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 .
DETAILED ACTION
Claim Interpretation
The claims recite an apparatus with structural limitations and material worked upon by the apparatus. While there is nothing wrong with claiming the material worked upon, such limitations are only given weight to the extent that they limit the structure of the claimed apparatus. See MPEP 2115. See In re Rishoi (94 USPQ 71), In re Smith (3 USPQ 315), and In re Young (25 USPQ 69).
In Rishoi, a film of liquid was claimed as part of an apparatus, it being clear that the liquid film is only present during use of the apparatus. It was held that the liquid film is not a structural limitation and therefore cannot impart patentability to those claims which are otherwise unpatentable. It was further stated that there is no patentable combination between a device and the material upon which it works.
In Smith, a particular web material having an extra length of carbons was claimed as part of an apparatus. The web material is worked upon by the apparatus. The court considered the possibility of combining the specified web with an old machine to provide a patentable combination, but it was held that a person may not patent a combination of a device and material upon which the device works, nor limit other persons from the use of similar material by claiming a device patent.
In Young, a concrete structure upon which an apparatus works was claimed as part of the apparatus. It was held that the inclusion of the material worked upon may not lend patentability to the apparatus.
In view of the cited cases and MPEP 2115, the claimed material worked upon has only been given weight to the extent that such limitations indicate structural limitations of the claimed apparatus.
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 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.
**Throughout the claims, the applicant repeatedly alternates between singular and plural terms when identifying certain portions of the device (e.g. folding bars/bar, lower props/prop, upper props/props, etc). Each plural/singular inconsistency renders the claims indefinite. At least some of these inconsistencies are identified below.**
Claim 1 recites the following limitations: “connected to the shark fins”; “the outside of the terrace”; “the upper surfaces” and “the lower surface of the folding bar”. There is improper antecedent basis for each of these limitations in the claim.
Claim 1 recites: “the lower prop and the upper prop”. To which of the previously recited (plural) lower and upper props does each term refer, respectively?
Claim 1 recites “the inclination surface”. To which of the previously recited inclination surfaces does this limitation refer? See singular/plural discussion above.
Claim 1 recites “the folding bar”. To which of the previously recited folding bars does this limitation refer? See singular/plural discussion above.
The preamble of claims 2-6 each recite “The device for forming a shark fin of a 3-sided sealing pouch type”. In each claim, the preamble should be amended to recite “The device for forming [[a]] the shark fin of [[a]] the 3-sided sealing pouch type”.
In claim 2, the limitation “the both terraces” lacks proper antecedent basis.
Claim 2 recites “upper prop tips contacting the upper surfaces of the terrace connected to the folding lines are formed at lower portions of the upper props”. This limitation is indefinite for several reasons. First, it’s not clear how a single terrace can have a plurality of upper surfaces. Second, the limitations “the upper surfaces” and “the lower portions” lack antecedent basis. Third, it’s not clear how each of the plurality of lowers portions correspond to each upper prop of the plurality of upper props.
As to claim 3, it’s not clear to which of the previously recited lower prop tips “the lower prop” refers. See singular/plural discussion above.
In claim 3, it’s not clear how a single boundary line can be formed by multiple folding lines.
In claim 3, it’s unclear if the “curvature surface” is associated with the previously recited “convex curvature surfaces”.
In claim 4, the second recitation of “a folding location” does not properly refer back to the previously recited folding location.
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.
Claim(s) 1, 2 and 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kim et al. (US 2021/0098751) in view of Vajtay (US 4780261)
**The pouch, shark fins, surfaces of such, and any structure associated therewith are considered material to be worked upon and does not further limit the structure of the device. See section 1 above.**
**The examiner is interpreting “shark fins” as meaning the portion of the pouch has an approximate shape of a “shark fin.**
As to claim 1, Kim discloses a device for forming a shark fin of a 3-sided sealing pouch type secondary battery, the device comprising: lower props being in contact with a lower surface of a terrace connected to the shark fins formed at a front end and a rear end of a sealed surface of the 3-sided sealing pouch type secondary battery (see annotated fig 9 below, also figs 10b-10d, 11, para 67-82); upper props being in contact with an upper surface of the terrace connected to the shark fins (see annotated fig 9 below, also figs 10b-10d, 11, para 67-82); and folding bars folding the shark fins exposed to the outside of the terrace gripped by the lower prop and the upper prop (see annotated fig 9 below, also figs 10b-10d, 11, para 67-82), the folding bars fold the shark fins upwards while moving up below the shark fins prop (see annotated fig 9 below, also figs 10b-10d, 11, para 67-82), and front surfaces of the folding bars contacting the shark fins are formed as inclination surfaces extended to be inclined downwards to a rear surface of the lower prop from upper surfaces of the folding bars, and the inclination surface and the lower surface of the folding bar are connected to convex curvature surfaces prop (see annotated fig 9 below, also figs 10b-10d, 11, para 67-82).
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Kim does not disclose heating elements installed inside the folding bars.
Vajtay discloses a device for folding with folding bars 72/76 wherein heating elements 104/136 are installed inside the blocks (fig 2, C4, L8 – C5, L68).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the invention, to modify Kim such that heating elements are installed inside the folding block as is known as disclosed by Kim above, and as such enables localized heating during folding, thus controlling the temperature (C2, L3-20).
As to claim 2, the device of Kim as modified above is capable of forming wherein a folding line is provided, which is aligned with the sealed surface, and formed up to an adjacent location of the sealed surface from ends of the both terraces facing both ends of the sealed surface, the upper props are extended in a longitudinal direction of the folding line so as to be parallel to the sealed surface, upper prop tips contacting the upper surfaces of the terrace connected to the folding lines are formed at lower portions of the upper props, the lower props are extended in the longitudinal direction of the folding line so as to be parallel to the sealed surface, and lower prop tips contacting the lower surfaces of the terrace connected to the folding lines are formed at upper portions of the lower props (see annotated fig 9 above, also figs 10b-10d, 11, para 67-82)..
As to claim 5, Kim discloses the folding bars are disposed on the rear surfaces of the lower props, and the folding bars have a length corresponding to lengths of a hypothetically formed shark fin (see annotated fig 9 below, also figs 10b-10d, 11, para 67-82).
Potentially Allowable Subject Matter
Claims 3, 4 and 6 appear to contain potentially allowable subject matter. However, in view of the number and degree of the 35 U.S.C 112(b) errors detailed above, no allowable subject has been indicated. Any potential allowably is highly dependent upon the nature of any amendments.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTOPHER T SCHATZ whose telephone number is (571)272-6038. The examiner can normally be reached Monday through Friday, 9-6.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Orlando can be reached at 571-270-5038. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHRISTOPHER T SCHATZ/Primary Examiner, Art Unit 1746
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