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 . 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.
Double Patenting
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 1-12 are rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 1-12 of prior U.S. Patent No. 12,252,852. This is a statutory double patenting rejection.
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.
Claims 1-4, 6-8, and 12 are rejected under 35 U.S.C. 103 as being unpatentable over US 2006/0133897 (Allard) in view of FR 2079966 (STIC; the citation of which are taken from the attached translation).
Regarding claim 1, Allard discloses a fence (see Figures 2 and 3, and annotated Figure 1 below) comprising:
a wall panel portion (28) having an upper edge and a lower edge (see annotated Figure 1 below);
an apron portion (10, 12, 14) extending from the lower edge of the wall panel portion (see paragraph [0030], where portions 10, 14, and 28 may be formed as one piece), the apron portion having a distal edge spaced from the lower edge (see annotated Figure 1 below); and
a plurality of tubular pockets (30) running across the wall panel between the upper edge and the lower edge, the tubular pockets each configured to receive a mounting post (32) therein.
Allard does not expressly disclose the wall panel comprises a channel proximate to the upper edge in which a first draw cord is threaded.
STIC teaches a wall panel (2) comprises a channel (12) proximate to the upper edge in which a first draw cord (13) is threaded (see Figure 4). STIC teaches this structure aids in maintaining tension across the fence and providing a secure connection to the ground (see Figure 4 and page 2, lines 64-68, and page 3, line 118, through page 4, line 129). Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the fence of Allard such that the wall panel comprises a channel proximate to the upper edge in which a first draw cord is threaded, as taught in STIC, in order to maintain tension across the fence and provide a secure connection to the ground.
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Figure 1. Annotated Figure 3 of Allard
Regarding claim 2, Allard teaches the wall panel portion (28) and the apron portion (10, 12, 14) are formed of a one-piece (see paragraph [0030], where portions 10, 14, and 28 may be formed as one piece) flexible fabric material (see paragraph [0028]-[0029]).
Regarding claim 3, Allard teaches the flexible fabric material is a knitted polyethylene material (see paragraph [0028]-[0029]).
Regarding claim 4, Allard teaches the wall panel portion is formed of a knitted polyethylene material (see paragraph [0028]-[0029]).
Regarding claim 6, Allard teaches at least one of the tubular pockets (30) is attached to the wall panel portion (28; see Figure 2).
Regarding claim 7, each of Allard and STIC teaches at least one of the tubular pockets (30 of Allard; see Figure 3 of STIC) is formed by a fold of the wall panel portion (28 of Allard; 2 of STIC).
Regarding claim 8, Allard teaches a plurality of mounting posts (32) each inserted in one of the tubular pockets (30; see Figure 2).
Regarding claim 12, STIC teaches the apron portion (provided at the bottom of portion 2) comprises a channel (12) proximate the distal edge in which a second draw cord (14) is threaded (see Figure 4).
Claims 5, 9, and 10 are rejected under 35 U.S.C. 103 as being unpatentable over the combination of Allard and STIC, and further in view of US 4,279,535 (Gagliardi).
Regarding claim 5, the combination of Allard and STIC teaches the fence of claim 1, but does not expressly teach at least one grommet near the upper edge and proximate to one of the plurality of tubular pockets (30 of Allard).
Gagliardi teaches at least one grommet (31) near an upper edge and proximate to one of a plurality of mounting posts (35; see Figure 6). Gagliardi teaches such a grommet provides a means of supporting a wall panel portion to a respective mounting post, while preventing failure of said fence at the connection (see column 5, lines 39-57). Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the fence of the combination of Allard and STIC such that at least one grommet is provided near the upper edge and proximate to one of the plurality of tubular pockets, as taught in provide Gagliardi, in order to a means of supporting a wall panel portion to a respective mounting post, while preventing failure of said fence at the connection.
Regarding claim 9, the combination of Allard and STIC teaches the fence of claim I, wherein at least one of the mounting posts is coupled to the wall panel portion by a fastening tie.
Gagliardi teaches a mounting posts (35) is coupled to a wall panel portion by a fastening tie (39; see Figure 6). Gagliardi teaches such fastening ties provide additional strength and permit optimum installation (see column 3, lines 10-23). Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the fence of the combination of Allard and STIC such that at least one of the mounting posts is coupled to the wall panel portion by a fastening tie, as taught in Gagliardi, in order to provide additional strength and permit optimum installation.
Regarding claim 10, Gagliardi teaches the wall panel portion comprises a grommet (31), and the fastening tie (39) includes an elongated element passing through the grommet (see Figure 6).
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over the combination of Allard, STIC, and Gagliardi, and further in view of US 2002/0172564 (Brown).
The combination of Allard, STIC, and Gagliardi teaches the fence of claim 9, but does not expressly teach at least one of the mounting posts (32 of Allard; 35 of Gagliardi) comprises a through hole, and the fastening tie (39 of Gagliardi) includes an elongated element passing through the through hole.
Brown teaches at least one of a plurality of mounting posts (3) comprises a through hole (12), and a fastening tie includes an elongated element passing through the through hole in order to directly attach the mounting post to a wall panel portion (13; see paragraph [0038]). Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the fence of the combination of Allard, STIC, and Gagliardi such that at least one of the mounting posts comprises a through hole, and the fastening tie includes an elongated element passing through the through hole, as taught in Brown, in order to directly attach the mounting post to a wall panel portion.
Conclusion
The prior art set forth in the attached Notice of References Cited (PTO-892) made of record and not relied upon is considered pertinent to applicant's disclosure in the field of fences.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Josh Skroupa whose telephone number is (571)270-3220. The examiner can normally be reached M-F 7:30 AM – 3:30 PM ET.
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, Amber Anderson can be reached on (571)270-5281. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Josh Skroupa/Primary Examiner, Art Unit 3678
August 18, 2026
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