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 .
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.
Drawings
New corrected drawings in compliance with 37 CFR 1.121(d) are required in this application because at least Figures 24-32 are of insufficient quality to permit reproduction. The drawings are shaded, dark, or have heavy linework which would reproduce poorly. The drawings should be in black and white. Applicant is advised to employ the services of a competent patent draftsperson outside the Office, as the U.S. Patent and Trademark Office no longer prepares new drawings.
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 Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 6-14 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 6 recites the limitation "the first and second linkages" in line 6. There is insufficient antecedent basis for this limitation in the claim. Further, it is unclear if the first and second linkages are part of or separate from the plurality of linkages previously introduced in the claim. For examination purposes, as best understood by the Examiner in view of the specification, the limitation will be interpreted as “a first and second linkage of the plurality of linkages”. Examiner suggests amending the claim as such to overcome the antecedent basis and indefiniteness issues.
Claims 7-14 are also indefinite by virtue of their dependency on Claim 6.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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) 1-9 and 11-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Chen (US 8651983).
Chen teaches:
Regarding Claim 1
A playground device(Fig 1), comprising:
a connection point(52);
an acceleration assembly(Fig 2-3) operatively coupled to the connection point(visually apparent in Fig 3,6), the acceleration assembly including:
a plurality of linkages connected to each other(linkages formed by 25,36,56,58,53,49) and wherein at least one of the linkages is also connected to the connection point(all linkages are connected to the connection point);
a coupler attached to the connection point(portion of 53 that couples 53 to 58 at 52); and
a force storing component(53) that forms at least part of a connection between the coupler and plurality of linkages(visually apparent in Fig 3), wherein the force storing component stores potential energy when the connection point is in a resting position and releases the stored potential energy to assist in initiating motion of the connection point(Col 4, ln 28-54).
Examiner notes the phrase “wherein the force storing component stores potential energy when the connection point is in a resting position and releases the stored potential energy to assist in initiating motion of the connection point”, is a conditional functional, or intended use limitation. In short, the claimed invention does not differ from the prior art in any physical structural manner. It has been held that “While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997); MPEP 2114 Additionally the limitations are construed to be functional language not structurally distinguishable over the prior art because the limitation indicates a manner of operating the device or an intended result. Furthermore, a claim containing a "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" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987).
Regarding Claim 2
wherein the force storing component is a spring(53 is a spring).
Regarding Claim 3
wherein the spring is an extension spring(53 is an extension spring; Fig 6).
Regarding Claim 4
wherein the plurality of linkages is a first(25,36,56) and second linkage(58,53,49), and wherein an angle between the first and second linkages is configured to change as the stored potential energy is released(since 58 pivots about 51 the angle between 36,56 and 53 changes; additionally, the angle between 33 and 58 also changes as the stored potential energy of 53 is released).
Regarding Claim 5
wherein the acceleration assembly is configured such that a change in angle between the first and second linkages is proportional to a change in the force storing component, such that a greater extension or compression of the force storing component results in a larger change in the angle between the first and second linkages(from Fig 3 and 8 it is visually apparent that a change in angle between the first and second linkages is proportion to a change in 53 as the greater the extension of 53, corresponding to a change in length of 53, results in a larger change in the angle between the first and second linkages).
Regarding Claim 6
A method of operating a playground device(Fig 1), the method comprising:
providing a connection point(52);
providing an acceleration assembly(Fig 2-3) that includes a plurality of linkages connected to each other(linkages formed by 25,36,56,58,53,49), and wherein at least one of the linkages is also connected to the connection point(all linkages are connected to the connection point);
changing an angle between the first and second linkages as stored potential energy is released from a force storing component that is connected to the plurality of linkages(since 58 pivots about 51 the angle between 36,56 and 53 changes; additionally, the angle between 33 and 58 also changes as the stored potential energy of 53 is released); and
wherein said change in the angle is proportional to a change in the force storing component(from Fig 3 and 8 it is visually apparent that a change in angle between the first and second linkages is proportion to a change in 53 as the greater the extension of 53, corresponding to a change in length of 53, results in a larger change in the angle between the first and second linkages).
Regarding Claim 7
wherein the force storing component is a spring(53 is a spring).
Regarding Claim 8
wherein the spring is an extension spring(53 is an extension spring; Fig 6).
Regarding Claim 9
wherein the change in the angle between the first and second linkages is initiated by a user applying a force to the connection point(via 36,56,58).
Regarding Claim 11
wherein the plurality of linkages is a first(25,36,56) and second linkage(58,53,49), and wherein the first linkage is connected to the connection point(all linkages are connected to the connection point).
Regarding Claim 12
wherein the second linkage is connected to a coupler(portion of 53 that couples 53 to 58 at 52), and wherein the coupler is attached to the connection point(Fig 3).
Regarding Claim 13
wherein the force storing component is configured to store potential energy when the connection point is in a resting position and to release the stored potential energy to assist in initiating motion of the connection point when a user applies a force to the connection point(Col 4, ln 28-54).
Regarding Claim 14
wherein the change in the angle between the first and second linkages is proportional to a change in the force storing component, such that a greater extension or compression of the force storing component results in a larger change in the angle between the first and second linkages(from Fig 3 and 8 it is visually apparent that a change in angle between the first and second linkages is proportion to a change in 53 as the greater the extension of 53, corresponding to a change in length of 53, results in a larger change in the angle between the first and second linkages).
Regarding Claim 15
An acceleration assembly for a playground device(Fig 1), comprising:
a plurality of linkages interconnected(linkages formed by 25,36,56,58,53,49), wherein at least one of the linkages is also connected to a connection point(52) of the playground device(all linkages are connected to the connection point);
a coupler attached to the connection point of the playground device(portion of 53 that couples 53 to 58 at 52); and
a force storing component(53) forming at least part of a connection between the coupler and the plurality of linkages(visually apparent in Fig 3), wherein the force storing component is configured to store potential energy when the connection point is in a resting position and to release the stored potential energy to assist in initiating motion of the connection point(Col 4, ln 28-54).
Examiner notes the phrase “wherein the force storing component is configured to store potential energy when the connection point is in a resting position and to release the stored potential energy to assist in initiating motion of the connection point”, is a conditional functional, or intended use limitation. In short, the claimed invention does not differ from the prior art in any physical structural manner. It has been held that “While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997); MPEP 2114 Additionally the limitations are construed to be functional language not structurally distinguishable over the prior art because the limitation indicates a manner of operating the device or an intended result. Furthermore, a claim containing a "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" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987).
Regarding Claim 16
wherein the force storing component is a spring(53 is a spring).
Regarding Claim 17
wherein the spring is an extension spring(53 is an extension spring; Fig 6).
Regarding Claim 18
wherein the plurality of linkages includes a first linkage and a second linkage(first linkage - 25,36,56; second linkage -58,53,49), and wherein the first linkage is connected to the connection point(via 36,56,58).
Regarding Claim 19
wherein the plurality of linkages includes a first linkage connected to a second linkage(first linkage - 25,36,56; second linkage -58,53,49), and wherein the first linkage and second linkage each include at least one additional connection to another component(25 of the fist linkage is connected to at least component 24 as shown in Fig 2; 58 of the second linkage is connected to at least one other component via 51).
Regarding Claim 20
wherein the force storing component is configured to store potential energy when the connection point is in a resting position and to release the stored potential energy to assist in initiating motion of the connection point when a user applies a force to the connection point(Col 4, ln 28-54).
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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12239918 in view of Jones et al. (US 12239918).
Although the claims at issue are not identical, they are not patentably distinct from each other.
Regarding Claims 1-20, claims 1-20 of U.S. Patent No. 12239918 recites all of the limitations of claims 1-20 of the instant application.
As such, it is apparent that the more specific reference application claims 1-20 encompasses application claims 1-20. Following the rationale in In re Goodman cited above, where the applicant has once been granted a patent containing a claim for a specific or narrower invention, applicant may not then obtain a second patent with a claim for the generic or broader invention without first submitting an appropriate terminal disclaimer. Note that since application claims 1-20 are anticipated by reference patent claims 1-20 and since anticipation is the epitome of obviousness, then application claims 1-20 are obvious over reference patent claims 1-20.
Allowable Subject Matter
Claim 10 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, and double patenting set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Conclusion
The following prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
US 20260034462 A1
Norquist; Thomas Robert et al.
US 6736732 B1
Devine; Wayne
US 1436834 A
ATTI PETER VAN
KR 101873523 B1
KWON KI WON et al.
The above references are cited for teaching playground equipment having features similar to that of the claimed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRIAN P WOLCOTT whose telephone number is (571)272-9837. The examiner can normally be reached M-F 8:00am-4:30pm.
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, Nicholas Weiss can be reached at 571-270-1775. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BRIAN P WOLCOTT/Primary Examiner, Art Unit 3711
