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 .
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.
Claim(s) 21-24 and 26-28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Robinson (US 3428976) in view of Garelick (US 5385323). With respect to claims 21, Robinson disclose the basic claimed structure including a cockpit seating area 12 including at least one seat 13 and a control console (including steering wheel; Figures 1-3) for operating the boat, a deck 11 and a seating assembly located on the deck with a first seat 18 and a second seat 19 both located on the deck. Not disclosed by Robinson is the second seat being movable from a lowered position to a raised position. Garelick teaches a seat with a seat bottom being movable between a lowered position and a raised position. It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to form the device of Robinson with the second seat having a seat bottom that can be raised and lowered as taught by Garelick with a high likelihood of success to allow the second seat bottom to move with respect to the first seat bottom. The combination combines known features to achieve predictable results. With respect to claims 22-24, 26-28, note Robinson, Figure 1 and the combination above. Note also a person of ordinary skill in the art before the effective filing date of the claimed invention would have years of experience in the art and would have been familiar with various types of seats and seating arrangements and would have found the combination to have been obvious.
Claim(s) 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Robinson (US 3428976) in view of Garelick (US 5385323), as applied to claim 21 above, and further in view of Snurr (US 3737136). With respect to claims 25, Robinson combination does not disclose the second seat not having a backrest. Snurr teaches a seat without a backrest (Figure 1). It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to form the device of Robinson with the second seat not having a backrest as taught by Snurr with a high likelihood of success for reduced weight. The combination combines known features to achieve predictable results. Note also a person of ordinary skill in the art before the effective filing date of the claimed invention would have years of experience in the art and would have been familiar with various types of seats and seating arrangements and would have found the combination to have been obvious.
Claim(s) 30 is/are rejected under 35 U.S.C. 103 as being unpatentable over Robinson (US 3428976) in view of Garelick (US 5385323), as applied to claim 30 above, and further in view of Farb et al (US 7513211). With respect to claims 30, Robinson combination does not disclose the first seat being elongate in the fore and aft direction. Farb et al teach a boat seat that is elongate in the fore and aft direction (Figure 1). It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to form the device of Robinson with the first seat being elongate in the fore and aft direction as taught by Farb et al with a high likelihood of success for ease of lounging and sunning. The combination combines known features to achieve predictable results. Note also a person of ordinary skill in the art before the effective filing date of the claimed invention would have years of experience in the art and would have been familiar with various types of seats and seating arrangements and would have found the combination to have been obvious.
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.
Claim(s) 31-32 and 35 is/are rejected under 35 U.S.C. 102(a)(2) as being clearly anticipated by Farb et al (US 7513211). With respect to claim 31, Farb et al disclose a boat with a deck, a sun pad located on the deck and including a main member with a first seating surface and one or more movable members each having an upper surface and being movable between a first position and a second position with the upper surface being inclined upward relative to the main member (note Figures 1-6). With respect to claims 32, 35 note Farb et al, Figures 1-6.
Claim(s) 41 is/are rejected under 35 U.S.C. 103 as being unpatentable over Farb et al (US 7513211) in view of Robinson (US 3428976). With respect to claims 41, Farb et al do not dislose a cockpit with seat. Robinson teaches a cockpit with seat (Figure 1). It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to form the device of Farb et al with the cockpit and seat as taught by Robinsoin with a high likelihood of success for ease boat control. The combination combines known features to achieve predictable results. Note also a person of ordinary skill in the art before the effective filing date of the claimed invention would have years of experience in the art and would have been familiar with various types of seats and seating arrangements and would have found the combination to have been obvious.
Claims 29, 33-34 and 36-40 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.
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.
Claim 31 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 14 of U.S. Patent No. 11697476. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims are encompassed by the patented claims.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Wood et al (US 7661382) show a boat console with seat.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHEN AVILA whose telephone number is (571)272-6678. The examiner can normally be reached Mon-Thu 6-4.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Marc Q. Jimenez can be reached at 571-272-4530. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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STEPHEN AVILA
Primary Examiner
Art Unit 3617
/STEPHEN P AVILA/Primary Examiner, Art Unit 3615
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