Notice of Pre-AIA or AIA Status
This is a first office action on the merits for application serail number 18/974,278 filed 2/17/24 as a continuation of application serail number 18/,378,588 which issued as U.S. Patent 12,196,041. Claims 7-26 are pending. Claims 1-6 have been canceled. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The substitute specification filed 7/07/25 has been entered.
The information disclosure statements (IDS) submitted on 12/09/24 and 1/15/25 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements have been considered by the examiner. No copies were provided of citations 113 and 130 of the 12/09/24 IDS but copies may be found in at least one of the parent files.
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the at least a portion of the braces being coplanar with a portion of the deep step must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 7-26 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
No support is found for the limitation of at a least a portion of the first and second braces being coplanar with a portion of the deep step of the standing surface.
Figure 5 shows a tab or flange portion of the braces 50/52 coupled to an underside of the deep step/standing surface/extending portion. The tabs/flanges do not reside in the same plane as the deep step/standing portion which is what coplanar implies.
With respect to claim 22, no support is found for the limitation between about 2 feet and about 5 feet. The same rejection was made in the office mailed 3/24/23 in parent application SN 17564191 and the qualifier “about” was canceled by amendment on 6/02/23.
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 22-24 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 6 of U.S. Patent No. 11,215,010. Although the claims at issue are not identical, they are not patentably distinct from each other because the subject matter of the instant claims is included within the patent claim as the cross-sectional profile of the deep step is inherently different than that of the other steps as the deep steps if defined extending beyond the right and left rails whereas the other steps are disposed between the rails.
Claims 22-24 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 7 of U.S. Patent No. 10,538,966. Although the claims at issue are not identical, they are not patentably distinct from each other because the subject matter of the instant claims is included within the patent claim as the cross-sectional profile of the deep step is inherently different than that of the other steps as the deep steps if defined extending beyond the right and left rails whereas the other steps are disposed between the rails.
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.
Claims 22 is rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent 3,901,353 to Skolnik in view of WO 2015/048271 to Moss et al.
Skolnik provides a ceiling ladder comprising a frame 3/4/5 adapted to fit in a ceiling, a top section coupled to the frame 3/4/5 at 18 and second section rotatably attached to the top section at 14 and a third section rotatably attached the second section at 15. The section comprised of left and right channels or “rails” 9. A plurality of rungs of “steps” are fitted inside the channels as shown in Fig. 5. The sections may be folded into a position above the ceiling 1 (Fig. 7) and unfolded to aligned position forming a ceiling ladder (Fig. 5). A door 19 is further provided.
Skolnik fails to provide at least one of the rungs or steps of the second section provided as deep step located about 2 to about 5 feet below the ceiling.
Moss teaches that at the time of the effective filing date of the invention it was known that ladder may be provide with at least one deep step 106’.
It would have been obvious to one having ordinary skill in the art at the time of the effective filing date of the invention that the ladder of Skolnik may be provided with at least one deep step as taught by Moss to provide step with enlarged surface area which may reduce fatigue and provide enhanced comfort to a user who may have to stand on the ladder for an extended period of time ([0051] Moss). The deep step having a cross section different than the other steps in that it has a projection portion extending beyond the rails. The deep step having a flange coupled to the rails (Fig. 6) and fist and second braces mounted to the flange and the rails.
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Locating the deep step about 2-5 feet below the ceiling is viewed as a choice of design which would have been obvious to one having ordinary skill at the time of the effective filing date of the invention since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. 2-5 feet below the ceiling is viewed as a workable range which would have been obvious to try as it would allow the user place objects into the area above the ceiling while standing on the ladder. It would be an area upon which a user would stand for a longer period of time than climbing the ladder and the larger step would reduce fatigue and enhance comfort as taught by Moss. Moreover, all the claimed elements are known in the prior art and one skilled in the art would have combined the elements as claimed by known methods with no change to their respective functions, and the combination would have yielded predictable results to one having ordinary skill in the art.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Note:
In U.S. Patent 4,332,308 to Larson portion 46 is coplanar with portion 34 of a deep steep.
The braces attached “deep” step 24 to rails 20 in U.S. 2018/0171714 to Dings.
“Deep” step 100 in U.S. 2019/0145171 to Frensley.
Braces 130 mounting “deep” step 106 to rails 104 in U.S. 2021/0032932 to Cook et al.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT CANFIELD whose telephone number is (571)272-6840. The examiner can normally be reached M-F 10-6, some Saturdays.
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 Dunn can be reached at 571-272-6670. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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ROBERT CANFIELD
Primary Examiner
Art Unit 3636
/Robert Canfield/Primary Examiner, Art Unit 3636
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