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 .
Drawings
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 “main portion” and “mounting portion” of the second pair of spaced apart rails must be shown or the feature(s) canceled from the claim(s) (claims 6 and 16). Examiner notes that while the second pair of rails/pair substantially linear members are depicted in the figures, neither the drawings nor specification identify any portions, let alone specific limits of any designated portions.
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.
Claim Objections
Claim 11 is objected to because of the following informalities:
It appears that the 6th from last line should recite “member of the second assembly
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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 6-10 and 16 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.
With respect to independent claim 6, examiner does not see where in the original disclosure, or the disclosure of the parent applications, there is support for “each of the second pair of rails including a main portion and a mounting portion”. Similarly, with respect to dependent claim 16, examiner does not see where in the original disclosure, or the disclosure of the parent applications there is support for “wherein each substantially linear member of the pair of substantially linear members includes a main portion and a mounting portion, the mounting portion being positioned at the upper end of the substantially linear member, extending from the main portion, and pivotally coupled with the first assembly at the pair of hinges”.
As noted above, while the second pair of rails/pair substantially linear members are depicted in the figures, neither the drawings nor specification identify any portions, let alone specific limits of any designated portions
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 1-5 and 11-15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4 of U.S. Patent No. 12,152,445 Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-4 of US 12,152,445 recite at least all of the claimed components, features, limitations and arrangement as claimed in claims 1-5 and 11-15 in the instant application, with only minor naming differences (i.e. cross-member vs rung; substantially linear member vs rail).
Claims 6-10 and 16 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-4 of U.S. Patent No. U.S. Patent No. 12,152,445 in view of Ashton et al. (US 4,371,055). Applicant’s US 12,152,445 recite at least all of the claimed components, features, limitations and arrangements as claimed in claims 6-10 and 16 except for the limitation that the second pair of rails/pair of substantially linear members include a main portion in the mounting portion. However, Ashton et al. teach the second pair of rails/substantially linear members (14,12 of rear ladder, figure 1) comprising a main portion (18, figure 1) and a mounting portion (12, figure 1) positioned at the upper end of the rails/linear members, wherein the pair of hinge assemblies (16, figure 1) are coupled to the upper ends of the second pair of rails via the mounting portions (figure 1) which extends from the main portion (figure 1).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to construct the second pair of rails/substantially linear members of US 12,152,445 to include a main portion and a mounting portion, as taught by Ashton et al., so as to provide an extendable and therefore more versatile, second assembly.
NOTE: upon removal of the new matter in claims 6 and 16, the claims may be subject to nonstatutory double patenting, without a secondary reference, as applied to claims 1 and 11 above, depending on if any other amendments are made to the claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to COLLEEN M CHAVCHAVADZE whose telephone number is (571)272-6289. The examiner can normally be reached M-F 8:00AM-4:00PM.
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COLLEEN M. CHAVCHAVADZE
Primary Examiner
Art Unit 3634
/COLLEEN M CHAVCHAVADZE/Primary Examiner, Art Unit 3634
