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 .
Claim Rejections - 35 USC § 102
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.
Claim(s) 1, 3-16 are rejected under 35 U.S.C. 102 (a) (1) as being anticipated by Gowans et al. (US 2007/0284332, cited in IDS).
For claim 1, Gowans teaches a bird feeder (container can be used to feed birds) comprising:
a body (508) forming a vessel extending from a distal edge to a proximal edge (fig. 5), the body configured to engage a reservoir (502), the reservoir configured to engage a basin assembly (507);
a moat portion (512) connected to the body and positioned within the vessel (figs. 2-5), the moat portion including a surface (512);
a first connector disposed on the surface (see figs. 2-3, post 206/306 that connects to the hanger 522);
an opening formed by the proximal edge (open top at 510), the vessel configured to receive fluid through the opening (can hold fluid), the surface configured to hold the fluid (can hold fluid); and
a hanger (522) configured to support the bird feeder in a suspended configuration (522 is attached to a feeder 502 and can hold it up when popped upward, 522 remains in place until broken off and can hold some weight) having a hanging portion positioned at an approximate center of the vessel (close to the center when tab 522 is pulled up) and a second connector engaging the first connector (hole in 522 is a second connector engaging the post on the surface), the hanger configured to move relative to the surface between an upright position and a folded position distal to the proximal edge such that no portion of the hanger protrudes through the opening when in the folded position (see fig. 5, when folded does not protrude past 510), wherein the hanging portion is configured to engage an item to suspend the bird feeder in a suspended configuration (522 has an opening therein, a string could be threaded through there for instance or could engage a small hook).
For claim 3, Gowans further discloses wherein the hanger moves to the folded position by pivoting (via pivoting lever 522).
For claim 4, Gowans further discloses wherein the body includes a reservoir engaging portion configured to engage a connecting portion of the reservoir (portion of 508 that engages 505).
For claim 5, Gowans further discloses wherein the reservoir engaging portion and the connecting portion each include helical threads to engage the body and the reservoir (para 0036).
For claim 6, Gowans further discloses wherein the body is generally cylindrical in shape (see fig. 5).
For claim 7, Gowans further discloses wherein the moat portion is generally planar (see figs., at least the plane of 520, any plane is generally planar).
For claim 8, Gowans discloses a bird feeder (container can be used to feed birds) comprising:
a proximal edge extending around a central line and defining a plane (see fig. 5, top edge of 508);
an outer surface extending distally from the plane (outer sidewall of 508);
an inner surface connected to the outer surface by the proximal edge (inner sidewall surface of 508), the inner surface extending distally from the plane (see fig. 5),
a reservoir engaging portion configured to engage a reservoir (engaging 502), the reservoir configured to engage a basin assembly (507);
a moat portion (512) extending circumferentially from the central line to the inner surface the moat portion including a surface (512) configured to hold fluid (can hold fluid);
a first connector (post 206/306);
an opening formed by the proximal edge and positioned on the plane (open top at 510); and
a hanger (522) configured to support the bird feeder in a suspended configuration (522 is attached to a feeder 502 and can hold it up when popped upward, 522 remains in place until broken off and can hold some weight) and having a second connector engaging the first connector (opening in 522 engaging the post), the hanger disposed distal to and not intersecting the plane when in a first position (does not intersect when folded down), the hanger having a hanging portion positioned on the central line when the hanger is in a second position and (tab can be pulled up to this position) configured to engage an item to suspend the bird feeder in a suspended configuration (522 has an opening therein, a string could be threaded through there for instance or could engage a small hook).
For claim 9, Gowans further discloses wherein the proximal edge extends generally circular around the central line (see fig. 5).
For claim 10, Gowans further discloses wherein the outer surface is generally smooth (see fig. 5).
For claim 11, Gowans further discloses wherein the inner surface includes one or more engaging features configured to engage a proximal end of the reservoir (threaded connection to 505).
For claim 12, Gowans further discloses wherein the inner surface extends distally from the plane to the moat portion (see fig. 5).
For claim 13, Gowans discloses a bird feeder (container can be used to feed birds) comprising:
a body (508) extending around a moat portion (512), the moat portion including a surface (512) and a first connector (post 206/306), the body configured to receive and contain fluid on the moat portion (can hold fluid), the body configured to engage a reservoir (502);
an opening (open top of 510) formed by an edge of the body and positioned on a first plane (see fig. 5), the edge configured to meet a flat surface positioned on a second plane (can meet a flat second plane); and
a hanger (522) configured to support the bird feeder in a suspended configuration (522 is attached to a feeder 502 and can hold it up when popped upward, 522 remains in place until broken off and can hold some weight) having a hanging portion and a second connector engaging the first connector (hole in 522 is a second connector engaging the post on the surface), the hanger configured to permit the first plane to substantially merge with the second plane when the edge meets the flat surface by moving the hanging position relative to the surface (when folded the two surfaces can meet), the hanging portion is configured to engage an item to suspend the bird feeder in a suspended configuration (522 has an opening therein, a string could be threaded through there for instance or could engage a small hook).
For claim 14, Gowans further discloses wherein the hanging portion is positioned relative to an approximate center of the first plane (when 522 is pulled up it will be near center).
For claim 15, Gowans further discloses wherein the hanger extends proximally from the moat portion.
For claim 16, Gowans further discloses wherein the hanger is disposed distal to and not intersecting the first plane (see fig. 5).
For claim 20, Gowans further discloses wherein the item is a hook (note the opening of 522 can engage with a small hook, the hook is not positively recited by the claims).
Allowable Subject Matter
Claims 17-19 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Response to Arguments
Applicant's arguments filed 04/22/2026 have been fully considered but they are not persuasive.
Applicant argued that, “Gowans is limited to a liquid container including a base with a surface that features a scored section and a tab, where the tab fractures the surface at the scored section when a distal end of the tab is forced through the surface. Gowans, at Abstract, and FIGs. 4A-4F. In other words, the tab is only a lever. Id., at para. [0023]. Gowans does not have a hanger at all. Thus, Gowans cannot disclose a hanger configured to support a bird feeder in a suspended configuration and having a hanging portion that is configured to engage an item to suspend the bird feeder in the suspended configuration.”
This is not found persuasive as the tab of Gowans is functionally a hanger. The tab of Gowans in the upward, popped up configuration is still attached to the lid 508 of Gowans and can be used to hang it. For instance the opening of 522 may have a string threaded therethrough or be attached onto a hook. The structure of a hole allows for it to be attached to an item and the tab itself is attached and holding the lid. The lid maybe screwed onto the body or reservoir 502 and accordingly suspend it. The functional limitation only requires the ability to perform. A claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from the prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ 2nd 1647. Claims directed to apparatus must be distinguished from the prior art in terms of structure rather than functions. In re Danly, 120 USPQ 528, 531. Apparatus claims cover what a device is not what a device does. Hewlett-Packard Co. v. Bausch & Lomb Inc., 15 USPQ2d 1525, 1528.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MAGDALENA TOPOLSKI whose telephone number is (571)270-3568. The examiner can normally be reached M-F 9-5.
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/MAGDALENA TOPOLSKI/Primary Examiner, Art Unit 3642
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