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
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)(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.
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, 3, 5-8, 10, 12, 14-15, and 17-20 are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over U.S. Patent #8,534,520 to Liparoti (Liparoti). Liparoti discloses:
With Respect to Claim 1
A tray apparatus for use with a vehicle comprising: a horizontal base (top portion of 12) and two vertical planar sides (left and right vertical sides of 12, or these sides in combination with the portion of 28 thereunder to which it attaches to, see e.g. FIG. 1); a plurality of vehicle connectors (34, see, e.g. FIG. 3) affixable to the two vertical planar sides (noting that they are affixed via the portion of 28 around 34, see e.g. FIGS. 1-2) and configured to attach to the vehicle and maintain the horizontal base and two vertical planar sides within the vehicle (capable of this use with an appropriate vehicle, see for example FIG. 2 showing the base and two sides in a position such that they will be interior to a vehicle such as a cart/buggy/wagon/etc having a tubular bar for attachment located at the top outer edge of the vehicle body); and a reversible holder (38) comprising a holder top and a plurality of holder sides (see, e.g. FIG. 1), the reversible holder configured to fit with the horizontal base and two vertical planar sides at a first position inside the vehicle (capable of this use, see FIG. 2 positioning which will be inside an appropriate vehicle if appropriately attached to an appropriate location) and additionally fit over one vehicle connector at a second position outside the vehicle (capable of this use with an appropriate vehicle, see FIG. 1 positioning in which 38 extends over both vehicle connectors and will be outside of the vehicle if attached on an outer edge of the vehicle body).
Alternately, although Examiner maintains that a person of ordinary skill in the art would understand the opposite side of 12 to be substantially the same as that shown in the drawings (i.e. to include a similar sidewall), to the degree that this is not explicitly stated in the specification or shown in the drawings, it would clearly be obvious to form that side with a vertical sidewall substantially identical to that shown on the opposite side, in order to provide stability for the structure on that side and/or as a mere selection of an art appropriate side structure to use.
Alternately, although Examiner maintains the position that coupler 28 as shown is apparently fixed to the sidewalls such that taking the outer portions of 28 beneath the sidewalls to be part of the sidewalls and the portion between 28 as an additional coupling part, to the extent that Liparoti does not disclose its formation structure in detail and it could be argued that 28 might be a completely separate/separable part and it would not make sense to consider a portion of it as part of the sidewall, it would have been obvious to one of ordinary skill in the art before the filing date of this application to integrally form the sidewalls with the coupler, in order to provide a strong connection between the two, as a mere selection of an art appropriate formation/attachment method, and/or as doing so constitutes at most merely making integral which does not patentably distinguish over the prior art (MPEP 2144.04).
With Respect to Claim 3
The tray apparatus of claim 1, wherein the holder top comprises at least one opening (48, FIGS. 1-2) formed therein.
With Respect to Claim 5
The tray apparatus of claim 1, wherein the vehicle comprises a wagon comprising a left side and a right side, and one vehicle connector attaches to the left side and a second vehicle connector attaches to the right side (inasmuch as the structure is capable of this use with an appropriate wagon; for clarity, it is noted that the wagon is considered to be divided into two halves/sides, i.e. left and right sides, such that a front tubular bar located at/forming the top edge of the wagon body to which the tray apparatus may be attached has left and right sides, and 34 on one side attaches to the left side of this bar and 34 on the other side attaches to the right side of this bar; it is noted for clarity that the vehicle is clearly only functionally recited and so no teaching of an actual vehicle is required by the claim, and the position taken is that the tray apparatus is capable of use with this or other suitable vehicle/wagon structures capable of meeting the claim language).
With Respect to Claim 6
The tray apparatus of claim 1, wherein each vehicle connector (34) is formed with a plurality of element sides (top side and the front/rear side adjacent the curved portion of the vertical sidewall of 12) connecting each vehicle connector to the two sides (see, e.g. FIGS. 1-2).
With Respect to Claim 7
The tray apparatus of claim 5, wherein one vehicle connector comprises a holding clip fittable over one of the left side and the right side (both of the cylindrical members are clips to the extent claimed).
With Respect to Claim 8
A tray apparatus for use with a vehicle comprising: a horizontal base (top of 12) and a plurality of vertical planar sides (left and right vertical sides of 12, or these sides in combination with the portion of 28 thereunder to which each attaches to, see e.g. FIG. 1) each connected to the horizontal base (see, e.g. FIG. 1); a plurality of vehicle connectors (34) each affixable to at least one of the plurality of vertical planar sides (FIGS. 1 and 3-4) and configured to attach to the vehicle and maintain the horizontal base and the plurality of vertical planar sides within the vehicle (capable of this use with an appropriate vehicle); and a reversible holder (38) comprising a holder top and a plurality of holder sides, the reversible holder configured to fit with the horizontal base and plurality of vertical planar sides at a first position inside the vehicle (see, e.g. FIG. 1 positioning which will have it positioned inside of an appropriate vehicle when appropriately positioned) and additionally fit over one vehicle connector at a second position outside the vehicle (see, e.g. FIG. 2 position, which will have it positioned outside of an appropriate vehicle when appropriately positioned).
With Respect to Claim 10
The tray apparatus of claim 8, wherein the holder top comprises at least one opening (48) formed therein.
With Respect to Claim 12
The tray apparatus of claim 8, wherein the vehicle comprises a wagon comprising a left side and a right side, and one vehicle connector attaches to the left side and a second vehicle connector attaches to the right side (inasmuch as the structure is capable of this use with an appropriate wagon; for clarity, it is noted that the wagon is considered to be divided into two halves/sides, i.e. left and right sides, such that a front tubular bar located at/forming the top edge of the wagon body to which the tray apparatus may be attached has left and right sides, and 34 on one side attaches to the left side of this bar and 34 on the other side attaches to the right side of this bar; it is noted for clarity that the vehicle is clearly only functionally recited and so no teaching of an actual vehicle is required by the claim, and the position taken is that the tray apparatus is capable of use with this or other suitable vehicle/wagon structures capable of meeting the claim language).
With Respect to Claim 13
The tray apparatus of claim 8, wherein each vehicle connector (34) is formed with a plurality of element sides (top side and the front/rear side adjacent the curved portion of the vertical sidewall of 12) connecting each vehicle connector to the two sides (see, e.g. FIGS. 1-2).
With Respect to Claim 14
The tray apparatus of claim 12, wherein one vehicle connector comprises a holding clip fittable over one of the left side and the right side (both of the cylindrical members are clips to the extent claimed).
With Respect to Claim 15
A tray apparatus for use with a vehicle comprising: a horizontal base (top of 12); a plurality of vertical planar sides (left and right vertical sides of 12, or these sides in combination with the portion of 28 thereunder to which it attaches to, see e.g. FIG. 1) connected to the horizontal base; a plurality of vehicle connectors (34, see, e.g. FIG. 3) each affixable to at least one of the vertical planar plurality of sides (via 28) and configured to attach to the vehicle (capable of this use which is also the intended use); and a reversible holder (38) comprising a holder top and a plurality of holder sides (see, e.g. FIG. 1), the reversible holder configured to fit with the horizontal base and plurality of vertical planar sides inside the vehicle(capable of this use with an appropriate vehicle, see FIG. 2 positioning); wherein the reversible holder is repositionable to fit over one vehicle connector outside the vehicle (capable of this use with an appropriate vehicle, see FIG. 1 positioning in which 38 extends over both vehicle connectors and will be outside of the vehicle if attached on an outer edge of the vehicle body)
With Respect to Claim 17
The tray apparatus of claim 15, wherein the holder top comprises at least one opening (48) formed therein.
With Respect to Claim 18
The tray apparatus of claim 15, wherein the vehicle comprises a wagon comprising a left side and a right side, and one vehicle connector attaches to the left side and a second vehicle connector attaches to the right side (inasmuch as the structure is capable of this use with an appropriate wagon; for clarity, it is noted that the wagon is considered to be divided into two halves/sides, i.e. left and right sides, such that a front tubular bar located at/forming the top edge of the wagon body to which the tray apparatus may be attached has left and right sides, and 34 on one side attaches to the left side of this bar and 34 on the other side attaches to the right side of this bar; it is noted for clarity that the vehicle is clearly only functionally recited and so no teaching of an actual vehicle is required by the claim, and the position taken is that the tray apparatus is capable of use with this or other suitable vehicle/wagon structures capable of meeting the claim language).
With Respect to Claim 19
The tray apparatus of claim 15, wherein each vehicle connector (34) is formed with a plurality of element sides (top side and the front/rear side adjacent the curved portion of the vertical sidewall of 12) connecting each vehicle connector to the two sides.
With Respect to Claim 20
The tray apparatus of claim 18, wherein one vehicle connector comprises a holding clip (34 is a clip to the extent claimed) fittable over one of the left side and the right side.
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 4 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent #8,534,520 to Liparoti (Liparoti) as applied to claim 3 or 10 above, and further in view of U.S. Patent #6,095,060 to Ma (Ma).
With Respect to Claim 4
The tray apparatus of claim 3, but does not disclose further comprising one holding apparatus below each of the at least one openings.
However, Ma discloses forming a similar vehicle attached pivoting cup holder (70) attached to a tray (14) having an opening and a holding apparatus (77 alone or in combination with 81 and related structure) below the opening (see, e.g. FIGS. 1 and 3) such that the holding apparatus supports the bottom of the cup during use and returns to a stored rest position when not in use.
It would have been obvious to one of ordinary skill in the art before the filing date of this application, given the disclosure of Ma, to add a holding apparatus as taught by Liparoti to the cup holder/opening of Liparoti, in order to provide support for the bottom of the cup during use.
With Respect to Claim 11
The tray apparatus of claim 10, further comprising one holding apparatus positioned below each of the at least one openings.
Claims 1- 20 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent #4,512,607 to Rapp (Rapp) in view of U.S. Patent #6,095,060 to Ma (Ma).
With Respect to Claim 1
Rapp discloses a tray apparatus for use with a vehicle (capable of this use which is also the intended use, see e.g. abstract disclosing use with a wheelchair) comprising: a horizontal base (12) and two vertical planar sides (left and right 22); a plurality of vehicle connectors (16, 18, 24) affixable to the two vertical planar sides (see, e.g. FIG. 3 showing them affixed) and configured to attach to the vehicle and maintain the horizontal base and two vertical planar sides within the vehicle (capable of this use which is also the intended use, see e.g. abstract indicating use with a wheelchair); but does not disclose a reversible holder comprising a holder top and a plurality of holder sides, the reversible holder configured to fit with the horizontal base and two vertical planar sides at a first position inside the vehicle and additionally fit over one vehicle connector at a second position outside the vehicle.
However, Ma discloses forming a similar vehicle attached tray with a pivoting cup holder (70) (which is a reversible holder) attached to a tray (14), the reversible holder/pivoting cup holder comprising a holder top and a plurality of holder sides (e.g. it has top being the top surface of 79 and sides being the side surfaces of 79, or a top being the raised central structure 72 around the cup opening on 79 and sides being the raised side walls of 79, see FIG. 1, or the top 79 and sides being the front/back/left/right sides of 77, or the top 79 and sides formed by 81) in order to allow for the cup holder to be pivoted out for use and pivoted inward to rest on the tray when not in use to allow for the structure to collapse for storage.
It would have been obvious to one of ordinary skill in the art before the filing date of this application, given the disclosure of Ma, to add one or more pivoting cup holders (one of which constitutes a reversible holder) as taught by Ma to the side(s) of the tray of Rapp, in order to obtain the benefits of a cup holder (and specifically the benefits of the Ma cup holder) in addition to the tray (e.g. hands free holding of a cup in a ready access location without taking up space on the tray, securing the cup in position to prevent spilling, etc.).
As to the reversible holder configured to fit with the base and two vertical planar sides at a first position inside the vehicle and additionally fit over one vehicle connector at a second position outside the vehicle, it is Examiner’s position that the holder is capable of this use as it will do so with an appropriate vehicle, e.g. a wheelchair having side arms/portions for attachment of the tray which are spaced at a position along the side edges of the tray (14) such that the holders pivot out over and beyond 16 and/or other portions of the vehicle connectors during use.
With Respect to Claim 2
The tray apparatus of claim 1, further comprising an additional reversible holder (Ma discloses one cup holder, which constitutes a reversible holder, on each side which clearly renders obvious using one on each side as part of the combination and/or as a mere duplication of parts which does not patentably distinguish over the prior art (MPEP 2144.04)) comprising an additional holder top and a plurality of additional holder sides, the additional holder configured to fit with the horizontal base and two vertical planar sides at an initial position inside the vehicle and additionally fit over a second vehicle connector at a further position outside the vehicle (the second reversible holder is capable of this use with an appropriately sized vehicle, e.g. a wheelchair having the sides such that the attachment location is along the side of the tray 12).
With Respect to Claim 3
The tray apparatus of claim 1, wherein the holder top comprises at least one opening formed therein (noting cup opening in 79 per Ma, see e.g. FIG. 1).
With Respect to Claim 4
The tray apparatus of claim 3, further comprising one holding apparatus (77 alone or in combination with 81 and related structure) below each of the at least one openings (see, e.g. Ma FIGS. 1 and 3).
With Respect to Claim 5
The tray apparatus of claim 1, wherein the vehicle comprises a wagon comprising a left side and a right side, and one vehicle connector attaches to the left side and a second vehicle connector attaches to the right side (capable of this use with an appropriate wagon).
With Respect to Claim 6
The tray apparatus of claim 1, wherein each vehicle connector is formed with a plurality of element sides (e.g. front 18 is a front element side and rear 18 is a rear element side which constitutes a plurality of element sides or alternately the front/rear/bottom/top sides of each 18 constitute a plurality of element sides that connect via the openings they pass through) connecting each vehicle connector to the two sides (via 18 extending into the openings in 22 and contacting/connecting thereto).
With Respect to Claim 7
The tray apparatus of claim 5, wherein one vehicle connector comprises a holding clip (24) fittable over one of the left side and the right side (capable of this use).
With Respect to Claim 8
A tray apparatus for use with a vehicle comprising: a horizontal base (12) and a plurality of vertical planar sides (left and right 22); a plurality of vehicle connectors (16, 18, 24) each affixable to at least one of the plurality of vertical planar sides and configured to attach to the vehicle and maintain the horizontal base and the plurality of vertical planar sides within the vehicle (capable of this use which is also the intended use, see e.g. abstract indicating use with a wheelchair); and a reversible holder (70 per Ma) comprising a holder top and a plurality of holder sides (e.g. it has top being the top surface of 79 and sides being the side surfaces of 79, or a top being the raised central structure 72 around the cup opening on 79 and sides being the raised side walls of 79, see FIG. 1, or the top 79 and sides being the front/back/left/right sides of 77, or the top 79 and sides formed by 81), the reversible holder configured to fit with the horizontal base and plurality of vertical planar sides at a first position inside the vehicle (capable of this use, i.e. when pivoted into storage position over the tray while the tray is inside a vehicle) and additionally fit over one vehicle connector at a second position outside the vehicle (per Rapp and Ma, noting that on an appropriate sized wheelchair or similar vehicle the folded/storage position on top of the tray will be inside the vehicle and the unfolded/pivoted/use position outside of the tray will be outside of the vehicle/wheelchair).
With Respect to Claim 9
The tray apparatus of claim 8, further comprising an additional reversible holder (70 on the other side per Ma) comprising an additional holder top and a plurality of additional holder sides (e.g. it has top being the top surface of 79 and sides being the side surfaces of 79, or a top being the raised central structure 72 around the cup opening on 79 and sides being the raised side walls of 79, see FIG. 1, or the top 79 and sides being the front/back/left/right sides of 77, or the top 79 and sides formed by 81), the additional holder configured to fit with the horizontal base and plurality of vertical planar sides at an initial position inside the vehicle and additionally fit over a second vehicle connector at a further position outside the vehicle (capable of this use for the same reasons as the first reversible holder, as it will operate in the same fashion on the opposite side with an appropriate vehicle, see the rejection of claim 8 above for details).
With Respect to Claim 10
The tray apparatus of claim 8, wherein the holder top comprises at least one opening formed therein (see, e.g. Ma FIG. 1, noting opening in top for cup).
With Respect to Claim 11
The tray apparatus of claim 10, further comprising one holding apparatus (77 alone or in combination with 81 and related structure) below each of the at least one openings (see, e.g. Ma FIGS. 1 and 3).
With Respect to Claim 12
The tray apparatus of claim 8, wherein the vehicle comprises a wagon comprising a left side and a right side, and one vehicle connector attaches to the left side and a second vehicle connector attaches to the right side (capable of this use with an appropriate wagon).
With Respect to Claim 13
The tray apparatus of claim 8, wherein each vehicle connector is formed with a plurality of element sides (e.g. front 18 is a front element side and rear 18 is a rear element side which constitutes a plurality of element sides or alternately the front/rear/bottom/top sides of each 18 constitute a plurality of element sides that connect via the openings they pass through) connecting each vehicle connector to the two sides (via 18 extending into the openings in 22 and contacting/connecting thereto)
With Respect to Claim 14
The tray apparatus of claim 12, wherein one vehicle connector comprises a holding clip (24) fittable over one of the left side and the right side.
With Respect to Claim 15
A tray apparatus for use with a vehicle comprising: a horizontal base (12); a plurality of vertical planar sides (left and right 22); a plurality of vehicle connectors (16, 18, 24) each affixable to at least one of the vertical planar plurality of sides and configured to attach to the vehicle (capable of this use which is also the intended use, see e.g. abstract indicating use with a wheelchair); and a reversible holder (70 per Ma) comprising a holder top and a plurality of holder sides (e.g. it has top being the top surface of 79 and sides being the side surfaces of 79, or a top being the raised central structure 72 around the cup opening on 79 and sides being the raised side walls of 79, see FIG. 1, or the top 79 and sides being the front/back/left/right sides of 77, or the top 79 and sides formed by 81), the reversible holder configured to fit with the horizontal base and plurality of vertical planar sides inside the vehicle (capable of this use per Rapp and Ma, noting that on an appropriate sized wheelchair or similar vehicle the folded/storage position on top of the tray will be inside the vehicle); wherein the reversible holder is repositionable to fit over one vehicle connector outside the vehicle (per Rapp and Ma, noting that on an appropriate sized wheelchair or similar vehicle the unfolded/use position outside of the tray will be outside of the vehicle/wheelchair and over the connector).
With Respect to Claim 16
The tray apparatus of claim 15, further comprising an additional reversible holder (the other 70 added per Ma on the opposite side) comprising an additional holder top and a plurality of additional holder sides, the additional holder configured to fit with the horizontal base and plurality of vertical planar sides at an initial position inside the vehicle and additionally fit over a second vehicle connector at a further position outside the vehicle (capable of this use in the same fashion as the other holder, but on the opposite side, see the rejection of claim 15 above for details).
With Respect to Claim 17
The tray apparatus of claim 15, wherein the holder top comprises at least one opening formed therein (noting opening for receiving the cup).
With Respect to Claim 18
The tray apparatus of claim 15, wherein the vehicle comprises a wagon comprising a left side and a right side, and one vehicle connector attaches to the left side and a second vehicle connector attaches to the right side (capable of this use with an appropriate wagon).
With Respect to Claim 19
The tray apparatus of claim 15, wherein each vehicle connector is formed with a plurality of element sides (e.g. front 18 is a front element side and rear 18 is a rear element side which constitutes a plurality of element sides or alternately the front/rear/bottom/top sides of each 18 constitute a plurality of element sides that connect via the openings they pass through) connecting each vehicle connector to the two sides (via 18 extending into the openings in 22 and contacting/connecting thereto)
With Respect to Claim 20
The tray apparatus of claim 18, wherein one vehicle connector comprises a holding clip (24) fittable over one of the left side and the right side.
Response to Arguments
Applicant's arguments filed 5/5/26 have been fully considered but they are either not persuasive or are moot in view of the new ground(s) of rejection (for clarity, it is noted that the new rejection above uses substantially the same art, but a different interpretation as to some of the prior art reference’s structures which meet the limitations of particular parts in view of the amended claim language).
It is noted that Applicant’s arguments regarding the amendments obviating the drawings objections, and 112 rejections are persuasive, and as these rejections are no longer present these arguments will not be further addressed.
In response to Applicant’s arguments that Liparoti illustrates a tray apparatus with no horizontal base and vertical planar sides joined to the base, see for example FIG. 1 of Liparoti showing a top horizontal base (top wall of 12) and a vertical planar side extending downwardly from the edge 18 of 12, the other side being apparently the same noting similar edge 20 (or forming it as such being obvious). Liparoti also discloses vehicle connectors 34 affixable to the two vertical planar sides (noting the vertical planar side shown extends down and contacts the top of 34 and so that side is affixed during use) and configured to attach to the vehicle and maintain the base and vertical planar sides within the vehicle (capable of this use). Examiner notes that the new rejection above interprets the outer portions of coupler 28 to be part of the vertical sidewalls, which is sufficient to meet the claim language.
In response to applicant's arguments against the references individually (e.g. references to Ma’s having suction cups, having two horizontal surfaces, etc.), one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). It is noted that Ma is used for its disclosure of a similar reversible holder attached to a tray, and the particular details of Ma’s vehicle attachment structure and other parts are not relevant to the rejection and do not support a showing of nonobviousness.
In response to Applicant’s unsupported statements regarding “dismissively rejected” prior limitations or ignoring express limitations, Examiner maintains the position that the previous rejection was not dismissive and did not ignore any express limitations, as all of the claimed limitations for which Ma was used were taught by or obvious in view of MA (or alternately were provided by the combination of Rapp and Ma).
In response to Applicant’s arguments that the claim recites a reversible holder while MA discloses a cup holder/pivoting cup holder which is not what is claimed, Examiner maintains that the pivoting cup holder of Ma is clearly a reversible holder (i.e. it is a holder for cups that pivots to reverse position, similar to the inventive structure). Applicant’s arguments that the Ma cup holder is not a reversible holder appear to be nonsensical, noting that the inventive structure as shown in the drawings is also a pivoting cup holder that pivots between use and storage/non-use positions, and so the claim language clearly must encompass such.
In response to Applicant’s arguments that Ma discloses two surfaces 34 and 14 and cup holder 70, none of which disclose or suggest a holder top and plurality of holder sides as claimed, Examiner again finds this argument nonsensical as the combination with Ma does not use the surfaces 34 or 14, and the reversible holder/pivoting cup holder 70 which is added per Ma clearly has a holder top and plurality of holder sides (see Ma FIG. 1). Although Examiner maintains that the structure of FIG. 1 clearly shows such, Examiner has included in the above rejection some particular interpretations of the parts which would constitute the claimed top and sides.
In response to Applicant’s arguments that the Ma design including its suction cups and pivoting cup holder is not configured to fit with the Rapp device at a first position inside the vehicle and additionally over one vehicle connector at a second position outside the vehicle, it is again noted that the combination does not add the entirety of the Ma structure to the Rapp device, but merely adds the reversible holder/pivoting cup holder to the Rapp tray. Examiner maintains the position that the Rapp device with the addition of the Ma pivoting cup holder meets the limitations of the claims.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). In this case the reconstruction takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, and as such the reconstruction is proper. It is noted that Applicant has not provided any evidence of the use of Applicant’s disclosure as part of the combination, and all of the evidence of obviousness is based on the references themselves or the common knowledge of one of ordinary skill in the art.
In response to Applicant’s argument that the reason stated for combining Ma and Rapp (it is noted that Applicant truncates the reasoning to obtaining the benefits of a cup holder, but the disclosed reasoning also discloses specifically obtaining the benefits of the Ma cup holder, i.e. transitioning between use and non-use/storage positions) merely states a desired result and is not a motivation to combination, and simply because cup holders exist is not a motivation to combine but merely a general overall result attempting to justify a hindsight reconstruction, Examiner respectfully disagrees. Per KSR v. Teleflex, an example rationale to support a conclusion of obviousness is “(A)combining prior art elements according to known methods to yield predictable results” (see MPEP 2141(III)), and this combination is the mere combination of prior art elements (i.e. it combines the known prior art element of the Rapp tray with the known prior art element of the Ma pivotal cup holder to obtain the predictable result of the Rapp tray with a pivotal cup holder). Examiner maintains that a person of ordinary skill in the art looking at the Rapp and Ma references would consider it an obvious improvement to the Rapp tray to add a cup holder (or two cup holders) as taught by Ma to the Rapp tray in order to obtain the desired benefits of allowing a user to store a cup in the cup holder, with the additional benefits of the Ma cup holder (e.g. being reversible/pivotal to a non-use/storage position when not in use). Examiner maintains that the rejection did more than merely indicate that the different parts were known, and provided a motivation to combine the parts (i.e. to obtain the additional benefits of the Ma cup holder for use with the Rapp tray).
In response to Applicant’s argument that the rejection essentially simply asserts that adding the Ma cup holder to the Rapp structure “would have been nice” to do, the rejection indicates that the combination produces a desired benefit, which is sufficient to motivate one of ordinary skill in the art to make the modification.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ADAM J WAGGENSPACK whose telephone number is (571)270-7418. The examiner can normally be reached M-F 8:30-4:30.
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, Nathan Newhouse can be reached at (571)272-4544. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ADAM J WAGGENSPACK/Primary Examiner, Art Unit 3734
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