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 .
Response to Arguments
Applicant’s arguments with respect to the priority of claims 1 & 7-9 have been considered but are moot because the currently presented amendments to claim 1 recite the subject matter of the tapering end which is not encompassed by the previously filled application.
With respect the arguments that the proposed modification would not have been obvious and is redundant. The proposed advantage is minimizing the size of the opening, Toga discloses covering two large openings with a respective piece of wire mesh as a cover. In order to reduce the surface area of the opening it has been modified by the teachings of Mue which fully fastens and pinches the ends of an oyster forming assembly together to a planar surface, it would have been obvious to one of ordinary skill that the force of the water could separate the covered openings as taught by Toga and leave the entire harvest at risk, one could look to the teachings of Mue for a solution. The examiner respectfully asserts that such a modification is advantageous for at least the reason of decreasing the surface area of the openings when in use. In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, between the teaching of the fastened ends and knowledge generally available to one of ordinary skill in the art described above obviousness has been established.
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 120 as follows:
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosure of the prior-filed application, Application No. 18/677,938, fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application.
The prior filled application does not provide adequate support for the aspects of a hanging cage and pinched/tapered end(s). As such, claims 1, 4, 6-18, & 20 are not entitled to the benefit of the prior application.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 4, 7-12, 14-16 & 20 are rejected under 35 U.S.C. 103 as being unpatentable over the Non-Patent Literature from the Tidewater Oyster Gardeners Association titled How to Build TOGA Floats 2022; herein Toga in view of Muench, Jr., U.S. Patent No. 5,007,377 A; herein Mue.
Re claim 1, Toga discloses an apparatus for use in forming oyster reefs, the apparatus comprising:
a wire cage (pages 30-38, the “Rough Rider” best shown in the image of the same title on page 31) having a cylindrical interior volume (pages 31-32 & 37, the main wire cylinder), a first open end with a first opening (page 37, the right side of the main cylinder prior to the hatch being affixed thereto), and a second open end with a second opening (page 37, the left side of the main cylinder prior to the hatch being affixed thereto), the interior volume being configured to be filled with oyster shells (page 31, the “Rough Rider” is configured to contain up to 150 market sized oysters therein);
a first wire end cap covering the first opening (page 31 & 37, the end hatch secured to the right side of the main cylinder), and a second wire end cap covering the second opening (page 31 & 38, the fixed end secured to the left side of the main cylinder).
Toga fails to disclose the interior volume explicitly being filled with oyster shells and wherein the first open end tapers to a planar edge. However, Mue discloses an apparatus for use in forming oyster reefs comprising: a mesh cage (20/30/40/50/60/70/80; the retaining members, fig. 1-3 & & 10-12) having a cylindrical interior volume (fig. 1-2 & 9-12, formed by shaping the polymeric mesh), wherein the interior volume being configured to be filled with oyster shells (fig. 12 & col 8; 12-25, wherein the retaining members are filled with mollusks that are oysters); and wherein a first open end (fig. 9, on the left-most side of the retaining member or the first end; 21/31/41/51/61/71/81) tapers to a planar edge (fig. 10-12).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose the interior volume explicitly being filled with oyster shells and wherein the first open end tapers to a planar edge however, Toga further discloses a method of bending/folding elements of the wire cage with a wire bender (pages 35-36) and Mue discloses such a method of using oyster shells and tapered end. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the prior art elements of the oysters as taught by Mue to the interior volume of the prior art to yield the predictable result of attracting oyster spat growth/recruitment and generate larva (Mue, col 6; 31-55) and to utilize the known technique of fastening the first and second ends of the main cylindrical body together to a planar surface as taught by Mue to improve the similar device disclosed by the prior art in the same way by forming smaller openings that oysters are less likely to escape from in use. See MPEP 2143 I. (A), (G), & (C).
Re claim 4, the combination of Toga and Mue discloses the invention of claim 1, Toga further discloses a mounting line (pages 30-32 & 38, the crab pot line) with two ends (pages 30-31, the ends of the line that are attached to the body of the cage(s)); wherein: the ends of the mounting line are respectively attached to each side of the wire cage (pages 30-31, see the images thereof the line is attached distinctly to each side of the cage(s)).
The combination of Toga and Mue discloses the claimed invention except for the line being a mounting wire and having the ends of the mounting wire are respectively attached to the first end cap and the second end cap however, it would have been obvious to one having ordinary skill in the art before the effective filling date of the invention to utilize a wire to reduce twisting of the mounting mechanism and growth of fouling organisms, since it has been held that selecting a known material on the basis of its suitability for the intended use supports a prima facie obviousness determination. See MPEP 2144.07. Additionally, it would have been obvious to one having ordinary skill in the art before the effective filling date of the invention to secure the respective ends of the mounting wire to the first end cap & the main body and the second end cap & the main body to create a harness that retains the end caps and the main body, since a mere rearrangement of essential working parts is generally held as an obvious modification. See MPEP 2144.04 VI. C.
Re claim 7, the combination of Toga and Mue discloses the invention of claim 1, Mue as applied to Toga further discloses wherein the oyster shells are distributed across an entire length of the wire cage (fig. 12).
Re claim 8, the combination of Toga and Mue discloses the invention of claim 1, Toga further discloses wherein the interior volume is large enough to house five to ten gallons of non-living oysters (page 31, a main cylindrical body of this size is suitable to contain ~17.6 gallons of whatever substance).
Re claim 9, the combination of Toga and Mue discloses the invention of claim 1, Mue as applied to Toga further discloses wherein, when the apparatus is submerged, oyster larvae attach to the oyster shells (col 6; 34-52, the mature oysters generate larvae which swim around and attach to the habitat of mollusks provided within the interior of the retaining member), with the oyster larvae being protected from marine life and ocean tides by the wire cage (col 5; 24-34 & col 6; 49-52, wherein the mesh cages/retaining member openings form protected areas for the adult oysters and larvae).
Re claim 10, Toga discloses an apparatus for use in attracting and protecting oyster larvae and for forming oyster reefs, the apparatus being submersible in water with marine life and ocean tides, the apparatus comprising:
a wire cage (pages 30-38, the “Rough Rider” best shown in the image of the same title on page 31) with a first end (page 31 & 37, the right side of the main cylinder), a second end (page 31 & 37, the left side of the main cylinder), and a cylindrical body therebetween (pages 31-32 & 37, the main wire cylinder);
the cylindrical body having a volume (pages 31-32 & 37, the interior of main wire cylinder);
a first end cap on the first end (page 31 & 37, the end hatch that is secured to the right side of the main cylinder);
a second end cap on the second end (page 31 & 38, the fixed end that is secured to the left side of the main cylinder);
a strand of rope (pages 30-32 & 38, the crab pot line) with a first strand end (pages 31 & 38, the crab pot line is looped and secured to the right side of the main cylinder with a pig ring) and a second strand end (pages 31 & 38, the crab pot line is looped and secured to the left side of the main cylinder with a pig ring), the first strand end and second strand end being attached respectively to the first end and second end (page 31, see the figure titled “Rough Rider”).
Toga discloses the claimed invention except for the wire cage being pinched at the first end and second end such that the first end and second end are planar, the strand being metal wire, and oyster shells within the volume. It would have been obvious to one having ordinary skill in the art before the effective filling date of the invention to utilize a wire to reduce twisting of the mounting mechanism and growth of fouling organisms, since it has been held that selecting a known material on the basis of its suitability for the intended use supports a prima facie obviousness determination. See MPEP 2144.07.
The modification of Toga fails to disclose the wire cage being pinched at the first end and second end such that the first end and second end are planar and oyster shells within the volume. However, Mue discloses an apparatus for use in attracting and protecting oyster larvae and for forming oyster reefs, the apparatus being submersible in water with marine life and ocean tides, the apparatus comprising: a mesh cage (20/30/40/50/60/70/80; the retaining members, fig. 1-3 & & 10-12) with a first end (21/31/41/51/61/71/81; the first ends, fig. 1-2 & 10-11), a second end (22/32/42/52/62/72/82; the second ends, fig. 1-2 & 10-11), and a cylindrical body therebetween (fig. 1-2 & 9-12, formed by shaping the polymeric mesh); the mesh cage being pinched at the first end and second end such that the first end and second end are planar (fig. 1-2, 5, & 12); and oyster shells within the volume (fig. 12 & col 8; 12-25, wherein the retaining members are filled with mollusks that are oysters).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose the wire cage being pinched at the first end and second end such that the first end and second end are planar and oyster shells within the volume however, Mue discloses such a cage and process. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the known technique of fastening the first and second ends of the main cylindrical body together to a planar surface as taught by Mue to improve the similar device disclosed by the prior art in the same way by forming smaller openings that oysters are less likely to escape from in use. See MPEP 2143 I. (C).
Re claim 11, the modification of Toga and Mue discloses the invention of claim 10, Toga as applied to Mue further discloses wherein the first end cap is a rectangular piece of wire (page 34, the 15x 14 End Hatch is a rectangular section of the wire mesh) folded around the first end (page 36-37, the bent sections of the end hatch wrap about/overlap the main body of the Rough Rider for securing thereto).
Re claim 12, the modification of Toga and Mue discloses the invention of claim 10, Mue as applied to Toga further discloses wherein the wire cage continuously tapers between the body and the first end and between the body and the second end (fig. 1-2 & 12, the ends form a continuously tapered structure with the main cylindrical segment).
Re claim 14, the combination of Toga and Mue discloses the invention of claim 10, Mue as applied to Toga further discloses wherein the oyster shells are distributed across an entire length of the wire cage (fig. 12).
Re claim 15, the combination of Toga and Mue discloses the invention of claim 10, Toga further discloses wherein the interior volume is large enough to house five to ten gallons of non-living oysters (page 31, a main cylindrical body of this size is suitable to contain ~17.6 gallons of whatever substance).
Re claim 16, the combination of Toga and Mue discloses the invention of claim 10, Mue as applied to Toga further discloses wherein, when the apparatus is submerged, oyster larvae attach to the oyster shells (col 6; 34-52, the mature oysters generate larvae which swim around and attach to the habitat of mollusks provided within the interior of the retaining member), with the oyster larvae being protected from marine life and ocean tides by the wire cage (col 5; 24-34 & col 6; 49-52, wherein the mesh cages/retaining member openings form protected areas for the adult oysters and larvae).
Re claim 20, Toga discloses an apparatus for use in attracting and protecting oyster larvae and for forming oyster reefs, the apparatus being submersible in water with marine life and ocean tides, the apparatus comprising:
a wire cage (pages 30-38, the “Rough Rider” best shown in the image of the same title on page 31) with a first end (page 31 & 37, the right side of the main cylinder), a second end (page 31 & 37, the left side of the main cylinder), and a cylindrical body therebetween (pages 31-32 & 37, the main wire cylinder);
the cylindrical body having a volume (pages 31-32 & 37, the interior of main wire cylinder);
a first end cap on the first end (page 31 & 37, the end hatch that is secured to the right side of the main cylinder);
a second end cap on the second end (page 31 & 38, the fixed end that is secured to the left side of the main cylinder);
the first end cap and second end cap being rectangular sections of wire cage (page 34 & 36, the 15 x 14 End Hatch and 14 x 14 Fixed End Piece are rectangular sections of wire mesh) folded respectively around the first end and second end (page 36-38, the bent sections of the end hatch wrap about/overlap the ends of the main body of the Rough Rider for securing thereto); and
a strand of rope (pages 30-32 & 38, the crab pot line) with a first strand end (pages 31 & 38, the crab pot line is looped and secured to the right side of the main cylinder with a pig ring) and a second strand end (pages 31 & 38, the crab pot line is looped and secured to the left side of the main cylinder with a pig ring), the first strand end and second strand end being attached respectively to the first end and second end (page 31, see the figure titled “Rough Rider”).
Toga discloses the claimed invention except for the wire cage being pinched at the first end and second end such that the first end and second end are planar; the wire cage continuously tapering between the cylindrical body and the first end and between the cylindrical body and the second end; the strand being metal wire; and oyster shells within the cylindrical volume. It would have been obvious to one having ordinary skill in the art before the effective filling date of the invention to utilize a wire to reduce twisting of the mounting mechanism and growth of fouling organisms, since it has been held that selecting a known material on the basis of its suitability for the intended use supports a prima facie obviousness determination. See MPEP 2144.07.
The modification of Toga fails to disclose the wire cage being pinched at the first end and second end such that the first end and second end are planar; the wire cage continuously tapering between the cylindrical body and the first end and between the cylindrical body and the second end; and oyster shells within the cylindrical volume. However, Mue discloses an apparatus for use in attracting and protecting oyster larvae and for forming oyster reefs, the apparatus being submersible in water with marine life and ocean tides, the apparatus comprising: a mesh cage (20/30/40/50/60/70/80; the retaining members, fig. 1-3 & & 10-12) with a first end (21/31/41/51/61/71/81; the first ends, fig. 1-2 & 10-11), a second end (22/32/42/52/62/72/82; the second ends, fig. 1-2 & 10-11), and a cylindrical body therebetween (fig. 1-2 & 9-12, formed by shaping the polymeric mesh); the mesh cage being pinched at the first end and second end such that the first end and second end are planar (fig. 1-2, 5, & 12); the mesh cage continuously tapering between the body and the first end and between the body and the second end (fig. 1-2 & 12, the ends form a continuously tapered structure with the main cylindrical segment); and oyster shells within the cylindrical volume (fig. 12 & col 8; 12-25, wherein the retaining members are filled with mollusks that are oysters).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose the wire cage being pinched at the first end and second end such that the first end and second end are planar; the wire cage continuously tapering between the cylindrical body and the first end and between the cylindrical body and the second end; and oyster shells within the cylindrical volume however, Mue discloses a cage and process. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the known technique of fastening the first and second ends of the main cylindrical body together to a planar surface as taught by Mue to improve the similar device disclosed by the prior art in the same way by forming smaller openings that oysters are less likely to escape from in use. See MPEP 2143 I. (C).
Claim 6 rejected under 35 U.S.C. 103 as being unpatentable over Toga in view of Mue as applied to claim 4 above, in further view of Marsden, U.S. Patent Application Publication No. 2016/0100559 A1; herein Mar.
Re claim 6, the modification of Toga and Mue discloses the invention of claim 4, the modification fails to disclose wherein the mounting wire explicitly mates with a fastener on a dock. However, Mar discloses an apparatus for use in forming reefs the apparatus comprising: wherein a mounting tether mates with a fastener on a dock (fig. 1-2 and para 37, the tether is shown to be fastened about a cam on a dock).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose wherein the mounting wire explicitly mates with a fastener on a dock however, Mar discloses such a fastening technique. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the known technique of mounting a tether to a cam on a dock as taught by Mar to improve the similar device disclosed by the prior art in the same way by allowing the device to be hung under a dock (Toga, page 30-31). See MPEP 2143 I. (C) & (G).
Claim 13 rejected under 35 U.S.C. 103 as being unpatentable over Toga in view of Mue as applied to claim 10 above, in further view of Mar.
Re claim 13, the modification of Toga and Mue discloses the invention of claim 10, the modification fails to disclose wherein the strand of metal wire mates with a fastener on a dock. However, Mar discloses wherein a mounting tether mates with a fastener on a dock (fig. 1-2 and para 37, the tether is shown to be fastened about a cam on a dock).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose wherein the strand of metal wire mates with a fastener on a dock however, Mar discloses such a fastening technique. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the known technique of mounting a tether to a cam on a dock as taught by Mar to improve the similar device disclosed by the prior art in the same way by allowing the device to be hung under a dock (Toga, page 30-31). See MPEP 2143 I. (C) & (G).
Claims 17-18 are rejected under 35 U.S.C. 103 as being unpatentable over Toga in view of Mue and Mar.
Re claim 17, Toga discloses a system for attracting and protecting oyster larvae and for forming oyster reefs, the system comprising:
a cylindrical wire cage (pages 30-38, the “Rough Rider” best shown in the image of the same title on page 31) with a first end (page 31 & 37, the right side of the main cylinder), a second end (page 31 & 37, the left side of the main cylinder), and a volume therebetween volume (pages 31-32 & 37, the interior of main wire cylinder);
a mounting line (pages 30-32 & 38, the crab pot line) with a first line end (pages 31 & 38, the crab pot line is looped and secured to the right side of the main cylinder with a pig ring) and a second line end (pages 31 & 38, the crab pot line is looped and secured to the left side of the main cylinder with a pig ring), the first line end being attached to the first end of the wire cage and the second line end being attached to the second end of the wire cage (page 31, see the figure titled “Rough Rider”); and
wherein the mounting line mates with and attaches the wire cage to a fixed structure (page 30-31, see the Tidal Tumbler diagram and the summary of the Rough Rider, the line is utilized to attach the cage to a dock).
Toga discloses the claimed invention except for the wire cage being pinched at the first end and second end such that the first end and second end are planar; oyster shells within the volume; the mounting line being a mounting wire; and a fastener attached to a fixed structure; wherein the mounting wire mates with the fastener and attaches the wire cage to the fixed structure when the fastener is attached to the fixed structure. It would have been obvious to one having ordinary skill in the art before the effective filling date of the invention to utilize a wire to reduce twisting of the mounting mechanism and growth of fouling organisms, since it has been held that selecting a known material on the basis of its suitability for the intended use supports a prima facie obviousness determination. See MPEP 2144.07.
The modification of Toga fails to disclose the wire cage being pinched at the first end and second end such that the first end and second end are planar; oyster shells within the volume; and a fastener attached to a fixed structure; wherein the mounting wire mates with the fastener and attaches the wire cage to the fixed structure when the fastener is attached to the fixed structure. However, Mue discloses a system for attracting and protecting oyster larvae and for forming oyster reefs, the system comprising: a cylindrical cage (20/30/40/50/60/70/80; the retaining members, fig. 1-3 & & 10-12) with a first end (21/31/41/51/61/71/81; the first ends, fig. 1-2 & 10-11), a second end (22/32/42/52/62/72/82; the second ends, fig. 1-2 & 10-11), and a volume therebetween (fig. 1-2 & 9-12, formed by shaping the polymeric mesh, the interior of the cylindrical structure), the cage being pinched at the first end and second end such that the first end and second end are planar (fig. 1-2, 5, & 12); and oyster shells within the volume (fig. 12 & col 8; 12-25, wherein the retaining members are filled with mollusks that are oysters).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose the wire cage being pinched at the first end and second end such that the first end and second end are planar; oyster shells within the volume; and a fastener attached to a fixed structure; wherein the mounting wire mates with the fastener and attaches the wire cage to the fixed structure when the fastener is attached to the fixed structure however, Mue discloses such a pinched cage structure and applying oyster shells to the interior thereof. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the known technique of fastening the first and second ends of the main cylindrical body together to a planar surface as taught by Mue to improve the similar device disclosed by the prior art in the same way by forming smaller openings that oysters are less likely to escape from in use. See MPEP 2143 I. (C).
The modification of Toga and Mue fails to disclose a fastener attached to a fixed structure; wherein the mounting wire mates with the fastener and attaches the wire cage to the fixed structure when the fastener is attached to the fixed structure. However, Mar discloses a system for attracting and for forming reefs, the system comprising: a reef forming structure (10; the habitat, fig. 1-3); a fastener (fig. 1-2, the cam located on the dock) attached to a fixed structure (fig. 1-2, the dock); a mounting tether (para 37, the line attached to both the habitat and cam); wherein the mounting tether mates with the fastener and attaches the structure to the fixed structure (fig. 1-2 and para 37, the tether is secured to the catch and releasably attached to the cam) when the fastener is attached to the fixed structure (again see fig. 1-2 & para 37.
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose a fastener attached to a fixed structure; wherein the mounting wire mates with the fastener and attaches the wire cage to the fixed structure when the fastener is attached to the fixed structure however, Mar discloses such a technique. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the known technique of mounting a tether to a cam on a dock as taught by Mar to improve the similar device disclosed by the prior art in the same way by allowing the device to be hung under a dock (Toga, page 30-31). See MPEP 2143 I. (C) & (G).
Re claim 18, the modification of Toga, Mue, and Mar discloses the invention of claim 17, Toga further discloses a first end cap attached to the first end of the wire cage (page 31 & 37, the end hatch secured to the right side of the main cylinder).
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NICOLE P MACCRATE whose telephone number is (571)272-5215. The examiner can normally be reached M-Th: 9am-5pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joshua J Michener can be reached at 571-272-1467. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/NICOLE PAIGE MACCRATE/Examiner, Art Unit 3642
/JOSHUA J MICHENER/Supervisory Patent Examiner, Art Unit 3642
