DETAILED ACTION
Continued Examination Under 37 CFR 1.114
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 4/20/26 has been entered.
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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 - 6 and 12, 14, 17 - 20, 23, and 24 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.
Regarding claim 1, “a pool cover” in line 14 is a double inclusion of the pool cover set forth in line 3.
Regarding claim 4, there is a lack of antecedent basis for “the first rod.”
Regarding claim 5, “an end connector” is a double inclusion of the end connectors set forth in claim 1. It is not clear if applicant is referring to a different end connector, or one end connector of the plurality of end connectors. For examination purposes, it will be assumed that the end connector is an end connector of the plurality of end connectors and that the first and second rods are rods of the plurality of rods set forth in claim 1.
Regarding claim 6, “a pool cover” is a double inclusion of the pool cover set forth in claim 1.
Regarding claim 12, “a pool cover” in line 18 is a double inclusion of the pool cover set forth in line 1.
The remaining claims are indefinite insofar as they depend from a rejected base claim.
Claim Rejections - 35 USC § 103
Claim(s) 1, 2, 4-8, and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Burkholz et al. (US 3,683,427 hereinafter Burkholz ) in view of Jost (FR 2877374).
Regarding claims 1 and 2, Burkholz discloses a pool cover retaining system for an above ground pool (fig. 1) having upright retaining walls (16), the system comprising a pool cover (40) comprising a retainer (fig 2, circumference), a retaining band (52) about the perimeter which is configured to be fitted around the retaining walls (16)(fig. 3), the band integrated into the pool cover (through 51) and is not adjustable movably relative to the pool cover (col. 4, ln. 65, “continuous line”; note that to the extent that “not adjustably movable” refers to the retaining band not being cinchable or adjustable in size, so too is the continuous band of Burkholz); and a retaining structure (framework 20) comprising a plurality of rods (27, 28, 29) each rods having a rod length, and a plurality of end connectors (35) configured to couple each of the plurality rods to an adjacent one of the plurality of rods, and wherein the retaining structure is configured for use with the pool cover that is fitted within the raining walls (see fig. 2, the cover is fit over dome 20 and extends within the periphery defined by the retaining walls), and a length of the retaining structure is less than the pool perimeter length (see fig. 2 the length of one of the rods defined by 27, 28, 29 is unambiguously shorter in length than the total circumference of the pool structure).
Burkholz does not show that the retaining band is self-contracting. Attention is turned to Jost which teaches a similar pool cover having a self-contracting retaining band (4) to fit a cover (12) around the perimeter of a pool, the band being an elastic material (see machine translation, p. 3, 5th full paragraph from the bottom)(as per claim 2). It would have been obvious to one having ordinary skill in the art at the time of effective filing to have provided the band of Burkholz in an elastic material such as that taught by Jost in order to provide additional tension to the cover when it is attached over the pool.
Regarding claim 4, Burkholz shows all of the instant invention as discussed above, and shows that plurality of rods of the retaining member further shows a second rod (28) comprising a second rod first end and a second rod second end, and wherein the first rod (29) comprises a first rod first end and a first rod second end, and wherein the first rod first end is connectable to the second rod second end to form a rod assembly (22). See annotated figure below.
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Regarding claim 5, Burkholz also shows an end connector (35) disposed between the first rod first end and second rod second end (col. 3, ln. 36-40).
Regarding claim 6, Burkholz shows that the rod assembly can be used with the pool cover (40) disposed on a pool; and the pool having a shape (vertical support 13 is a generally rectilinear shape), wherein the rod assembly has a rod assembly shape (27 of rod assembly 22 is substantially upright and generally rectilinear) and is substantially the same shape as the pool shape.
Regarding claims 7 and 8, Burkholz discloses a pool cover retaining device (fig. 1) comprising a pool cover (40) having a perimeter (fig. 2) and a retaining band (52) which is configured to be fitted around an exterior retaining wall of the pool (16)(fig. 3) of a pool, and is not adjustably movably relative to the pool cover (col. 4, ln. 65, “continuous line”; note that to the extent that “not adjustably movable” refers to the retaining band not being cinchable or adjustable in size, so too is the continuous band of Burkholz).
Burkholz does not show that the retaining band is self-contracting. Attention is turned to Jost which teaches a similar pool cover having a self-contracting retaining band (4) to fit a cover (12) around the perimeter of a pool, the band being an elastic material (see machine translation, p. 3, 5th full paragraph from the bottom)(as per claim 8). It would have been obvious to one having ordinary skill in the art at the time of effective filing to have provided the band of Burkholz in an elastic material such as that taught by Jost in order to provide additional tension to the cover when it is attached over the pool.
Regarding claim 11, Burkholz as modified shows that the pool cover comprises a tarp (flexible plastic sheet 40) and a net (61).
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Claim(s) 3 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Burkholz and Jost, as applied to claims 1 and 7, in view of Degarie (CA 2320023).
Regarding claims 3 and 9, Burkholz as modified shows all of the instant invention as discussed above, but does not show that the band is sewn into the cover. Attention is turned to Degarie which teaches that it is known to sew a cable into a fabric channel (p. 16, ln. 4). It would have been obvious to one having ordinary skill in the art to have created a channel by sewing in order to incorporate the band of Burkholz into the cover in order to ensure that the band and cover are less likely to be separated or disconnected inadvertently.
Claim(s) 12 , 14, 17- 20, 23, and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Burkholz and Jost in view of Crook (US3,534,412).
Regarding claim 12, Burkholz discloses a pool cover retaining device comprising: a pool cover (40) including a tarp (flexible plastic sheet, col. 4, ln. 22-23) having a perimeter (fig. 2, circumscribes the pool); a retaining band a retaining band (52) about the perimeter which is configured to be fitted around the retaining walls (16)(fig. 3), where the band is not adjustable movably relative to the pool cover (col. 4, ln. 65, “continuous line”; note that to the extent that “not adjustably movable” refers to the retaining band not being cinchable or adjustable in size, so too is the continuous band of Burkholz), and a retaining structure (frame 20) comprising: a first rod (29) with first and second rod ends having a first rod length, a second rod (28) having a first end and a second end, and an end connector (35) operably coupling the first rod first end and the second rod second end to form a rod assembly (22)(see annotated figure above), the first rod is configured for use with the pool cover to be fitted over an above ground and/or semi above ground pool having a shape (see fig. 2); wherein the rod assembly has an assembly shape which is different from the pool shape (the straight rod is differently shaped from the polygonal pool); and wherein the pool has a perimeter length, where the first rod length (length of 29) is less than the pool perimeter (see fig. 2, 29 is unambiguously shorter than the perimeter circumscribed by 15).
Burkholz does not show that the retaining band is self-contracting. Attention is turned to Jost which teaches a similar pool cover having a self-contracting retaining band (4) to fit a cover (12) around the perimeter of a pool, the band being an elastic material (see machine translation, p. 3, 5th full paragraph from the bottom)(as per claim 8). It would have been obvious to one having ordinary skill in the art at the time of effective filing to have provided the band of Burkholz in an elastic material such as that taught by Jost in order to provide additional tension to the cover when it is attached over the pool.
Burkholz does not show that the end connector is female, instead showing that it is inserted into open ends of the rods. Attention is turned to Crook which teaches a similar pool cover retainer system (fig. 1) having a first rod (16) with first and second end, and a second rod (16) with first and second ends and a connector (17) operably coupling the first rod first end to the second rod second end, wherein the connector is a female connector (see fig. 6) and the first and second rod ends of the first and second rods are male connectors (see fig. 6, ends of 16 are inserted into bore of 17). It would have been obvious to one having ordinary skill in the art to have substituted the male connector of Burkholz for the female connector of Crook, since the female connector is a common means of joining tubes to form frame structures. An express suggestion to substitute one equivalent component or process for another is not necessary in order to render such substitution obvious see MPEP §2144.06.
Under the proposed modification, the tubular first and second ends of each of the rods of Burkholz become male connectors when they are inserted into a sleeve connector member as taught by Crook.
Regarding claim 14, Burkholz as modified shows all of the instant invention as discussed above, however it does not show that the first rod is semi-circular. However, there is nothing in the record which establishes that the claimed shape presents a novel or unexpected result, is used for a particular purpose, or solves a stated problem (MPEP 2144.05(III)). Therefore, one of ordinary skill in the art would expect the rod of Burkholz to perform equally well as applicant's. It would have been obvious to have modified the device of Burkholz to be shaped as claimed since such a modification is a mere design consideration which fails to patentably distinguish. A change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. MPEP 2144.04 (IV)(B).
Regarding claim 17, Burkholz as modified shows all of the instant invention as discussed above, and further shows that each of first and second rods comprise a flexible material (col. 3, ln. 18-19, note that aluminum is considered to be flexible since it is ductile and malleable).
Regarding claim 18, Burkholz shows that the rod assembly comprises a substantially circular shape (see fig. 3, showing that the tubing is circular or round in cross section).
Regarding claim 19, Burkholz as modified shows all of the instant invention as discussed above, however it does not show that the rod shape is semi-circular. However, there is nothing in the record which establishes that the claimed shape presents a novel or unexpected result, is used for a particular purpose, or solves a stated problem (MPEP 2144.05(III)). Therefore, one of ordinary skill in the art would expect the rod of Burkholz to perform equally well as applicant's. It would have been obvious to have modified the device of Burkholz to be shaped as claimed since such a modification is a mere design consideration which fails to patentably distinguish. A change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. MPEP 2144.04 (IV)(B).
Regarding claim 20, Burkholz shows that the rod assembly comprises an adjustable length (col. 3, ln. 21-24).
Regarding claim 23, Burkholz as modified shows all of the instant invention as discussed above, Crook further shows a lock (23, 24, 25) configured to maintain a position of the first rod and second rod in the end connector (see fig. 6).
Regarding claim 24, Burkholz as modified shows all of the instant invention as discussed above, as shown in fig. 6, Crook shows that the end connector comprises a tube.
Claim(s) 21 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Burkholz and Jost, as applied to claims 1 and 7, in view of Keyes (US 5,095,557).
Regarding claims 21 and 22, Burkholz as modified shows all of the instant invention as discussed above, and further shows that the band has a length and the pool has a perimeter length, but does not show that the band length is less than that of the perimeter. Attention is turned to Keyes which teaches a similar retaining band (22) fitted around a pool cover and pool having a perimeter, where the band length is less than the perimeter length. See fig. 2, the band has a length which puts it in close conformance with the sidewall 18, the pool has a perimeter defined by the rim, the rim has a greater diameter than a diameter of the wall and thus has a greater perimeter length. It would have been obvious to one having ordinary skill to have provided the band with a length which is less than pool perimeter in order to provide good tension against the hooks.
Response to Arguments
Applicant’s arguments with respect to the claim(s) have been considered but are not persuasive.
Applicant argues that Burkholz does not teach a retaining band that it is “not adjustably movable relative to the pool cover” and asserts that the limitation requires that the “retaining band is not something that is independently moved.” Applicant points to paragraph [038] in the as filed specification which states that the band “can be integrated” into the pool cover. Applicant does not go on to define integral as meaning “fixed”, “stationary”, or “not movable” and discloses no such structure which would result in the fixation of the retaining band to the cover in a “not adjustably movable” manner as claimed (e.g., there is no structure disclosing fixation of the band along its whole length such that there would not be at least some relative movement of the band relative to the cover). The originally filed disclosure does not provide support for applicant’s interpretation of “not adjustably movable relative to the pool cover”. At best, applicant provides support for a non-adjustable/cinchable retaining band which is attached to the cover. This has been met by the various combinations with Burkholz.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERIN L DEERY whose telephone number is (571)270-1928. The examiner can normally be reached Mon - Thur, 7:30am - 4:30pm; Fri 8:00am-12:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Angwin can be reached at (571) 270-3735. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ERIN DEERY/Primary Examiner, Art Unit 3754
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