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 .
Election/Restrictions
Applicant’s election of Invention I in the reply filed on 2/6/26 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
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.
Claims 1-15 are rejected under 35 U.S.C. 112(a) 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.
Applicant’s specification provides no details about the shroud being moveable between first and second positions.
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.
Claims 4-9 and 14-15 are rejected under 35 U.S.C. 112(b) 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.
Regarding the identified claims, the metes and bounds of “a crimp” are unclear.
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) 1-6, 8, and 11-12 is/are rejected under 35 U.S.C. 102(a)(1&2) as being anticipated by Carter US 20150156993.
Regarding claim 1, Carter discloses a bird feeder comprising:
a seed container to contain seeds (12 figure 7A);
a seed tray connected to the seed container and adapted to provide access to the seeds (see annotated figure 14 below);
a shroud engaged with the seed tray (see annotated figure 14 below and 24/46 figures 9 and 14), the shroud moveable between a first position to provide access to the seeds (such as when placed in a location to allow access by a user) and a second position to deny access to the seeds (such as when placed away in storage by a user; as best understood by the Examiner);
at least one integrated perch to facilitate bird access to the seeds (26); and,
a cover releasably secured to the seed container (28 and paragraph 0047).
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Regarding claim 2, Carter discloses the bird feeder of Claim 1 wherein the shroud is further comprised of at least one opening through which is fitted the at least one integrated perch (figures 9 and 14).
Regarding claim 3, Carter discloses the bird feeder of Claim 1 wherein the at least one integrated perch is pivotally engaged with the shroud (56 figure 5 and paragraph 0038).
Regarding claim 4, Carter discloses the bird feeder of Claim 1 further comprised of a crimp secured within the shroud (48 figure 14).
Regarding claim 5, Carter discloses the bird feeder of Claim 4 wherein the at least one integrated perch is pivotally engaged with the crimp (figure 14).
Regarding claim 6, Carter discloses the bird feeder of Claim 5 wherein the crimp is further comprised of an upper crimp and a lower crimp sandwiched to one another (54/52 figure 10).
Regarding claim 8, Carter discloses the bird feeder of Claim 5 wherein the crimp is further comprised of an upper crimp and a base (see claim 6 rejection).
Regarding claim 11, Carter discloses the bird feeder of Claim 1 wherein the at least one integrated perch has at least one indentation configured to rest on the shroud (56 figure 15 and paragraph 0031).
Regarding claim 12, Carter discloses the bird feeder of Claim 2 wherein the shroud is comprised of a plurality of recessed portions surrounding the at least one opening (multiple recessed portions seen throughout the figures corresponding to the shroud elements previously described, such as near 24 in figure 15, etc.).
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) 7, 9-10, and 13-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Carter.
Regarding claim 7, Carter teaches the bird feeder of Claim 6 but does not specify wherein the at least one integrated perch is pivotally engaged in between the lower and upper crimps.
However, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to provide each port shutter 48 in upper and lower elements to be sandwiched together during production, in order to enable more efficient packing for distribution; since even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.
Regarding claim 9, Carter teaches the bird feeder of Claim 8 wherein the at least one integrated perch is pivotally engaged in between the upper crimp and the base (see claim 7 rejection).
Regarding claim 10, Carter teaches the bird feeder of Claim 1 but does not specify wherein the at least one integrated perch terminates in a U-shape allowing the at least one integrated perch to pivot about a pivot point.
However, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to provide such a shape, in order to meet design preferences for particular types of birds; since a change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results.
Regarding claim 13, Carter teaches the bird feeder of Claim 2 wherein the at least one integrated perch has a first end pivotally engaged with a first pivot point, the first end extending out of the shroud through a first opening of the at least one opening and into a second opening of the at least one opening (figure 15 best shows the multiple openings corresponding to the elements of the shroud as previously described), but does not specify and terminating in a second end pivotally engaged with a second pivot point such that the at least one integrated perch pivots about the first and second pivot points.
However, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to for example connect the two perches shown in figure 13 with a long arch shaped element, in order to provide the arrangement as described since a second pivot point, etc. is already taught, in order to meet design preferences for particular types of birds; since a change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results.
Regarding claim 14, Carter teaches the bird feeder of Claim 4 but does not specify wherein the crimp is further comprised of at least one concave wall cooperating with at least one saddle to form at least one pivot point around which can pivot the at least one integrated perch.
However, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to provide the hinging element best shown near 56 in figure 15 as separate concave and saddle elements to be attached during production, in order to enable more efficient packing for distribution; since even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.
Regarding claim 15, Carter teaches the bird feeder of Claim 6 wherein the upper crimp is further comprised of at least one concave wall, and the lower crimp is further comprised of at least one saddle, the at least one concave wall cooperating with the at least one saddle to form at least one pivot point around which can pivot the at least one integrated perch (see claim 4 rejection).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JESSICA WONG whose telephone number is (571)272-7889. The examiner can normally be reached Monday through Friday from 8:00am to 4:30pm MST.
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/JESSICA B WONG/Primary Examiner, Art Unit 3644