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 .
Election/Restrictions
Claims 13-18 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Group II, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on July 27, 2026.
Applicant’s election without traverse of Group I, Claims 1-12 and 19-20 in the reply filed on July 27, 2026 is acknowledged.
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 1-12 and 19-20 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 1 recites “wherein the electronic diverter is configured to transition between the plurality of different spray patterns within a time interval less than an amount of time required for the water discharged from the housing to form a spray pattern of the plurality of different spray patterns” that render the claim indefinite. The claim does not define what constitutes the formation of a spray pattern or when a spray pattern is considered to have been formed. The claim therefore does not establish an objective temporal endpoint from which the recited “amount of time required” can be determined.
Moreover, the “time required for the water… to form a spray pattern” is highly dependent on ambient and extrinsic physical variables not recited in the claim, such as incoming water pressure, volumetric flow rate, and the physical distance from the housing faceplate to the measurement point (e.g., is the pattern “formed” immediately upon exiting the nozzle, or 12 inches away where the streams coalesce?). therefore, the boundary of this time interval is indefinite.
Furthermore, the claim does not specify which of the plurality of spray patterns is to be used when determining the recited amount of time. To the extent that the different spray patterns have different formation times, it is unclear whether the claimed comparison is to be made with respect to any particular spray pattern, all of the spray patterns, or some other spray pattern.
Accordingly, a person of ordinary skill in the art would not be able to determine, with reasonable certainty, the scope of the limitations requiring the diverter to transition “within a time interval less than an amount of time required” for formation of a spray pattern.
Claim 4 recites “the electronic diverter is configured to cause the pattern wheel to remain in the second position for less than an amount of time required for the second spray pattern to form such that the water discharged from the housing changes from the first spray pattern to the third spray pattern without forming the second spray pattern” that renders the claim indefinite and is rejected under 112(b) with the same reasons mentioned above.
Claims 19-20 are also rejected under 112(b) with the same reasons mentioned above.
Claims 2-12 are also rejected under 112(b) because of dependency on claim 1.
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 and 19-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 and 19-20 of U.S. Patent No. 12,110,669 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because both the instant invention and the patent ‘669 are claiming a shower system and method for controlling a spray pattern of water, the shower system comprising: a sprayer comprising: a housing comprising a water inlet and a plurality of water outlets configured to discharge water from the housing to form a plurality of different spray patterns; and an electronic diverter located within the housing and configured to automatically divert the water to different sets of the plurality of water outlets to form the plurality of different spray patterns responsive to an instruction signal, wherein the electronic diverter is configured to transition between the plurality of different spray patterns within a rotation interval less than an amount of time required for the water discharged from the housing to form a spray pattern of the plurality of different spray patterns.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOEL ZHOU whose telephone number is (571)270-1163. The examiner can normally be reached Mon-Fri 9AM-5PM.
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, ARTHUR HALL can be reached at 5712701814. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
JOEL . ZHOU
Primary Examiner
Art Unit 3752
/QINGZHANG ZHOU/ Primary Examiner, Art Unit 3752
Prosecution Insights