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 1-3, 5, 7 and 8 are rejected under 35 U.S.C. 102(a)(1) (a)(1) as being anticipated by D’ulisse (US 3477453).
Regarding claim 1, D’ulisse teaches a plant cover device comprising: an upper end comprising a sealed apex and defining a plant-receiving cavity therein (see figure 1 below); a lower tubular end opposite said upper end (see figure 1 below); a medial seam coupling the upper end and the lower tubular end (see figure 1 below), the upper end comprising an upper major mesh surface (col. 2, ll. 28-30), and a seam extending along a peripheral edge of the upper major mesh surface (fig. 1); the lower tubular end comprising a lower major mesh surface and having a first end and a second end opposite the first end, the first end being coupled to the medial seam, the lower tubular end also partially defining the plant-receiving cavity therein (see figure 1 below); and a flexible support carried by the medial seam (loops 24, col. 2, ll. 33-35, see figure 1 below).
Regarding claims 2 and 12, D’ulisse discloses wherein the second end of the lower tubular end comprises a solid section at a lowermost end of the lower tubular end (edging 23, see figure 1 below).
Regarding claims 3 and 13, D’ulisse discloses wherein the solid section is opaque to visible light radiation and waterproof (col. 2, ll. 24-27 and 30-33, heavy canvas is opaque and known to be a waterproof material).
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Regarding claims 5 and 15, D’ulisse discloses wherein the flexible support comprises a loop-shaped support (loop 24, fig. 1).
Regarding claim 11, D’ulisse discloses method of covering a plant with a plant cover device, the method comprising: providing the plant cover device with an enclosure comprising an upper end comprising a sealed apex and defining a plant-receiving cavity therein (see figure 1 below) a lower tubular end opposite the upper end (see figure 1 below), a medial seam coupling the upper end and the lower tubular end (see figure 1 below), and a flexible support carried by the medial seam (loops 24, col. 2, ll. 33-35, see figure 1 below), the upper end comprising an upper major mesh surface (col. 2, ll. 28-30), and a seam extending along a peripheral edge of the upper major mesh surface (see figure 1 below), the lower tubular end comprising a lower major mesh surface and having a first end and a second end opposite the first end (adaptor 20 is formed from a net, col. 2, ll. 28-30), the first end being coupled to the medial seam, the lower tubular end also partially defining the plant-receiving cavity therein (see figure 1 below); and
positioning the plant within the plant cover device by lowering the enclosure over the plant (adaptor 20 is lowered over an umbrella positioned on a ground thus would be lowered over any vegetation located in the area).
Regarding claim 12, see claim 2 above.
Regarding claim 13, see claim 3 above.
Regarding claim 14, see claim 4 above.
Regarding claim 15, see claim 5 above.
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 4 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over D’ulisse further in view of Dubinsky (US 3490469).
Regarding claim 4, D’ulisse 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, Dubinsky teaches a drawstring coupled at a lowermost end (drawstring 44, fig. 1). It would have been obvious to one having ordinary skill in the art before the effective filing date to modify D’ulisse’s cover with a drawstring as taught by Dubinsky to maintain the device in a compact closed configuration for storage and/or transportation.
Claims 6, 7, 16 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over D’ulisse in view of Kays (US 4144899).
Regarding claims 6 and 16, D’ulisse teaches the invention substantially as claimed but fails to teach wherein the flexible support comprises a single piece flexible rod. However, Kays teaches a cover comprising a curved flexible support rod inserted into a seam (col. 3, ll. 6-10, rod 15 is inserted into sleeve 31). It would have been obvious to one having ordinary skill in the art before the effective filing date to modify D’ulisse’s seam with a rod as taught by Kays to provide added support.
Regarding claims 7 and 17, D’ulisse teaches the invention substantially as claimed but fails to teach wherein the medial seam comprises an annular sleeve; and wherein the flexible support is carried within the annular sleeve. However, Kays teaches a medial seam comprising an annular sleeve (sleeve 31, col. 3, ll. 6-10). It would have been obvious to one having ordinary skill in the art before the effective filing date to modify D’ulisse’s seam with a sleeve as taught by Kays to allow a support to be inserted to provide added support during use.
Claims 8 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over D’ulisse.
Regarding claims 8 and 18, D’ulisse discloses wherein each of the upper major mesh surface and the lower major mesh surface comprises a plurality of mesh openings (col. 2, ll. 28-30) but fails to teach each opening having a diameter of less than 300um. It would have been an obvious matter of design choice to have each opening have a diameter of less than 300um, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
Claims 9 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over D’ulisse in view of Bakowski (US 2007/0079548).
Regarding claims 9 and 19, D’ulisse teaches the invention substantially as claimed but fails to teach 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. However, Bakowski teaches a mesh surface that has water permeability and light transmissivity, and prevents intrusion by insects (cover 4 is formed from a flexible material sheet that is air permeable and light transmissive, para. 0033, ll. 5-7). It would have been obvious to one having ordinary skill in the art before the effective filing date to modify D’ulisse’s material with a material as taught by Bakowski to allow a user to see into the interior of the cover and to allow water to pass through the cover to prevent to material from being saturated i.e. after a rain fall.
Claims 10 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over D’ulisse in view of in view of Bilotti (US 5678587).
Regarding claims 10 and 20, D’ulisse teaches the invention substantially as claimed but fails to teach 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. However, Bilotti teaches a major mesh surface of a plurality of panels comprising a colored mesh material (col. 4, Il. 11-12). It would have been obvious to one having ordinary skill in the art before the effective filing date to modify D’ulisse material with color material as taught by Bilotti to appeal to a variety of users.
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