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
Applicant’s election without traverse of Species B in the reply filed on 4/27/26 is acknowledged.
Applicant appears to assert that claims 1-20 read on the elected species. The examiner respectfully disagrees and finds that claims 9 and 20, reciting limitations pertaining to a telescoping member, are directed to species A. Accordingly, claims 9 and 20 are withdrawn from consideration as being directed to a non-elected species. Claims 1-8 and 10-19 remain for examination.
Drawings
The drawings are objected to because they are black and with photocopies of photographs and/or renderings from a CAD program. Line drawings are required.
All drawings must be made by a process which will give them satisfactory reproduction characteristics. Every line, number, and letter must be durable, clean, black (except for color drawings), sufficiently dense and dark, and uniformly thick and well-defined. The weight of all lines and letters must be heavy enough to permit adequate reproduction. This requirement applies to all lines however fine, to shading, and to lines representing cut surfaces in sectional views. Lines and strokes of different thicknesses may be used in the same drawing where different thicknesses have a different meaning.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the tip protrusion (cl. 15) must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claim 2 is objected to because of the following informalities: “a shower wall” should be --the shower wall--. 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.
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.
Claim(s) 1, 2, 6, 7, and 10 - 14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Micciche (US 5,732,420).
Regarding claim 1, Micciche discloses a shower curtain retainer for controlling a position of a shower curtain or shower liner bordering a shower (1), the shower curtain retainer comprising: an elongate rod member (14, 12); a base member (18’); a pivot hinge (38) connecting the elongate rod member to the base member, wherein the pivot hinge allows the elongate rod member to rotate between an in-use position (see fig. 1) and a non-use position (see fig. 3); and wherein in the in-use position with the base member attached to a shower wall, the elongate rod member is oriented substantially perpendicular to the shower wall to restrain the shower curtain or the shower liner (see fig. 1)(col. 3, ln. 38-62) and in the non-use position, the elongate rod member is substantially aligned with the shower wall (see fig. 3)(col. 6, ln. 31-37).
Regarding claim 2, Micciche also shows a means for attaching (col. 5, ln. 47-51) the base member (18) to the shower wall (3’).
Regarding claim 5, Micciche shows that the elongate rod member (12, 14) is cylindrical in cross section (see fig. 3 in particular) and is made from plastic (col. 2 ln. 39-48).
Regarding claim 6, Micciche shows that the pivot hinge comprises a bolt (38, securing rod member) and is mechanically configured to constrain the elongate rod member to rotate only between the in use and non-use positions (see fig. 1, fig. 3; note that there are no intermediate rotational positions).
Regarding claim 7, Micciche shows that the base member is attachable to the shower wall using hardware (col. 5, ln. 47-51; note: fasteners).
Regarding claims 10 and 11, Micciche shows that the elongate rod member is a main rod section (14) and an extension rod section (12) which are pivotally connected (at 21).
Regarding claim 12, Micciche shows that extension rod section is rotatable about the main rod section in a vertical plane when attached to the shower wall to switch between a retracted position and a projected position. See fig. 3, extension section 12 rotates about a vertical plane defined through hinge structure 21 and parallel to wall surface 3’ and in a vertical plane extending perpendicular to wall surface 3’. See also arrow showing direction of rotation in fig. 3.
Regarding claims 13 and 14, Micciche shows extension rod section and the main rod section comprise paired attachment elements (19b, 19a), the paired attachment elements keeping the extension rod section in parallel with the main rod section when the extension rod section is in the retracted position (see fig. 3); wherein the pair attachment mechanism are latch mechanisms (col. 5, ln. 11; note clip) or snap fit connectors (col. 5, ln. 12-18; semi cylindrical clip members having diameters substantially equal to the diameter or the rod elements).
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.
Claim(s) 3, 4, and 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Micciche, as applied to claim 1, in view of van den Bosch (US 2006/0218717).
Regarding claim 3, Micciche shows all of the instant invention as discussed above, and further shows that the elongate rod member rotates about the pivot hinge to extend substantially perpendicular to the shower wall to control the position of the curtain or liner and thereby increase the usable interior space in the shower (see fig. 1, to the extent that the elongate rod member prevents the curtain from being blown into the shower area, the usable interior space has been increased). Micciche however, does not show that the elongate rod member is rotatably horizontally about the pivot hinge, instead showing that it drops vertically. Attention is turned to van den Bosch which teaches a similar shower curtain retainer (202) which pivots horizontally about a pivot axis (204), see horizontal arrows in fig. 2. It would have been obvious to one having ordinary skill in the art at the time of effective filing to have oriented the base member of Micciche such that the elongate member rotates horizontally about the pivot hinge in order to allow for a different storage configuration, depending on the size of the shower stall.
Regarding claim 4, Micciche as modified shows all of the instant invention as discussed above and further provides that the elongate rod member is rotatably horizontally to lie substantially flush against the shower wall. See fig. 2 of van den Bosch or fig. 3 of Micciche (with 3’ being the wall surface).
Regarding claim 8, Micciche as modified shows all of the instant invention as discussed above, and further that the base member is incorporated into a pre-fabricated wall, but it is not clear if it is the shower stall or not. Attention is again turned to van den Bosch, which teaches that it is known to incorporate the base member (204) of an elongate rod member into a pre-fabricated shower stall (218). It would have been obvious to one having ordinary skill in the art to have applied the base to the prefabricated shower wall in order to avoid attachment to the non-water contacting surface.
Claim(s) 15 - 16 are rejected under 35 U.S.C. 103 as being unpatentable over Micciche, as applied to claim 1, in view of Mott et al. (US 1,933,994).
Regarding claim 15, Micciche shows all of the instant invention as discussed above, and further shows a first pivot reception plate (35) which is engaged by the elongate member when in the deployed position, but is silent as to the particulars. Attention is turned to Mott which teaches a similar curtain restraining device (10) having a base member with a pivot reception plate (21) and an elongate rod member (20) with a first engagement protrusion (31), where the first engagement protrusion engages with the plate when the elongate rod member is deployed in the use position (see fig. 2, engagement of 31 with free edge of 29). It would have been obvious to one having ordinary skill in the art at the time of effective filing to have provided mating receptors and protrusions in the device of Micciche in order to firmly hold the rod member in the deployed position and prevent accidental closure or movement thereof.
Regarding claim 16, Micciche as modified shows all of the instant invention and further shows that the first pivot reception plate includes a tip protrusion (free end of 29)(fig. 2), and the first engagement protrusion engages with the first pivot reception plate by the tip protrusion ‘clasping’ the engagement protrusion when the elongate rod member is in the use position. Note: Applicant neither shows nor describes the tip protrusion or first engagement protrusion clasping function and thus to the extent that 29 defines a free end which engages with 31, it is considered a tip protrusion that clasps the engagement protrusion.
Claim(s) 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Micciche, as applied to claim 1, in view of Boye (US 2,220,411).
Regarding claims 17 - 18, Micchiche shows all of the instant invention as discussed above, and further shows that the base member comprises a second pivot reception plate (32) that engages with the elongate rod member when deployed in the non-use position (see fig. 3), but is silent as to the particulars. Attention is turned to Boye which teaches a similar curtain restrainer (10) having a base member (13) with a second pivot reception plate (15) having a reception cavity (17) in which a second engagement protrusion (21) is accommodated when the elongate member is in the non-use position (see fig. 3). It would have been obvious to one having ordinary skill in the art at the time of effective filing to have provided mating receptors and protrusions in the device of Micciche in order to firmly hold the rod member in the non-use position and prevent accidental opening or movement thereof.
Regarding claim 19, Micciche shows all of the instant invention as discussed above and further provides at least one alignment plate (34) which aligns with fringe sections (e.g., the outer circumference) of the elongate rod member when the elongate rod member is deployed in the non-use position.
Conclusion
Lupton (US 1,746,269) shows a curtain restrainer of interest to the instant invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERIN L DEERY whose telephone number is (571)270-1928. The examiner can normally be reached Mon - Thur, 7:30am - 4:30pm; Fri 8:00am-12:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Angwin can be reached at (571) 270-3735. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ERIN DEERY/Primary Examiner, Art Unit 3754
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