TEXTURIZING A WALL OR CEILING WITH NON-ACOUSTICAL JOINT COMPOUND

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 19-33 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of U.S. Patent No. 12,275,036 or over claims 1, 3-6, 10, 12-15, and 17 of U.S. Patent No. 9,562,364 or over claims 1, 3-6, 9, 11-13 and 17 of U.S. Patent No. 9,163,416 or over claims 1, 3-6, 9, 11-13 and 17 of U.S. Patent No. 8,840,038. Regarding claim 19, although the claims at issue are not identical, they are not patentably distinct from each other because the instant application and U.S. Patent No.’s. 12,275,036; 9,562,364; 9,163,416; and 8,840,038 disclose a system for texturing a surface, the system comprising a wall texturing material a wall texturing material container having an opening and containing the wall texturing material that forms a textured coating on the surface a sprayer having a suction port, an input port and an output port, the suction port of the sprayer being attachable to the opening of the wall texturing material container, the suction port being in fluid communication with the wall texturing material container when the sprayer is attached to the wall texturing material container to introduce the wall texturing material into the sprayer via pressure associated with the wall texturing material container and spray the wall texturing material on the surface out of the output port wherein the wall texturing material container is disposed below the input port and pressure associated with the wall texturing material container pushes the wall texturing material into the sprayer. Claim 19 of the instant application is broader in scope than claim 1 of U.S. Patent No.’s. 12,275,036; 9,562,364; 9,163,416; and 8,840,038 and is therefore, encompassed in claim 1 of U.S. Patent No.’s. 12,275,036; 9,562,364; 9,163,416; and 8,840,038. As to claims 20-26 see claims 2-8 of U.S. Patent No. 12,275,036. As to claims 20-23 see claims 3-6 of U.S. Patent No. 9,562,364. As to claims 20-23 see claims 3-6 of U.S. Patent No. 9,163,416. As to claims 20-23 see claims 3-6 of U.S. Patent No. 8,840,038. As to claim 25, see claim 1 of U.S. Patent No. 9,163,416. As to claim 25, see claim 1 of U.S. Patent No. 8,840,038. Regarding claim 27, although the claims at issue are not identical, they are not patentably distinct from each other because the instant application and U.S. Patent No.’s. 12,275,036; 9,562,364; 9,163,416; and 8,840,038 disclose a method of texturing a surface with a wall texturing material, the method comprising the steps of providing a wall texturing material container having an opening and containing the wall texturing material which forms a textured coating on the surface providing a sprayer having a suction port, an input port and an output port, the suction port of the sprayer being attachable to the opening of the wall texturing material container, the suction port being in fluid communication with the opening of the wall texturing material container when the sprayer is attached to the wall texturing material container, the suction port receives the wall texturing material due to pressure associated with the wall texturing material container attaching the wall texturing material container underneath the sprayer which establishes fluid communication between the suction port and the opening of the wall texturing material container to provide a pathway for the wall texturing material to be delivered to the sprayer forcing the wall texturing material into the suction port via pressure associated with the wall texturing material container so that the wall texturing material is sprayed onto the surface. Claim 27 of the instant application is broader in scope than claim 9 of U.S. Patent No.’s 12,275,036; 9,163,416; and 8,840,038 and is therefore, encompassed in claim 9 of U.S. Patent No.’s. 12,275,036; 9,163,416; and 8,840,038 and Claim 27 of the instant application is broader in scope than claim 10 of U.S. Patent No. 9,562,364 and is therefore, encompassed in claim 10 of U.S. Patent No. 9,562,364. As to claims 28-33 see claims 10-15 of U.S. Patent No. 12,275,036. As to claims 28-31 and 33 see claims 12-15 and 17 of U.S. Patent No. 9,562,364. As to claims 28-30 and 33 see claims 11-13 and 17 of U.S. Patent No. 9,163,416. As to claims 28-30 and 33 see claims 11-13 and 17 of U.S. Patent No. 8,840,038. As to claim 31, see claim 9 of U.S. Patent No. 9,163,416. As to claim 31, see claim 9 of U.S. Patent No. 8,840,038. Claims 19-23 and 26 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6 of U.S. Patent No.’s 11,904,305, 11,162,909 and 10,981,192 in view of US. Patent No. 9,562,364. In regard to claim 19, U.S. Patent No.’s 11,904,305, 11,162,909 and 10,981,192, each of these patents disclose all the featured elements of claim 19, except wherein the sprayer having a suction port, an input port and an output port, the suction port of the sprayer being attachable to the opening of the wall texturing material container, the suction port being in fluid communication with the wall texturing material container. US. Patent No. 9,562,364 claims a system for texturing a surface comprising all the features of claim 19 and claims the sprayer having a suction port, an input port and an output port, the suction port of the sprayer being attachable to the opening of the wall texturing material container, the suction port being in fluid communication with the wall texturing material container, i.e. see claim 1 and a sprayer having an input port, a suction port removably attached to the opening at the top of the collapsible bag to introduce the drywall texturing material into the suction port upon applying hand pressure to the collapsible bag. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention wherein the sprayer having a suction port, an input port and an output port, the suction port of the sprayer being attachable to the opening of the wall texturing material container, the suction port being in fluid communication with the wall texturing material container in claim 1 of U.S. Patent No.’s 11,904,305, 11,162,909 and 10,981,192, as taught by US. Patent No. 9,562,364, since with such a modification a suction port provided on the sprayer will allow drywall texturing material to be forced up into the interior of the sprayer and by venturi effect to be sprayed. As to claims 20-23, and 26, see claims 1-6 of U.S. Patent No.’s 11,904,305, 11,162,909 and 10,981,192. Claims 19-23 and 26 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3-6 and 9 of U.S. Patent No.’s 10,357,800 and 9,776,205 in view of US. Patent No. 9,562,364. In regard to claim 19, U.S. Patent No.’s 10,357,800 and 9,776,205, each of these patents disclose all the featured elements of claim 19, except wherein the sprayer having a suction port, an input port and an output port, the suction port of the sprayer being attachable to the opening of the wall texturing material container, the suction port being in fluid communication with the wall texturing material container. US. Patent No. 9,562,364 claims a system for texturing a surface comprising all the features of claim 19 and claims the sprayer having a suction port, an input port and an output port, the suction port of the sprayer being attachable to the opening of the wall texturing material container, the suction port being in fluid communication with the wall texturing material container, i.e. see claim 1 and a sprayer having an input port, a suction port removably attached to the opening at the top of the collapsible bag to introduce the drywall texturing material into the suction port upon applying hand pressure to the collapsible bag. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention wherein the sprayer having a suction port, an input port and an output port, the suction port of the sprayer being attachable to the opening of the wall texturing material container, the suction port being in fluid communication with the wall texturing material container in claim 1 of U.S. Patent No.’s 10,357,800 and 9,776,205, as taught by US. Patent No. 9,562,364, since with such a modification a suction port provided on the sprayer will allow drywall texturing material to be forced up into the interior of the sprayer and by venturi effect to be sprayed. As to claims 20-23, and 26, see claims 3-6 and 9 of U.S. Patent No.’s 10,357,800 and 9,776,205. Claims 19-23 and 26 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 3-7 of U.S. Patent No.’s 10,046,357. In regard to claim 19, U.S. Patent No.10,046,357, discloses all the featured elements of claim 19, except wherein the sprayer having a suction port, an input port and an output port, the suction port of the sprayer being attachable to the opening of the wall texturing material container, the suction port being in fluid communication with the wall texturing material container. US. Patent No. 9,562,364 claims a system for texturing a surface comprising all the features of claim 19 and claims the sprayer having a suction port, an input port and an output port, the suction port of the sprayer being attachable to the opening of the wall texturing material container, the suction port being in fluid communication with the wall texturing material container, i.e. see claim 1 and a sprayer having an input port, a suction port removably attached to the opening at the top of the collapsible bag to introduce the drywall texturing material into the suction port upon applying hand pressure to the collapsible bag. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention wherein the sprayer having a suction port, an input port and an output port, the suction port of the sprayer being attachable to the opening of the wall texturing material container, the suction port being in fluid communication with the wall texturing material container in claim 1 of U.S. Patent No. 10,046,357, as taught by US. Patent No. 9,562,364, since with such a modification a suction port provided on the sprayer will allow drywall texturing material to be forced up into the interior of the sprayer and by venturi effect to be sprayed. As to claims 20-23, and 26, see claims 3-7 of U.S. Patent No. 10,046,357. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEVEN J GANEY whose telephone number is (571)272-4899. The examiner can normally be reached M-F 9am-5:30pm. 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For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. STEVEN J. GANEY Primary Examiner Art Unit 3752 /STEVEN J GANEY/Primary Examiner, Art Unit 3752