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 .
Priority
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in Australia on 05 December 2023. It is noted, however, that applicant has not filed a certified copy of the Australian application as required by 37 CFR 1.55.
Information Disclosure Statement
A copy was not provided for the non-patent literature reference to “Treecreper Box 2B”. Therefore, this reference has not been considered by the examiner.
Claim Objections
Claims 1, 20, 21 are objected to because of the following informalities:
Preamble of all independent claims 1, 20, and 21 are missing commas between “birds, mammals, or reptiles”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
Claims 8 and 13-15 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.
Claims 8 and 13 are apparatus claims, but they are written as method claim steps and do not provide further limiting structure to the independent claim. The mix of method steps in the apparatus claim structure renders the claim indefinite. Clarification is requested.
Claims 14 and 15 are rejected as being dependent upon a rejected base claim.
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) 1, 2, 13, 16, 20, 21, 22 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by U.S. Patent No. 1,169,409 to Larson.
Regarding Claim 20, Larson teaches a nesting enclosure for birds, mammals, or reptiles comprising a body (Larson Fig. 1 #1, #2, #3, #4) securable to a tree trunk and so shaped that when the enclosure is secured to the tree trunk a nesting space is defined that is substantially closed save for an access opening (Larson Fig. 1 #10) in the nesting enclosure the nesting space being partly bounded by the body and partly bounded by a surface of the tree trunk (Larson lines 65-67).
Regarding Claim 21, Larson teaches a nesting enclosure for birds, mammals, or reptiles, the nesting enclosure being securable to a tree trunk and so shaped that when the enclosure is secured to the tree trunk, a nesting space is defined that is partly bounded by the enclosure (Larson Fig. 1 #1, #2, #3) and partly bounded by a surface of the tree trunk (Larson lines 65-67) and adapted to retain therein material shredded from the surface; (italics indicates functional language the structure of Larson is “capable of” receiving shredded material; this is an apparatus claim and the limitations of the claim need to structurally define over the prior art of record, applicant hasn’t positively claimed the shredded material) wherein the enclosure comprises an assembly of a top module (Larson Fig. 1 #1) and a base module (Larson Fig. 1 #4; applicant doesn’t structurally claim the features of a “module” thus the broad term is interpreted as the bottom and top components/elements i.e. modules).
Regarding Claim 22, Larson teaches the enclosure also comprises a body including the assembly of the top module (Larson Fig. 1 #1), the base module (Larson Fig. 1 #4) and a body section (Larson Fig. 1 #3 and #2) therebetween, the top module being secured to an upper end of the body section; the base module being secured to a lower end of the body section; and the nesting space lying between the base module and the top module.
Regarding Claims 1, 13 and 16, Larson teaches a nesting enclosure for birds, mammals, or reptiles and method comprising a body (Larson Fig. 1 #2, #2, #3, #4) securable to a tree trunk and so shaped that when the enclosure is secured to the tree trunk (Larson line 10) a nesting space is defined that is partly bounded by the body and partly bounded by a surface of the tree trunk (Larson lines 65-67) and adapted to retain therein material shredded from the surface (italics indicates functional language the structure of Larson is “capable of” receiving shredded material; this is an apparatus claim and the limitations of the claim need to structurally define over the prior art of record, applicant hasn’t positively claimed the shredded material).
Regarding Claim 2, Larson teaches the body comprises an assembly of a top module (Larson Fig. #1), a base module (Larson Fig. 1 #4) and a body section (Larson Fig. 1 #2 and #3) therebetween, the top module being secured to an upper end of the body section; the base module is secured to a lower end of the body section; and the nesting space lying between the base module and the top module.
Claim Rejections - 35 USC § 103
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 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.
Claim(s) 3, 4, 5, 7, 8, 10, 11,12 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 1,169,409 to Larson in view of Australia Patent AU 2021201626 to Callan et al.
Regarding Claim 3, Larson is silent on the body section comprises a body module having an upper locking formation that interlocks with a mating locking formation of the top module and a lower locking formation that interlocks with a mating locking formation of the base module. However, Callan teaches the general knowledge of one of ordinary skill in the art that it is known to provide the body section comprises a body module having an upper locking (Callan Fig. 7 #45; paragraph [0068]) formation that interlocks with a mating locking formation of the top module and a lower locking formation (Callan #51, #124, and #49; Fig. 24; Fig. 28) that interlocks with a mating locking formation of the base module. It would have been obvious to one of ordinary skill in the art to modify the teachings of Larson with the teachings of Callan before the effective filing date of the claimed invention with a reasonable expectation of success for ease of cleaning and/or storage. The modification is merely the application of a known technique to a known device ready for improvement to yield predictable results.
The modification is merely an obvious engineering design choice derived through routine tests and experimentation for ergonomic storage, cleaning, and/or assembly. The modification is merely making a known integral component separable [In re Dulberg, 289 F.2d 522, 523, 129 USPQ 348, 349 (CCPA 1961)].
Regarding Claim 4, Larson as modified teaches the body module is one of a plurality of body modules connected end to end and together comprising the body; and members of each adjoining pair of the plurality of body modules are connected by interlocking of the lower interlocking formation of an upper one of the pair with the upper interlocking formation of the lower one of the pair (Callan Fig. 23 and 24; paragraph [0068]). It would have been obvious to one of ordinary skill in the art to further modify the teachings of Larson with the teachings of Callan before the effective filing date of the claimed invention with a reasonable expectation of success to accommodate different size/species of birds. The modification is merely the application of a known technique to a known device ready for improvement to yield predictable results.
Regarding Claim 5, Larson as modified teaches the body modules are identical to each other (Callan Fig. 24 #7b and 7a).
Regarding Claim 7, Larson as modified teaches the body module comprises flange formations (Larson Fig. 1 #5, #6 and #7) having openings for fasteners to be driven into the tree trunk whereby to secure the body module to the tree trunk.
Regarding Claim 8, Larson as modified is capable of the claimed function the body module is secured to the tree trunk the flange formations lie at least approximately conformably against a surface of the tree trunk (Larson Fig. 1 #5, #6, #7 line 10; these are apparatus claims and the structure of Larson is capable of performing the claimed function).
Regarding Claims 10 and 11, Larson as modified teaches the top module is so shaped that when the nesting enclosure is secured to the tree trunk an access opening (Callan Fig. 24 #66) is defined at least partly by the top portion that is suitable for a bird or animal to enter and leave the nesting space; wherein the access opening is on one of: a side of the body; or a top surface of the nesting enclosure (Callan Fig. 24 #66 and #64b). It would have been obvious to one of ordinary skill in the art to further modify the teachings of Larson with the teachings of Callan before the effective filing date of the claimed invention with a reasonable expectation of success to provide access and egress as taught by Callan. The modification is merely the application of a known technique to a known device ready for improvement to yield predictable results.
Regarding Claim 12, Larson as modified teaches a surface of the body module that partially defines the nesting space is at least approximately cylindrical between locations where the body module in use is in contact with the tree trunk (Callan Fig. 24 and 27 #89 and #81). It would have been obvious to one of ordinary skill in the art to further modify the teachings of Larson with the teachings of Callan before the effective filing date of the claimed invention with a reasonable expectation of success for a secure fit. The modification is merely the application of a known technique to a known device ready for improvement to yield predictable results.
Claim(s) 6 and 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 1,169,409 to Larson in view of Australia Patent AU 2021201626 to Callan et al as applied to claims 1, 2, 3 above, and further in view of German Patent DE 4117661 to Papenfoth.
Regarding Claim 6, Larson as modified is silent on the body module has an external wall, an inner wall and an insulating space therebetween, the inner wall having a surface that faces into the nesting space. However, Papenfoth teaches the general knowledge of one of ordinary skill in the art that it is known to provide the body module has an external wall, an inner wall and an insulating space therebetween, the inner wall having a surface that faces into the nesting space (Papenfoth Fig. 3 #10, #19). It would have been obvious to one of ordinary skill in the art to further modify the teachings of Larson with the teachings Papnefoth before the effective filing date of the claimed invention with a reasonable expectation of success to prevent freezing and to accommodate bats as taught by Papenfoth. The modification is merely the application of a known technique to a known device ready for improvement to yield predictable results.
Regarding Claim 9, Larson as modified teaches the use of thermoplastic (Callan paragraph [0023]), but is silent on the body module is formed from a thermoplastic material by rotational moulding. However, rotational moulding is an old and notoriously well-known method of manufacturing thermoplastic components and the examiner takes official notice that it would have been obvious to one of ordinary skill in the art to further modify the teachings of Larson before the effective filing date of the claimed invention with a reasonable expectation of success for efficient and cost-effective manufacturing. The modification is merely “obvious to try” choosing from a finite number of identified, predictable solutions with a reasonable expectation of success and/or the simple substitution of one know plastic manufacturing method with another to obtain predictable results.
Claim(s) 14, 15, 17 and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 1,169,409 to Larson in view of Soviet Union Patent SU1535497 to Zimin.
Regarding Claims 14 and 17, Larson teaches securing to a tree (Larson line 10), and these are apparatus claims with regarding to claim 14 so the structure of Larson is capable of being installed as claimed. Alternatively, Larson is silent on a portion of the tree trunk surface that faces into the nesting space and a portion of the tree trunk through which fasteners are driven to secure the nesting enclosure to the tree trunk are prepared by removal of bark whereby to expose the cambium layer of the tree trunk. However, Zimin teaches the general knowledge of one of ordinary skill in the art that it is known to remove the cambium layer of a tree trunk for nesting structures (Zimin Fig.1; English abstract). It would have been obvious to one of ordinary skill in the art to modify the teachings of Larson with the teachings of Simin before the effective filing date of the claimed invention with a reasonable expectation of success to attract different bird species with different nesting behaviors as taught by Zimin. The modification is merely the application of a known technique to a known device ready for improvement to yield predictable results.
Regarding Claims 15 and 18, Larson as modified teaches a recess in the portion of the tree trunk facing into the nesting space and from which bark has been removed, the recess extending toward a central region of the tree trunk (Zimin Fig. 1 #1; English abstract).
Claim(s) 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 1,169,409 to Larson in view of Soviet Union Patent SU1545497 to Zimin as applied to claims 1, 16, and 17 above and further in view of Japanese Patent JP H11318261 to Sakai.
Regarding Claim 19, Larson as modified is silent on including the step of providing an internal ladder by cutting a series of horizontal cuts into the tree trunk surface that faces into the nesting space. However, Sakai teaches the general knowledge of one of ordinary skill in the art that it is known to provide the step of providing an internal ladder by cutting a series of horizontal cuts into the tree trunk surface that faces into the nesting space (Sakai Fig. 7 #10, cut tree English translation). It would have been obvious to one of ordinary skill in the art to further modify the teachings of Larson with the teachings of Sakai before the effective filing date of the claimed invention with a reasonable expectation of success for small animals as taught by Sakai. The modification is merely the application of a known technique to a known device ready for improvement to yield predictable results.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
The prior art of record is a teaching of the general knowledge of one of ordinary skill in the art with regard to nesting structures:
United Kingdom Patent GB 2635312; Soviet Union Patent SU 1687170; German Patent DE 202018002692; U.S. Patent No. D725,314; German Patent DE 102010056460; U.S. Patent No. D650,534; U.S. Patent No. D274,661; U.S. Patent No. 2,184,633; U.S. Patent No. 1,209,979; U.S. Patent No. 753,599.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREA M VALENTI whose telephone number is (571)272-6895. The examiner can normally be reached Available Monday and Tuesday only, eastern time.
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/ANDREA M VALENTI/Primary Examiner, Art Unit 3643
02 September 2025