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 .
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 1-19 of U.S. Patent No. 9441381. Although the claims at issue are not identical, they are not patentably distinct from each other because the scope of claims 1-20 are encompassed by the scope of claims 1-19 of patent 9441381.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-24 of U.S. Patent No. 10648185. Although the claims at issue are not identical, they are not patentably distinct from each other because the scope of claims 1-20 are encompassed by the scope of claims 1-24 of patent 10648185.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12163338. Although the claims at issue are not identical, they are not patentably distinct from each other because the scope of claims 1-20 are encompassed by the scope of claims 1-20 of patent 12163338.
Claim Rejections - 35 USC § 102
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.
Claim(s) 1-10 are is/are rejected under 35 U.S.C. 102a1 as being anticipated by TedBrink (7316459).
Tenbrink figures 1-3, shows a construction element comprising: a top portion comprising: a top portion region; and a top portion groove((figure 3; the groove that 80 is inserted therein) located below the top portion region and configured to receive
a wall material within the top portion groove (able to function as claimed); a middle portion(16) coupled to the top portion; and a bottom portion coupled to the middle portion and comprising: a bottom portion groove (the groove on the other end next to 78, figure 3) configured to receive a floor material within the bottom portion groove;
a bottom portion bend(the block between 52 and 18) coupled to and located below the bottom portion groove; and a bottom portion region(18) coupled to the bottom portion bend.
Per claim 2, Tenbrink figures 1-3, further shows the top portion groove is approximately co-planar or approximately parallel to the bottom portion groove.
Per claim 3, Tenbrink figures 1-3, shows the floor material is a flexible planar material (flexible as it is very thin).
Per claim 4, Tenbrink figures 1-3, shows the bottom portion bend is located between the bottom portion groove and the bottom portion region.
Per claim 5, Tenbrink figures 1-3, shows a plane of the top portion region is approximately parallel to a plane of the middle portion.
Per claim 6, Tenbrink figures 1-3, shows a plane of the bottom portion region (the planes in either x or y direction) is approximately perpendicular to the plane of the top portion region and the plane of the middle portion.
Per claim 7, Tenbrink figures 1-3, shows the top portion region and the bottom portion region(the planes in either x or y direction) are on a same plane.
Per claim 8, Tenbrink figures 1-3, shows the same plane is approximately parallel to the middle portion.
Per claim 9, Tenbrink figures 1-3, shows the bottom portion region(the planes in either x or y direction) is approximately perpendicular to the middle portion.
Per claim 10, Tenbrink figures 1-3, shows the bottom portion region(the planes in either x or y direction) is approximately perpendicular to the top portion region.
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.
Claim(s) 11-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over TenBrink (7316459).
TenBrink shows all the claimed structural limitations. The claimed method steps of manufacturing would have been the obvious method steps of manufacturing TenBrinks’ structures.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The prior art shows different construction device.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHI D Tran whose telephone number is (571)272-6864. The examiner can normally be reached M-F 8-5 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, BRIAN GLESSNER can be reached at 571-272-6754. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PHI D A/Primary Examiner, Art Unit 3633
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