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 .
Continued Examination under 37 CFR 1.114 After Final Rejection
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant’s submission filed on 6/10/26 has been entered.
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 1, 2, 4-6, 8-15 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 1:
the phrase, “an opening formed by the proximal edge and positioned on the plane top surface”, is confusing and unclear since the specification only mentioned planar surface 112 with no opening positioned thereon (see [0049]-[0056]).
In claim 10:
the phrase, “an opening formed at the second end of the reservoir by an edge of the reservoir and positioned on a first planar surface”, is confusing and unclear since the specification only mentioned planar surface 112 with no opening positioned thereon (see [0049]-[0056]).
In claims 12 and 14:
“the body” lacks proper antecedent basis.
In claim 23:
“the seed converter” lacks proper antecedent basis.
Claim Objections
Claim 24 is objected to because of the following informalities: there are two claim 24. 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.
Claims 1, 2, 4-6, 8, 9, 16, and 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Stone et al. (US 2010/0229801) in view of Snook (US 2795454).
For claim 1, Stone 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, the planar top surface is adapted such that, with the feeder inverted, the feeder is supportable in a vertical orientation with the planar top surface arranged on, and coplanar with, a level surface (see Figure 3 below);
a hollow reservoir (12) extending distally from the planar top surface;
an opening (see Figure 3 below) formed by the proximal edge and positioned on the planar top surface.
As described above, Stone et al. disclose most of the claimed invention except for mentioning a hanger disposed distal to and not intersecting a plane defined by the planer top surface, the hanger having a hanging portion positioned on the central axis.
Snook teaches that it is old and well known in the art to provide a hanger (12) disposed distal to and not intersecting a plane defined by the planer top surface, the hanger having a hanging portion positioned on the central axis (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 Stone et al. so as to include the use of a hanger, in a similar manner as taught in Snook, so that the hanger assembly can be pivoted into a folded position.
For claim 2, Stone et al. as modified by Snook (emphasis on Stone et al.) teach wherein the proximal edge extends generally circular around the central axis of the feeder (see Figure 3).
For claim 4, Stone et al. as modified by Snook (emphasis on Stone et al.) teach one or more engaging features (threads 44) configured to engage the proximal end of a reservoir.
For claim 5, Stone et al. as modified by Snook (emphasis on Stone et al.) teach the one or more engaging features include at least one of helical threads (44), a lip, a protrusion, or a surface configured for a snap fit.
For claims 6, 8, and 9, Stone et al. as modified by Snook (emphasis on Snook) teach a hanger assembly (12) having a first hook, wherein the first hook is disposed on the outer surface and/or the inner surface 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).
For claim 16, Stone et al. teach a bird feeder comprising:
a reservoir (12) configured to hold nectar, the reservoir having a mouth (20) disposed opposite a planar top surface, the mouth configured to dispense the nectar from the reservoir into a basin assembly (14), the planar top surface is adapted such that, with the feeder inverted, the feeder is supportable in a vertical orientation with the planar top surface arranged on, and coplanar with, a level surface (see Figure 3 below).
Stone et al. disclose most of the claimed invention except for mentioning a hanger assembly having a hanger and a reservoir engaging portion configured to engage a connecting portion of the reservoir near the planar surface, such that a first hook engaged to a second hook are disposed distal to the planar surface, the hanger configured to pivot to a folded position with the hanger not protruding past the planar surface.
Snook teaches that it is old and well known in the art to provide a hanger assembly having a hanger (12) and a reservoir engaging portion configured to engage a connecting portion of the reservoir (30) near the planar surface. Furthermore, it is noted that Snook discloses the use of hanger assembly (17a, 15, 17, 16, 18, 14) to attach the hanger (12) onto the reservoir (30), which is considered as a hanger assembly means functional equivalent to a first hook and a second hook as claimed. 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 either the hanger assembly means as taught in Snook or a first hook and a second hook as claimed, since to do so would merely replace one old and well known hanger assembly means with another art equivalent old and well known hanger assembly means in order to attach a hanger onto the reservoir.
For claim 18, Stone et al. as modified by Snook (emphasis on Snook) teach wherein the connecting portion of the reservoir is a lip (35).
For claim 19, Stone et al. as modified by Snook (emphasis on Stone et al.) teach wherein the reservoir (12) further includes an elongated portion.
For claim 20, Stone et al. as modified by Snook (emphasis Stone et al.) teach wherein the reservoir (12) is contoured.
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Claims 10-15 are rejected under 35 U.S.C. 103 as being unpatentable over Stone et al. (US 2010/0229801) in view of Fort, II (US 2004/0134437) and Snook (US 2795454).
For claim 10, Stone et al. teach a bird feeder comprising:
a reservoir body (12) configured to receive fluid;
a port (40) removably connected to a first end of the reservoir, the port defining at least one opening (46) sized to dispense seeds of a first size;
an opening formed at a second end of the reservoir by an edge of the reservoir body and positioned on a first planar surface, the edge configured to meet a flat surface positioned on a second planar surface (see Figure 3 above).
Stone et al. disclose most of the claimed invention except for mentioning: 1) a seed converter movably mounted within the port and including a plurality of teeth selectively covering at least a portion of the at least one opening, a spacing between the plurality of teeth sized to dispense seeds of a second size, less than the first size; and 2) a hanger having a hanging portion, the hanger configured to permit the first planar surface to substantially merge with the second plane when the edge meets the flat surface.
Regarding 1), Fort, II teaches that it is old and well known in the art to provide a seed converter (120) movably mounted within the port and including a plurality of teeth (121) selectively covering at least a portion of the at least one opening, a spacing between the plurality of teeth sized to dispense seeds of a second size, less than the first size.
Fort, II teaches the use of seed converter (120) movably mounted within the port so as to dispense seeds with various sizes, which is considered as a seed converter means functional equivalent to the seed converter as claimed. 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 either the seed converter means as taught in Fort, II or the seed converter as claimed, since to do so would merely replace one old and well known seed converter means with another art equivalent old and well known seed converter means in order to dispense seeds with various sizes.
Regarding 2), Snook teaches that it is old and well known in the art to provide a hanger (12) disposed distal to and not intersecting a plane defined by the planer top surface, the hanger having a hanging portion positioned on the central axis (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 Stone et al. so as to include the use of a hanger, in a similar manner as taught in Snook, so that the hanger assembly can be pivoted into a folded position.
For claim 11, Stone et al. as modified by Fort, II and 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, Stone et al. as modified by Fort, II and Snook (emphasis on Stone et al.) further teach wherein the body includes one or more engaging features (threads 44) configured to engage a proximal end of a reservoir.
For claim 13, Stone et al. as modified by Fort, II and 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, Stone et al. as modified by Fort, II and Snook teach most of the claimed invention except for the body includes a first hook, and the hanger includes a second hook wherein the hooks are engaged so that the hanger assembly can be pivoted into a folded position.
However, it is noted that Snook discloses the use of hanger assembly (17a, 15, 17, 16, 18, 14) to attach the hanger (12) onto the reservoir (30), which is considered as a hanger assembly means functional equivalent to a first hook and a second hook as claimed. 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 either the hanger assembly means as taught in Snook or a first hook and a second hook as claimed, since to do so would merely replace one old and well known hanger assembly means with another art equivalent old and well known hanger assembly means in order to attach a hanger onto the reservoir.
For claim 15, Stone et al. as modified by Fort, II and Snook (emphasis on Snook) further teach the first hook is disposed on the outer surface of the second hook (see Figures 1-3).
Claims 22-24 are rejected under 35 U.S.C. 103 as being unpatentable over the references as applied to claim 16 above, and further in view of Fort, II (US 2004/0134437).
For claims 22-24, the references as applied to claim 16 above disclose most of the claimed invention except for mentioning a seed converter movably mounted within the port and including a plurality of teeth selectively covering at least a portion of the at least one opening, a spacing between the plurality of teeth sized to dispense seeds of a second size, less than the first size.
Fort, II teaches that it is old and well known in the art to provide a seed converter (120) movably mounted within the port and including a plurality of teeth (121) selectively covering at least a portion of the at least one opening, a spacing between the plurality of teeth sized to dispense seeds of a second size, less than the first size.
Fort, II teaches the use of seed converter (120) movably mounted within the port so as to dispense seeds with various sizes, which is considered as a seed converter means functional equivalent to the seed converter as claimed. 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 either the seed converter means as taught in Fort, II or the seed converter as claimed, since to do so would merely replace one old and well known seed converter means with another art equivalent old and well known seed converter means in order to dispense seeds with various sizes.
Double Patenting
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 obviousness-type 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); and 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 a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
Claims 10-16, 18-20, and 22-24 are rejected on the ground of nonstatutory double patenting over claims 1-20 of U. S. Patent No. 10,609,908 since the claims, if allowed, would improperly extend the "right to exclude" already granted in the patent.
Claims 10-16, 18-20, and 22-24 are rejected on the ground of nonstatutory double patenting over claims 1-11 of U. S. Patent No. 11,968,962 since the claims, if allowed, would improperly extend the "right to exclude" already granted in the patent.
The subject matter claimed in the instant application is fully disclosed in the patent and is covered by the patent since the patent and the application are claiming common subject matter, as follows: “a port”, “reservoir”, “a seed converter”, and “a connecting portion”.
Furthermore, there is no apparent reason why applicant was prevented from presenting claims corresponding to those of the instant application during prosecution of the application which matured into a patent. See In re Schneller, 397 F.2d 350, 158 USPQ 210 (CCPA 1968). See also MPEP § 804.
Response to Arguments
Applicant's arguments filed 6/10/26 have been fully considered but they are not persuasive.
Applicant’s arguments with respect to claims 1, 2, 4-6, 8-16, and 18-20, and 22-24 have been considered but are moot because the new ground of rejection does not rely on the old combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
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”.
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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
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