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 .
Election/Restrictions
Claims 1 (claim 1 recites “a secondary net attached to the flexible net structure and disposed on an interior side of the flexible net structure” directed to non-elected Species II), 2, 4, 13 (claims 13 and 21 recites “an upper edge panel” directed to non-elected Species III), 14, 21, and 31 (claim 31 recites “a second net layer” directed to non-elected Species II) are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 11/05/2025.
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 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); 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 nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 5, 7, 10-12, and 15-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 9, 11, 15, and 16 of U.S. Patent No. 11,185,065. Although the claims at issue are not identical, they are not patentably distinct from each other because they commonly recite:
For claim 5 of the present application vs. claim 9 of the patent: “A trap for trapping animals, comprising: a flexible net structure including: a collapsible net formed from a plurality of spaced apart flexible lines that define a plurality of openings within the collapsible net, the collapsible net having a width that extends between an upper lateral edge and a lower lateral edge” vs. “A trap for trapping animals, comprising: a collapsible net formed from a plurality of spaced apart flexible lines that define a plurality of openings within the net, the net having a width that extends between an upper lateral edge and a lower lateral edge”; “a flexible upper cord attached to the collapsible net at the upper lateral edge” vs. “a flexible upper cord attached to the collapsible net at the upper lateral edge extending the first length of the net”; “wherein the collapsible net has a closed configuration with a first circumference disposed at the upper lateral edge, and a second circumference disposed at the lower lateral edge, wherein the second circumference is less than the first circumference” vs. “wherein the collapsible net is configurable in a closed configuration where the first lengthwise end and the second lengthwise end are disposed proximate each other, and the flexible bottom cord attached to the collapsible net at the lower lateral edge defines a trap opening”; and “a plurality of posts” vs. “a plurality of posts configured for securement to a ground surface and for connection with the collapsible net”.
For claim 7 of the present application vs. claim 16 of the patent: “wherein the second circumference is in the range of about 35% to 90% of the first circumference.” vs. “wherein the second length is in a range of 35-90% of the first length”.
Claims 11-12 of the present application vs. claim 9 of the patent: “wherein the upper cord has an upper cord diameter and each said flexible line has a flexible line diameter, and the upper cord diameter is greater than the flexible line diameter; wherein the upper cord diameter is at least 150% of the flexible line diameter.” vs. “wherein the plurality of first openings each define a first area and the plurality of second openings each define a second area, and the first area is larger than the second area; wherein the first uniform configuration comprises each said flexible line within the plurality of spaced apart flexible lines disposed in the first net region having a first diameter, and the second uniform configuration comprising each said flexible line within the plurality of spaced apart flexible lines disposed in the second net region having a second diameter, and the second diameter is smaller than the first diameter; and a flexible upper cord attached to the collapsible net at the upper lateral edge extending the first length of the net; a flexible bottom cord attached to the collapsible net at the lower lateral edge extending the second length of the net; wherein the flexible upper cord has a third diameter, and the flexible bottom cord has a fourth diameter, and both the third diameter and the fourth diameter are greater than the first diameter”.
Claim 15 of the present application vs. claim 9 of the patent: “A trap for trapping animals, comprising: a flexible net structure including: a collapsible net formed from a plurality of spaced apart flexible lines that define a plurality of openings within the collapsible net, the collapsible net having a width that extends between an upper lateral edge and a lower lateral edge”; “a flexible upper cord attached to the collapsible net at the upper lateral edge extending the first length of the net”; “wherein the collapsible net has a closed configuration with a first circumferential length disposed at the upper lateral edge, and a second circumferential length disposed at the lower lateral edge; and wherein the second circumferential length is less than the first circumferential length” vs. “a first length that extends between a first lengthwise end and a second lengthwise end at the upper lateral edge, and a second length that extends between the first lengthwise end and the second lengthwise end at the lower lateral edge, wherein the second length is less than the first length”; and “a plurality of posts” vs. “a plurality of posts configured for securement to a ground surface and for connection with the collapsible net”.
Claims 16-17 of the present application vs. claim 9 of the patent: “wherein the upper cord has an upper cord diameter and each said flexible line has a flexible line diameter, and the upper cord diameter is greater than the flexible line diameter; wherein the upper cord diameter is at least 150% of the flexible line diameter.” vs. “wherein the plurality of first openings each define a first area and the plurality of second openings each define a second area, and the first area is larger than the second area; wherein the first uniform configuration comprises each said flexible line within the plurality of spaced apart flexible lines disposed in the first net region having a first diameter, and the second uniform configuration comprising each said flexible line within the plurality of spaced apart flexible lines disposed in the second net region having a second diameter, and the second diameter is smaller than the first diameter; and a flexible upper cord attached to the collapsible net at the upper lateral edge extending the first length of the net; a flexible bottom cord attached to the collapsible net at the lower lateral edge extending the second length of the net; wherein the flexible upper cord has a third diameter, and the flexible bottom cord has a fourth diameter, and both the third diameter and the fourth diameter are greater than the first diameter”.
For claim 18 of the present application vs. claim 16 of the patent: “wherein the second circumference is in the range of about 35% to 90% of the first circumference.” vs. “wherein the second length is in a range of 35-90% of the first length”.
For claim 19 of the present application vs. claim 11 of the patent: “a plurality of anchoring devices disposed to maintain the trap opening centrally relative to the first circumference at the upper lateral edge” vs. “at least one anchoring device configured for coupling at least a portion of the lower lateral edge of the net with the ground surface, the coupling limiting movement of the at least a portion of the lower lateral edge relative to the ground surface”.
For claim 20 of the present application is the same as claim 15 of the patent.
Claims 5, 7, 10-12, 15, 19, and 20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 5, 6, and 12 of U.S. Patent No. 11,974,563. Although the claims at issue are not identical, they are not patentably distinct from each other because they commonly recite:
For claim 5 of the present application vs. claim 1 of the patent: “A trap for trapping animals, comprising: a flexible net structure including: a collapsible net formed from a plurality of spaced apart flexible lines that define a plurality of openings within the collapsible net, the collapsible net having a width that extends between an upper lateral edge and a lower lateral edge”; “a flexible upper cord attached to the collapsible net at the upper lateral edge” vs. “a flexible upper cord attached to the collapsible net at the upper lateral edge extending the first length of the net”; “wherein the collapsible net has a closed configuration with a first circumference disposed at the upper lateral edge, and a second circumference disposed at the lower lateral edge, wherein the second circumference is less than the first circumference” vs. “wherein the collapsible net is configurable in a closed configuration where the first lengthwise end and the second lengthwise end are disposed proximate each other”; and “a plurality of posts” vs. “a plurality of posts configured to support the flexible upper cord and a hanging portion of the flexible net structure above a ground surface”.
Claims 7 and 18 of the present application is the same as claim 3 of the patent.
Claim 10 of the present application vs. claim 1 of the patent: “at least one anchoring device configured to limit movement of the lower lateral edge relative to a center of the trap” vs. “a plurality of anchoring devices, each anchoring device including a mechanical fastener and an anchor stake, and each anchoring device configured for coupling at least a portion of the lower lateral edge of the net with the ground surface, the coupling configured to permit an amount of movement of the at least a portion of the lower lateral edge relative to the ground surface sufficient for animal ingress through the trap opening”.
Claims 11-12 and 16-17 of the present application vs. claim 5 of the patent: “wherein the upper cord has an upper cord diameter and each said flexible line has a flexible line diameter, and the upper cord diameter is greater than the flexible line diameter; wherein the upper cord diameter is at least 150% of the flexible line diameter.” vs. “wherein the upper cord has a first diameter and each of the flexible lines has a second diameter, and the first diameter is at least 150% of the second diameter”.
Claim 15 of the present application vs. claim 1 of the patent: “A trap for trapping animals, comprising: a flexible net structure including: a collapsible net formed from a plurality of spaced apart flexible lines that define a plurality of openings within the collapsible net, the collapsible net having a width that extends between an upper lateral edge and a lower lateral edge”; “a flexible upper cord attached to the collapsible net at the upper lateral edge extending the first length of the net” vs. “a flexible upper cord attached to the collapsible net at the upper lateral edge extending the first length of the net”; “wherein the collapsible net has a closed configuration with a first circumferential length disposed at the upper lateral edge, and a second circumferential length disposed at the lower lateral edge; and length; wherein the second circumferential length is less than the first circumferential length”; and “a plurality of posts” vs. “a plurality of posts configured to support the flexible upper cord and a hanging portion of the flexible net structure above a ground surface”.
Claim 19 of the present application vs. claim 1 of the patent: “a plurality of anchoring devices disposed to maintain the trap opening centrally relative to the first circumference at the upper lateral edge” vs. “a plurality of anchoring devices, each anchoring device including a mechanical fastener and an anchor stake, and each anchoring device configured for coupling at least a portion of the lower lateral edge of the net with the ground surface, the coupling configured to permit an amount of movement of the at least a portion of the lower lateral edge relative to the ground surface sufficient for animal ingress through the trap opening”.
Claims 15 and 20 of the present application vs. claims 6 and 12 of the patent: “a flexible net structure including: a collapsible net”; “a flexible upper cord…”; “a flexible upper cord…”; “a plurality of posts”; “a plurality of tensioning structures, each said tensioning structure of the plurality of tensioning structures configured to cause the upper cord to be pulled in a direction having an outwardly radial component, the plurality of tensioning structures collectively placing the upper cord in circumferential tension” vs. “a plurality of tensioning structures, each said tensioning structure of the plurality of tensioning structures configured to cause the upper cord to be pulled in a direction having an outwardly radial component, the plurality of tensioning structures collectively placing the upper cord in circumferential tension”.
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 15-20 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 regard to claim 15, line 7, the term “the first length of the net” lacks positive antecedent basis.
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) 5, 7, 10-12, and 15-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over JP 56-141088 (related Publication JPS596715Y2 published on 03/01/1984) in view of Kurachi 2010/0064572.
In regard to claim 5, JP 56-141088 discloses a trap for trapping animals, comprising a flexible net structure (see Fig. 1) including a collapsible net formed from a plurality of spaced apart flexible lines (nets made of nylon) that define a plurality of openings within the collapsible net, the collapsible net having a width that extends between an upper lateral edge (at uppermost 5) and a lower lateral edge (at free edge of 2a in Fig. 1); and a flexible upper cord (uppermost 5) attached to the collapsible net at the upper lateral edge; wherein the collapsible net is configurable in a closed configuration with a first length (length defined by 5) disposed at the upper lateral edge, and a second length (length defined by free edge of 2a) disposed at the lower lateral edge, wherein the second length is less than the first length (free edge of 2a has a smaller length than that defined at 5); a plurality of posts (1); and wherein the trap is disposable in a set configuration (see Fig. 3), and in the set configuration, a wall portion (2) of the collapsible net is supportable by the flexible upper cord (5) and the posts (1) above a ground surface (ground surface shown in Fig. 1 or 7 in Fig. 3), and a ground portion (2a) of the collapsible net is disposed in contact with the ground surface (see Fig. 1 or 3), and the upper cord (5) is disposed in tension (see Figs. 1-3 of JP ‘088 which show uppermost 5 as being relatively taut), but does not disclose wherein the collapsible net has a closed configuration with a first circumference disposed at the upper lateral edge, and a second circumference disposed at the lower lateral edge. Kurachi discloses an animal trap with an enclosure (14) with a pentagonal configuration (see Fig. 1A), and that the enclosure may be any practicable shape and need not be square or rectangular, although such shapes may be formed as desired and that the enclosure is preferably circular or oval with rounded interior corners to prevent the animals from gathering in a corner. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the trap of JP 56-141088 such that the collapsible net has a first circumference disposed at the upper lateral edge and a second circumference disposed at the lower lateral edge in view of Kurachi in order to provide an alternative configuration for the collapsible net to prevent the animals from gathering in a corner or to provide a circular shape for the net structure which can be accommodated in the area of deployment where desired.
In regard to claims 7 and 18, JP 56-141088 and Kurachi disclose wherein the second circumference (second length defined by free edge of 2a of JP 56-141088; circular enclosure taught by Kurachi) is in the range of about 35% to 90% of the first circumference (first length defined by 5 of JP 56-141088 and see Fig. 3 of JP 56-141088 wherein the second length is less than 90% but more than 35% of the first length; circular enclosure taught by Kurachi).
In regard to claim 10, JP 56-141088 disclose at least one anchoring device (portions of the lower net portion 2a which are adjacent the bottom free edge of 2a can be coupled to the ground by a user by insertion of the portions into the ground directly or the portions provide the necessary structure that allows the bottom free edge of 2a to be coupled to the ground by some other structure such as stakes or u-shaped anchors; the structure of the anchoring device is not being particularly claimed) configured to limit movement of the lower lateral edge relative to a center of the trap (once the portions of the lower net portion 2a are inserted into the ground or are coupled to the ground by some other structure, the position of the portions in the ground or being coupled to the ground by some other structure will limit movement of the lower lateral edge with respect to the ground at select locations and the portions of the lower lateral edge which are not inserted into the ground or coupled by other structure will have some limited movement with respect to the open center of the trap shown in Fig. 1 or 3).
In regard to claims 11-12 and 16-17, JP 56-141088 discloses wherein the upper cord (uppermost 5) has an upper cord diameter and each of the flexible lines (lines that collectively form 2, 2a in Figs. 1-3) has a flexible line diameter, and the upper cord diameter is greater than the flexible line diameter (see Figs. 1-3 showing uppermost 5 to be much larger in size than the lines forming 2, 2a), but does not disclose the upper cord diameter is at least 150% of the flexible line diameter. It would have been an obvious matter of design choice to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the upper cord such that it has a first diameter that is at least 150% of the second diameter of the flexible lines since applicant has not disclosed that by doing so is critical to the design or produces any unexpected results, and it appears that the trap of JP 56-141088 would perform equally as well by having the upper cord first diameter be at least 150% of the second diameter of the flexible lines, and because a person of ordinary skill in the art would readily design the upper cord to have a first diameter which is at least 150% of the second diameter of the flexible lines since the upper cord is secured in tension to each of the posts and supports the weight of the net therefrom and therefore a person of ordinary skill in the art would readily size the upper cord with regard to the size of the flexible lines in order to provide an upper cord that can withstand the greater forces that it will experience during use and also to allow the flexible lines to be supple enough to admit incoming animals by being of a given smaller size than the upper cord.
In regard to claim 15, JP 56-141088 discloses a trap for trapping animals, comprising a flexible net structure (see Fig. 1) including a collapsible net formed from a plurality of spaced apart flexible lines (nets made of nylon) that define a plurality of openings within the collapsible net, the collapsible net having a width that extends between an upper lateral edge (at uppermost 5) and a lower lateral edge (at free edge of 2a in Fig. 1); and a flexible upper cord (uppermost 5) attached to the collapsible net at the upper lateral edge extending the first length of the net (see Fig. 3); wherein the collapsible net has a closed configuration with a first length (length defined by 5) disposed at the upper lateral edge, and a second length (length defined by free edge of 2a) disposed at the lower lateral edge; and wherein the second length is less than the first length (free edge of 2a has a smaller length than that defined at 5); a plurality of posts (1); and wherein the trap is disposable in a set configuration (see Fig. 3), and in the set configuration, a wall portion (2) of the collapsible net is supportable by the flexible upper cord (5) and the posts (1) above a ground surface (ground surface shown in Fig. 1 or 7 in Fig. 3), and a ground portion (2a) of the collapsible net is disposed in contact with the ground surface (see Fig. 1 or 3), and the lower lateral edge defines a trap opening (see Figs. 1 & 3); and wherein in the set configuration, the upper cord (5) is disposed in tension (see Figs. 1-3 of JP ‘088 which show uppermost 5 as being relatively taut), but does not disclose wherein the collapsible net has a closed configuration with a first circumferential length disposed at the upper lateral edge, and a second circumferential length disposed at the lower lateral edge. Kurachi discloses an animal trap with an enclosure (14) with a pentagonal configuration (see Fig. 1A), and that the enclosure may be any practicable shape and need not be square or rectangular, although such shapes may be formed as desired and that the enclosure is preferably circular or oval with rounded interior corners to prevent the animals from gathering in a corner. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the trap of JP 56-141088 such that the collapsible net has a first circumferential length disposed at the upper lateral edge and a second circumferential length disposed at the lower lateral edge in view of Kurachi in order to provide an alternative configuration for the collapsible net to prevent the animals from gathering in a corner or to provide a circular shape for the net structure which can be accommodated in the area of deployment where desired.
In regard to claim 19, JP 56-141088 and Kurachi disclose a plurality of anchoring devices (portions of the lower net portion 2a which are adjacent the bottom free edge of 2a can be coupled to the ground by a user by insertion of the portions into the ground directly or the portions provide the necessary structure that allows the bottom free edge of 2a to be coupled to the ground by some other structure such as stakes or u-shaped anchors; the structure of the anchoring device is not being particularly claimed) disposed to maintain the trap opening centrally relative to the first circumference (first length defined by 5 of JP 56-141088 and once the portions of the lower net portion 2a are inserted into the ground or are coupled to the ground by some other structure then the trap opening will be maintained with respect to the first length defined by 5; circular enclosure taught by Kurachi) at the upper lateral edge (see Fig. 3 of JP 56-141088).
In regard to claim 20, JP 56-141088 and Kurachi disclose a plurality of tensioning structures (upper section of 2 which is fixedly connected to the posts 1 of JP 56-141088), each said tensioning structure of the plurality of tensioning structures configured to cause the upper cord (uppermost 5 of JP 56-141088) to be pulled in a direction having an outwardly radial component (circular enclosure taught by Kurachi), the plurality of tensioning structures collectively placing the upper cord in circumferential tension (the fixed connection of the upper section of 2 to the posts 1 results in tension being placed on uppermost 5 of JP 56-141088).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DARREN W ARK whose telephone number is (571)272-6885. The examiner can normally be reached M-F 8:30-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kimberly Berona can be reached at (571) 272-6909. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DARREN W ARK/Primary Examiner, Art Unit 3647
DWA