creating a barrier between two subjects who are lying beside one another on a surface (see all figs; see also “This invention is an improvement in bedstead attachments, and has for an object to provide a guard-board for beds which may be used to separate two or more persons sleeping in a bed”),
the system comprising at least two devices (see fig. 1), each device comprising:
a barrier member (A for the first device and E in combination with D for the second device);
…
at least one connecting member (e.g. the dovetail connections of each at C and/or the hooks and eyes C1 C2);
wherein:
the barrier member comprises:
a top portion (top, see fig. 1);
a bottom portion (bottom, see fig. 1);
a first end (one of the terminal ends; see fig. 1);
a second end (the other of the terminal ends; see fig. 1);
a first side (e.g. left or right side); and
a second side (the other of the left or the right side),
wherein the first side and the second side are in mechanical communication with one another by way of each being attached to the top portion, the bottom portion, the first end and the second end (figs. 1-2);
…
wherein the at least one connecting member is positioned on or near the second end of the barrier member, or on or near the first end of the barrier member, or both (see figs. 1-2); and
wherein the devices are removably attached to one another by their respective connecting members (see figs. 1-2).
Bowles does not explicitly disclose:
a weighted ballast;
wherein the weighted ballast is positioned near the bottom portion of the barrier member.
Zapf teaches that weighted ballasts and using weighted ballasts positioned near the bottom portion of a cushion, i.e. a barrier member, or in the art in general is old and well known for the purpose of anchoring a device and/or increasing stability (“The general concept of anchoring an object with a weight is well known. For example, a weighted material used to hold down the corners of a beach or picnic blanket is shown in U.S. Pat. No. 3,226,737 to Rote.”; see also C1 L55 – C2 L6; see all figs.). It would therefore have been obvious to one having ordinary skill in the art prior to the effective filing date to modify Bowles to include a weighted ballast (e.g. within or attached to the element(s)), wherein the weighted ballast is positioned near the bottom portion of the barrier member as taught by Zapf for the purpose of anchoring the device and/or increasing stability.
Re Claim 21
Bowles as modified above discloses:
wherein the system has substantially a shape of FIG. 5 (see figs. 1-2).
Re Claim 22
Bowles as modified above discloses:
wherein at least one of the at least two devices has substantially a shape of FIG. 3 (see figs. 1-2).
Re Claim 25
Bowles as modified above discloses all claim limitations, see above, except:
wherein the barrier member is a resiliently deformable material or a rigid material.
It would have been obvious to one having ordinary skill in the art prior to the effective filing date to have the barrier member be a resiliently deformable material or a rigid material, since it has been held to be within the general skill of a worker in the art to select 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. Both options are commonly used in the art and would have been obvious to one having ordinary skill in the art prior to the effective date for either providing a stiff supportive barrier or a softer cushioned one so as to suit a user’s preference. It is noted that the reference structures appear to be made of a rigid material regardless and the age of the reference suggests as much too.
Re Claim 26
Bowles as modified above discloses:
wherein the weighted ballast is positioned inside the bottom portion of the barrier member, outside of the bottom portion of the barrier member, or both (see modification above).
Re Claims 27-28
Bowles as modified above discloses all claim limitations, see above, except:
further comprising a cover for protecting each device, wherein the cover is configured to at least partially enclose each device.
wherein the cover comprises a fastener for closing an opening in the cover.
Zapf teaches a cover for protecting each device, wherein the cover is configured to at least partially enclose each device, wherein the cover comprises a fastener for closing an opening in the cover (see fig. 6 for example with cover 2f’’ with zipper 6) for the purpose of providing a protective enclosure, to protect the device from wear, to preserve cleanliness of the device, and/or for aesthetic purposes. It would therefore have been obvious to one having ordinary skill in the art prior to the effective filing date to modify Bowles to incorporate the limitations above for the purpose(s) articulated above.
Re Claim 29
Bowles as modified above discloses:
further comprising an anchoring member for attaching each device to the surface (one or more of hooks a’, eyes b).
Re Claim 30
Bowles as modified above discloses all claim limitations, see above, except:
wherein each of the at least one connecting member is independently selected from a hook and loop fastener or a magnet.
It would have been obvious to one having ordinary skill in the art prior to the effective filing date to modify Bowles by simply substituting the at least one connecting member with a hook and loop fastener or a magnet as they are commonly known in the art as attachment mechanisms between various beds related elements for the purpose of facilitating assembly/disassembly and/or storage.
Re Claim 31
Bowles discloses:
A system for creating a barrier between two subjects who are lying beside one another on a surface (see all figs; see also “This invention is an improvement in bedstead attachments, and has for an object to provide a guard-board for beds which may be used to separate two or more persons sleeping in a bed”),
the system comprising a first device and a second device;
the first device (see fig. 1; left half of the guard) comprising:
a barrier member (A);
…
at least one connecting member (e.g. the dovetail connection and/or the hooks and eyes C1 C2 of A);
wherein:
the barrier member comprises:
a top portion (top, see fig. 1);
a bottom portion (bottom, see fig. 1);
a first end (one of the terminal ends; see fig. 1);
a second end (the other of the terminal ends; see fig. 1);
a first side (e.g. left or right side); and
a second side (the other of the left or the right side),
wherein the first side and the second side are in mechanical communication with one another by way of each being attached to the top portion, the bottom portion, the first end and the second end (see figs. 1-2);
wherein the at least one connecting member is positioned on or near the second end of the barrier member, or on or near the first end of the barrier member (see figs. 1-2), or both;
the second device (see fig. 1; right half of the guard) comprising:
a barrier member (E in combination with D);
at least one connecting member (e.g. the dovetail connection and/or the hooks and eyes C1 C2 of E in combination with D);
wherein:
the barrier member comprises:
a top portion (top, see fig. 1);
a bottom portion (bottom, see fig. 1);
a first end (one of the terminal ends; see fig. 1);
a second end (the other of the terminal ends; see fig. 1);
a first side (e.g. left or right side); and
a second side (the other of the left or the right side),
wherein the first side and the second side are in mechanical communication with one another by way of each being attached to the top portion, the bottom portion, the first end and the second end (see figs. 1-2);
wherein the at least one connecting member is positioned on or near the second end of the barrier member (see figs. 1-2); and
wherein the first device and the second device are removably attached to one another by their respective connecting members (see figs. 1-2).
Bowles does not disclose for either device:
a weighted ballast;
wherein the weighted ballast is positioned near the bottom portion of the barrier member.
Zapf teaches that weighted ballasts and using weighted ballasts positioned near the bottom portion of a cushion, i.e. a barrier member, or in the art in general is old and well known for the purpose of anchoring a device and/or increasing stability (“The general concept of anchoring an object with a weight is well known. For example, a weighted material used to hold down the corners of a beach or picnic blanket is shown in U.S. Pat. No. 3,226,737 to Rote.”; see also C1 L55 – C2 L6; see all figs.). It would therefore have been obvious to one having ordinary skill in the art prior to the effective filing date to modify Bowles to include for each device a weighted ballast (e.g. within or attached to the element(s)), wherein the weighted ballast is positioned near the bottom portion of the barrier member as taught by Zapf for the purpose of anchoring the device and/or increasing stability.
Re Claim 32
Bowles as modified above discloses all claim limitations, see above, except:
wherein the barrier member is a resiliently deformable material or a rigid material; and
wherein the barrier member is a resiliently deformable material or a rigid material.
It would have been obvious to one having ordinary skill in the art prior to the effective filing date to have the barrier members be a resiliently deformable material or a rigid material, since it has been held to be within the general skill of a worker in the art to select 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. Both options are commonly used in the art and would have been obvious to one having ordinary skill in the art prior to the effective date for either providing a stiff supportive barrier or a softer cushioned one so as to suit a user’s preference. It is noted that the reference structures appear to be made of a rigid material regardless and the age of the reference suggests as much too.
Re Claim 33
Bowles as modified above discloses:
wherein the weighted ballast is positioned inside the bottom portion of the barrier member, outside of the bottom portion of the barrier member, or both (see modification above); and
wherein the weighted ballast is positioned inside the bottom portion of the barrier member, outside of the bottom portion of the barrier member, or both (see modification above).
Re Claim 34-35
Bowles as modified above discloses all claim limitations, see above, except:
further comprising a cover for protecting the first device, wherein the cover is configured to at least partially enclose the first device.
further comprising a cover for protecting the second device, wherein the cover is configured to at least partially enclose the second device.
Zapf teaches a cover for protecting each device, wherein the cover is configured to at least partially enclose each device, wherein the cover comprises a fastener for closing an opening in the cover (see fig. 6 for example with cover 2f’’ with zipper 6) for the purpose of providing a protective enclosure, to protect the device from wear, to preserve cleanliness of the device, and/or for aesthetic purposes. It would therefore have been obvious to one having ordinary skill in the art prior to the effective filing date to modify Bowles to incorporate the limitations above for the purpose(s) articulated above.
Re Claim 36-37
Bowles as modified above discloses:
further comprising an anchoring member for attaching the first device to the surface (see the associated one or more of hooks a’, eyes b; see figs. 1-2).
further comprising an anchoring member for attaching the second device to the surface (see the associated one or more of hooks a’, eyes b; see figs. 1-2).
Re Claim 38-39
Bowles as modified above discloses all claim limitations, see above, except:
wherein each of the at least one connecting member is independently selected from a hook and loop fastener or a magnet.
wherein each of the at least one connecting member is independently selected from a hook and loop fastener or a magnet.
It would have been obvious to one having ordinary skill in the art prior to the effective filing date to modify Bowles with regard to each of the above by simply substituting the at least one connecting member with a hook and loop fastener or a magnet as they are commonly known in the art as attachment mechanisms between various beds related elements for the purpose of facilitating assembly/disassembly and/or storage.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Additional barriers, partitions, connection mechanisms, and bed dividers are provided.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID E SOSNOWSKI whose telephone number is (571)270-7944. The examiner can normally be reached 8:30 AM - 3:30 PM and 9 PM through 11:59 PM Monday through Friday, generally.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Justin Mikowski can be reached at (571)272-8525. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DAVID E. SOSNOWSKI/
Primary Patent Examiner
Art Unit 3673
/David E Sosnowski/Primary Patent Examiner, Art Unit 3673