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 .
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
In this case, the abstract utilizes the legal phraseology “comprising”.
The disclosure is objected to because of the following informalities:
On line 10 of paragraph [23], the term “fully closed position” needs to be better defined. Figures 1 and 3 show the tool in a closed position in relation to the position shown in Figure 2 but the jaws are still clearly spaced from each other. Typically, in the scissors/nippers/pliers art, a “fully closed” designation is associated with the edges of the jaws being in the closed position. It is confusing how the tool is fully closed when the jaws are still “open”. The handles should be disclosed as being in a fully closed position which allows for the jaws to be a position closest to each other in comparison to when the handles are in a fully open position.
On lines 1-2 of paragraph [25], the phrase “has a length of about seven (7) inches in length the avocado pit plier” should be replaced with “has a length of about seven (7) inches. The avocado pit plier”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 6-8 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
With regards to claims 6-8 and paragraph [25] lines 4-5 of the specification, it is unclear how the 30-degree angle is defined. The grip point is just at the end of the arcuate wedge-shaped portion. There appears to be a straight line that can be drawn from the point to the portion. Is this 30-degree angle defined by the sides of the wedge-shaped end each extending from the point? There are many different curves that can be considered part of the arcuate wedge-shaped portion that would create many different angles with the point and the specification needs to be clear which parts define the angle.
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 1-9 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 pre-AIA the applicant regards as the invention.
With regards to claim 1 line 5 and claims 3 and 8, the phrase “jaw member disposed at said second end of each of said pair of handles” is unclear. As written, the jaw is disposed at the second end of the handle which means the handle length is defined by the first and second ends as the jaw member is disposed at the second end and does not make up part of the handle. If the jaw member is not part of the handle, how is the handle seven inches in length as disclosed in claims 3 and 8? The phrase should be replaced with “said second end of each of said pair of handles defining a jaw member”.
With regards to claim 1 lines 5-6, the phrase “said jaw member” is unclear. There are more than one jaw member and it is unclear which is being referenced by this phrase.
With regards the claim 1 line 8, the phrase “closed position” is unclear. The closed position needs to be defined using the handles as the jaws never appear to be a in a closed position. Also, Figure 2 shows the fully open position. Every position between the open position up to and including the Figure 1 position can be considered a closed position as it is more “closed” than what is shown in Figure 2. The closed position must be defined so it is clear which closed position is being referenced.
With regards to claim 1 line 7 and line 9, the phrases “adjustably squeezed” and “adjustably released” are unclear. It is unclear what makes this movement “adjustable”. The ends pivot towards each other to ultimately define the fully closed position and pivot away from each other to define the fully open position. There does not appear to be any “adjustability” in those movements.
With regards to claim 1 line 9 “adjustably released away from each other” is unclear. It is unclear what structure allows for the handles to be “released”. The specification supports the handles ends pivoting towards each other and away from each other via the hinge element.
With regards to claim 1 lines 10-11, the phrase “a width sufficient to accommodate an exposed pit of an avocado” is indefinite. The avocado pits are not positively claimed and is an indefinite intended use of the plier. The width is dependent upon the indefinite pit and is, therefore, indefinite. Avocado pits come in all shapes and sizes further making the width limitation indefinite as it is not clear what widths can and cannot be considered “sufficient to accommodate”. Also, if the pit has a width bigger than the space defined by the points in the fully open position, how is the pit accommodated between the point. The width cannot be defined by an indefinite intended use. It is noted that any width will be interpreted as a width sufficient to accommodate an exposed pit of an avocado as pits come in very small sizes.
Claim 1 recites the limitation "the space" on line 9. There is insufficient antecedent basis for this limitation in the claim.
The intentions of claims 2 and 9 are unclear. The jaw appears to be inherently disclosed in claim 1 as each jaw member and its point cooperate to capture the pit. Without the “jaw” the capture function of claim 1 would not be able to be performed. Since the jaw is inherently in claim 1, claim 2 does not appear to further limit claim 1 with additional structure.
With regards to claims 2 and 9, the jaw span is unclear. As written, the jaw span is unrelated to the grip points which is not supported. The parts of the jaw members that define the jaw are not the same as the arcuate wedge-shaped portion and the point which is not supported. It is unclear if the jaw span represents the same or a different dimension than the space between grip points disclosed in claim 1. As written, there is a space and a separate jaw span which does not appear to be supported.
With regards to claims 2 and 9, if the pit is larger than the span, how can the pit be accommodated?
Claims 3 and 8 recite the limitation "the length" both on line 9. There is insufficient antecedent basis for this limitation in the claims.
With regards to claims 4, 5, and 8, the phrases “each of the grip points is about 5/8” apart” and about three inches (3”) apart” are unclear. What structure are the grip points apart from?
With regards to claims 6-8, it is unclear what structures define the 30-degree angle.
With regards to claims 6-8, the phrase “from the arcuate wedge-shaped portion” is unclear. It is unclear which of the portions are being referenced. As written, the both points can have the 30-degree relationship with the same portion (23) or portion (33) which is not supported. It is believed that each point has the angle with its own portion only.
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 (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 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.
Claims 1, 2, and 6 are rejected, as best understood, under 35 U.S.C. 102(a)(1) as being anticipated by Evans (1,199,255).
With regards to claims 1, 2, and 6, Evans discloses the same invention including a plier (1) having a pair of handles (2), each of the handles having a first end and a second end distal from the first end (Fig. 1), a hinge element pivotally connecting the handles (3), a jaw member disposed at the second end of each of the handles (4 and 5), the jaw member having an arcuate wedge-shaped portion (7) and terminating into a grip point (8), when the first ends of the handles are adjustably squeezed toward each other, the plier is in a closed position (Fig. 1), the first ends are adjustably released away from each other, the space between each grip point (8) is adjustably increased to a width capable of being sufficient to accommodate an exposed pit of an avocado (Fig. 1), each grip point is capable of being positioned to engage the pit from both flanks of the avocado and the pit captured between the jaw members and released from an avocado (Fig. 1), the jaw members together form a jaw having an adjustable span capable of accommodating pits of different sizes and shapes (4, 5), and the grip points are disposed at about 30-degrees from the arcuate wedge-shaped portion (7, 8).
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.
Claims 3 and 7 are rejected, as best understood, under 35 U.S.C. 103 as being unpatentable over Evans (1,199,255). For the limitations of claim 7, please see rejection of claim 6 above.
With regards to claim 3, Evans discloses a closed position handle length and an opening position handle length (Fig. 1).
However, Evans fails to disclose the closed length is about seven inches and the open length is about six inches.
It would have been an obvious matter of design choice to have made the lengths of any reasonable dimension including the claimed dimensions, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). It would have been obvious to one having ordinary skill in the art at the time the invention was made to have made the lengths of any reasonable dimension including the claimed dimensions, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. Therefore, it would have been an obvious matter of design choice to modify the device of Evans to obtain the invention as specified in claim 3. The claim would have been obvious because a person of ordinary skill has good reason to pursue the known options within technical grasp. If this leads to the anticipated success, it is likely the product is not of innovation but of ordinary skill and common sense.
Claims 4 and 5 are rejected, as best understood, under 35 U.S.C. 103 as being unpatentable over Evans (1,199,255) in view of Gustafson et al. (5,904,078) further in view of Burgess (1,539,156).
With regards to claims 4 and 5, Evans discloses the grip points are spaced apart in the open position (Fig. 1).
However, while Evans discloses a hinge element (3) working with a hole that allows the range between jaws 4 and 5 to increase or decrease (page lines 49-52), this relationship is not shown to confirm a spaced apart grip points in the closed position.
Gustafson et al. teach it is known in the art of pliers with an adjustable hinge element (60, 77) to incorporate a closed position with spaced apart grip points (Fig. 10) and an open position with spaced apart grip points (Fig. 8). Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filing, to have provided Evans with spaced apart grip points in both the open and closed positions, as taught by Gustafson et al., because all claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective function and the combination would have yielded predictable results.
However, Evans in view of Gustafson et al. fail to disclose the closed position space between the grip points is 5/8” and the open position space between the grip points is 3”.
Burgess teaches it is known to utilize gripping tools or pliers (Fig. 1) in the removal of fruit pits (Fig. 3). Therefore, in light of Burgess, it would have been an obvious matter of design choice to have made the spaces of any reasonable dimension including the claimed dimensions allowing for better operation with fruit pits, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). It would have been obvious to one having ordinary skill in the art at the time the invention was made to have made the spaces of any reasonable dimension including the claimed dimensions allowing for better operation with fruit pits, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. Therefore, it would have been an obvious matter of design choice to modify the device of Evans to obtain the invention as specified in claims 4 and 5. The claim would have been obvious because a person of ordinary skill has good reason to pursue the known options within technical grasp. If this leads to the anticipated success, it is likely the product is not of innovation but of ordinary skill and common sense.
Claims 8 and 9 are rejected, as best understood, under 35 U.S.C. 103 as being unpatentable over Evans (1,199,255) in view of Gustafson et al. (5,904,078) further in view of Burgess (1,539,156). Please see rejections of claims 2, 3, 4, and 6 above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JASON DANIEL PRONE whose telephone number is (571)272-4513. The examiner can normally be reached on Monday-Friday: 7:30 am-3:30 pm.
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16 July 2024
/Jason Daniel Prone/
Primary Examiner, Art Unit 3724