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 .
Claim Objections
Claims 1, 10, and 15 are objected to because of the following informalities:
Claim 1 recites “a foldable cloth type awning system”. In the context of the disclosure it is clear that a foldable cloth is positively required, but the term “type” should be deleted to ensure appropriate clarity and consistency.
Claims 10 and 15 each introduce “a first and a second pantograph arm”. In the context of the disclosure, it is clear that these arms are specific arms provided in the “rigid arms” introduced in claim 1. Claims 10 and 15 should be amended to recite --a first arm and a second arm of the rigid arms of the pantograph-- or similar to ensure appropriate consistency.
Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “thermal expansion compensating mechanism” in claims 8, 9, and 11. It is noted that the limitation “thermal expansion compensating mechanism” is provided with sufficient structure in claims 10 and 15.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. The “thermal expansion compensating mechanism” is described in the specification only as an elongated opening provided in each of the primary lower pivot connectors (e.g. paragraph 0069), so this is the structure that the limitation is interpreted to cover.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 2-4 and 9-12 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.
Claim 2 recites “a lower pivot connector”, but both primary and secondary lower pivot connectors are previously introduced in claim 1. It is not readily clear which lower pivot connector is being referenced, or if a new lower pivot connector is being introduced.
Claim 9 recites the limitation “the upper support beams are separated from guiding track in a first longitudinal support beam by a ’smallest height’ along a third direction” including quotations around “smallest height”. This limitation is unclear as to what separation or other configuration is positively required. Is the term “smallest height” limited to a particular dimension? Is a space positively required (i.e. is contact between the longitudinal support beam and the guiding track specifically excluded)? The limitation is also unclear as to whether or not a new guiding track is being introduced, and what the distinctions are between the first longitudinal support beam of claim 9 and the “first longitudinal frame beam” of claim 1.
Regarding claim 12, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Dependent claims not specifically addressed above are nonetheless rejected as being dependent from a claim or claims rejected under 35 U.S.C. 112(b). All claims are examined as best understood.
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 1-7 and 12-14 are rejected under 35 U.S.C. 103 as being unpatentable over He (U.S. Patent No. 11,156,014) in view of Ruggero (IT 202000002767).
Regarding claim 1, He discloses an openable terrace canopy (10) comprising an opening at least partly covered by a foldable cloth (1) type awning system [FIG. 1], the system comprising:
a frame (2) comprising a first longitudinal frame beam (22) extending substantially in a first direction between a proximal end and a distal end (proximal and distal ends are defined at the respective transverse beams 21) [FIGS. 1, 2], wherein the first longitudinal frame beam comprises a guiding track (52) extending substantially along the first direction [FIG. 4];
a cloth (1) and a cloth support (support formed by beams 61), wherein the cloth support comprises a plurality of substantially parallel upper support beams (61) extending substantially in a second direction perpendicular to the first direction [FIG. 3], wherein the upper support beams are moveably arranged with respect to the frame [FIGS. 1, 2], and wherein the cloth is attached to the upper support beams (column 8, lines 58-61); and
a telescopic assembly (4) arranged to displace the upper support beams in the first direction between a retracted configuration and an extended configuration (column 5, lines 31-32),
wherein the telescopic assembly comprises a pantograph comprising rigid arms (621, 622) and primary upper pivot connectors (at 63), primary lower pivot connectors (at 71-73), wherein each upper support beam is connected to an upper pivot connector [FIG. 4], wherein one of the primary lower pivot connectors is fixed to the first longitudinal frame beam (column 6, lines 27-31; one end of the telescopic assembly is fixed at the wheel seat 72, which defines one of the primary lower pivot connectors), and wherein at least one of the primary lower pivot connectors comprises a wagon (73) arranged onto the guiding track in such a manner that the wagon can only follow the guiding track [FIG. 10].
He does not disclose that the telescopic assembly comprises secondary upper and lower pivot connectors or intermediate pivot connectors.
Nonetheless, Ruggero discloses an openable terrace assembly comprising a telescopic assembly (5) having primary upper and lower pivot connectors, secondary upper and lower pivot connectors, and intermediate pivot connectors [FIG. 8] (see annotated drawing below).
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Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the telescopic assembly of He to include the pivot connectors and configuration taught by Ruggero, in order to provide a more robust spacing assembly that is capable of moving larger or heavier canopy systems, and to improve the strength and/or durability of the telescopic assembly.
Regarding claims 2-4, He discloses the cloth support and the frame, and connection of the cloth to the upper support beams wherein the upper support beams are only attached to a primary upper pivot connector [FIG. 4], but does not disclose lower support beams.
Nonetheless, Ruggero discloses a telescopic assembly comprising a plurality of parallel lower support beams (at 32, as shown in at least Figure 8) extending substantially in the second direction, wherein the lower support beams are moveably arranged with respect to the frame (4), and wherein each lower support beam is connected to a lower pivot connector [FIG. 8] in such a manner that the lower support beams interdigitate the upper pivot connectors along the first direction (as shown in Figure 8, the lower support beams and upper pivot connectors are alternately arranged along the first direction); wherein the lower support beams are only attached to a primary lower pivot connector [FIG. 8]; and wherein one lower support beam is attached to every primary lower pivot connector [FIG. 8].
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the telescopic assembly of He to include lower support beams, as taught by Ruggero, in order to provide further support for the assembly, so as to allow for larger canopies to be used without undesirable sagging or uneven hanging.
Regarding claim 5, He discloses that the primary lower pivot connectors are constrained to a translation motion along the first direction (the primary lower pivot connectors are provided along the track 52 and are constrained against movement other than along the first direction as shown in Figure 10).
Regarding claim 6, He discloses that the plurality of upper support beams comprises a most proximal upper support beam and a most distal upper support beam respectively most proximal and most distal from the proximal end of the first longitudinal frame beam (as shown in Figures 1-3, a most proximal upper support beam is provided closest to frame member 211 and a most distal upper support beam is provided at the opposite end of the telescopic assembly), and wherein in the retracted configuration of the telescopic assembly, the most distal upper support beam lies substantially adjacent to the proximal end of the first longitudinal frame beam [FIG. 2], and wherein in the extended configuration of the telescopic assembly, the most distal upper support beam lies substantially adjacent to the distal end of first longitudinal frame beam [FIGS. 1, 3].
Regarding claim 7, He discloses that the telescopic assembly is arranged to displace the upper beams in the first direction such that the cloth is in an entirely unfolded configuration in the extended configuration of the telescopic assembly (column 5, lines 31-32) [FIG. 1].
Regarding claim 12, He discloses that the cloth is a continuous sheet (column 4, lines 39-57) [FIG. 1] and/or the cloth is made of a stretchable material, such as a textile.
Regarding claims 13 and 14, He discloses the arms of the pantograph, but does not explicitly disclose that they are made of metal or aluminum alloy.
Nonetheless, Ruggero discloses aluminum as a material for the composition of the assembly components (paragraph 0059 of the provided machine translation).
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the arms of He to be formed from aluminum, as taught by He, in order to provide a durable, lightweight, and resilient material for the production of the rigid arms. It is noted that it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Allowable Subject Matter
Claims 8-11 and 15-17 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and/or to include all of the limitations of the base claim and any intervening claims.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ABE L MASSAD whose telephone number is (571)272-6292. The examiner can normally be reached M-F 7:30-4:00.
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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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/ABE MASSAD/Primary Examiner, Art Unit 3634
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