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.
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Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-16 of U.S. Patent No. 12232682. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-20 are encompassed by the above reference patent claims 1-16.
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 3, 17, and 18 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 pre-AIA the applicant regards as the invention. Regarding claim 3, the recitation “the at least one attachment arm is a second attachment arm” is vague and indefinite as the term “second” infers there is a first attachment arm (note that no first attachment arm is claimed in claim 1 from which claim 3 depends nor in claim 3). Consequently, it is unclear in claim 3 whether applicant is claiming there’s two attachment arms or just one. Regarding claim 17, “the non-vertical sections of the vertical members” lacks proper antecedent basis. Claim 18 is also rejected since it depends from rejected claim 17.
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 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.
Claims 1-14 and 16- 20 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Smith (US Patent no. 5480035 herein referred to as Smith’035).
Regarding claim 1, Smith '035 discloses a moveable shelf assembly (20), comprising a retaining body (22 - see Figure 4) having at least one attachment arm (at 37, 38, 39) configured to be coupled to a dish rack (15 of 10); and a planar shelf body (20) extending along a width (from rear left to front right in Figure 1) and operably coupled to the retaining body (22) for rotation between a storage position (the dotted lines in Figure 7) wherein the shelf body (20) is upright and a use position (either the solid lines in Figures 6 or 7) wherein the shelf body (20) is at least partially lowered, wherein the shelf body includes first (24 - see Figure 5) and second (26 - see Figure 5) positioning cross bars extending along the width (from the front left to the rear right in Figure 5) and configured to allow for vertical movement (via 51, 57 and 50, 56) of the shelf body (20) along the retaining body (22) between at least a lower use position (solid lines in Figures 7) and an upper use position (solid lines in Figure 6).
Regarding claim 2, Smith’035 discloses the moveable shelf assembly of claim 1 wherein the at least one attachment arm is a first attachment arm (38) configured to be coupled to at least one of a plurality of cross members (15) of the dish rack (10).
Regarding claim 3, Smith’035 discloses the moveable shelf assembly of claim 1 wherein the at least one attachment arm (at 44 adjacent 14 in Figure 5) is a second attachment arm configured to be coupled to at least one of a plurality of vertical members (14) of the dish rack (10).
Regarding claim 4, Smith’035 discloses the moveable shelf assembly of claim 1 wherein the retaining body (22) further comprises at least one retaining rib (63, see figure 7) configured to bear against the first positioning cross bar (24) for retaining the shelf body in the storage position (dotted lines in figure 7).
Regarding claim 5, Smith’035 discloses the moveable shelf assembly of claim 4 wherein the retaining body (22) further comprises at least one retaining clip (1t 45 -see top left corner of figure 7) configured to at least partially receive a portion of the shelf body for retaining the shelf body in the storage position (dotted lines in figure 7).
Regarding claim 6, Smith’035 discloses the moveable shelf assembly of claim 1 wherein the retaining body (22) further comprises a set of lower positioning detents(50, 56) for retaining the first (24) and second (26) positioning cross bars of the shelf body in the lower use position (solid lines in figure 7).
Regarding claim 7, Smith’035 discloses the moveable shelf assembly of claim 6 wherein the retaining body (22) further comprises a set of upper positioning detents (51, 57) for retaining the first (24) and second (26) positioning cross bars of the shelf body in the upper use position (solid lines in figure 6).
Regarding claim 8, Smith’035 discloses the moveable shelf assembly of claim 1 wherein the shelf body is rotatable about the first positioning cross bar (24) and relative to the retaining body (22) between the storage position (dotted lines in figure 7) and the use positions (solid lines in figures 6 and 7).
Regarding claim 9, Smith’035 discloses the moveable shelf assembly of claim 8 wherein the shelf body is rotatable about the first positioning cross bar (24) to a vertical position (dotted lines in figure 7) relative to the retaining body (22).
Regarding claim 10, Smith’035 discloses the moveable shelf assembly of claim 8 wherein the shelf body (20) can be vertically slid (i.e. this phrase is functional, and thus when the cross bars are adjacent to the retaining body and not fixed in place, such as 50 or 51, the elements are considered to be capable of being slid, as claimed) between a height for the lower use position (solid lines in figure 7) and a height for the upper use position (solid lines in figure 6) when the shelf body is in the vertical position (dotted lines in figure 7).
Regarding claim 11, Smith’035 discloses the moveable shelf assembly of claim 1, wherein the moveable shelf assembly is configured to be provided within a perimeter wall (where 15 are located and the other three vertically extending sides in Figure 1) of a dish rack assembly (10 - see Figure 1) having a bottom wall (where 12 is located) and wherein the perimeter wall extends upwardly from the bottom wall and at least partially defines an interior of the dish rack assembly.
Regarding claim 12, Smith’035 discloses the moveable shelf assembly of claim 11, wherein the perimeter wall comprises a plurality of cross members (at 15) and a plurality of vertical members (14).
Regarding claim 13, Smith’035 discloses the moveable shelf assembly of claim 12, wherein each vertical member (14 on the front left and right rear sides of figure 1) of the plurality of vertical members comprises a contoured portion defining a non-vertical section (unnumbered -see Figure 1, below numeral 14, below numeral 10).
Regarding claim 14, Smith’035 discloses the moveable shelf assembly of claim 13, wherein the non-vertical sections extend laterally inward (see figure 1) from the vertical members (14) of the perimeter wall.
Regarding claim 16, Smith’035 discloses the moveable shelf assembly of claim 12 wherein the plurality of cross members (15) comprises a lower cross member (see lowest numeral 15 in front right corner of figure 1) and an upper cross member (see highest numeral 15 in front right corner of figure 1).
Regarding claim 17, Smith’035 discloses the moveable shelf assembly of claim 16 wherein the non-vertical sections (see figure 1, it is noted that the non-vertical sections are on a different side of the perimeter wall then the lower and higher corss members) of the vertical members are positioned above the lower cross member and below the upper cross member.
Regarding claim 18, Smith’035 discloses the moveable shelf assembly of claim 17 wherein the at least one attachment arm (38, figure 6) is coupled to the lower cross member.
Regarding claim 19, Smith '035 discloses a retrofit kit (the entire showing in Figure 1) for a dish treating appliance, the retrofit kit comprising the moveable shelf assembly of claim 1 (see above discussion of claim 1).
Regarding claim 20, Smith '035 discloses the retrofit kit as recited in claim 19, and wherein the retaining body further comprises a set of lower positioning detents (50, 56) for retaining the first (24) and second (26) positioning cross bars of the shelf body in the lower use position (solid lines in Figure 7) and a set of upper positioning detents (51, 57) for retaining the first (24) and second (26) positioning cross bars of the shelf body in the upper use position (solid lines in Figure 6).
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.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over in view of Smith (US Patent no. 5480035 herein referred to as Smith’035).in view of Choi et al (US Patent no. 8042559).
Regarding claim 15, Smith’035 discloses a moveable shelf assembly of claim 13, except for wherein the at least one attachment arm is coupled to the non-vertical section of the at least one of the plurality of vertical members.
Choi teaches in a moveable shelf assembly (figures 4-9), comprising: a retaining body (90) having at least one attachment arm (108) configured to be coupled to a dish rack (50); and a planar shelf body (80) extending along a width and operably coupled to the retaining body (90) for rotation between a storage position (figure 8) wherein the shelf body is upright and a use position (figure 9) wherein the shelf body (80) is at least partially lowered (figure 9), wherein the shelf body includes first and second positioning cross bars (74 and 84, figure 4) extending along the width of the shelf body; wherein the at least one attachment arm (108) is coupled to the non-vertical section (see bend portion of vertical member 57, figure 8) of the at least one of the plurality of vertical members (57). It would have been obvious to one of ordinary skilled in the art to have modify the retaining body of Smith’035 such that the at least one attachment arm is coupled to the non-vertical section of the at least one of the plurality of vertical members for additional horizontal yet non-vertical support as taught be desirable by Choi.
.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The remaining cited prior art of record further demonstrate rack attachments of interest.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Ko (Korie) H Chan whose telephone number is (571)272-6816. The examiner can normally be reached on Monday -Friday, 8:00 - 5:00 EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jonathan Liu can be reached on 571-272-8227. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Ko H Chan/Primary Examiner, Art Unit 3631
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