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 .
DETAILED ACTION
This is a non-final First Office Action on the Merits in application 18/628,732, filed 4/7/2024.
The examiner would like to remind the applicant that PTO form PTO/SB/439, Authorization for Internet Communication, is available to allow for email communication between the examiner and applicant. Due to the time difference between the US Patent Office and applicant’s address this would allow for ease in direct communication, if the need should arise, to allow for further prosecution and allowance of the application.
Claims 1-14 are pending and examined.
Claim Objections
Claims 1 and 3 are objected to because of the following informalities: in claim 1, line 2, “rods, each rod” should be changed to “including a top horizontal telescopic rod and a bottom horizontal telescopic rod, each of the rods”; in line 5, “between the pair” should be changed to “between the first ends of the pair”, in line 6, “at a first end of the pair” should be deleted, in lines 9 and 18, “end” should be changed to “ends”, in line 12, “and” should be inserted after “rods;”, and in line 14, “further” should be deleted”; and in claim 3, line 3, “end” should be changed to “ends”. Appropriate correction is required.
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.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that are 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 the term means 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: “a means for engagement” in claim 1(see paras. [0008] and [0037] of specification).
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 § 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 2 and 14 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.
In claim 2, line 3, “the height” has no antecedent basis and should be changed to “a height”.
In claim 14, line 3, “a softer material on the surface interfacing with the walls” renders the metes and bounds of the claim unclear as to the material used since the material is not related to another material and which surface interfaces with the walls. By deleting the phrase the rejection would be overcome. Or, by changing the entire phrase to “of a material softer than a material of the telescoping rods”, the rejection would be overcome.
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.
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.
Claims 1, 3-5 and 11-14 are rejected under 35 U.S.C. 103 as being unpatentable over Wang (U.S. Pat. Appl. Publ. 2017/0067284; cited on PTO 892) in view of Stillwell(2972825; cited on PTO 892).
Regarding claim 1, Wang discloses a gate system comprising:
a pair of horizontal telescopic rods(10, 12, see Fig. 1), each of the rods having a first end and a second end, wherein each of the horizontal telescopic rods includes a mounting pad(286, 442) at the first end and the second end for securing the rod between two opposing walls (figure 1);
a fixed side rod(13) oriented vertically and secured between the pair of horizontal telescopic rods at a first end of the pair, wherein the fixed side rod is positioned adjacent to one of the opposing walls(see Fig. 1);
a side rod(14) mounted vertically between the pair of horizontal telescopic rods; and
a fabric(50) attached between the fixed side rod(13) and the side rod(14), the fabric further comprising top and bottom edges, wherein the top edge is coupled to the top horizontal telescopic rod and the bottom edge is coupled to the bottom horizontal telescopic rod, and wherein the fabric is configured to be stretched across the pair of horizontal telescopic rods to block a passageway between the two opposing walls when the side rod (14) is positioned near the second end of the pair of horizontal telescopic rods, and the fabric is capable of being compressed, due to the flexible nature of fabric, when it is not being stretched.
Wang lacks that the side rod is a sliding side rod that is capable of sliding between the fixed side rod and the second end of the pair of horizontal telescopic rods while maintaining a vertical orientation, wherein the sliding side rod includes a means for slidable engagement with the pair of horizontal telescopic rods; or that the fabric is a net that is configured to allow passage when the net is compressed by moving the sliding side rod towards the fixed side rod.
Stillwell discloses that it is known to provide a sliding side rod(25) on an animal gate that slides on an upper rod and a lower rod to create a smaller opening and allow passage therethrough without having to open the entire large gate.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention, in view of Stillwell’s teaching, to make Wang’s side rod(14) slidable on the upper and lower rod, with a reasonable degree of success, so that the rod(14) could be slid open to allow a cat or dog through the gate without having to remove the entire gate assembly from the wall. Having to remove the entire gate from the wall any time one would like their pet to be able to pass through would be cumbersome and time consuming. Thus, having a slidable panel to quickly allow the pet to pass through when desired would be much more convenient and practical.
In regard to the net limitation, Wang teaches the use of a fabric. The examiner contends that a net and a fabric are functionally equivalent for the purposes of forming a barrier when stretched. Also, both are flexible and can be stretched or compressed. In any case, the examiner further takes official notice that it is known to use nets for cat gates to form a barrier from a cat to pass therethrough. Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use a net in place of Wang's fabric, with a reasonable degree of success, because both materials will function in the same manner. They will both compress when the sliding rod is slid to an open position and they will both stretch taught when the sliding rod is slid to a closed position.
Regarding claim 3, Wang and Stillwell disclose the cat gate system of claim 1, but lacks the specific means for slidable engagement.
Applicant’s disclosure lends no criticality to the specific engagement means(see para. [0037]).
Therefore, the specific engagement means is considered a feature best determined by a skilled artisan given the intended use of the system and design requirements thereof.
Regarding claim 4, Wang and Stillwell disclose the cat gate system of claim 1, wherein the fabric/net further comprises sleeves along its side edges(see Fig. 1), the sleeves configured to receive the fixed side rod and the sliding side rod to maintain the net's vertical orientation.
Regarding claim 5, Wang and Stillwell disclose the cat gate system of claim 1, further comprising a plurality of rings(26, 27, see Fig. 1 of Stillwell) coupling the top edge and the bottom edge of the net to the pair of horizontal telescopic rods.
Regarding claim 11, Wang and Stillwell disclose the cat gate system of claim 1, but lack the specific material of the net.
Applicant’s disclosure lends no criticality to the net material(see para. [0038]).
Therefore, the specific material chosen for the net is considered a feature best determined by a skilled artisan given the intended use of the system and design requirements thereof.
Regarding claim 12, Wang and Stillwell disclose the cat gate system of claim 1, but lack the specific material of the rods.
Applicant’s disclosure lends no criticality to the rod material(see paras. [0033] and [0043]).
Therefore, the specific material chosen for the rods is considered a feature best determined by a skilled artisan given the intended use of the system and design requirements thereof.
Regarding claim 13, Wang and Stillwell disclose the cat gate system of claim 1, wherein the mounting pads(286, 442) at the first and second ends of the pair of horizontal rods are of a shape configured to facilitate secure attachment to a variety of wall surfaces and to distribute the load evenly to prevent damage to the walls(see paras. [0026] and [0027]).
Regarding claim 14, Wang and Stillwell disclose the cat gate system of claim 1, but lacks the specific material of the mounting pads.
Applicant’s disclosure lends no criticality to the pad material(see paras. [0043] and [0053]).
The use of cushioned pads to protect walls of a gate system of a material softer than the gate material to protect the walls is considered well known in the art.
Therefore, the specific material chosen for the pads is considered a feature best determined by a skilled artisan given the intended use of the system and design requirements thereof.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Wang and Stillwell, as applied to claim 1 above, and further in view of Flannery(U.S. Pat. Appl. Publ. 2019/0003250; cited on PTO 892).
Wang and Stillwell disclose the cat gate system of claim 1, wherein the pair of horizontal telescopic rods are telescopic to allow for varying widths, but lacks the side rods being telescopic to allow for variation in the a height of the cat gate system.
It would have been obvious for one having ordinary skill in the art before the effective filing date of the invention to have substituted the side rods of Wang with telescoping rods, such as disclosed by Flannery, given that by FKSR International Co. v. Teleflex Inc., 550 U.S. 398, 127 S.Ct. 1727, 82 USPQ.2d 1385 (Fed. Cir. 2005), cert. granted, 547 U.S. __ (2006) has found that the substitution of one known element for another would have yielded predictable results to one of ordinary skill in the art at the time of the invention.
Claims 6-8 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Wang and Stillwell, as applied to claim 1 above, and further in view of Brice(2,797,959; cited on PTO 892).
Regarding claim 6, Wang and Stillwell disclose the cat gate system of claim 1, but lack attachment mechanisms for holding the gate elements in a specific position.
Brice discloses a rope for maintaining elements of the gate in a specific position.
It would have been obvious for one having ordinary skill in the art before the effective filing date of the invention to have provided the system of Wang and Stillwell with attachment mechanisms, such as disclosed by Brice, in order to have maintained the elements of the system in the desired orientation given the intended use of the system and specific design requirements thereof.
Regarding claims 7-8 and 10, Wang and Stillwell and Flannery disclose the cat gate system of claim 1, but lack the specific attachment mechanisms.
Applicant’s disclosure lends no criticality to the specific attachment mechanism (see para. [0013]).
The use of magnets and clips and hooks as attachment mechanism to hold adjacent elements together is considered well known in the art.
Therefore, the specific attachment mechanism provided is considered a feature best determined by a skilled artisan given the intended use of the system and design requirements thereof.
Allowable Subject Matter
Claim 9 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BETH A. STEPHAN whose telephone number is (571)272-1851. The examiner can normally be reached M-F 8a-4:30p.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brian Glessner can be reached at 571-272-6754. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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BETH A. STEPHAN
Primary Examiner
Art Unit 3633
/Beth A Stephan/