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 .
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. 11,006,611. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the present application are broader than claims in 11,006,611 patent.
Regarding claim 1 of the present application: claim 1 of the patent discloses an apparatus for improving safety of a pet during travel, comprising: a body defining a front side, a back side formed opposite the front side, a top side, a bottom side formed opposite the top side, a first lateral side, and a second lateral side formed opposite the first lateral side (col. 12,ll. 51-54), the body comprising: a base defined along the bottom side of the body (col. 12, line 55), a support structure positioned along the base and centered between the first lateral side and the second lateral side of the body (col. 12, ll. 60-62), the support structure defining a horizontal portion oriented along a first surface of the base (col. 12, ll. 64-66), and an inclined portion extending from the horizontal portion to the front side of the body (col. 12, ll. 66-67) with the inclined portion terminating at a top end of the support structure defined at the top side of the body along the front side of the body, the inclined portion defining an inclined surface (col. 13, ll. 1-4), and a back support positioned at a back side of the body opposite the front side along the first surface of the base (col. 13, ll. 16-17).
Regarding claims 2-14 of the present application: claims 2-13 of the patent discloses the claim limitation. Therefore, these claims are similarly rejected under obviousness-type double patenting.
Regarding claim 15 of the present application: claim 14 of the patent discloses a method of making an apparatus for improving safety of a pet during travel, comprising: providing a base (col. 14, line 16); positioning a support structure along a first portion of the base, the support structure defining a top end elevated above the base and an inclined surface between the top end and the base (col. 14, ll. 17-20); positioning a back support along a second portion of the base behind the support structure (col. 14, ll. 21-22); and providing a restraining system engageable to at least one attachment point of the base (col. 14, ll. 23-24), wherein the inclined surface is configured to cradle a torso portion of the pet and the back support is configured to support a rear portion of the pet during the travel (col. 14, line 25-28).
Regarding claims 16-18 of the present application: claims 15-17 of the patent discloses the claim limitation. Therefore, these claims are similarly rejected under obviousness-type double patenting.
Regarding claim 19 of the present application: claim 18 of the patent discloses an apparatus, comprising: a body, comprising: a base defined along a bottom side of the body (col. 14, ll. 57-59), a support structure for supporting a pet positioned along the base, the support structure including an inclined portion and a top end, the top end defined at a top side of the body opposite the bottom side (col. 14, ll. 60-62), and a back support positioned along the base at a back side of the body behind the support structure (col. 14, ll. 64-65).
Regarding claim 20 of the present application: claim 19 of the patent discloses the claim limitation. Therefore, these claims are similarly rejected under obviousness-type double patenting.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 2 and 5 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claims 2 and 5 recites functional language but does not further limit claim 1. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 2, 4-8, 10, 19 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Reece (US D461966) in view of Wayn (US 2007/0157891).
Regarding claims 1 and 5, Reece teaches an apparatus for improving safety of a pet during travel, comprising: a body defining a front side, a back side formed opposite the front side, a top side, a bottom side formed opposite the top side, a first lateral side, and a second lateral side formed opposite the first lateral side (see figure 6 below), the body comprising: a base defined along the bottom side of the body (fig. 6) and a back support positioned at a back side of the body opposite the front side along the first surface of the base (fig. 6) but fails to teach a support structure positioned along the base and centered between the first lateral side and the second lateral side of the body, the support structure defining a horizontal portion oriented along a first surface of the base, and an inclined portion extending from the horizontal portion to the front side of the body with the inclined portion terminating at a top end of the support structure defined at the top side of the body along the front side of the body, the inclined portion defining an inclined surface. However, Wayn teaches a support structure (body support section 42, fig. 4 and 5) positioned along a base (base 218, fig. 4) and centered between a first lateral side and a second lateral side of the body (see figure 5 below), the support structure defining a horizontal portion oriented along a first surface of the base (bottom portion of 42, fig. 5), and an inclined portion extending from the horizontal portion to the front side of the body with the inclined portion terminating at a top end of the support structure defined at the top side of the body along the front side of the body, the inclined portion defining an inclined surface (fig. 5). It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify Reece’s animal seat with a dog seat as taught by Wayn to enable a pet to take the weight off his fore-legs on long trips while allowing an animal to enjoy the view.
Regarding claim 2, Reece as modified by Wayn teaches the invention substantially as claimed and Wayn further teaches wherein the inclined surface supports a torso portion of the pet (fig. 4), and Reece teaches the back support accommodates a back portion of the pet (fig. 6).
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Regarding claim 4, Reece as modified by Wayn teaches the invention substantially as claimed and Reece teaches wherein the back support defines a back wall extending orthogonally from the base along the back side of the body (see figure 6 above), a first side wall defined adjacent the back wall, and a second side wall defined 77129550.120opposite the first side wall (see figure 6 above), the first side wall, the back wall, and the second side wall collectively forming a pocket to receive a back portion of the pet (fig. 6).
Regarding claim 6, Reece as modified by Wayn teaches the invention substantially as claimed but fails to teach wherein the wedge is removable from the body. It would have been obvious to one having ordinary skill in the art at the time the invention was made to provide a removable wedge, since it has been held that constructing a formerly integral structure in various elements involves only routine skill in the art. Nerwin v. Erlichman, 168 USPQ 177, 179. In this case, having a removable wedge would allow the device to be easily cleaned and/or replaced when damaged. Regarding “the wedge comprising a size predetermined to be suitable for accommodating the pet such that shoulders of the pet align along the top end and the top end is positioned at a predetermined position above the base to support the breastbone of the pet in the sitting position”, it would have been an obvious matter of design choice to provide a wedge comprising a size predetermined to be suitable for accommodating a pet since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
Regarding claim 7, Reece as modified by Wayn teaches the invention substantially as claimed and Wayn further teaches wherein the inclined surface slopes downwardly from the top end to the horizontal portion (see figure 5 above).
Regarding claim 8, Reece as modified by Wayn teaches the invention substantially as claimed and Wayn further teaches a restraint system positioned over the body (para. 0038), the restraint system including a harness engageable to an attachment portion of the body, the harness defining an opening configured to receive a neck portion of the pet (plurality of straps 238, fig. 4).
Regarding claim 10, Reece as modified by Wayn teaches the invention substantially as claimed and Wayn further teaches a harness (238) including a plurality of harness members (straps of harness 238), a first tightening (female 50) component to tighten at least one of the plurality of harness members about the pet, and a second tightening component (male 48) to adjust a distance between the harness and the body to bring the pet in closer proximity to the wedge (fig. 4).
Regarding claim 19, Reece teaches an apparatus, comprising: a body comprising: a base defined along a bottom side of the body (see figure 6 above), and a back support positioned along the base at the back side of the body (see figure 6 above) but fails to teach a support structure for supporting a pet positioned along the base, the support structure including an inclined portion and a top end, the top end defined at a top side of the body opposite the bottom side. However, Wayn teaches a support structure for supporting a pet positioned along the base, the support structure including an inclined portion and a top end, the top end defined at a top side of the body opposite the bottom side (body support section 42, para. 0037). It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify Reece’s seat with a support as taught by Wayn to allow a dog to sit-up to look out the window while supporting its weight on long journeys.
Regarding claim 20, Reece as modified by Wayn teaches the invention substantially as claimed and Wayn further teaches a restraint system (222) oriented over the body for maintaining a pet in a stationary position relative to the body; and a strap assembly for coupling the base to an anchor point of a vehicle (seat belt 36 and tensioning means 52, para. 0040, fig. 4), the strap assembly including at least one strap end engageable to the anchor point (fig. 4), wherein the restraint system includes a harness (238) configured to wrap at least partially about the pet, and wherein the support structure, the back support, the restraint system, and the strap assembly collectively maintain the pet in a fixed position relative to a portion of the vehicle during travel (fig. 6 of Reece and fig. 4 of Wayn). It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify Reece’s seat with a restraining system and strap assembly as taught by Wayn to provide added security when the automobile is in motion.
Claims 3 and 15-18 are rejected under 35 U.S.C. 103 as being unpatentable over Reece in view of Wayn, as applied to claim 1 above, further in view of Rossouw (US D733897).
Regarding claim 3, Reece as modified by Wayn teaches the invention substantially as claimed but fails to teach wherein the inclined portion defines an arcuate recess for supporting a torso portion of the pet. However, Rossouw teaches a support comprising an inclined portion defining an arcuate recess (fig. 1). It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify Reece’s seat with a recess as taught by Rossouw to prevent excessive pressure from being exerted in one spot on the pet during long trips.
Regarding claim 15, Reece teaches a method of making an apparatus for improving safety of a pet during travel, comprising: providing a base (see figure 6 above); positioning a back support along a second portion of the base; and wherein the back support is configured to support a rear portion of the pet during the travel (see figure 6 above) but fails to teach providing a restraining system engageable to at least one attachment point of the base and positioning a support structure along a first portion of the base, the support structure defining a top end elevated above the base and an inclined surface between the top end and the base; and wherein the inclined surface is configured to cradle a torso portion of the pet. However, Wayn teaches providing a restraining system engageable to at least one attachment point of the base (222) and positioning a support structure along a first portion of the base, the support structure defining a top end elevated above the base and an inclined surface between the top end and the base (body support section 42, para. 0037); and wherein the inclined surface is configured to cradle a torso portion of the pet. It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify Reece’s seat with a restraining system and a support as taught by Wayn to allow a dog to sit-up while supporting its weight on long journeys. And Rossouw teaches an inclined surface configured to cradle a torso portion of the pet (fig. 1). It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify Reece’s seat with a support comprising a recess as taught by Rossouw to prevent excessive pressure from being exerted in one spot on the pet.
Regarding claim 16, Reece as modified by Wayn and Rossouw teaches the invention substantially as claimed and Wayn further teaches providing a strap assembly (seatbelt 36 and tensioning means 52, para. 0040) for coupling the base to an anchor point of a vehicle, the strap assembly including at least one strap end engageable to the anchor point (fig.4).
Regarding claim 17, Reece as modified by Wayn and Rossouw teaches the invention substantially as claimed but fails to teach removing the support structure from the base; and positioning a different support structure along the first portion of the base, the different support structure accommodating a size of a different pet. It would have been obvious to one having ordinary skill in the art at the time the invention was made to provide a removable wedge, since it has been held that constructing a formerly integral structure in various elements involves only routine skill in the art. Nerwin v. Erlichman, 168 USPQ 177, 179. In this case, having a removable support would allow the device to be easily cleaned and/or replaced when damaged. It would have been an obvious matter of design choice to provide different sized supports suitable to accommodate pet of various sizes since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
Regarding claim 18, Reece as modified by Wayn and Rossouw teaches the invention substantially as claimed and Wayn further teaches wherein the restraining system includes a harness (222), the harness defining a first harness member attachable to a third portion of the base adjacent the support structure (female 50), the harness defining a second harness member attachable to a fourth portion of the base adjacent the support structure and opposite the third portion (male 48), a portion of the harness extending over the support structure (straps 238 extends over a portion of the harness, fig. 4).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Reece in view of Wayn, as applied to claim 1, above further in view of Kennedy (US D585606).
Regarding claim 9, Reece as modified by Wayn teaches the invention substantially as claimed but fails to teach wherein the restraint system includes a flap extending over the support structure to hold the pet in place against the inclined surface. However, Kennedy teaches a flap (fig. 1). It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify Reece’s restraint system with the flap as taught by Kennedy to prevent excessive pressure from being exerted in one spot on the pet.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Reece in view of Wayn, as applied to claim 1 above, further in view of Wood (US D204443).
Regarding claim 11, Reece as modified by Wayn teaches the invention substantially as claimed but fails to teach wherein the support structure includes a vertical portion defined along the front side of the body between the top end and the horizontal portion, a first side support defined adjacent the vertical portion for supporting a first front leg of the pet, and a second side support defined opposite the first side support for supporting a second front leg of the pet. However, Wood teaches a support structure including a vertical portion between the top end and the horizontal portion (fig. 4), a first side support defined adjacent the vertical portion, and a second side support defined opposite the first side support, (fig. 4). It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify Reece’s invention with a support structure as taught by Wood to prevent lateral disposition during transportation e.g., when a vehicle makes a hard turn. Regarding “for supporting a first front leg of the pet, and for supporting a second front leg of the pet” it has been held the recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. Ex parte Masham, 2 USPQ2d 1647 (1987).
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Reece in view of Wayn in view of Wood, as applied to claim 10 above further in view of Cottrell (US 7111347).
Regarding claim 12, Reece as modified by Wayn and Wood teaches the invention substantially as claimed but fails to teach wherein the vertical portion of the support structure includes a belt loop for receiving a belt of a car seat, the belt extendable around the body and through the belt loop for maintaining the body against the car seat. However, Cottrell teaches a vertical portion of the support structure including a belt loop (handle, fig. 2). It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the support structure of the modified invention with a handle as taught by Cottrell to allow the system to be easily transported. Regarding “for receiving a belt of a car seat, the belt extendable around the body and through the belt loop for maintaining the body against the car seat” it has been held the recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. Ex parte Masham, 2 USPQ2d 1647 (1987). In this case, a car seat belt can be looped through the handle for added security.
Claims 13 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Reece in view of Wayn, as applied to claim 1 above further in view of Hall (US 4583253).
Regarding claim 13, Reece as modified by Wayn teaches the invention substantially as claimed but fails to teach a strap assembly positioned along a second surface of the base opposite the first surface, the strap assembly configured to engage the body to a car seat. However, Hall teaches a strap assembly positioned along a second surface of a base opposite a first surface, the strap assembly configured to engage the body to a car seat (24a, 24b, 24c, col. 2 II. 27-39). It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify Reece’s automobile seat with a strap assembly as taught by Hall’s automobile seat to provide added security.
Regarding claim 14, Reece as modified by Wayn and Hall teaches the invention substantially as claimed and Hall further teaches wherein the strap assembly includes a first strap end (26a) and a second strap end (26c) extending from the back side of the body in parallel orientation relative to one another (fig. 4), the first strap end and the second strap end engageable to anchor points of the car seat (fig. 2 and 4).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to EBONY E EVANS whose telephone number is (571)270-1157. The examiner can normally be reached 9am -5pm EST.
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/EBONY E EVANS/Primary Examiner, Art Unit 3647