Notice of Pre-AIA or AIA Status
This is a first office action on the merits for application serail number 18/612,391 filed 3/21/24 as a continuation of PCT/US2021/059294 which is a continuation of U.S. application serail number 18/612,391, which has issued as U.S. Patent 11,293,196. This action is in response to the preliminary amendment filed 6/03/24. Claims 1-20a re pending. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The substitute specification field 6/03/24 has been entered.
The listing of references in the specification is not a proper information disclosure statement. 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609.04(a) states, "the list may not be incorporated into the specification but must be submitted in a separate paper." Therefore, unless the references have been cited by the examiner on form PTO-892, they have not been considered.
The disclosure is objected to because of the following informalities: several of the brief descriptions of the figures do not appear to agree with what is shown in the refenced figures. Non-limiting examples include paragraphs [0096-0098]:
Appropriate correction is required.
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description: 101 and 110. 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. 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.
The drawings are objected to because Figure 135 includes a lead line without a reference number.
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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.
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 interlocking cones (plural) [cl.6] (note the figures only show a single cone 120), privacy screw [cl.17], the customizable modular sidewall [cl.18] and the ground anchors including at least one of spikes, stakes, screws [cl. 20] 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.
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. U.S. Patent 11,293,196. Although the claims at issue are not identical, they are not patentably distinct from each other because the subject matter of claims 1-16 is included within the patented claim.
With respect to claims 17-18, claim 1 recites the gazebo is for supporting sidewalls which are considered to meet “privacy screen” and it is known in the art that sidewalls of a foldable gazebo/canopy may be modular and customizable.
With respect to claims 19-20, patent claim 1 recites feet provide with holes, as such they are considered configured to receive a ground anchor/spike/stake/screw.
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 2-13 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being incomplete for omitting essential structural cooperative relationships of elements, such omission amounting to a gap between the necessary structural connections. See MPEP § 2172.01. The omitted structural cooperative relationships are:
The spiral-saw screw system beginning with claim 2, the connectors and expandable cold-contractable screws of claim 8, and the cushion cover system beginning with claim 9 are not related to any elements of the gazebo rendering it unclear where or how they fit/relate to the gazebo with the resulting the metes and bounds of the claims indefinite.
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.
Claims 1, 15 and 16 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by U.S. Patent 10,378,235 to Volin.
Volin provides a multifunctional gazebo comprising:
an adjustable canopy 102; a foldable truss (at least figure 7), including at least one of a top truss 107a, a corner truss 108, and a side truss 109, and the foldable truss supporting the adjustable canopy; and
a plurality of posts, including an upper post 112 and a lower post 119, wherein the lower post and the upper post are configured to be slidably coupled to allow for height adjustment, the lower post and the upper post coupled to the foldable truss.
With respect to claim 15, see col.19, lns. 30-39.
With respect to claim 16, see figure 15B.
Claims 1 and 14-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by U.S. Patent 6,772,780 to Price.
Price provides a multifunctional gazebo comprising:
an adjustable canopy 148; a foldable truss (at least figure 2), including at least one of a top truss 106, a corner truss 200, and a side truss 104, and the foldable truss supporting the adjustable canopy; and
a plurality of posts 102, including an upper post 108 and a lower post 110, wherein the lower post and the upper post are configured to be slidably coupled to allow for height adjustment, the lower post and the upper post coupled to the foldable truss.
With respect to claim 15, see col.16, lns. 21-35.
With respect to claims 17-18, the frame is disclosed as used for in erecting tents, insect screen rooms, shade awnings, canopies and the like in the out-of-doors such as campsites, back yard patios and other outdoor venues. At least a tent functions as a “privacy screen” [cl. 17] and as the frame may support different sidewall coverings it is considered “customizable”.
With respect to claims 14 and 19-20, see feet 132 with penetrations 136 for ground stakes (not shown) [col.8, lns 46+].
Claims 1, 9-11 and 14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by U.S. Patent 8,408,225 to Mallookis et al.
Mallookis provides a collapsible shelter 100 considered to meet “a multifunctional gazebo” comprising:
an adjustable canopy (not shown but see the fabric roof of col.4, ln.9), a foldable truss, including at least one of a top truss 160, a corner truss 170, and a side truss 110, and the foldable truss supporting the adjustable canopy; and
a plurality of telescopically adjustable legs 180-1-180-4 or “posts”, including an upper post and a lower post, wherein the lower post and the upper post are configured to be slidably coupled to allow for height adjustment, the lower post and the upper post coupled to the foldable truss (col.3, lns. 11-30).
With respect to claims 9-11, Figure 2A shows truss-end covers that meet the claims as best understood.
With respect to claims 14 and 19-20, see base members or “feet” 150-1-150-4 or 350 shown in figures 3A/B with holes for ground stakes].
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim 12, as best understood, are rejected under 35 U.S.C. 103 as being unpatentable over by U.S. Patent 8,408,225 to Mallookis et al. in view of U.S. Patent 8,225,808 to Mallookis et al.
Mallookis ‘225 provides each of the elements of the claim as noted above except for a cushion cover system including inward-curved cover-cushion edges.
Mallookis ‘ 808 teaches, as best understood, that a cushion cover system including inward-curved cover-cushion edges was known for using in a side truss of a collapsible truss as shown by the nylon layered bracket of Figures 4B-7B.
It would have been obvious at the time of the effective filing date of the invention to one having ordinary skill in the art that the side truss on Mallookis ‘225 could have incorporated the system of Figures 4B-7B of Mallookis ‘808 to allow for pivoting with relatively little friction as taught by ‘808 at col. 7, lns. 14-20.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Note:
U.S. 2023/0346090 to Volin teaches heat-expandable cold contractable anti-wobble screws in Figures 14-26 for use with connectors of an umbrella. Volin does not have an earlier effective filing date than that of the instant application.
U.S. 2024/0117647 to van Lierop which teaches a gazebo 1 and its features can be capable of being robotically assembled so as to save production time and costs. With particular reference to FIGS. 23-25, the gazebo 1 can be capable of providing robotically installed screws 108, in the directions of arrows 155a and 155b. In this way, the installed screws 108 can automatically create friction heat, cut threads in the direction of arrows 155c, 155d, expand screw-tip on impact, in the direction of arrows 155e, 155f, and 155g, so as to lock in place when the thread-walls cool and contract. Van Lierop does not have an earlier effective filing date than that of the instant application.
Figures 7 and 16A of U.S. 2024/0138398 to Banfield appears to teach truss-end covers.
Couplers 32 of U.S. Patent 8,418,711 to Park et al.
The truss-end covers of Fig. 16 of U.S. Patents 5,632,293 and 6,431,193 to Carter.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT CANFIELD whose telephone number is (571)272-6840. The examiner can normally be reached M-F 10-6, some Saturdays.
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, David Dunn can be reached at 571-272-6670. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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ROBERT CANFIELD
Primary Examiner
Art Unit 3636
/Robert Canfield/ Primary Examiner, Art Unit 3636
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