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.
Claim(s) 18 is/are rejected under 35 U.S.C. 102a1 as being anticipated by Ransil (US Pat. No. 9,908,551) or Horst (US Pub. No. 2017/0313337).
Regarding claim 18, Ransil discloses A carrier frame comprising: a first tubular member (16); a second tubular member (12) pivoted to the first tubular member; a third tubular member (14) pivoted to the second tubular member; a fourth tubular member (42) pivoted to the first tubular member, the fourth tubular member being foldable relative to the first tubular member (figs 2-4); and a locking structure (at least 364) locking the first tubular member and the fourth tubular member in a folded state (at least Abstract).
Horst also discloses A carrier frame comprising: a first tubular member (116); a second tubular member (114) pivoted to the first tubular member; a third tubular member (112) pivoted to the second tubular member; a fourth tubular member (118) pivoted to the first tubular member, the fourth tubular member being foldable relative to the first tubular member (figs 7-8); and a locking structure (generally at 172) locking the first tubular member and the fourth tubular member in a folded state (para. 29-34).
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-28 of U.S. Patent No. 12,145,644. Although the claims at issue are not identical, they are not patentably distinct from each other because the limitations of claims 1-20 of the instant application are disclosed or implied in at least claims 1-28 of the U.S. patent noted above. The limitations of the instant application are no more than a broadening or rearrangement of the limitations of the above noted U.S. Patent claims. There are no substantive differences between the instant application claims under rejection as compared to the referenced patent claims noted. The reasons why a person of ordinary skill in the art would conclude that the invention defined in the claims noted above at issue is anticipated by, or would have been an obvious variation of the invention defined in the claims of the patent noted above are as follows: it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have designed a folding carrier frame according to claims 1-20 of the instant application, since the instant application claims similar limitations which can be found in claims 1-28 of the prior patent, and since Applicant has not disclosed that the alleged invention of the above noted claims of the instant application provide any additional novelty over the claims of the above noted patent and since it would have been within the level of ordinary skill in the art to provide a folding carrier frame according to claims 1-20 of the instant application in view of the prior patent claims. Therefore, there are no limitations in the instant application claims that result in the claims being at least non-obvious over the patented case. See claim comparisons below.
Instant application claim:
Corresponding prior patent claim comprising the same features:
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Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JACOB B MEYER whose telephone number is (571)270-3535. The examiner can normally be reached Monday - Friday 9-7.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, J Allen Shriver can be reached at 303.297.4337. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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JACOB B. MEYER
Primary Examiner
Art Unit 3613
/JACOB B MEYER/Primary Examiner, Art Unit 3613
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