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 .
Status of the Application
Claims 1-12 are pending and have been examined in this application. This communication is the first action on the merits. As of the date of this application, the Information Disclosure Statement (IDS) filed in the parent case has been considered.
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 1-12 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 of U.S. Patent No. 1,205,3081. Although the claims at issue are not identical, they are not patentably distinct from each other because the scope of claims 1-12 is encompassed by the scope of the claims of the patent, i.e. the patented claims are narrower versions of the claims of the instant application.
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.
Claims 10-11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Miller (US 4,138,806).
Regarding Claim 10, Miller discloses a method of using an adjustable support stake for securing and supporting an item above the ground, comprising: inserting a first tapered end (Miller: Annotated Fig. 3; E) of an adjustable support stake into the ground; attaching a cable to a rotatable member (Miller: Fig. 3-6; 40) within a housing of a second end of the adjustable support stake; attaching the cable to the item to be supported; creating a tension in the cable by rotating the rotatable member; and releasing the tension by activation of a tension release member (Miller: Col. 3, Ln 43-46).
Regarding Claim 11, Miller discloses the method of using an adjustable support stake of claim 10, further comprising: inserting a tool into a receiving end (Miller: Fig. 5; 52, 54) on the rotatable member; and rotating the tool around the support stake to create the tension in the cable (Miller: Col. 3, Ln. 3-8).
Claim Rejections - 35 USC § 103
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 1-2, 4, 7, and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Miller (US 4,138,806) in view of McDermott et al. (US 2019/0338549).
Regarding Claim 1, Miller discloses an adjustable support stake for securing and supporting items above the ground, the support stake comprising: a first end further comprising; a tapered stake (Miller: Annotated Fig. 3; 28, 30, E); a second end further comprising; a housing (Miller: Fig. 3-6; 31) formed around a rotatable member (Miller: Fig. 3-6; 40), wherein the rotatable member is rotatable about a longitudinal axis via an access point (Miller: Fig. 3-6; 42, 52, 54) on the housing; the rotatable member positioned substantially perpendicular and coupled to a tension release member (Miller: Fig. 6; 60); and the housing further comprising an aperture (Miller: Fig. 3-6; 44) configured to allow access to the rotatable member.
Miller fails to explicitly disclose a substantially tapered stake. However, McDermott teaches a substantially tapered stake (McDermott: Fig. 1; 20).
Miller and McDermott are analogous because they are from the same field of endeavor or a similar problem solving area e.g. ground anchors; and anchoring assemblies to the ground. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the stake in Miller with the substantially tapered stake structure from McDermott, with a reasonable expectation of success, in order to provide a stake that has a tapered body, enabling it to be more easily screwed into the ground (McDermott: [0019]).
Regarding Claim 2, Miller, as modified, teaches the adjustable support stake of claim 1, wherein: the rotatable member (Miller: Fig. 3-6; 40) is configured to attach to a cable and adjust the tension in the cable when the rotatable member is rotated.
Regarding Claim 4, Miller, as modified, teaches the adjustable support stake of claim 1, wherein: the tension release member (Miller: Fig. 6; 60) comprises an outer protrusion and an inner protrusion and is configured to prevent rotation of the rotational member in a first direction. [Note: The head of member 60 reads on an outer protrusion and the shaft reads on an inner protrusion.]
Regarding Claim 7, Miller, as modified, teaches the adjustable support stake of claim 1, wherein: the access point (Miller: Fig. 3-6; 42, 52, 54) for the rotatable member comprises a receiving end (Miller: Fig. 3-6; 52, 54) configured to interface with a tool.
Regarding Claim 9, Miller, as modified, teaches the adjustable support stake of claim 1, wherein: the aperture (Miller: Fig. 3-6; 44) is located on a first side of the housing (Miller: Fig. 3-6; 31).
Claims 5-6 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Miller (US 4,138,806) in view of McDermott et al. (US 2019/0338549) as applied to claim 1 above, and further in view of Moon (KR 10-2019-0040532).
Regarding Claim 5, Miller, as modified, teaches the adjustable support stake of claim 1, but fails to disclose a rotatable member comprising a gear positioned substantially perpendicular to the longitudinal axis, the gear being toothedly coupled to the tension release member.
However, Moon teaches a rotatable member comprising a gear (Moon: Fig. 6; 4-2) positioned substantially perpendicular to the longitudinal axis, the gear being toothedly coupled to a tension release member (Moon: Fig. 7; 5, 6).
Miller and Moon are analogous because they are from the same field of endeavor or a similar problem solving area e.g. anchor assemblies; and tying an element to an existing surface. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the rotatable member and housing in Miller with the, cap, gear, and tension release member from Moon, with a reasonable expectation of success, in order to provide a rotatable member that can be manually rotated by a user without the need of tools and fixed in position when the rotation stops, as well as be released when further adjustment is needed, thereby simplifying the operation of the device (Moon: [0026]-[0028])
Regarding Claim 6, Miller, as modified, teaches the adjustable support stake of claim 5, wherein: the tension release member (Moon: Fig. 7; 5, 6) is configured to release the tension in the rotational member when the tension release member is decoupled from the gear (Moon: Fig. 6; 4-2).
Regarding Claim 8, Miller, as modified, teaches the adjustable support stake of claim 1, but fails to disclose an access point for the rotatable member comprising a rotatable cap further comprising a texturized outer surface.
However, Moon teaches an access point for the rotatable member comprising a rotatable cap (Moon: Fig. 6-8; 4-1) further comprising a texturized outer surface. [Note: See the rejection of claim 5 for motivation.]
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Miller (US 4,138,806) in view of Moon (KR 10-2019-0040532).
Regarding Claim 12, Miller, as modified, teaches the method of using an adjustable support stake of claim 10, but fails to disclose holding a textured outer surface of a rotatable cap coupled to the rotatable member; and rotating the rotatable cap to create the tension in the cable.
However, Moon teaches holding a textured outer surface of a rotatable cap (Moon: Fig. 6-8; 4-1) coupled to a rotatable member (Moon: Fig. 6-8; 4-3); and rotating the rotatable cap to create the tension in a cable. [Note: See the rejection of claim 5 for motivation.]
Claims 1-7 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Robinson (US 2007/0176158) in view of Intagliata et al. (US 9,238,922).
Regarding Claim 1, Robinson discloses an adjustable support stake for securing and supporting items above the ground, the support stake comprising: a first end further comprising; a tapered stake (Robinson: Fig. 3; 20); a second end further comprising; a housing (Robinson: Fig. 1-2; 14) formed around a rotatable member (Robinson: Fig. 2; 46, 48, 50), wherein the rotatable member is rotatable about a longitudinal axis via an access point (Robinson: Fig. 2; 26, 56) on the housing; the rotatable member positioned substantially perpendicular and coupled to a tension release member (Robinson: Fig. 2; 52); and the housing further comprising an aperture (Robinson: Fig. 1-2; 22) configured to allow access to the rotatable member.
Robinson fails to explicitly disclose a substantially tapered stake. However, Intagliata teaches a substantially tapered stake (Intagliata: Fig. 3-5, 11, 13; 3).
Robinson and Intagliata are analogous because they are from the same field of endeavor or a similar problem solving area e.g. ground anchors; and anchoring assemblies to the ground. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the stake in Robinson with the substantially tapered stake structure from Intagliata, with a reasonable expectation of success, in order to provide an tapered anchor structure formed from a plurality of blades that is simpler and quicker to install while still providing pull out resistance (Intagliata: Col. 2, Ln. 16-27; Col. 6, Ln. 3-39) as well as increased lateral movement resistance due to the surfaces of the blades gripping the soil.
Regarding Claim 2, Robinson, as modified, teaches the adjustable support stake of claim 1, wherein: the rotatable member (Robinson: Fig. 2; 46, 48, 50) is configured to attach to a cable and adjust the tension in the cable when the rotatable member is rotated.
Regarding Claim 3, Robinson, as modified, teaches the adjustable support stake of claim 1, wherein: the substantially tapered stake (Intagliata: Fig. 3-5, 11, 13; 3) is configured from two substantially planar members (Intagliata: Fig. 3; 64, 64a and 65, 65a) joined substantially perpendicular to each other along the longitudinal axis.
Regarding Claim 4, Robinson, as modified, teaches the adjustable support stake of claim 1, wherein: the tension release member (Robinson: Fig. 2; 52) comprises an outer protrusion and an inner protrusion and is configured to prevent rotation of the rotational member (Robinson: Fig. 2; 46, 48, 50) in a first direction.
Regarding Claim 5, Robinson, as modified, teaches the adjustable support stake of claim 1, wherein: the rotatable member (Robinson: Fig. 2; 46, 48, 50) comprises a gear (Robinson: Fig. 2; 50) positioned substantially perpendicular to the longitudinal axis, the gear being toothedly coupled to the tension release member (Robinson: Fig. 2; 52).
Regarding Claim 6, Robinson, as modified, teaches the adjustable support stake of claim 5, wherein: the tension release member (Robinson: Fig. 2; 52) is configured to release the tension in the rotational member (Robinson: Fig. 2; 46, 48, 50) when the tension release member is decoupled from the gear.
Regarding Claim 7, Robinson, as modified, teaches the adjustable support stake of claim 1, wherein: the access point (Robinson: Fig. 2; 26, 56) for the rotatable member comprises a receiving end (Robinson: Fig. 2; 56) configured to interface with a tool.
Regarding Claim 9, Robinson, as modified, teaches the adjustable support stake of claim 1, wherein: the aperture (Robinson: Fig. 1-2; 22) is located on a first side of the housing.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Robinson (US 2007/0176158) in view of Intagliata et al. (US 9,238,922) as applied to claim 8 above, and further in view of Hernandez (US 4,993,719).
Regarding Claim 8, Robinson, as modified, teaches the adjustable support stake of claim 1, wherein: the access point (Robinson: Fig. 2; 26, 56) for the rotatable member comprises a rotatable cap (Robinson: Fig. 2; 26).
Robinson fails to disclose a rotatable cap further comprising a texturized outer surface. However, Hernandez teaches a rotatable cap (Hernandez: Fig. 2; 26) further comprising a texturized outer surface.
Robinson and Hernandez are analogous because they are from the same field of endeavor or a similar problem solving area e.g. ground anchors; and anchoring assemblies to the ground. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the cap in Robinson with the texturized outer surface from Hernandez, with a reasonable expectation of success, in order to provide a cap that has a suitable grooved surface so that it can be readily grasped by the hand of a user (Hernandez: Col. 4, Ln. 47-50).
Annotated Figures
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Figure 1:Miller; Fig. 3 (Detail)
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO-892 for cited references.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Taylor Morris whose telephone number is (571)272-6367. The examiner can normally be reached M-F: 10AM-6PM PST / 1PM-9PM EST.
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/TAYLOR MORRIS/Examiner, Art Unit 3631