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 with traverse of species IV, Figs. 14-20 in the reply filed on 05/14/2026 is acknowledged. The traversal is on the ground(s) that Figures 14-20 are different view of that same shower system 100 which is capable of transitioning between a standing position shown in Figs. 1-8 and a seated position shown in Figs. 9-22.This is found persuasive. Therefore, the restriction requirement among inventions I, II, III, IV and V, as set forth in the Office action mailed on 03/27/2026, is hereby withdrawn.
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 1-20 of U.S. Patent No. 12,137,850. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 1 of the present application teaches a shower system comprising a shower system comprising: a shower frame; a plurality of nozzles located on the shower frame and configured to spray water from the shower frame; and a shower seat pivotally connected to the shower frame and configured to pivot between a first position and a second position relative to the shower frame, all of which are recited in claim 1 of the US patent.
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.
Claims 1, 6-7, 15, 19-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Peng et al. (2022/0259841).
Regarding claim 1, Peng et al. disclose a shower system comprising: a shower frame 3,1, 61 ;a plurality of nozzles 3 located on the shower frame 3,1,61 and configured to spray water from the shower frame 3,1,61; and a shower seat 62 pivotally connected to the shower frame 3,1,61 and configured to pivot between a first position (Fig. 2) and a second position (Fig. 3) relative to the shower frame 3,1,61.
Regarding claim 6, Peng et al. disclose a mounting structure 61 configured to be mounted on a substantially vertical surface; wherein the shower seat 62 is hingedly connected to the mounting structure 61 along a rear edge of the shower seat 62.
Regarding claim 7, the shower seat 62 is pivotally connected to the shower frame 3,1,61 along a side edge of the shower seat 62 such that: the shower frame 3,1,61 moves toward a wall upon which the shower system is mounted when the shower seat 62 moves into the second position; and the shower frame 3,1,61 moves away from the wall upon which the shower system is mounted when the shower seat 62 moves into the first position.
Regarding claim 15, Peng et al. disclose a shower system comprising: a waterway 3 comprising a plurality of nozzles 31; a shower seat 62 comprising a seat base 62 configured to support a user in a seated position and a seat back 61; and a set of controls 4 located on the shower seat and configured to control a flow of water to the plurality of nozzles 31.
Regarding claim 19, the waterway comprises a shower frame 3,1,61 comprising a plurality of substantially coplanar frame segments 3 forming at least part of a perimeter of the shower frame 3,1,61; and the plurality of nozzles 31 are distributed across the plurality of substantially coplanar frame segments 3,1,61 and configured to spray water inward from the perimeter of the shower frame 3,1,61.
Regarding claim 20, the seat base 62 is pivotally connected to the seat back 61 and configured to pivot between a first position in which the seat base 62 is substantially perpendicular to the seat back 61 and a second position in which the seat base 62 is substantially parallel with the seat back 61.
Allowable Subject Matter
Claims 2-5 and 16-18 are 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 8-14 are allowed.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Yoshida et al. teach a shower system comprising a shower frame 47, 28; a plurality of nozzles 48 on the frame 47,28 and a shower seat 29 pivotally connected to the shower frame 47, 28.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HUYEN D LE whose telephone number is (571)272-4890. The examiner can normally be reached Monday-Friday.
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, David Angwin can be reached at 517-270-3735. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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HUYEN D. LE
Primary Examiner
Art Unit 3754
/HUYEN D LE/Primary Examiner, Art Unit 3754
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