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 1-13 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, no Information Disclosure Statement (IDS) has been filed on behalf of this case.
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 1-4 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4 of U.S. Patent No. 12,098,561 in view of Bruno (US 2007/0175174).
While the scope of pending claims 1-3 are encompassed by claim 1 of the patent, it fails to explicitly disclose distance adjustment that can adjust the plumb of a wall. However, Bruno teaches a temporary brace assembly having an adjustment unit (Bruno: Fig. 6; 304) that is configured to selectively lengthen or shorten the overall length of a temporary brace, and thereby adjust the plumb of a wall (Bruno: [0050]), by increasing or decreasing the distance between a bottom portion of a second support (Bruno: Fig. 1-2; 106) and a ground bracket (Bruno: Fig. 1-2; 110), respectively. 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 adjustment unit in the patent with the adjustment capability of Bruno, with a reasonable expectation of success, in order to provide a structure that can finely adjust the support provided to a wall, thereby ensuring that the wall is in the desired vertical position with respect to the floor (Bruno: [0050]).
Claims 5-6 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4 of U.S. Patent No. 12,098,561 in view of Bruno (US 2007/0175174) and further in view of Kanaval (US 2,584,713).
While the scope of pending claim 1 is encompassed by claim 1 of the patent, it fails to disclose a plurality of first and second strut cables each coupled between respective cable struts. However, Kanaval teaches a plurality of strut cables (Kanaval: Fig. 3; 81) each coupled between respective cable struts (Kanaval: Fig. 3; 78-80). 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 struts in the patent with the strut cables of Kanaval, with a reasonable expectation of success, in order to provide a means of connecting radial arms together (Kanaval: Col. 6, Ln. 65-73), thereby further increasing the stability of the overall structure.
Claims 7-10 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4 of U.S. Patent No. 12,098,561. Although the claims at issue are not identical, they are not patentably distinct from each other because the scope of claims 7-10 is encompassed by the claims of the patent.
Claims 11-12 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4 of U.S. Patent No. 12,098,561 in view of Kanaval (US 2,584,713).
While the scope of pending claim 7 is encompassed by claim 1 of the patent, it fails to disclose a plurality of first and second strut cables each coupled between respective cable struts. However, Kanaval teaches a plurality of strut cables (Kanaval: Fig. 3; 81) each coupled between respective cable struts (Kanaval: Fig. 3; 78-80). [Note: See the rejection of claims 5-6 for motivation and/or rationale.]
Allowable Subject Matter
Claim 13 is allowed.
The following is a statement of reasons for the indication of allowable subject matter:
Vanderklaauw (US 6,425,712) discloses a strut having multiple supports that are connected together, as well as cable struts for receiving support cables. However, it fails to disclose respectively connecting its cable struts together as well as extending its cable supports during assembly, as its cable supports are designed to pivot when connected to a cable. Furthermore, it fails to disclose adjusting the plumb of a wall after being attached to a wall and while Vanderklaauw (US 5,980,160) discloses adjusting the plumb of a brace, this occurs prior to the brace being attached to a structure. Black (US 2,581,351) discloses a structure having the recited supports and struts that can be modified to support cables, but as its structure is a light tower designed to be used vertically to support an antenna, it would not be obvious to use it in the way that is claimed. For these reasons, and as no additional references have been found which read on the recited subject matter, the claim has been found to be allowable over the prior art.
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.
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, Jonathan Liu can be reached at (571) 272-8227. 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.
/Taylor Morris/Primary Examiner, Art Unit 3631