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 .
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) 1-2, 5, and 7-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over US Patent 4,384,377 (hereinafter Calvert) in view of US Patent 8,082,608 (hereinafter Dabrowski).
Regarding claim 1, Calvert shows a bathing wall system (fig. 1) comprising: a first wall (10) including a first wall edge (10b); a second wall (12) including a second wall edge (12b); a coupler (10d, 12c) between the first wall edge and the second wall edge, wherein the coupler includes a first coupler portion (10d) supported by the first wall, and a second coupler portion (12c) supported by the second wall; wherein the coupler defines a vertical water flow channel (10c, 12e); but fails to show wherein the first wall and the second wall further include a plurality of splines spaced apart along the length of a bottom surface of the first wall and along the length of a bottom surface of the second wall, wherein the plurality of splines support the first wall and the second wall and to create a space between the first wall, the second wall and a bottom support. Attention is turned to Dabrowski in the same field of endeavor of bathing wall systems which shows including a plurality of splines (42) spaced apart along the length of a bottom surface of the first wall (34) and along the length of a bottom surface of the second wall (38), wherein the plurality of splines (42) support the first wall and the second wall and to create a space between the first wall, the second wall and a bottom support (30). It would have been obvious to one having ordinary skill in the art before the effective filing of the claimed invention to modify the system of Calvert to include the plurality of splines as described above to ensure the first and second walls are properly positioned and secured to the bottom support as evidenced by the teachings of Dabrowski mentioned above.
Regarding claim 2, Calvert shows wherein: the first wall (10) comprises a back wall (10) (fig. 1) extending between opposing first and second side edges (left and right sides of the panel); the first wall edge comprises the first side edge (10b) (fig. 1); the second wall comprises an end wall (12) including a rear edge (12b); and the second wall edge comprises the rear edge (12b) (fig. 1).
Regarding claim 5, under the modification in view of Dabrowski, Dabrowski shows wherein the bottom support comprises a tub including a basin (14) and a shelf (30) bordering and extending out from a top border of the basin.
Regarding claim 7, under the modification in view of Dabrowski, Dabrowski shows the tub further includes a back splash (50) which extends vertically up from and spans the perimeter of the shelf (30) of the tub; and the back splash includes a lip (46) which extends inward from top of the back splash.
Regarding claim 8, under the modification in view of Dabrowski, Dabrowski shows further comprising a space (26) between the first wall, and the bottom support, and the second wall and the bottom support wherein the space between the first wall, the second wall and the bottom support is in fluid communication with the vertical water flow channel (since the vertical water flow channel of Calvert drains into the tub basin and the space defined by surface (26) of Dabrowski also drains into the tub basin, the two elements would be in fluid communication via the tub basin).
Claim(s) 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Calvert and Dabrowski as applied to claim 5 above, and further in view of US Patent 8,850,632 (hereinafter Bullis).
Regarding claim 6, the combination of Calvert and Dabrowski fails to show the tub
further includes two raised water dams disposed at forwardmost corners of the shelf and defined by a curved shape, and the end wall includes a water dam recess, which nests with the raised water dams of the tub. Attention is turned to Bullis which shows a tub having two raised water dams disposed at forwardmost corners of the shelf defined by a curved shape, and the end wall includes a water dam recess (54) that nests with the raised water dams of the tub (fig. 2, 9). It would have been obvious to one having ordinary skill in the art before the effective filing of the claimed invention to configure the tub to include two raised water dams disposed at forwardmost corners of the shelf and defined by a curved shape, and the end wall includes a water dam recess, which nests with the raised water dams of the tub to aid in preventing water from escaping the tub as evidenced by the teachings of Bullis 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 1-8 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-27 of U.S. Patent No. 11,700,974. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the current application cover a broader scope and aspect of the claims of the issued patent.
Claims 1-8 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,262,855. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the current application cover a broader scope and aspect of the claims of the issued patent.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US Patent 12,232,664 is directed to the state of the art of bathing wall systems.
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.
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, David Angwin can be reached at (571) 270-3735. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. 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.
/JANIE M LOEPPKE/Primary Examiner, Art Unit 3754
Prosecution Insights