DETAILED ACTION
This Non-Final Office Action is in response to the above identified patent application filed on October 28, 2024. Claims 21 – 40 are pending and currently being examined.
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 Objections
Claim 31 is objected to because of the following informalities:
Replace Claim 31, lines 6 – 13 with - - a crossbar having two ends and defining a longitudinal axis; and
a crossbar fastener assembly connecting the crossbar to each tower at the saddle of the tower;
wherein;
the crossbar is slidably connected to each tower by the respective crossbar fastener assembly while the crossbar fastener assembly is un-tightened, and the crossbar is locked to the tower when the crossbar fastener assembly is tightened, the crossbar being lockable at a continuous range of position, - -.
Appropriate correction is required.
Claim 38 is objected to because of the following informalities:
Replace Claim 38, lines 5 – 12 with - - loosening a crossbar fastener assembly at each of the pair of towers, the crossbar fastener assembly remaining extended between a saddle of the tower and a slot of the crossbar;
adjusting a height of each tower to support the crossbar at a desired height by sliding the inner tube in the outer tube of the telescoping intermediate portion of each tower while allowing the saddle of the respective tower to slide along the crossbar;
tightening each tower fastener assembly to lock the outer tube to the inner tube of the telescoping intermediate portion of the respective tower;
tightening each crossbar fastener assembly to lock the crossbar to the respective tower.” - -
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 30 & 38 – 40 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The term “substantially” in Claim 30 is a relative term which renders the claim indefinite. The term “substantially” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claim 30, recites: “wherein the crossbar includes “substantially” the same position-indicating indicia at each of first and second ends.”
The term “substantially” is a relative term that is unclear what it encompasses and how much of the position-indicating indicia is required to be considered “substantially” the same position-indicating indicia at each of first and second ends.
Therefore, the language as set forth in Claim 30 is unclear.
Claim 38, lines 1 – 12 recites: “A method of adjusting the height of a truck rack, comprising:
loosening a tower fastener assembly of each of a pair of towers of a truck rack, the tower fastener assembly remaining extended between an inner tube and an outer tube of a telescoping intermediate portion of the respective tower;
loosening a bar fastener assembly at each of the pair of towers, the bar fastener assembly remaining extended between a saddle of the tower and a slot of the crossbar;
adjusting a height of each tower to support the crossbar at a desired height by sliding the inner tube in the outer tube of the telescoping intermediate portion of each tower while allowing the saddle of the respective tower to slide along the crossbar;
tightening each tower fastener assembly to lock the outer tube to the inner tube of the telescoping intermediate portion of the respective tower;
tightening each bar fastener assembly to lock the crossbar to the respective tower.”
Claim 38 recites the limitation "the crossbar" in Claim 38, lines 6, 7, 9 & 12. There is insufficient antecedent basis for this limitation in the claim.
Claim 40 recites the limitation "the crossbar" in Claim 40, line 2. There is insufficient antecedent basis for this limitation in the claim.
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.
Claim 21 – 26, 29 & 31 – 39 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 – 6 & 8 – 15 of (U.S. Patent No. 11,541,948 B2) to Condon et al., in view of (U.S. Patent Number 9,566,914 B2) to Marr, Jr.
Regarding claim 21, (U.S. Patent No. 11,541,948 B2) to Condon et al., discloses a truck rack (50), comprising:
a pair of towers (64), each tower (64) including a telescoping intermediate portion (76) and an upper end portion (74), wherein the telescoping intermediate portion (74) of each tower (64):
is elongated along a linear axis and has an adjustable length (i.e. via (86) in Figure 2) for changing a height of the tower (64) along an inwardly sloped axis (See Figures 3 & 4),
includes an outer tube (88) and an inner tube (90) that slidably extends from the outer tube (88), the inner tube (90) defining a first axial slot (100A) and a second axial slot (100B), each elongated along the linear axis of the telescoping intermediate portion (76),
includes a first fastener assembly partially located in the first axial slot (100A), and a second fastener assembly partially located in the second axial slot (100B); each of the first fastener assembly and the second fastener assembly including an externally threaded fastener (92) disposed in threaded engagement with an internally threaded fastener (96) and being adjustable between a first configuration (i.e. Un-Fastened Configuration) permitting sliding between the inner and outer tube (90 & 88), and a second configuration (i.e. Tighten Fastened Configuration) preventing sliding between the inner and outer tube (90 & 88);
a crossbar (66), connected to the upper end portion (74) of each tower (64);
a pair of bases (62) configured to mount the pair of towers (64) on an upper wall region (52A & 52B) of a truck bed (54); and
the upper end portion (74) of one of the pair of towers (64),
wherein height adjustment of the crossbar (66) is permitted when the first and second fastener assemblies of each tower (64), and height adjustment is prevented when the fastener assemblies are in the second configuration (i.e. Fastened Configuration).
However, Condon et al., ‘948 lacks and does not explicitly disclose having an axial slot extending along a longitudinal axis; third and fourth fastener assemblies, each of the third and fourth fastening assemblies engaging the axial slot of the crossbar, and
being adjustable between a first configuration permitting sliding between the crossbar and the upper end portion of the respective tower, and a second configuration preventing sliding between the crossbar and the upper end portion of the respective tower, and
the third and fourth fastener assemblies are in the first configuration, without disengaging the fastening assemblies from the respective slots.
Marr, Jr., ‘914 teaches a crossbar (122), connected to the upper end portion (118) of each tower (116) and having an axial slot (122A) extending along a longitudinal axis (See Figure 26); third and fourth fastener assemblies (i.e. 1st & 2nd (142) in Figure 25), each of the third and fourth fastening assemblies (i.e. 1st & 2nd (142) in Figure 25) engaging the axial slot (122A) of the crossbar (122), and
being adjustable between a first configuration (i.e. Un-Fastened Configuration) permitting sliding between the crossbar (122) and the upper end portion (118) of the respective tower (116), and a second configuration (i.e. Fastened Configuration) preventing sliding between the crossbar (122) and the upper end portion (118) of the respective tower (116), and
the third and fourth fastener assemblies (i.e. 1st & 2nd (142) in Figure 25) are in the first configuration (i.e. Un-Fastened Configuration), without disengaging the fastening assemblies (i.e. 1st & 2nd (142) in Figure 25) from the respective slots (122A) (See Column 8, lines 35 – 37) (See Figures 5, 6, 24, 25 & 26).
It would have been obvious to one having ordinary skill in the art at the time the invention was effectively filed to make having an axial slot extending along a longitudinal axis; third and fourth fastener assemblies, each of the third and fourth fastening assemblies engaging the axial slot of the crossbar, and
being adjustable between a first configuration permitting sliding between the crossbar and the upper end portion of the respective tower, and a second configuration preventing sliding between the crossbar and the upper end portion of the respective tower, and
the third and fourth fastener assemblies are in the first configuration, without disengaging the fastening assemblies from the respective slots as taught by Marr, Jr., ‘914 with the truck rack of Condon et al., ‘948 in order to provide free slide configuration (See Column 8, lines 35 – 37).
Regarding claim 22, Condon et al., ‘948 discloses wherein the height of each tower (64) is continuously adjustable over a range of heights.
Regarding claim 23, Condon et al., ‘948 as modified by Marr, Jr., ‘914 discloses wherein the upper end portion (118) of each tower (64) forms a saddle (i.e. via (118C) in Figure 20) to receive a portion of the crossbar (122) (See Figures 24 & 25).
Regarding claim 24, Condon et al., ‘948 as modified by Marr, Jr., ‘914 discloses wherein the saddle (i.e. via (118C) in Figure 20) of each tower (64) includes a pair of walls (i.e. Upward Left & Right End Walls of (118) in Figure 20) to restrict transverse horizontal motion of a respective end of the crossbar (122).
Regarding claim 25, Condon et al., ‘948 discloses wherein height adjustment of the crossbar (122) includes adjusting each tower (64) along the inwardly sloped axis of that tower's telescoping intermediate portion (76) by concurrently (a) linearly extending the inner tube (90) from the outer tube (80).
Furthermore, Condon et al., ‘948 as modified by Marr, Jr., ‘914 discloses (b) sliding the saddle (i.e. via (118C) in Figure 20) inward along the crossbar (12) to change a distance between the saddle (i.e. via (118C) in Figure 20) and the respective end of the crossbar (122) (See Column 8, lines 35 – 37).
Regarding claim 29, Condon et al., ‘948 discloses wherein the pair of towers (i.e. Left & Right (64) in Figure 1) and the crossbar form a first crossbar assembly (58F), and further including a second crossbar assembly (58R) and a side rail (70) configured to be attached to, and extend between, corresponding towers (64) of the first and second crossbar assemblies (58F & 58R).
Regarding claim 31, Condon et al., ‘948 discloses a truck rack (50), comprising:
a pair of towers (i.e. Left & Right (64) in Figure 1), each tower (64) having a lower end portion (72) configured to be mounted on a truck (56), an upper end portion (74), a telescoping intermediate portion (76), and a tower fastener assembly (92 & 94) extending between an inner tube (90) and an outer tube (88) of the telescoping intermediate portion (76);
a crossbar (66) having two ends (i.e. Left & Right (146) in Figure 2) and defining a longitudinal axis (See Figures 1 – 4); and
the inner tube (90) of each tower (64) is slidably extensible from the outer tube (88) of the tower (64) while the tower fastener assembly (92 & 94) is un-tightened, and the outer tube (88) is locked to the inner tube (90) when the tower fastener assembly (92 & 94) is tightened, the outer tube (88) being lockable at a continuous range of positions (See Figure 3), and
each tower (64) extends upward in an inwardly sloped direction by concurrently (a) linearly extending the inner tube (90) from the outer tube (88).
However, Condon et al., ‘948 lacks and does not explicitly disclose forming a saddle, a crossbar fastener assembly (166) connecting the crossbar to each tower at the saddle of the tower; wherein:
the crossbar is slidably connected to each tower by the respective bar fastener assembly while the crossbar fastener assembly is un-tightened, and the crossbar is locked to the tower when the crossbar fastener assembly is tightened, the crossbar being lockable at a continuous range of positions, and
(b) sliding the saddle inward along the crossbar to increase a distance between the saddle and the respective end of the crossbar.
Marr, Jr., ‘914 teaches forming a saddle (i.e. via (118C) in Figure 20), a crossbar fastener assembly (142) connecting the crossbar (122) to each tower (116) at the saddle (i.e. via (118C) in Figure 20) of the tower (116); wherein:
the crossbar (122) is slidably connected to each tower (116) by the respective crossbar fastener assembly (142) while the crossbar fastener assembly (142) is un-tightened, and the crossbar (122) is locked to the tower (116) when the crossbar fastener assembly (142) is tightened, the crossbar (142) being lockable at a continuous range of positions, and
(b) sliding the saddle (i.e. via (118C) in Figure 20) inward along the crossbar (122) to increase a distance between the saddle (i.e. via (118C) in Figure 20) and the respective end of the crossbar (122) (See Figure 20, 24 & 25).
It would have been obvious to one having ordinary skill in the art at the time the invention was effectively filed to make forming a saddle, a crossbar fastener assembly (166) connecting the crossbar to each tower at the saddle of the tower; wherein: the crossbar is slidably connected to each tower by the respective bar fastener assembly while the crossbar fastener assembly is un-tightened, and the crossbar is locked to the tower when the crossbar fastener assembly is tightened, the crossbar being lockable at a continuous range of positions, and (b) sliding the saddle inward along the crossbar to increase a distance between the saddle and the respective end of the crossbar as taught by Marr, Jr., ‘914 with the truck rack of Condon et al., ‘948 in order to provide free slide configuration (See Column 8, lines 35 – 37).
Regarding claim 32, Condon et al., ‘948 as modified by Marr, Jr., ‘914 discloses wherein each bar fastener assembly includes:
an internally-threaded fastener (i.e. 1st & 2nd Nut (144)) located in an axial slot (122A) of the crossbar (122), including a first aperture (i.e. Aperture Portion of 1st (144)) and a second aperture (i.e. Aperture Portion of 2st (144)) which are aligned along the axial slot (122A),
a first externally-threaded fastener (i.e. 1st Bolt (142)) that extends from the saddle (i.e. via (118C) in Figure 20) of the one of the towers (116) and into threaded engagement with the first aperture (i.e. Aperture Portion of 1st (144)) of the internally-threaded fastener (i.e. via 1st Bolt (144)), and
a second externally-threaded fastener (i.e. via 2nd Bolt (142)) that extends from the saddle (i.e. via (118C) in Figure 20) of the one of the towers (116) and into threaded engagement with the second aperture (i.e. Aperture Portion of 2st (144)) of the internally-threaded fastener (i.e. via 2nd Bolt (144)) (See Column 8, lines 27 – 48) (See Figures 20 & 25).
Regarding claim 33, Condon et al., ‘948 discloses wherein: the intermediate portion (76) defines a first axial slot (100A) and a second axial slot (100B), each elongated along a longitudinal axis of the intermediate portion (76), the tower fastener assembly (92A & 94A) is partially located in the first axial slot (100A), extending from the outer tube (88) to the inner tube (90), the intermediate portion (76) includes a second fastener assembly (92B & 94B) partially located in the second axial slot (100B), and the tower fastener assembly (92A & 94A) and the second fastener assembly (92B & 94B) are each adjustable to lock the outer tube (88) to the inner tube (90) such that the length of the intermediate portion (76) is fixed.
Regarding claim 34, Condon et al., ‘948 discloses wherein the pair of towers (i.e. Left & Right (64) in Figure 1) and the crossbar (66) form a first crossbar assembly (58F), and further including a second crossbar assembly (58R) and a side rail (70) configured to be attached to, and extend between, corresponding towers (64) of the first and second crossbar assemblies (58F & 58R), wherein the side rail (70) includes an outer tube (396), an inner member (398) that is extendable from the outer tube (396) to adjust a length of the side rail (70), and a sleeve (440) through which the inner member (398) extends, the outer tube (396) defining a first axial slot (402B) and the sleeve (440) defining a second axial slot (448A) (See Figures 1, 25, 26, 27, 28 & 29).
Regarding claim 35, Condon et al., ‘948 discloses wherein the inner tube (90) defines an axial slot (100A) and the tower fastener assembly (92 & 94) includes an externally threaded fastener (i.e. via Bolt w/ External Threaded Portion of (92 & 94) in Figures 6 & 7) disposed in threaded engagement (96) with an internally-threaded fastener (96), the internally threaded fastener (96) being located in the axial slot (100A) and the externally threaded fastener (i.e. via Bolt w/ External Threaded Portion of (92 & 94) in Figures 6 & 7) having a head (i.e. via Bolt Head) located outside the outer tube (88) (See Figures 1, 2, 3, 4, 5, 6 & 7).
Regarding claim 36, Condon et al., ‘948 as modified by Marr, Jr., ‘914 discloses wherein the saddle (i.e. via (118C) in Figure 20) of each tower (116) includes a pair of walls (i.e. Upward Left & Right End Walls of (118) in Figure 20) to restrict transverse horizontal motion of the respective end of the crossbar (122) (See Figures 24 & 25).
Regarding claim 37, Condon et al., ‘948 discloses wherein tightening the tower fastener assembly (92 & 94) of one of the towers (64) compresses the outer tube (88) and the inner tube (90) of the intermediate portion (76) of the tower (64) toward one another, to prevent the outer tube (88) and the inner tube (90) from sliding axially relative to one another.
Regarding claim 38, Condon et al., ‘948 discloses the method of adjusting the height of a truck rack (50) comprising:
loosening a tower fastener assembly (92 & 94) of each of a pair of towers (64) of a truck rack (50), the tower fastener assembly (92 & 94) remaining extended between an inner tube (90) and an outer tube (88) of a telescoping intermediate portion (76) of the respective tower (64);
adjusting a height of each tower to support the crossbar (66) at a desired height by sliding the inner tube (90) in the outer tube (88) of the telescoping intermediate portion (76) of each tower (64);
tightening each tower fastener assembly (92 & 94) to lock the outer tube (88) to the inner tube (90) of the telescoping intermediate portion (76) of the respective tower (64).
However, Condon et al., ‘948 lacks and does not explicitly disclose loosening a crossbar fastener assembly at each of the pair of towers, the crossbar fastener assembly remaining extended between a saddle of the tower and a slot of the crossbar; while allowing the saddle of the respective tower to slide along the crossbar; and tightening each crossbar fastener assembly to lock the crossbar to the respective tower.
Marr, Jr. ‘914 teaches the method steps of loosening a crossbar fastener assembly (142) at each of the pair of towers (i.e. Left & Right (116) in Figure 24), the crossbar fastener assembly (142) remaining extended between a saddle (i.e. via (118C) in Figure 20) of the tower (116) and a slot (122A) of the crossbar (122); while allowing the saddle (i.e. via (118C) in Figure 20) of the respective tower (116) to slide along the crossbar (122); and tightening each crossbar fastener assembly (142) to lock the crossbar (122) to the respective tower (116) (See Column 8, lines 19 – 48) (See Figures 20, 24 & 25).
It would have been obvious to one having ordinary skill in the art at the time of the invention was effectively filed to make loosening a crossbar fastener assembly at each of the pair of towers, the crossbar fastener assembly remaining extended between a saddle of the tower and a slot of the crossbar; while allowing the saddle of the respective tower to slide along the crossbar; and tightening each crossbar fastener assembly to lock the crossbar to the respective tower as taught by Marr, Jr. ‘914 with the truck rack of Condon et al., ‘948 in order to provide free slide configuration (See Column 8, lines 35 – 37).
Claim(s) 26, is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 – 6 & 8 – 15 of (U.S. Patent No. 11,541,948 B2) to Condon et al., in view of (U.S. Patent Number 9,566,914 B2) to Marr, Jr as applied to claim 21 above.and further in view of (U.S. Patent Number 7,984,941 B2) to Lorenzo et al.
Regarding claim 26, Condon et al., ‘948 discloses wherein the telescoping intermediate portion (76) of each tower (64) includes the inner and outer tubes (90 & 88).
However, Condon et al., ‘948 as modified by above lacks and does not explicitly disclose a bushing.
Lorenzo et al., ‘941 teaches wherein the telescoping intermediate portion (i.e. Middle Portion of (24) in Figure 3) of each tower (24) includes a bushing (31) between the inner and outer tubes (35 & 33) (See Figure 3).
It would have been obvious to one having ordinary skill in the art at the time the invention was effectively filed to make a bushing as taught by Lorenzo et al., ‘941 with the truck rack of Condon et al., ‘948 in order to provide stability for the inner telescopic tube (See Column 4, lines 22 – 23).
Claim(s) 39 is is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 – 6 & 8 – 15 of (U.S. Patent No. 11,541,948 B2) to Condon et al., in view of (U.S. Patent Number 9,566,914 B2) to Marr, Jr., as applied to claim 38 above, and further in view of (U.S. Patent Number 4,638,563) to Buniff.
Regarding claim 39, Condon et al., ‘948 discloses the method of wherein adjusting the height of each tower (64) includes equalizing the tower (64) heights.
However, Condon et al., ‘948 lacks and does not explicitly disclose the method steps of including comparing indicia.
Buniff ‘563 teaches the method steps of wherein adjusting the height of the tower (12 & 14) includes comparing indicia (i.e. English & Metric System of Measurement markings of (12 & 14) in Figures 4 & 5) to equalize the tower (12 & 14) (See Column 3, lines 21 – 24).
It would have been obvious to one having ordinary skill in the art at the time the invention was effectively filed to make the method steps of including comparing indicia as taught by Buniff ‘563 with the truck rack of Condon et al., ‘948 in order to provide accurate and precise height adjustment.
Allowable Subject Matter
Claims 27 & 28 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 30 & 40 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
(U.S. Patent Publication Number 2007 / 0145202 A1) to Hsieh teaches the tower (10) includes a bushing (13) between the inner and outer tubes (11 & 12) (See Figures 1 & 3).
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/L.L.V/Examiner, Art Unit 3734
/NATHAN J NEWHOUSE/Supervisory Patent Examiner, Art Unit 3734
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