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
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 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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 2, 4, 5, and 21 are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Guay et al. (US 2008/0251025).
For claim 1, Guay et al. teach a bird feeder comprising: a proximal end having a proximal edge extending around a central axis of the feeder and defining a planar top surface (any area on member (50)); a hollow reservoir (20) extending distally from the planar top surface; an opening (an opening on member (50)) formed by the proximal edge and positioned on the planar top surface; and a hanger (110) disposed distal to and not intersecting a plane defined by the planer top surface, the hanger having a hanging portion (110) positioned on the central axis (see Figure 2).
For claim 2, Guay et al. teach wherein the proximal edge extends generally circular around the central axis of the feeder (see Figure 2).
For claim 4, Guay et al. teach one or more engaging features (threads 20A) configured to engage the proximal end of a reservoir.
For claim 5, Guay et al. teach the one or more engaging features include at least one of helical threads (20A), a lip, a protrusion, or a surface configured for a snap fit.
For claim 21, Guay et al. teach wherein the proximal end of the feeder defining the planar top surface is adapted such that, with the feeder inverted, the feeder is supportable in a vertical orientation on a level surface. It should be noted that a recitation (i.e., “is adapted such that, with the feeder inverted, the feeder is supportable in a vertical orientation on a level surface”) of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. Presently, the Guay et al. reference provides the claimed structure (i.e., a feeder), and is therefore, capable of functioning as claimed.
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.
Claims 6, 8, and 9-15 are rejected under 35 U.S.C. 103 as being unpatentable over Guay et al. (US 2008/0251025) in view of Snook (US 2795454).
For claims 6, 8, and 9, as described above, Guay et al. disclose most of the claimed invention except for mentioning wherein the hanger includes the first hook and the second hook.
Snook teaches that it is old and well known in the art to provide a hanger assembly (12) having a first hook and a second hook wherein the hooks are engaged so that the hanger assembly can be pivoted into a folded position (see Figures 1-3).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the teaching of Guay et al. so as to include the use of a hanger assembly having a first hook and a second hook, in a similar manner as taught in Snook, so that the hanger assembly can be pivoted into a folded position.
For claim 10, Guay et al. teach a bird feeder comprising: a body (20) configured to receive fluid; an opening (an opening on member (50)) formed by an edge of the body and positioned on a first planar surface, the edge configured to meet a flat surface positioned on a second planar surface; and a hanger (110) having a hanging portion.
However, Guay et al. lack to mention wherein the hanger configured to permit the first planar surface to substantially merge with the second plane when the edge meets the flat surface.
Snook teaches that it is old and well known in the art to provide a hanger assembly (12) configured to permit the first planar surface to substantially merge with the second plane when the edge meets the flat surface (see Figures 1-3).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the teaching of Guay et al. so as to include the use of a hanger assembly configured to permit the first planar surface to substantially merge with the second plane when the edge meets the flat surface, in a similar manner as taught in Snook, so that the hanger assembly can be pivoted into a folded position.
For claim 11, Guay et al. as modified by Snook (emphasis on Snook) further teach wherein the hanging portion (12) is positioned relative to an approximate center of the first planar surface (see Figures 1-3).
For claim 12, Guay et al. as modified by Snook (emphasis on Guay et al.) further teach wherein the body includes one or more engaging features (threads 20A) configured to engage a proximal end of a reservoir.
For claim 13, Guay et al. as modified by Snook (emphasis on Snook) further teach wherein the hanger (12) is disposed distal to and not intersecting the first planar surface (see Figures 1-3).
For claim 14, Guay et al. as modified by Snook (emphasis on Snook) further teach the body includes a first hook, and the hanger (12) includes a second hook wherein the hooks are engaged so that the hanger assembly can be pivoted into a folded position (see Figures 1-3).
For claim 15, Guay et al. as modified by Snook (emphasis on Snook) further teach the first hook is disposed on the outer surface of the second hook (see Figures 1-3).
Claims 16 and 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Curts (US 6659041).
For claim 16, Curts teaches a bird feeder comprising: a reservoir (34) configured to hold nectar, the reservoir having a mouth (28) disposed opposite a planar surface, the mouth configured to dispense the nectar from the reservoir into a basin assembly (12); and a hanger assembly having a hanger (22) and a reservoir engaging portion (area near (16)) configured to engage a connecting portion of the reservoir near the planar surface, the hanger configured to pivot to a folded position with the hanger not protruding past the planar surface (see Figure 11 below).
Curts discloses most of the claimed invention except for mentioning a hanger having a first hook engaged to a second hook are disposed distal to the planar surface.
However, it is noted that Curts discloses the use of loop (22) and support member (80) to attach the hanger assembly (22) onto the reservoir (34), which is considered as an attachment means functional equivalent to a first and a second hooks as claimed. Therefore, it would have been obvious to one of ordinary skill in the art to use either an attachment means as taught in Curts or a first and a second hooks as claimed, since to do so would merely replace one old and well known attachment means with another art equivalent old and well known attachment means in order to attach a hanger assembly onto the reservoir.
For claim 18, Curts as modified further teaches wherein the connecting portion of the reservoir is a lip (an area where support member (80) is fitted therein).
For claim 19, Curts as modified further wherein the reservoir further includes an elongated portion (note that any portion along the reservoir can be interpreted as “an elongated portion”).
For claim 20, Curts as modified further teaches wherein the reservoir is contoured (see Figure 11 below).
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Response to Arguments
Applicant's arguments filed 11/24/25 have been fully considered but they are not persuasive.
Applicant argues that the reference Curts does not teach claims 1, 2, 4, 5, 10-13, and 21. Applicant’s arguments have been acknowledged and considered. However, it is noted that claims 1, 2, 4, 5, and 21 were rejected as being anticipated by Guay et al. (US 2008/0251025) and claims 10-13 were rejected as being unpatentable over Guay et al. (US 2008/0251025) in view of Snook (US 2795454) (please see Office Action dated on 9/15/25).
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.
Note, although the examiner recites certain excerpts for the prior art, MPEP 2141.02 VI states “PRIOR ART MUST BE CONSIDERED IN ITS ENTIRETY, INCLUDING DISCLOSURES THAT TEACH AWAY FROM THE CLAIMS”.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TRINH T NGUYEN whose telephone number is (571)272-6906. The examiner can normally be reached on Monday-Friday 7:00-3:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Timothy Collins can be reached on 571-272-6886. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/TRINH T NGUYEN/ Primary Examiner, Art Unit 3644