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 1-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent No. 12,227,250. Although the claims at issue are not identical, they are not patentably distinct from each other because the patent claims contain all of the subject matter of the present claims with only minor phrasing differences or obvious use of a structural feature in a process step (claim 19), the independent claims of the patent having all of the limitations of the present claims (1/18) therein.
Claim Rejections - 35 USC § 102
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.
Claim(s) 1-5, 7-12, 14-15, 17-18 is/are rejected under 35 U.S.C. 102a1 as being anticipated by Zimmerhackel-monien harald (DE 10200905673A1).
Regarding claim 1, Zimmerhackel-monien harald (hereafter “D1”) discloses a bicycle rack (title) comprising: a support member (receiving device 4) having a first portion (attachment section 18), and a second portion (main section 8), disposed at an angle relative to the first portion (figure 1), the second portion being configured to support the pedal of a bicycle (figure 5); a cover member (6) pivotably mounted on the first portion of the support member, the cover member being configured to move between an open position in which the support member is uncovered and a closed position in which the support member is covered (cover 6 is hinged at 52 to move between open and closed positions); and a locking mechanism (figure 8 describes locking mechanism wherein self-locking device 68 has part 72 on the receiving device 4 and counterpart 74 of the cover 6 which locks via locking bolt 76) configured to lock the cover member (6) in the closed position; wherein a distal end of the cover member extends over a distal end of a crank arm of the bicycle when the cover is closed and is configured to prevent access to a spindle of the pedal (as in figure 1).
Regarding claims 2 and 4-5, D1 discloses wherein the locking mechanism (68) includes a first locking feature (74) on the cover member and a second locking feature (72) on the support member (figure 8) and a latch member (locking bolt 76) slidably mounted to move between a retracted position and an extended position, and the cover member includes an aperture into which the latch member slides when the latch member is in the extended position and the cover member is in the closed position (figure 8). D1 discloses operation of the latch member (76) by a key operated lock (from translated document).
Regarding claim 3, D1 also discloses use of a wire rope (100) locking device in figure 9 which is passed through aligned apertures (26a/b, 45a/b – figures 2-3).
Regarding claim 7, D1 discloses wherein the latch member is biased toward the extended position (disclosed locking bolt 76 and that lock is self-biased).
Regarding claims 8-9, D1 discloses wherein the cover member (6) is biased toward the open position (spring to bias cover open is disclosed per translated document).
Regarding claim 10, D1 discloses wherein the first portion of the support member includes holes (28a-d) configured to receive threaded fasteners (figure 2).
Regarding claim 11, D1 discloses wherein the first portion (18) is configured so that the holes (28a-d) are inaccessible when the cover member is in the closed position (figure 1).
Regarding claim 12, D1 discloses wherein the cover member (6) is pivotably mounted by a hinge (joint element 52).
Regarding claim 14, D1 discloses wherein the second portion (at 18) of the support member includes an angled support surface (figure 1).
Regarding claim 15, D1 discloses wherein the second portion (at 18) of the support member includes a forked portion (at 24 – figure 2) configured to receive and support a spindle of a pedal of a bicycle.
Regarding claim 17, D1 discloses wherein the first portion of the support member has an angled rear surface (figure 1), configured so that a longitudinal axis of the support member is disposed at an angle relative to a surface of the wall on which the rack is mounted (as seen in figure 10).
Regarding claim 18, D1 discloses the steps of wall attachment, mounting a pedal in the device and closing and locking with the cover member.
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(s) 6, 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zimmerhackel-monien harald (DE 10200905673A1).
Regarding claim 6, D1 discloses use of a key lock and Official Notice is taken that a barrel-style combination lock is a well known in the art type of lock device and that it would have been obvious to one of ordinary skill in the art at the time of the effective filing date to substitute a barrel-style combination lock in place of the key lock when desirable to not require a key.
Regarding claim 13, D1 does not disclose the type of hinge (at joint element 52) although the figures do appear as a pin type device with use of joining members (54a, b) (figure 1). It would have been obvious to one of ordinary skill in the art at the time of the effective filing date to utilize a pin through aligned openings in 54a/b as suggested by the figures for incorporation of a well known hinge type in the device.
Allowable Subject Matter
Claims 16, 19 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims (and the double patenting rejections are overcome).
The following is an examiner’s statement of reasons for indication of allowable subject matter: The prior art of record does not disclose or suggest any combination meeting the limitations of claim(s) 16 or 19. Specifically, D1 does not teach at least the claimed cup-shaped portion of the cover member and the prior art documents of record do not suggest a modification to meet these limitations.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See notice of references cited form PTO-892. References not applied but cited are relevant as disclosing or suggesting at least one feature in the claims or disclosure of the present application.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PATRICK D HAWN whose telephone number is (571)270-5320. The examiner can normally be reached Monday - Friday 9-6.
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, Jonathan Liu can be reached at 5712728227. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PATRICK D HAWN/ Primary Examiner, Art Unit 3631