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 .
Response to Arguments
Applicant's arguments filed 03/18/26 have been fully considered but they are not persuasive.
As to Applicant’s arguments on pages 5-9 against the 103 rejection of claim 1, refer to the explanations provided in the following art rejection of claim 1. On pages 4-8, the Office has clarified and expounded on the rejection in light of Applicant’s arguments and amendment to claim 1.
As to Applicant’s arguments on pages 10-11 against the 103 rejection of claim 12, refer to the explanations provided in the following art rejection of claim 12. On pages 9-12, the Office has clarified and expounded on the rejection in light of Applicant’s arguments and amendment to claim 12.
Claim Objections
Claims 12-19 are objected to because of the following informalities:
Claim 12, line 10, the recitation “a shoulder disposed at a proximal end of the exterior wall that seals against an interior surface of the irrigation hose wall”, is to be replaced with -- a shoulder disposed at a proximal end of the exterior wall for sealing against an interior surface of the irrigation hose wall--, so as to make clear that the claim is not also positively claiming the irrigation hose.
Appropriate correction is required.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1 and 3-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ungerecht (US 5,823,580) in view of King, Jr. et al (US 6,510,865), hereinafter, “King”.
As to claim 1 and with respect to col. 5, l. 46 - col. 6, l. 46, Ungerecht discloses a barb (86) disposed at an end of a flexible tube (70) for insertion through an opening in an irrigation hose wall (80), the barb comprising: a distal end with a first diameter (see annotated Fig. 9 below); an exterior wall extending from the distal end (see annotated figure below); a shoulder disposed at a proximal end of the exterior wall that seals against an interior surface of the irrigation hose wall, wherein the exterior wall tapers outward from the distal end to the shoulder such that the shoulder has a second diameter larger than the first diameter (see annotated figure below).
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In col. 6, ll. 21-28, in the description of Figs. 9-11, Ungerecht indicates that where a more or less permanent connection between the coupling end (14) and the tube (80) is desired, the adapter can be omitted, with a connector (110) attached to the tube. The connector (110) is shown in Fig. 7, and the arrow-shaped barb (132) serves to more or less permanently connect the connector to the conduit (80).
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Ungerecht fails to teach a slot defined through the exterior wall, wherein the slot is configured to reduce pressure losses through the barb, wherein a depth of the slot is greater than half of a height of the barb.
However, King teaches a barb assembly that is used to pierce a main resilient tube (16) by use of cutting teeth (13), which define slots, the barbed assembly also serves as an entryway for fluid from the main tube to a branch tube. Refer to col. 4, ll. 3-24, col. 5, ll. 34-60, and Figs. 4, 10 and 14.
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Though drawings are not to scale, relative dimensions can be clearly deduced. As shown in Fig. 14 of King, it is clear that the depth of the slot and the height of the barb are substantially equal. As such, it can be reasonably concluded that the depth of King’s slot is greater than half the height.
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the barb assembly of Ungerecht, to form a slotted configuration, as taught by King, with a reasonable expectation of success, in order to provide a more effective means by which to pierce the irrigation pipe, and to save on material costs.
As the slotted barb in King is structurally the same as Applicant’s claimed slot, and looks nearly identical to Applicant’s slots illustrated in Figs. 3-5, King’s barb is considered as configured to reduce pressure losses through the barb.
The rejection relies on the specific King teaching of providing slots in a barbed fitting in order to more effectively pierce the irrigation conduit and to save on material costs.
See also MPEP 2114, which states: A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ 2d 1647; Claims directed to apparatus must be distinguished from the prior art in terms of structure rather than function. In re Danly, 263 F.2d 844, 847, 120 USPQ 528, 531; and [A]pparatus claims cover what a device is, not what a device does." Hewlett Packard Co. v. Bausch & Lomb Inc., 15 USPQ2d 1525,1528.
As far combining Ungerecht and King, "A person of ordinary skill in the art is also a person of ordinary creativity, not an automaton." KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 421, 82 USPQ2d 1385, 1397 (2007). "[I]n many cases a person of ordinary skill will be able to fit the teachings of multiple patents together like pieces of a puzzle." Id. at 420, 82 USPQ2d 1397. Office personnel may also take into account "the inferences and creative steps that a person of ordinary skill in the art would employ." Id. at 418, 82 USPQ2d at 1396.
As to claim 3, Ungerecht/King discloses a barb according to claim 2, wherein the slot tapers inward from the distal end. Refer to Fig. 14 in King.
As to claim 4, Ungerecht/King discloses a barb according to claim 3, except that the slot tapers inward at an angle of 30 degrees.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify the dimensions of the slot as necessary for the intended application, with a reasonable expectation of success, since it has been held that where the only difference between the prior art and the claimed invention is a recitation of relative dimensions and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device. Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984).
It is noted that Applicant has not disclosed that the slot being tapered inward at an angle of 30 degrees is not critical, or for any particular purpose that results in new and unexpected results and it appears that the Ungerecht/King device performs equally well as configured. Such a modification would involve routine engineering skill and would be within the purview of the skilled artisan.
As to claim 5, Ungerecht/King discloses a barb according to claim 3, wherein the distal end comprises radiused edges. Refer to Fig. 14 in King.
As to claim 6, Ungerecht/King discloses a barb according to claim 5, wherein a height of the exterior wall is smaller than a width of the slot at a shoulder end of the barb. Refer to Fig. 14 in King.
As to claim 7, Ungerecht/King discloses a barb according to claim 1, wherein the slot tapers inward from the distal end. Refer to Fig. 14 in King.
As to claim 8, Ungerecht/King discloses a barb according to claim 7, wherein the distal end comprises radiused edges. Refer to Fig. 14 in King.
As to claim 9, Ungerecht/King discloses a barb according to claim 1, wherein a height of the exterior wall is smaller than a width of the slot at a shoulder end of the barb. Refer to Fig. 14 in King.
As to claim 10, Ungerecht/King discloses a barb according to claim 9, wherein the height of the exterior wall is configured such that an inside diameter of the distal end is increased greater than 30 percent as compared with a (given) standard barb (refer to foregoing 112b rejection). Refer to Fig. 14 in King.
As to claim 11, Ungerecht/King discloses a barb according to claim 1, except that the slot is 0.15 inches wide x 0.133 inches deep.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify the dimensions of the slot as necessary for the intended application, with a reasonable expectation of success, since it has been held that where the only difference between the prior art and the claimed invention is a recitation of relative dimensions and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device. Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984).
It is noted that Applicant has not disclosed that the slot being 0.15 inches wide x 0.133 inches deep is not critical, or for any particular purpose that results in new and unexpected results and it appears that the Ungerecht/King device performs equally well as configured. Such a modification would involve routine engineering skill and would be within the purview of the skilled artisan.
As to claim 12 and with respect to col. 5, l. 46 - col. 6, l. 46, Ungerecht discloses a stake and feed tube assembly (Fig. 9) for a rotary sprinkler, comprising: a flexible supply tube (70); an adapter (58) to which a sprinkler head is connectable in fluid communication with the flexible supply tube; and a stake (60) supporting the adapter, wherein the flexible supply tube includes a barb (86) at a distal end for insertion through an opening in an irrigation hose wall, the barb comprising: a distal end with a first diameter (see annotated figure below), an exterior wall extending from the distal end, a shoulder disposed at a proximal end of the exterior wall that seals against an interior surface of the irrigation hose wall (see annotated figure below), wherein the exterior wall tapers outward from the distal end to the shoulder such that the shoulder has a second diameter larger than the first diameter (see annotated figure below).
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In col. 6, ll. 21-28, in the description of Figs. 9-11, Ungerecht indicates that where a more or less permanent connection between the coupling end (14) and the tube (80) is desired, the adapter can be omitted, with a connector (110) attached to the tube. The connector (110) is shown in Fig. 7, and the arrow-shaped barb (132) serves to more or less permanently connect the connector to the conduit (80).
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Ungerecht fails to teach a slot defined through the exterior wall, wherein the slot is configured to reduce pressure losses through the barb, wherein the slot defines an inlet opening into an internal passage of the flexible supply tube when the barb is inserted through the opening in the irrigation hose wall.
However, King teaches a barb assembly that is used to pierce a main resilient tube (16) by use of cutting teeth (13), which define slots, the barbed assembly also serves as an entryway for fluid from the main tube to a branch tube. Refer to col. 4, ll. 3-24, col. 5, ll. 34-60, and Figs. 4, 10 and 14.
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the barb assembly of Ungerecht, to form a slotted configuration, as taught by King, with a reasonable expectation of success, in order to provide a more effective means by which to pierce the irrigation pipe, and to save on material costs.
As the slotted barb in King is structurally the same as Applicant’s claimed slot, and looks nearly identical to Applicant’s slots illustrated in Figs. 3-5, King’s barb is considered configured to reduce pressure losses through the barb.
The rejection relies on the specific King teaching of providing slots in a barbed fitting in order to more effectively pierce the irrigation conduit and to save on material costs.
See also MPEP 2114, which states: A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ 2d 1647; Claims directed to apparatus must be distinguished from the prior art in terms of structure rather than function. In re Danly, 263 F.2d 844, 847, 120 USPQ 528, 531; and [A]pparatus claims cover what a device is, not what a device does." Hewlett Packard Co. v. Bausch & Lomb Inc., 15 USPQ2d 1525,1528.
"A person of ordinary skill in the art is also a person of ordinary creativity, not an automaton." KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 421, 82 USPQ2d 1385, 1397 (2007). "[I]n many cases a person of ordinary skill will be able to fit the teachings of multiple patents together like pieces of a puzzle." Id. at 420, 82 USPQ2d 1397. Office personnel may also take into account "the inferences and creative steps that a person of ordinary skill in the art would employ." Id. at 418, 82 USPQ2d at 1396.
As to claim 13, Ungerecht/King discloses a stake and feed tube assembly according to claim 12, wherein a depth of the slot is greater than half of a height of the barb. Refer to Fig. 14 in King, below.
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Though drawings are not to scale, relative dimensions can be clearly deduced. As shown in Fig. 14 of King, it is clear that the depth of the slot and the height of the barb are substantially equal. As such, it can be reasonably concluded that the depth of King’s slot is greater than half the height.
As to claim 14, Ungerecht/King discloses a stake and feed tube assembly according to claim 13, wherein the slot tapers inward from the distal end. Refer to Fig. 14 in King.
As to claim 15, Ungerecht/King discloses a stake and feed tube assembly according to claim 14, Ungerecht/King wherein the distal end comprises radiused edges. Refer to Fig. 14 in King.
As to claim 16, Ungerecht/King discloses a stake and feed tube assembly according to claim 15, wherein a height of the exterior wall is smaller than a width of the slot at a shoulder end of the barb. Refer to Fig. 14 in King.
As to claim 17, Ungerecht/King discloses a stake and feed tube assembly according to claim 12, wherein the slot tapers inward from the distal end. Refer to Fig. 14 in King.
As to claim 18, Ungerecht/King discloses a take and feed tube assembly according to claim 17, wherein the distal end comprises radiused edges. Refer to Fig. 14 in King.
As to claim 19, Ungerecht/King discloses a stake and feed tube assembly according to claim 12, wherein a height of the exterior wall is smaller than a width of the slot at a shoulder end of the barb. Refer to Fig. 14 in King.
Examiner’s Note:
The italicized portions in the foregoing claims are functional recitations. These clauses, as well as other statements of intended use do not serve to patently distinguish the claimed structure over that of the reference(s), as long as the structure of the cited reference(s) is capable of performing the intended use. See MPEP 2111-2115.
See also MPEP 2114, which states:
A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ 2d 1647;
Claims directed to apparatus must be distinguished from the prior art in terms of structure rather than function. In re Danly, 263 F.2d 844, 847, 120 USPQ 528, 531; and
[A]pparatus claims cover what a device is, not what a device does." Hewlett Packard Co. v. Bausch & Lomb Inc., 15 USPQ2d 1525,1528.
Any one of the systems in the cited reference(s) is capable of being used in the same manner and for the intended or desired use as the claimed invention. Note that it is sufficient to show that said capability exists, which is the case for the cited reference(s).
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to James M Hewitt II whose telephone number is (571)272-7084. The examiner can normally be reached M-F 730am-930pm (MST), mid-day flex.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Matthew Troutman can be reached at 571-270-3654. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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James M. Hewitt II
Primary Examiner
Art Unit 3679
/JAMES M HEWITT II/Primary Examiner, Art Unit 3679
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