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 .
Drawings
The drawings are objected to because the figures appear to be 3D renderings or photographs which makes it difficult to ascertain the necessary details of the invention: see for example figures 1, 7, 9, 10, 12, 15, 16, 22, 23, 24, 26, 27, 33, 36B, 36C, 38, 42, 45, 46, 47, and 48. 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 Objections
Claim 15 is objected to because of the following informalities: line 5 recites the limitation “a first baffling location” (emphasis added), and line 10 similarly recites “a second baffling location” (emphasis added); however, later in the claim the features are referenced as “the first baffling section” and “the second baffling section” (emphasis added). Consistent terminology should be used throughout the claims to avoid confusion. Appropriate correction is required.
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.
Claim(s) 1 – 2, 4 – 5, 10 – 16, and 19 – 20is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US Patent 4,384,377 (hereinafter Calvert).
Regarding claim 1, Calvert discloses a shower unit for placement proximate to one or more walls of a building (col. 1, ln. 6 – 11) comprising:
a base (“bathtub” col. 1, ln. 8 – 9) including a length, a width, a collection area, a first edge, and a second edge (a standard bathtub inherently possesses all of these features),
a first panel (12) including a wall side (side that faces bathroom wall), an exposed side (side that faces tub interior/bathing space), a first height, a first panel attaching side (12a), a first base end (lower end adjacent bathtub), and a first partial channel (12b), the first base end shaped to engage the first edge of the base (col. 1, ln. 6 – 11), the first panel attaching side including a first interlocking member (12c),
a second panel (10) including a wall side (side that faces bathroom wall), an exposed side (side that faces tub interior/bathing space), a second height approximately equal to the first height (see fig. 1), a second panel attaching side (10b), a second base end (lower end adjacent bathtub), and a second partial channel (formed in groove 10c), the second base end shaped to engage the second edge of the base (col. 1, ln. 6 – 11), the second panel attaching side including a second interlocking member (10d) shaped to accept the first interlocking member (12c) and secure the first panel attaching side to the second panel attaching side (fig. 4); and
wherein when the first panel (12) is attached to the second panel (10) the first partial channel (12b) and the second partial channel (10c) form a channel extending substantially the first height and the second height, the channel shaped to direct water down toward the base and away from the one or more walls (col. 2, ln. 20 – 25).
Regarding claim 2, Calvert discloses the first partial channel (12b) is spaced from the exposed side of the first panel; the second partial channel is spaced from the exposed side of the second panel (note annotated fig. 4 below); and the channel is shaped to direct water toward the collection area (col. 2, ln. 20 – 25).
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Regarding claim 4, Calvert discloses the first panel (12) further includes at least one first baffling section (12e) positioned proximate the first partial channel and the second panel further includes at least one second baffling section (interior of interlocking member 10d) positioned proximate the second partial channel, the first baffling location and the second baffling location forming a baffling area when the first panel is attached to the second panel (col. 2, ln. 26 – 38).
Regarding claim 5, Calvert discloses the first panel (12) includes a plurality of first baffling sections (12e) positioned proximate the first partial channel and spaced along the first height; the second panel includes a plurality of second baffling sections (interior of interlocking member 10d) positioned proximate the second partial channel and spaced along the second height; and each first baffling section combining with one of the second baffling sections to forming a baffling area with the baffling areas forming a baffling system when the first panel is attached to the second panel (col. 2, ln. 26 – 38)(fig. 1 shows a plurality of baffling elements on each panel).
Regarding claim 10, Calvert discloses the first panel attaching side includes a vertical barrier (12b) that extends a majority of the first height; the second panel attaching side includes a cavity (10c) that extends a majority of the second height; the vertical barrier and the cavity form a retention cavity system when the first panel is attached to the second panel (fig. 4).
Regarding claim 11, Calvert discloses the channel is positioned between the retention cavity system and the exposed sides of the panels (see fig. 1, 4).
Regarding claim 12, Calvert discloses the retention cavity system extends to the first base end and is positioned to direct fluid under the first base end and into the collection area of the base (fig. 1 shows the retention cavity system formed by elements 10c, 12b to extend to the base/bottom end of the wall panels) (col. 2, ln. 20 – 25).
Regarding claim 13, Calvert discloses the retention cavity system extends through the first interlocking member and the second interlocking member when the first panel is attached to the second panel (fig. 1 shows the retention cavity system formed by elements 10c, 12b to extend through elements 12e, 10d) (col. 2, ln. 26 – 38).
Regarding claim 14, Calvert discloses wherein the base includes a third edge (a standard bathtub in a bathtub recess inherently has a third edge; col. 1, ln. 6 – 11); further including a third panel including a wall side, an exposed side, a third height approximately equal to the first height, a third panel attaching side, a third base end, and a third partial channel, the third base end shaped to engage the third edge of the base, the third panel attaching side including a third interlocking member; the second panel including a mirror panel attaching side, and a mirror partial channel, the mirror panel attaching side including a mirror interlocking member shaped to accept the third interlocking member and secure the mirror panel attaching side to the third panel attaching side (col. 2, ln. 39 – 41 “A similar but inversely formed sidewall panel (not shown) is similarly joined to the other end portion of the backwall panel 10”).
Regarding claim 15, Calvert discloses a shower unit comprising:
a base (“bathtub” col. 1, ln. 8 – 9) including a length, a width, a collection area, a first edge, and a second edge (a standard bathtub inherently possesses all of these features),
a first panel (12) including a wall side (side that faces bathroom wall), an exposed side (side that faces tub interior/bathing space), a first height, a first panel attaching side (12a), a first base end (lower end adjacent bathtub), and a first baffling location (12e), the first base end shaped to engage the first edge of the base (col. 1, ln. 6 – 11), the first panel attaching side including a first interlocking member (12c);
a second panel (10) including a wall side (side that faces bathroom wall), an exposed side (side that faces tub interior/bathing space), a second height approximately equal to the first height (see fig. 1), a second panel attaching side (10b), a second base end (lower end adjacent bathtub), and a second baffling location (interior of element 10d), the second base end shaped to engage the second edge of the base (col. 1, ln. 6 – 11), the second panel attaching side including a second interlocking member (10d) shaped to accept the first interlocking member (12c) and secure the first panel attaching side to the second panel attaching side (fig. 4); and
wherein the first baffling section (12e) is positioned proximate the exposed side of the first panel and the second baffling section (interior of element 10d) is positioned proximate the exposed side of the second panel, the first baffling section and the second baffling section forming a baffling area when the first panel is attached to the second panel (note fig. 4, see also col. 2, ln. 26 – 38).
Regarding claim 16, Calvert discloses the first panel (12) includes a plurality of first baffling sections (12e) positioned proximate the first partial channel and spaced along the first height; the second panel includes a plurality of second baffling sections (interior of interlocking member 10d) positioned proximate the second partial channel and spaced along the second height; and each first baffling section combining with one of the second baffling sections to forming a baffling area with the baffling areas forming a baffling system when the first panel is attached to the second panel (col. 2, ln. 26 – 38)(fig. 1 shows a plurality of baffling elements on each panel).
Regarding claim 19, Calvert discloses the first panel (12) includes a first partial channel (12b), the second panel includes a second partial channel (formed in groove 10c), wherein when the first panel (12) is attached to the second panel (10) the first partial channel (12b) and the second partial channel (10c) form a channel extending substantially the first height and the second height, the channel shaped to direct water down toward the base and away from the one or more walls (col. 2, ln. 20 – 25).
Regarding claim 20, Calvert discloses the first partial channel (12b) is spaced from the exposed side of the first panel; the second partial channel is spaced from the exposed side of the second panel (note annotated fig. 4 above regarding claim 2); and the channel is shaped to direct water toward the collection area (col. 2, ln. 20 – 25).
Claim Rejections - 35 USC § 103
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 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) 3, 6, 7, 17, and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Calvert in view of US Patent 11,700,974 (hereinafter Ferris et al.).
Regarding claim 3, Calvert shows the channel having a consistent cross-sectional area and thus fails to show a cross-sectional area that varies, with the cross-sectional narrowing as the channel approaches the base. Attention is turned to Ferris et al. which shows a drainage duct (107) formed between two wall panels for a tub surround that has a cross-section area that varies, narrowing as the channel approaches the base (fig. 8A, 8B show varying cross-sectional areas, with protrusions 76 altering the cross-section of the duct such that it narrows in the direction of the base). It would have been obvious to one having ordinary skill in the art before the effective filing of the claimed invention to shape the channel to have a varying cross-sectional area to provide a secure fit between the panels while still providing adequate drainage through the channel, such configuration being known in the art and evidenced by the teachings of Ferris et al. It should be noted that generally matters pertaining to shape that do not produce an unexpected result are considered design characteristics, particularly when such shape is already known in the art for the same intended purpose.
Regarding claims 6 and 17, Calvert discloses the baffling system includes angled surfaces but fails to show they are positioned to direct fluid from the channel to one of the exposed sides of the first panel or the second panel (fig. 3 shows angled surface of baffling element 12e). Attention is turned to Ferris et al. which shows angled surfaces (pressure bead 98) that are angled toward an exposed side of a shower panel (note annotated fig. 8A below). It would have been obvious to one having ordinary skill in the art before the effective filing of the claimed invention to shape the baffling system to include angled surfaces but fails to show they are positioned to direct fluid from the channel to one of the exposed sides of the first panel or the second panel to provide a secure fit between the panels while still providing adequate drainage through the channel, such configuration being known in the art and evidenced by the teachings of Ferris et al. It should be noted that generally matters pertaining to shape that do not produce an unexpected result are considered design characteristics, particularly when such shape is already known in the art for the same intended purpose.
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Regarding claims 7 and 18, Calvert fails to show the first baffling section includes: a declined surface extending from the channel towards the exposed surface; a first angled surface positioned adjacent to the declined surface to direct fluid toward the declined surface; a second angled surface positioned opposite the first angled surface to direct fluid toward the declined surface. Attention is turned to Ferris et al. which shows a first baffling section includes: a declined surface extending from the channel towards the exposed surface; a first angled surface positioned adjacent to the declined surface to direct fluid toward the declined surface; a second angled surface positioned opposite the first angled surface to direct fluid toward the declined surface (note annotated fig. 8A below). It would have been obvious to one having ordinary skill in the art before the effective filing of the claimed invention to shape the baffling system to include a declined surface extending from the channel towards the exposed surface; a first angled surface positioned adjacent to the declined surface to direct fluid toward the declined surface; a second angled surface positioned opposite the first angled surface to direct fluid toward the declined surface to ensure any water captured flows through the channel, such configuration being known in the art and evidenced by the teachings of Ferris et al. It should be noted that generally matters pertaining to shape that do not produce an unexpected result are considered design characteristics, particularly when such shape is already known in the art for the same intended purpose.
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Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Calvert in view of US Patent 9,848,741 (hereinafter Slothower).
Regarding claim 8, Calvert fails to show a corner gasket shaped to engage the first panel proximate the first panel attaching side and the second panel proximate the second panel attaching side, wherein the corner gasket fluidly separates the wall side of the first panel and the wall side of the second panel from the collection area of the base. Attention is turned to Slothower which shows a corner gasket (20) shaped to engage a first panel (300) at a first panel attaching side and a second panel (400) proximate a second panel attaching side (fig. 7), and the corner gasket fluidly separates the wall side of the first panel and the wall side of the second panel from the collection area of the base to prevent leakage into the wall side (col. 6, ln. 63 – 67). It would have been obvious to one having ordinary skill in the art before the effective filing of the claimed invention to include a corner gasket shaped to engage the first panel proximate the first panel attaching side and the second panel proximate the second panel attaching side, wherein the corner gasket fluidly separates the wall side of the first panel and the wall side of the second panel from the collection area of the base to ensure a good seal between the joints as is known in the art and evidenced by the teachings of Slothower mentioned above.
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Calvert in view of US Patent 4,471,501 (hereinafter Heymann).
Regarding claims 9, Calvert fails to show the first panel further includes a first gasket positioned on the wall side proximate the first base end with the first gasket shaped to engage the base proximate the first edge of the base. Attention is turned to Heymann which shows including a gasket (66) positioned between a wall side proximate a first base end (60) with the gasket (66) shaped to engage the base (12) proximate the first edge of the base (60) (fig. 6) to create a good seal. It would have been obvious to one having ordinary skill in the art before the effective filing of the claimed invention to include a first gasket positioned on the wall side proximate the first base end with the first gasket shaped to engage the base proximate the first edge of the base to ensure a good seal between the wall and the base as is known in the art and evidenced by the teachings of Heymann mentioned above.
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-29 of U.S. Patent No. 12,232,664. Although the claims at issue are not identical, they are not patentably distinct from each other because the child claims broaden the scope of the allowed claims and are substantially similar/are the original version of the allowed claims from the parent case.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US Patent 5,303,519 is directed to the state of the art of shower panels with channels forming grooves along the height of the panels.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JANIE M LOEPPKE whose telephone number is (571)270-5208. The examiner can normally be reached M-F 9AM-5PM ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Angwin can be reached on (571) 270-3735. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JANIE M LOEPPKE/Primary Examiner, Art Unit 3754
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