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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 07/24/2026 is being considered by the examiner.
Election/Restrictions
Note 37 CFR 1.145 “If, after an Office action on an application, the applicant presents claims directed to an invention distinct from and independent of the invention previously claimed, the applicant will be required to restrict the claims to the invention previously claimed if the amendment is entered, subject to reconsideration and review as provided in §§ 1.143 and 1.144.”
Newly submitted claims 16-17 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons:
Claims 16-17 have been substantially amended, 16 being replaced in entirety, and both being directed to a new class of invention. This modification results in claims that detail a method, not originally claimed, and the products, represented by the originally presented claim set, could be used in a materially different process than that set forth in claims 16-17, for example, the product as claimed could be used for algae culture, or as artificial reef for fish habitat. See MPEP § 806.05(h). Further, the newly presented method claim would prove burdensome, requiring substantially more NPL searching, additional text searching in A01K61/59, and searches towards the molt management steps discussed in the specification.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 16-17 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
The examiner has required restriction between product or apparatus claims and process claims. Where applicant elects claims directed to the product/apparatus, and all product/apparatus claims are subsequently found allowable, withdrawn process claims that include all the limitations of the allowable product/apparatus claims should be considered for rejoinder. All claims directed to a nonelected process invention must include all the limitations of an allowable product/apparatus claim for that process invention to be rejoined.
In the event of rejoinder, the requirement for restriction between the product/apparatus claims and the rejoined process claims will be withdrawn, and the rejoined process claims will be fully examined for patentability in accordance with 37 CFR 1.104. Thus, to be allowable, the rejoined claims must meet all criteria for patentability including the requirements of 35 U.S.C. 101, 102, 103 and 112. Until all claims to the elected product/apparatus are found allowable, an otherwise proper restriction requirement between product/apparatus claims and process claims may be maintained. Withdrawn process claims that are not commensurate in scope with an allowable product/apparatus claim will not be rejoined. See MPEP § 821.04. Additionally, in order for rejoinder to occur, applicant is advised that the process claims should be amended during prosecution to require the limitations of the product/apparatus claims. Failure to do so may result in no rejoinder. Further, note that the prohibition against double patenting rejections of 35 U.S.C. 121 does not apply where the restriction requirement is withdrawn by the examiner before the patent issues. See MPEP § 804.01.
Claim Objections
Claims 1, 3, and 8-9 are objected to because of the following informalities:
Claim 1, lines 4-5 and 9: “the two support gratings” should read –the at least two support gratings—for consistency.
Claim 1 requires “at least two support gratings”, and claim 3 then recites “wherein the substrate structure (1) comprises a plurality of the support gratings.” This does not appear to be further limiting at all, given at least two is already a plurality. The examiner suggests removing this limitation entirely.
Claim 8: “each support grating comprises a plurality of bars, wherein a first group of bars arranged parallel to each other and a second group of bars arranged parallel to each other” should read -- each support grating comprises a plurality of bars, wherein the plurality of bars comprises a first group of bars arranged parallel to each other and a second group of bars arranged parallel to each other—or similar.
Claim 9: it seems that “the plurality of bars” should read “each of the plurality of bars”, given it is singular bar width the applicant seems to claim.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 4-7, and 11 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, 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.
Claims 4, 5, and 7 recite the limitation "the at least three floors.” There is insufficient antecedent basis for this limitation in the claim. Claim 1, on which these claims depend only recites “at least two floors”.
Claim 11 is dependent upon cancelled claim 10, so its scope is unclear.
Claim Interpretation
The examiner recognizes the applicant’s admission that the following statement in their specification constitutes a special definition of the term “grating”: “a grating as used herein is a structure comprising a plurality of bars, wherein the bars cross each other to define a plurality of holes”.
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 1 is rejected under 35 U.S.C. 103 as being unpatentable over Strange (US 5690053, as cited on previous 892) in view of Monus (US 5109796, as cited on previous 892), hereinafter referred to as Strange and Monus, respectively.
Regarding claim 1:
Strange discloses a substrate structure for a tank for crustaceans, wherein the substrate structure comprises:
at least two support gratings arranged parallel to each other (shelves 16, Fig 4); and
at least two interspacing units arranged between the two support gratings (posts 18, Fig 4) for spacing the two support gratings, such that at least two floors are formed (see annotated Fig 4 below), which are configured to provide support for the crustaceans (functional language: capable of providing support for crustaceans).
wherein the at least two interspacing units are cylinders (see Fig 6), which extend parallel to the support gratings (under BRI, an axis of the cylinder extends parallel to the support gratings, as shown below, so the cylinder can be said to run parallel to the support gratings; see, e.g. annotated Fig 4 below).
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Strange fails to specifically disclose wherein the at least two support gratings at a distance of at least 20 mm.
Monus discloses a substrate structure at least two support gratings (second layer 16 and fourth layer 24, Fig 1); and at least two interspacing units arranged between the two support gratings (PVC pipes 22 of third layer, Fig 1) for spacing the two support gratings at a distance of at least 20mm (diameter of pipes 22 is 3 inches = 76mm – Col 1, lines 60-65).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have modified the length of the interspacing units of Strange, such that the support gratings were spaced apart by at least 20mm, like 3inches, as in Monus, the result having a reasonable expectation of success. One would have been motivated to make this modification based on the size of the habitat’s occupants, in order to allow for optimal maneuverability and space optimization, whilst avoiding excessive current disruption in the tank. Further Strange contemplates that the interspacing units (support posts 18), may be of any size, as long as free circulation of water is not interfered with (Col 4, lines 28-32). It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Further, in Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.
Claims 1-5, 8, 11-15, 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Strange, in view of Calinski (US 2011/0017144 A1), hereinafter referred to as Calinski, as best understood in light of the 112(b) issues addressed above.
Regarding claim 1:
Strange discloses a substrate structure for a tank for crustaceans, wherein the substrate structure comprises:
at least two support gratings arranged parallel to each other (shelves 16, Fig 4); and
at least two interspacing units arranged between the two support gratings (posts 18, Fig 4) for spacing the two support gratings, such that at least two floors are formed (see annotated Fig 4 below), which are configured to provide support for the crustaceans (functional language: capable of providing support for crustaceans).
wherein the at least two interspacing units are cylinders (see Fig 6), which extend parallel to the support gratings (under BRI, an axis of the cylinder extends parallel to the support gratings, as shown below, so the cylinder can be said to run parallel to the support gratings; see two examples of parallel axes of cylinder and gratings in annotated Fig 4 below).
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Strange fails to specifically disclose wherein the at least two support gratings at a distance of at least 20 mm.
Calinski discloses a multi-level marine habitat (title, Fig 1) with interspacing posts between the levels/floors, the posts spacing the floors at a distance of at least 20mm (see Fig 4; ¶0014: spacer length 15 vary between 3 in and 8 in – i.e. 76 mm to 203 mm)
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have modified the length of the interspacing units of Strange, such that the support gratings were spaced apart by at least 20mm, e.g. 3-8 in, as in Calinski, the result having a reasonable expectation of success. One would have been motivated to make this modification, as in Calinski, to optimize spacing based on the particular species of marine life the habitat is intended for – crabs and lobsters prefer tighter spacing, while certain fish species prefer larger spacing (¶0014), whilst avoiding excessive current disruption in the tank. Further Strange contemplates that the interspacing units (support posts 18), may be of any size, as long as free circulation of water is not interfered with (Col 4, lines 28-32). It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Further, in Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.
Regarding claim 2:
Strange as modified discloses the limitations of claim 1 above and further discloses wherein the at least two support gratings have holes sized from 1 mm2 to 10,000 mm2 (apertures 20, Fig 7; Col 4, lines 20-22: .25in^2 = 161mm^2).
Regarding claim 3:
Strange as modified discloses the limitations of claim 1 above and further discloses wherein the substrate structure comprises a plurality of the support gratings, wherein the at least two support gratings and the at least two interspacing units are arranged such that at least three floors are formed, and the at least three floors are spaced apart by the at least two interspacing units (see shelves 16 and posts 18 in Fig 4, and the floors as annotated in Fig 4 in the rejection of claim 1 above).
Regarding claim 4:
Strange as modified discloses the limitations of claim 1 above and further discloses wherein the at least three floors are spaced apart at a distance from 20 mm to 300 mm (see rejection of claim 1 above, and Calinski’s teaching of 76 – 203 mm),
Regarding claim 5:
Strange as modified discloses the limitations of claim 1 above and further discloses wherein the at least three floors taper in length and/or width from an outermost bottom floor having the largest length and/or width to an outermost top floor having the smallest length and/or width (see annotated Fig 4 below) .
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Regarding claim 8:
Strange as modified discloses the limitations of claim 1 above and further discloses wherein each support grating comprises a plurality of bars, wherein a first group of bars arranged parallel to each other and a second group of bars arranged parallel to each other, wherein the bars of the first group cross the bars of the second group at an angle from 20° to 160°, preferably 90°, such that the holes are formed (see Figs 1, 3, and 6).
Regarding claim 11:
Strange as modified discloses the limitations of claim 1 above and further discloses wherein the cylinder is a hollow cylinder (see Fig 6) and has a diameter greater than 12.7mm (1/2in; Fig 6 shows cylinder diameter larger than grate aperture width, grate aperture width being 1/2in per disclosure). Strange also teaches that the support posts may be of any size, just that they should not be so large in cross-sectional area as to interfere with free circulation of the water and provides an exemplary width of .75in (~19mm) for the embodiment where the support post is square in cross-section. It is noted that a circle with diameter of ~21.5mm would have a cross-sectional area equivalent to that of the acceptable .75in square post example.
Strange fails to specifically disclose that the posts have a diameter of 30 – 180 mm.
Calinski further discloses that the posts have a diameter of 30 – 180 mm (¶0013: “1.5 inch PVC”; 1.5 in ~= 38 mm).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have selected a diameter in the range of 30 – 180 mm for the posts of Strange, for example, 38 mm, as taught in Calinski, the result having a reasonable expectation of success. One would have been motivated to make this modification in order to provide posts of sufficient structural strength and stability to support the marine creatures which the habitat is intended for and the gratings, based on their size/weight, whilst allowing for sufficient water circulation in the environment in which the habitat is placed (e.g. aquarium). Further, Strange contemplates that the interspacing units (support posts 18), may be of any size, as long as free circulation of water is not interfered with (Col 4, lines 28-32). It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Further, in Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.
Regarding claim 12:
Strange as modified discloses the limitations of claim 1 above and further discloses wherein each support grating comprises a connecting element (First fitting 46, Fig 6) for releasably connecting two support gratings with each other (see Figs 4 and 7), wherein the connecting element is arranged on an outer rim of the support grating (as can be seen in Fig 4, there are posts 18 at the outer rim of each support grating, therefore there is a connecting element arranged on the outer rim).
Regarding claim 13:
Strange as modified discloses the limitations of claim 1 above and further discloses wherein the substrate structure further comprises a net (screen 88, Fig 4) and a ground floor (see annotated Fig 4 below) having the largest width and/or length of the at least two floors (see Fig 4), wherein the ground floor is at least partially covered with the net (Col 5, line 65 – Col 6, line 1).
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Regarding claim 14:
Strange as modified discloses the limitations of claim 1 above and further discloses wherein the substrate structure has a plastic surface, wherein the plastic is preferably any one or any combination of: low-density polyethylene, high-density polyethylene, polypropylene, polyvinyl chloride, polystyrene, polytetrafluoroethylene and polyurethane (Col 3, lines 60-62 and Col 4, lines 29-33: posts 18 and shelves 16 are made of polystyrene).
Regarding claim 15:
Strange as modified discloses a tank entity for crustaceans comprising a tank (aquarium 12, Fig 4) and a substrate structure according to claim 1 (see rejection of claim 1 above).
Regarding claim 19:
Strange as modified discloses the limitations of claim 10 above and further discloses wherein the connecting element is a tongue or a groove connection (end 50 of first fitting/connecting element 46 in Fig 6 may be considered a tongue, insertable into the corresponding groove/aperture 20 in the panel 16).
Regarding claim 20:
Strange as modified discloses the limitations of claim 13 above and further discloses wherein the net has meshes to prevent intermixing of the layers of sediment (including sand 86) which form the live reef and sand filter (see Fig 4; Col 5, line 45 – Col 6, line 15).
Although a grain of sand is generally understood as a very small particle, and the screen would need to have even smaller meshes to prevent sand from passing through, Strange fails to specifically disclose wherein the net has meshes sized less than 25 mm^2.
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have formed the meshes of an area less than 25mm^2, the result having a reasonable expectation of success. One would have been motivated to make this modification in order to provide a mesh size appropriately small based on the size of the sediment reef/sand particles the screen is meant to keep separate, whilst ensuring water may still pass through. Further, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Claims 6-7 are rejected under 35 U.S.C. 103 as being unpatentable over Strange and Calinski, as applied to claims 1 and 5 above, further in view of Yao (CN 114731977 A, as cited on previous 892), hereinafter referred to as Yao, as best understood in light of the 112(b) issues addressed above.
Regarding claim 6:
Strange as modified discloses the limitations of claim 5 above and further discloses wherein the shelves/floors may be of any size and shape (Col 4, lines 20-25), the width of the top floor being less than a width of the bottom floor (see Fig 4) .
Strange as modified fails to specifically disclose wherein the width of the bottom floor is from 300mm to 5,000mm and wherein the width of the top floor is from 100mm to 1,000mm.
Yao discloses a similar fish habitat with a bottom floor (bottom plate 1, Fig 1) having a width of 2,000mm (side length of model is 200mm, multiplied by 10 for actual proportion per Pg 4, ¶6), and a top floor (third platform plate 4) having a width of 800mm (Pg 4, ¶6: (200mm – (40mm x 3 levels)) x 10 for actual proportion).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have provided the floors of Strange with the dimensions as claimed, as in Yao, the result having a reasonable expectation of success. One would have been motivated to make such a modification in order to provide suitable dimensions for the size tank the habitat is held in, or for the creatures the habitat is meant to support. Further, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 7:
Strange as modified discloses the limitations of claim 1 above and further discloses wherein the shelves/floors may be of any size and shape (Col 4, lines 20-25).
Strange as modified fails to specifically disclose wherein the floors have a length from 100mm to 3,000mm.
Yao discloses a similar fish habitat with floors having a length from 100mm to 3,000mm (Pg 4, ¶6).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have provided the floors of Strange with the dimensions as claimed, as in Yao, the result having a reasonable expectation of success. One would have been motivated to make such a modification in order to provide suitable dimensions for the size tank the habitat is held in, or for the creatures the habitat is meant to support. Further, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Strange and Calinski, as applied to claim 1 above, further in view of Ding (CN 109984071 B, as cited on previous 892), hereinafter referred to as Ding.
Regarding claim 9:
Strange as modified discloses the limitations of claim 8 above and further discloses wherein the shelves/floors may be of any size and shape, and that the apertures have a preferred dimension of .5 in x .5in, but any size may be used (Col 4, lines 20-30).
Strange as modified fails to specifically disclose wherein the plurality of bars have a width of less than 20mm.
Ding discloses an artificial reef fish habitat with mesh shelves formed of crossing stainless steel wires, the wires having a width of less than 20mm (Pg 3, ¶8: diameter is 0.4cm = 4mm).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have provided the bars of the mesh of Strange of a width less than 20mm, as in Ding, the result having a reasonable expectation of success. One would have been motivated to make this modification in order to allow for sufficient water circulation throughout the tank, reduce the area that would need to be cleaned, or to prevent excessive accumulation of aquarium debris on the floors. Further, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Response to Arguments
Applicant's arguments filed 07/22/2026 have been fully considered but they are not persuasive.
Applicant’s arguments with respect to the rejection under 102(a)(1) over Monus have been considered and are moot given the withdrawal of this rejection. The applicant’s special definition of the term “grating” has been noted (see above claim interpretation section).
On page 5 the applicant argues that spacing the floors of Strange would not be obvious over Monus, given neither Monus or Strange have specific interest in the size range claimed, nor mention crustaceans of a specific size.
The examiner respectfully disagrees. First, in regard to crustaceans, this limitation is merely intended use, and the examiner asserts that the habitat of Strange is inherently configured to be used for crustacean culture. In regard to the actual spacing of floors to the range claimed, Strange does not provide a specific dimension for the height of the posts, rather Strange says that the posts may be any size, as long as they still permit circulation. This, in itself, implies that post size is a known variable and variation is permitted and within the ordinary skill in the art, the linkage between post size and water circulation also provides a result (water circulation) to which the variable (post size) may be optimized. Regardless, the height of the posts is determinative of the height/space between the floors, and therefore the height of the sheltered area between floors. Monus teaches a habitat with levels and shelter areas between the levels, the shelter areas having a height defined by a height of interspacing cylinders. Monus explicitly contemplates shelter heights of greater than 20 mm (height of pipes varies from two to six inches - ~ 50 – 150 mm), and therefore has ‘specific interest’ in the claimed range. When forming the invention of Strange, it would have been obvious to one of ordinary skill in the art to look in the art and in their own knowledge base for specific dimensions. Monus provides a reasonable value for height of shelters in layered aquatic animal habitats. When considering Strange and Monus together, one of ordinary skill in the art would find it obvious to space the levels at a distance as contemplated by Monus. The fact that Strange does not specifically contemplate which reef animals the structure is meant to protect/house only serves to make the variation of habitat size more obvious, as habitat size may be adapted to the marine creature the user wishes to protect/house; with this, Monus’s teaching of greater than 20mm spacing in a fish habitat would serve to inform one of ordinary skill in the art that spacing in the range claimed may prove optimal in housing fish.
On page 5, the applicant argues that one would not modify floor spacing in order to ensure adequate water circulation, given strange deals with water circulation, so phosita would not change the distances without strong incentive to do so.
The examiner respectfully disagrees. As above, Strange does not provide a specific dimension for the height of the posts, rather Strange says that the posts may be any size, as long as they are not so large in cross-sectional area as to interfere with free circulation of the water. Strange does not provide a specific range of acceptable post size and teach against any other values/ranges, but rather leaves size open to variation. This, in itself, implies that post size is a known variable in the art and variation is permitted and within the ordinary skill in the art, only Strange asserts that water circulation should be taken into consideration with variation. The linkage between post size and water circulation suggests the possibility of optimization, given post size is introduced as a result effective variable, the result of varying post size being the variation of water circulation, enhanced water circulation being a desirable characteristic. It would have been well within the ordinary skill in the art to select a value within the claimed range to provide a post size for optimization of water circulation. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
On pages 5-6, the applicant argues that optimizing spacing of the floors would not be routine optimization/design choice, given the application ties specific dimensions to the biological necessity of the molt cycle, and that one would not vary floor height to these ranges unless specifically solving the problem of molt-related mortality.
The examiner respectfully disagrees. Although the applicant’s disclosure broadly contemplates designing a habitat for preventing mort-related mortality, the applicant fails to provide reasoning for spacing the floors at least 20 mm apart, rather they merely contemplate variation in spacing/sizing based on the type of animal housed, and variation in spacing/sizing of habitat features based on the animal the habitat is meant to contain/house is an extremely old practice, and would be well within the ordinary skill and obvious to one of ordinary skill in the art. Further, the applicant’s statement that there would be no reason to space floors greater than 20mm apart (an incredibly broad range), in the absence of a specific molt-mortality design incentive, is unreasonable and not backed by any evidence. One of ordinary skill in the art would find adjusting the spacing to within the claimed range to be an obvious variation of the invention of Strange for many various reasons, including, but not limited to,: providing sufficient spaced based on the size of the animal the habitat/hideaway is meant to provide protection for; increased visibility of the animal; providing an appropriate size structure for the tank the habitat is meant to be placed in; preventing entry of certain predators; or allowing for better water circulation through the structure. It is also noted that both Strange and Monus introduce height of openings between floors of habitats as known variables, prime for optimization and open to variation.
On page 6 the applicant suggests that the cylinders of strange do not extend parallel to the support gratings, given the axis noted by the examiner is not the main axis of elongation of the cylinder, rather the main axis of elongation is that which extends vertically. The applicant asserts that PHOSITA would understand that a cylinder arranged parallel to another element would need its main axis of elongation arranged parallel to that reference element.
The examiner respectfully disagrees. Per MPEP 2111, the words of a claim must be given their “plain meaning” unless such meaning is inconsistent with the specification, and claims must be given their “broadest reasonable interpretation” (BRI) in light of the specification, unless the term has been given a special definition in the specification. Nothing in the disclosure indicates that the term ‘extend parallel to’ is should be limited in that it is the main elongated axis that must extend parallel. The claim is not so specific, rather it generically requires that the cylinder extend parallel to the grating. Under broadest reasonable interpretation of the plain meaning of this phrase, this means that an axis of the cylinder must spread or stretch forth in a direction parallel to an axis of the grating. Further, as shown in the rejection of claim 1 over Strange and Calinski above, and in the figure below, even if the axis of the cylinder was necessarily the axis the vertical axis, the vertical axis of the grating would still be parallel to the vertical axis of the cylinder.
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The examiner encourages the applicant to be more specific in the positional relationship between the grating and the cylindrical interspacing units.
On page 6 the applicant argues that placing supports of strange parallel to the floors would not be obvious. The examiner notes that this modification is not a part of the rejection of record.
The additional rejection of claim 1 over Strange and Calinski is noted and has been added based on the amendments.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Those references cited on the attached 892 form, but not referenced in a rejection above exhibit similarities to the present invention, particularly Startsev (RU 199367 U1), Kim (KR 101081811 B1), Yu (KR 20110002989 A), Noh (KR 200275039 Y1), and Kwak (KR 20010010723 A) which teach aquatic animal habitats that are tiered/have levels and have horizontally extending sub-habitats, some being cylinders, extending between the levels/tiers.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BROOK V SCHMID whose telephone number is (571)270-0141. The examiner can normally be reached M-F 8:30-5:30ish.
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, Joshua Huson, can be reached on 571-270-5301. 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.
/B.V.S./Examiner, Art Unit 3642
/JOSHUA D HUSON/Supervisory Patent Examiner, Art Unit 3642
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