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 .
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 1 and 12 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 of U.S. Patent No. 12044022. Although the claims at issue are not identical, they are not patentably distinct from each other because all elements are disclosed in the parent patent ‘022 i.e., 1st and 2nd frames with pair of rail assemblies supported between them with a deck on the rail assemblies and locking pin engaging slots on opposing surfaces of the rails in both orientations.
Drawings
The drawings are objected to because:
Reference numeral 23 is used to refer to both the upper slot and the lower slot in currently amended paragraph [0029].
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claims 1 and 11 are objected to because of the following informalities:
The limitation “first and second vertically aligned and closed slots” is objected to for characterizing the slots 23 fig. 8 as being closed. Examiner recommends removing “closed” from this limitation. This issue applies to claims 1 and 11.
The limitation “the respective opposing surfaces” in line 13-14 of both claims 1 and 11; is objected to firstly because it lacks antecedent basis in the claims and secondly because it appears to be pointing to the same surfaces established in line 11 i.e., “first and second support surfaces”.
Claims 1 and 11 line 17-18 recites “when the corresponding side rail assembly is in both the first and second orientations to secure the deck to that side rail assembly”; which side rail assembly is being referred to by the word “that”. Examiner recommends “a respective side rail assembly of the pair of spaced apart side rail assemblies”.
Appropriate correction is required.
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 1, 4 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Stringer, US (2003/0102187) in view of Hess, US (4427191).
In regards to claim 1 Stringer discloses:
A scaffold (12; fig. 1), comprising: first and second ladder frames (right and left vertical supporting structures 16, 26; fig. 1 and paragraph [0034] describing “It is to be understood that the scaffolding typically comprises an opposing vertical support structure 26 which is similar to the first vertical support structure 16”); an adjustable height platform (14s adjustable via apertures 70) configured to be supported between the first and second ladder frames (as shown in fig. 1) at a user selected height (selection of apertures 70; intended use), the adjustable height platform comprising: a pair of spaced apart side rail assemblies (14s including guard rail socket 44s) extending between the ladder frames (fig. 1); each side rail assembly configured to be supported (intended use) between the first and second ladder frames in first and second orientations (orientation shown in fig. 1 and when 14s are flipped upside down; note that there is nothing in the structure/design of the scaffold to prevent such configuration); and a deck (34) supported on opposing sides by the side rail assemblies (fig. 1); wherein each side rail assembly comprises: a respective side rail (right and left or near and far respective 14 as shown in fig. 1) that comprises: first and second support surfaces (43 and opposite surface to 43 on 44 as shown in fig. 3; reproduced below) for supporting the deck (intended use) in the first and second orientations respectively (in the manner shown in fig. 1 and when 14s are flipped upside down);
first and second aligned and closed slots (slots in 43 and surface opposite to 43 on 44 where pin 82 passes) formed in the respective opposing surfaces of the side rail (fig. 3); and a locking pin assembly (82) configured to be removably engaged with the first and second slots (when pulled out against bias of spring 104) of the corresponding side rail when the corresponding side rail assembly is in both the first and second orientations to secure the deck to that side rail assembly (where 82 would operate the same in both orientations).
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In regards to claim 1 Stringer does not disclose that the first and second slots are vertically aligned,
Hess teaches side rail (1; fig. 1) that comprises first and second vertically aligned and closed slots (55 and 57; fig. 3) formed in the respective opposing surfaces of the side rail (fig. 3); and a locking pin assembly (41,43,61,59; fig. 3) configured to be removably engaged with the first and second slots (between positions shown in fig. 3 versus fig. 1) of the corresponding side rail when the corresponding side rail assembly is in both the first and second orientations to secure the deck to that side rail assembly (fig. 5 and when flipped upside down).
Therefore, before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to substitute the side rails of Stringer with the side rails of Hess for the predictable result with reasonable expectation of success i.e., to provide for not only means to support the deck but where the deck would also be clamped (sandwiched) between two elements which would further stabilize the deck and enhance safety for a worker standing at elevated height.
In regards to claim 4 Stringer as modified by Hess teaches each side rail assembly comprises a plurality of the locking pin assemblies (at least one on each end).
In regards to claim 5 Stringer as modified by Hess teaches the opposing surfaces (top and bottom surfaces of 5; Hess) are separated from each other by a gap (fig. 3; Hess), the slot of each opposing surface extending vertically through the opposing surface from an exterior of the side rail to the gap (fig. 5; Hess).
Claims 11, 14 and 15 are rejected under 35 U.S.C. 102(a)(1) as anticipated by Stringer, US (2003/0102187); or, in the alternative, under 35 U.S.C. 103 as obvious over Stringer, US (2003/0102187) in view of Hess, US (4427191).
In regards to claim 11 Stringer discloses:
A scaffold (12; fig. 1), comprising: first and second ladder frames (right and left vertical supporting structures 16, 26; fig. 1 and paragraph [0034] describing “It is to be understood that the scaffolding typically comprises an opposing vertical support structure 26 which is similar to the first vertical support structure 16”); an adjustable height platform (14s adjustable via apertures 70) configured to be supported between the first and second ladder frames (as shown in fig. 1) at a user selected height (selection of apertures 70; intended use), the adjustable height platform comprising: a pair of spaced apart side rail assemblies (14s including guard rail socket 44s) extending between the ladder frames (fig. 1); each side rail assembly configured to be supported (intended use) between the first and second ladder frames in first and second orientations (orientation shown in fig. 1 and when 14s are flipped upside down; note that there is nothing in the structure/design of the scaffold to prevent such configuration); and a deck (34) supported on opposing sides by the side rail assemblies (fig. 1); wherein each side rail assembly comprises: a respective side rail (right and left or near and far respective 14 as shown in fig. 1) that comprises: first and second support surfaces (43 and opposite surface to 43 on 44 as shown in fig. 3; reproduced below) for supporting the deck (intended use) in the first and second orientations respectively (in the manner shown in fig. 1 and when 14s are flipped upside down);
first and second aligned and closed slots (slots in 43 and surface opposite to 43 on 44 where pin 82 passes) formed in the respective opposing surfaces of the side rail (fig. 3); and a locking pin assembly (82) configured to be removably engaged with the first and second slots (when pulled out against bias of spring 104) of the corresponding side rail when the corresponding side rail assembly is in both the first and second orientations to secure the deck to that side rail assembly (where 82 would operate the same in both orientations); and a first guide channel (right hand side channel 60) and a second guide channel (left hand side channel 60) attached at respective opposing ends of the side rail (as shown in fig. 1); wherein, in the first orientation (orientation shown in fig. 1), the guide channels extend downward away from the side rail (60 extending downward from 14 as shown in fig. 1); and wherein, in the second orientation (when 14s are flipped upside down), the guide channels extend upward away from the side rail (per the structure of 60 being attached to 44 as described in paragraph [0036]).
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In regards to claim 11 Stringer does not disclose that the first and second slots are vertically aligned,
Hess teaches side rail (1; fig. 1) that comprises first and second vertically aligned and closed slots (55 and 57; fig. 3) formed in the respective opposing surfaces of the side rail (fig. 3); and a locking pin assembly (41,43,61,59; fig. 3) configured to be removably engaged with the first and second slots (between positions shown in fig. 3 versus fig. 1) of the corresponding side rail when the corresponding side rail assembly is in both the first and second orientations to secure the deck to that side rail assembly (fig. 5 and when flipped upside down).
Therefore, before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to substitute the side rails of Stringer with the side rails of Hess for the predictable result with reasonable expectation of success i.e., to provide for not only means to support the deck but where the deck would also be clamped (sandwiched) between two elements which would further stabilize the deck and enhance safety for a worker standing at elevated height. Note that only rails 14 would be substituted with the rail of Hess where the channels 60 would remain attached to the replaced rails in the same manner they are attached to rails 14 of Stringer.
In regards to claim 14 Stringer as modified by Hess teaches each side rail assembly comprises a plurality of the locking pin assemblies (at least one on each end).
In regards to claim 15 Stringer as modified by Hess teaches the opposing surfaces (top and bottom surfaces of 5; Hess) are separated from each other by a gap (fig. 3; Hess), the slot of each opposing surface extending vertically through the opposing surface from an exterior of the side rail to the gap (fig. 5; Hess).
Allowable Subject Matter
Claims 2-3, 6-10, 12-13 and 16-20 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.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Please refer to PTO-892 form for list of cited references.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SHIREF M MEKHAEIL whose telephone number is (571)270-5334. The examiner can normally be reached 10-7 Mon-Fri.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Daniel Cahn can be reached at 571-270-5616. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/S.M.M/Examiner, Art Unit 3634
/DANIEL P CAHN/Supervisory Patent Examiner, Art Unit 3634
