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 Rejections - 35 USC § 102
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 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.
(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.
Claims 1, 2, 5, 6, and 9 are rejected under 35 U.S.C. 102(a)(1) (a)(2) as being anticipated by Niu (US 8851956).
Regarding claim 1, Niu discloses a plant cover device comprising: an upper end comprising a sealed contiguous apex and defining a plant-receiving cavity therein (uppermost portion of canopy 20, col. 4, ll. 18-20, fig. 1a); a lower tubular end opposite the upper end (side tent fabric 50, col. 4, ll. 57-60, fig. 1a); a medial annular ring-shaped seam coupled between the upper end and the lower tubular end and extending around a peripheral edge of the plant-receiving cavity (sleeve 12, col. 4, ll. 14-17, fig. 1a); the upper end comprising an upper major mesh surface (mesh 212, fig. 1a), and a seam extending along a peripheral edge of the upper major mesh surface (edge attaching mesh 212 to canopy 20, fig. 1a); the lower tubular end comprising a lower major mesh surface (mesh 52, fig. 1a) and having a first end and a second end opposite the first end (top portion and bottom portion of side tent fabric 50, fig. 1a), the first end being coupled to the medial annular ring-shaped seam (upper portion of side tent fabric 50 is coupled to canopy 20, col. 4, ll. 60-62, fig. 1a), the lower tubular end also partially defining the plant-receiving cavity therein (fig. 1a); and a flexible rod carried within the medial annular ring-shaped seam (main spring wire 11, col. 4, ll. 15-17).
Regarding claim 2, Niu discloses wherein the second end of the lower tubular end comprises a solid section at a lowermost end of the lower tubular end (sleeve 42, col. 4, ll. 62-64, fig. 1a).
Regarding claim 5, Niu discloses wherein the flexible rod comprises a loop-shaped support (col. 4, ll. 15-16, fig. 1a).
Regarding claim 6, Niu discloses wherein the flexible rod comprises a single piece flexible rod (main spring wire 11 extends around canopy 20, fig. 2a and 2b).
Regarding claim 9, Niu discloses wherein each of the upper major mesh surface and the lower major mesh surface has water permeability and light transmissivity, and prevents intrusion by insects (light and water can enter the playhouse through openings 211 and openings 51A and the nets would prevent insects from entering).
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 3, 8 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Niu.
Regarding claim 3, Niu teaches the invention substantially as claimed but fails to teach wherein the solid section is opaque to visible light radiation and waterproof. It would have been obvious to one having ordinary skill in the art before the effective filing date to have a solid section, since 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 obviousness. In re Leshin, 125 USPQ 416. See also Ballas Liquidating Co. v. Allied industries of Kansas, Inc. (DC Kans) 205 USPQ 331. 4.
Regarding claim 8, Niu teaches the invention substantially as claimed and further teaches wherein each of the upper major mesh surface and the lower major mesh surface comprises a plurality of mesh openings (nets 212, col. 4, ll. 26-28 and nets 52, col. 4, ll. 65-67) but fails to teach each opening having a diameter of less than 300µm. It would have been an obvious matter of design choice before the effective filing date to make the different portions of the net of whatever form or shape was desired or expedient, in order to appeal to large variety of user. A change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. In re Dailey et al., 149 USPQ 47.
Regarding claim 21, Niu teaches the invention substantially as claimed but fails to teach wherein the medial annular ring-shaped seam includes an outer mesh piece, and an annular sleeve coupled to the outer mesh piece. It would have been an obvious matter of design choice before the effective filing date to make the different portions of the seam of whatever form or shape was desired or expedient, in order to allow a large variety of wires to be positioned within the sleeve. A change in ornamental design having no mechanical function is an aesthetic design consideration within the skill of the art. In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947).
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Niu in view of Brady (US 5137044).
Regarding claim 4, Niu teaches the invention substantially as claimed but fails to teach wherein the second end of the lower tubular end comprises a drawstring coupled at a lowermost end of the lower tubular end. However, Brady teaches a drawstring coupled to a tubular end (drawstring 31, col. 6, ll. 6-7, fig. 1). It would have been obvious to one having ordinary skill in the art before the effective filing date to modify Niu’s system with a drawstring as taught by Brady to allow the device to be easily stored away when not in use.
Allowable Subject Matter
Claim 10 is 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.
Claims 11-16, 18-20 and 22 are allowed.
The prior art fail to disclose wherein each of the upper major mesh surface and the lower major mesh surface comprises colored mesh material to selectively diffract at least one spectral portion of visible light radiation.
Response to Arguments
Applicant’s arguments with respect to claim(s) Applicant’s arguments, see page 3, filed 3/2/2026, with respect to the rejection(s) of claim(s) 1-6, 8-16, and 18-22 under 102 and 103 rejections have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Niu (US 8851956).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to EBONY E EVANS whose telephone number is (571)270-1157. The examiner can normally be reached 9am -5pm EST.
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/EBONY E EVANS/Primary Examiner, Art Unit 3647
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