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 .
Claim Rejections - 35 USC § 102
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.
Claim(s) 1, 2, 5-7, 11, 14, 15, and 18 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 7968797 to Williams (hereinafter “Williams”).
-From Claim 1: Williams discloses a topper 10A configured to be received on a metal fence post ST, the topper comprising:
a housing 11 configured to fit over a top of the metal fence post; and
a plurality of elongated rods 17A, 17B extending from an inner surface of the housing, the plurality of elongated rods configured to secure the housing to the metal fence post. (Fig. 2, 3)
-From Claim 2: Williams discloses wherein the housing includes a top, an opening 12 opposite the top of the housing, and a plurality of sides, and wherein the plurality of sides of the housing have contours that follows a shape of the metal fence post. (See Fig. 3)
-From Claim 5: Williams discloses wherein the plurality of elongated rods 17A, 17B are three (3) to four (4) in number.
-From Claim 6: Williams discloses wherein the plurality of elongated rods 17A, 17B are arranged in a generally rectangular shape on an inner surface of the housing of the topper.
-From Claim 7: Williams discloses wherein the plurality of elongated rods 17A, 17B are four (4) in number and two (2) of the four (4) of the plurality of elongated rods are offset from another two (2) of the four (4) of the plurality of elongated rods and configured to fit over the top of the metal fence post.
-From Claim 11: Williams discloses the metal fence post being a T Post. (Fig. 1)
-From Claim 14: Williams discloses a method for attaching a topper 10A on a metal fence post ST, the method comprising:
attaching a housing 11 to a metal fence post, the housing including a plurality of elongated rods 17A, 17B extending from an inner surface of the housing that secure the housing to the metal fence post.
-From Claim 15: Williams discloses wherein the housing 11 includes a top, an opening opposite the top of the housing, and a plurality of sides, and wherein the plurality of sides of the housing have contours that follows a shape of the metal fence post. (Fig. 2, 3)
-From Claim 18: Williams discloses wherein the metal fence post is a T-Post. (See Fig. 1)
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.
Claim(s) 3, 4, 10, 12, 13, 19, and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Williams.
-From Claim 3: Williams does not discloses wherein the plurality of elongated rods 17A, 17B are cylindrical rods. Rather, they are rectangular elongated rods. Nevertheless, It would have been obvious to one having ordinary skill in the art at the time the invention was made to change the shape of the rectangular rods to cylindrical rods in the same general area they, since there is no invention in merely changing the shape or form of an article without changing its function except in a design patent. Eskimo Pie Corp. v. Levous et al., 3 USPQ 23.
-From Claim 4: Williams does disclose wherein the elongated rods each have a tapered outer surface (See e.g., Fig. 5, showing the tapered ends of 17A, 17B). However, Williams does not discloses wherein the plurality of elongated rods 17A, 17B are cylindrical rods. Rather, they are rectangular elongated rods. Nevertheless, It would have been obvious to one having ordinary skill in the art at the time the invention was made to change the shape of the rectangular rods to cylindrical rods in the same general area they, since there is no invention in merely changing the shape or form of an article without changing its function except in a design patent. Eskimo Pie Corp. v. Levous et al., 3 USPQ 23.
-From Claim 10: Williams does not disclose wherein the plurality of elongated rod are cylindrical rods having a hole extending longitudinally from the inner surface of the housing towards a lower edge of the housing. Rather, the elongated rods are rectangular. Nevertheless, It would have been obvious to one having ordinary skill in the art at the time the invention was made to change the shape of the rectangular rods to cylindrical rods in the same general area they, since there is no invention in merely changing the shape or form of an article without changing its function except in a design patent. Eskimo Pie Corp. v. Levous et al., 3 USPQ 23.
-From Claims 12 and 19: Williams discloses an external hot wire provision 60 to provide an additional deterrent to animals that may attempt to dislodge said topper from the metal fence post, wherein the external hot wire provision 60 is an appendage configured to be secured to the housing and to hold an electrified wire, rope, or tape, the external hot wire provision configured to be placed on the fence side of the metal fence post (Fig. 1) or the non-fence side of the metal fence post, the fence side being on a side of a plurality of nubs on the metal fence post, and the non-fence side being on a side opposite of the plurality of nubs on the metal fence post.
However, Williams does not specifically disclose the hot wire provision, or the topper itself, being made of a durable plastic material.
Nevertheless, it would have been obvious to one having ordinary skill in the art at the time the invention was made to construct the topper and its constituent parts (such as the hot wire provision) out of a durable plastic material, 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.
-From Claims 13 and 20: Williams discloses wherein the housing is made of a durable plastic material that is resistant to abrasion, corrosion, and other environmental factors.
Williams does not specifically disclose the hot wire provision, or the topper itself, being made of a durable plastic material that is resistant to abrasion, corrosion, and other environmental factors..
Nevertheless, it would have been obvious to one having ordinary skill in the art at the time the invention was made to construct the topper and its constituent parts (such as the hot wire provision) out of a durable plastic material, 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(s) 8, 9, 16, and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Williams in view of US 6612551 to Roy (hereinafter “Roy”).
-From Claims 8 and 16: Roy teaches a topper 110 including a housing having a pair of plates (140, 142, and/or 144) extending from the inner surface of the housing of the topper, the pair of plates configured to fit on an outer side edge of a portion of the metal fence post.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Williams by adding plates on the inner surfaces of the housing as taught by Roy in order to provide additional grip between the post and the topper.
-From Claims 9 and 17: Roy teaches wherein the pair of plates are longer in length than one or more of the plurality of elongated cylinders. (Examiner notes that the elongated rods in Williams, 17A, 17B, do not appear to extend to the bottom edge of the housing, whereas the plates in Roy do).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Williams by adding plates on the inner surfaces of the housing as taught by Roy in order to provide additional grip between the post and the topper.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure, as the cited references include structure similar to that of the presently claimed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIEL J WILEY whose telephone number is (571)270-7324. The examiner can normally be reached Mon-Fri, 9am-5pm PST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Amber Anderson can be reached at 5712705281. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DANIEL J WILEY/Primary Examiner, Art Unit 3678 1/22/2026