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 02/20/2025 is being considered by the examiner.
Specification
The disclosure is objected to because of the following informalities:
Pg 19, line 10: “bottom floor 10” should read –bottom floor 8—
Appropriate correction is required.
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because the abstract includes implied phrases “disclosed herein”. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Claim Objections
Claims 1-7, 15 and 18 are objected to because of the following informalities:
Claim 1: Examiner suggests changing “which provide support for the crustaceans.” To –which are configured to provide support for the crustaceans--, to emphasize the functional nature of the limitation, given this is an apparatus claim.
Examiner suggests changing the preamble of claim 1 to read –a substrate structure (1)—rather than “substrate structure (1)”, and to change all dependent preambles to refer to –the substrate structure (1) according to claim 1—, rather than “substrate structure (1) according to claim 1”.
Claim 2: “the support gratings” should read –the at least two support gratings—for consistency in terminology, similarly in claims 3 and 18, and with “at least two floors” throughout the claims (at least claims 3-5, 7).
Claim 2: “10’000” should read –10,000--, similarly with 4 digit numbers in claims 6-7
Claim 15: “tank entity” should read –a tank entity--
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 2-3, 8-11, 13-14, 16-18, and 20 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.
Claim 2 recites “wherein the support gratings (2) have holes (5) sized from 1 mm^2 to 10’000mm^2.” It is unclear whether the applicant, with the language.
Claim 3 recites “wherein the substrate structure comprises a plurality of the support gratings forming three or more of the floors.” This limitation is unclear, particularly since it has not been recited previously that the floors (seemingly refer to the at least two floors) include three or more floors, and claim 1 already requires a plurality of interspacing units and a plurality of support grates (at least two of something is a plurality). As best understood, the examiner recommends changing the claim to read --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—or something similar.
Claim 8 recites the limitation "the holes" in the last line. There is insufficient antecedent basis for this limitation in the claim. “holes” are only introduced in claim 2, on which claim 8 does not depend.
Claim 9 recites “the bars”, but claim 8, on which claim 9 depends, recites “a first group of bars” and “a second group of bars.” This being said, it is unclear, in claim 9, which bars, “the bars” refers to.
Claim 10 recites the limitation "the interspacing unit" in line 2. There is insufficient antecedent basis for this limitation in the claim. Claim 1 only introduces “at least two interspacing units” so it is clear which interspacing unit claim 10 refers to – each one?
Claim 11 recites “wherein the cylinder has an inner diameter from 30 mm to 180 mm defining the distance between the floors (4).” This limitation is unclear, in regard to the term “inner”. A solid cylinder is known to have only one diameter, so it is unclear, when referencing an inner diameter, whether the applicant is attempting to require that the cylinder have a hollow interior/be a hollow cylinder (having an inner diameter and an outer diameter). Further, if this is the case, as an inner diameter of a cylinder is understood, in plain meaning, as being the diameter of the opening formed by the cylinder’s inner wall, it is unclear how an inner diameter may define the distance between the floors in the invention as claimed. It would appear, rather, that the distance between the floors would be defined by the outer diameter (or simply, diameter), the outer diameter being the inner diameter plus the thickness of the pipe’s wall times 2 (for either side of the diameter).
Claim 13 recites the limitation “all floors” in line 3. This limitation is unclear as it includes limitations not recited in the claims (those encompassed by all floors), and therefore the scope is indiscernible. For examination purposes, the examiner will understand the limitation as requiring the at least two floors to include the ground floor, with the ground floor having the largest width and/or length of the at least two floors.
Claim 14 recites “wherein the substrate structure has a plastic surface and is made of plastic.” This limitation is unclear, as it is unclear whether the latter portion of this limitation (and is made of plastic) is additionally limiting, past the requirement of a plastic surface. Should the substrate structure have a plastic surface, it could be considered made of plastic under BRI, but the use of “and” makes it unclear whether the applicant is requiring additional plastic elements, beyond the required plastic surface.
In addition to the rejection under 35 USC 101 below, claims 16-17 are rejected under 112(b), as the claims do not appear to require any method steps or additional positively recited apparatus structure, so the scopes of the claims are unclear.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 16-17 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because they are simply directed to a “use”. Per MPEP 2173.05(q): "Use" claims that do not purport to claim a process, machine, manufacture, or composition of matter fail to comply with 35 U.S.C. 101. In re Moreton, 288 F.2d 708, 709, 129 USPQ 227, 228 (CCPA 1961)("one cannot claim a new use per se, because it is not among the categories of patentable inventions specified in 35 U.S.C. § 101 "). In Ex parte Dunki, 153 USPQ 678 (Bd. App. 1967), the Board held the following claim to be an improper definition of a process: "The use of a high carbon austenitic iron alloy having a proportion of free carbon as a vehicle brake part subject to stress by sliding friction." In Clinical Products Ltd. v. Brenner, 255 F. Supp. 131, 149 USPQ 475 (D.D.C. 1966).
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Monus (US 5109796), hereinafter referred to as Monus.
Monus discloses a substrate structure for a tank for crustaceans (title), wherein the substrate structure comprises:
at least two support gratings arranged parallel to each other (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), such that at least two floors are formed (floors are fourth and second layers 24 and 16, Fig 1), which provide support for the crustaceans (capable of providing support as such – functional language).
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 1-5, 8, 10-15, and 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Strange (US 5690053), hereinafter referred to as Strange, in view of Monus, 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 provide support for the crustaceans (functional language: capable of providing support for crustaceans).
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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.
Regarding claim 2:
Strange as modified discloses the limitations of claim 1 above and further discloses wherein the 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 forming three or more of the floors, wherein the floors are spaced apart by a plurality of the interspacing units (see shelves 16 and posts 18 in Fig 4).
Regarding claim 4:
Strange as modified discloses the limitations of claim 1 above and further discloses wherein the floors are spaced apart at a distance from 20 mm to 300 mm (see rejection of claim 1 above, and Monus’ teaching of 3in which is 76mm),
Regarding claim 5:
Strange as modified discloses the limitations of claim 1 above and further discloses wherein the 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 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 10:
Strange as modified discloses the limitations of claim 1 above and further discloses wherein the interspacing unit is a cylinder (see Fig 6).
Regarding claim 10:
Strange as modified discloses the limitations of claim 1 above.
Strange as modified fails to disclose wherein the cylinder has an inner diameter from 30 mm to 180 mm defining the distance between the floors.
Monus discloses a substrate structure at least two support gratings (second layer 16 and fourth layer 24, Fig 1); and at least two cylindrical interspacing units arranged between the two support gratings (PVC pipes 22 of third layer, Fig 1), the cylinders having a diameter from 30mm to 180mm (diameter of pipes 22 is 3 inches = 76mm), defining the distance between the floors (see Fig 1).
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 cylindrical units between the support gratings/floors of Strange, as in Monus, the cylinders defining the distance between the floors, the result having a reasonable expectation of success. One would have been motivated to make this modification in order to provide more secluded shelter spaces in the aquarium for small creatures or eggs, to protect them from predation by larger or more developed aquarium occupants (Col 2, lines 13-30)
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 all 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 and is preferably made of plastic, 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 18:
Strange as modified discloses the limitations of claim 10 above and further discloses wherein the cylinder extends 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).
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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 Monus, as applied to claims 1 and 5 above, further in view of Yao (CN 114731977 A), hereinafter referred to as Yao.
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 Monus, as applied to claim 1 above, further in view of Ding (CN 109984071 B), hereinafter referred to as Ding, as best understood in light of the 112(b) issues addressed above.
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 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.
Claims 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Strange and Monus, as applied to claim 15 above, further in view of White (WO 9960844 A2), hereinafter referred to as White, as best understood in light of the 112(b) and 101 issues addressed above.
Regarding claim 16:
Strange discloses use of a tank entity according to claim 15 for holding aquatic animals (see rejection of claim 15 above, and ‘aquarium’ in title).
Strange fails to specifically disclose the use of the tank entity for holding crustaceans.
Discloses the use of artificial shelter enhanced tanks for spiny lobster farming (Abstract; Background of the Invention).
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 used the artificial shelter supplemented tank of Strange to farm spiny lobster, as in White, the result having a reasonable expectation of success. One would have been motivated to make this modification because, as in White, spiny lobster are a highly desirable product, and benefit from the addition of artificial shelter in their growth environment (abstract)
Regarding claim 17:
Strange as modified discloses the limitations of claim 16 above and further discloses wherein the crustaceans are spiny lobsters (see rejection of claim 16 above and the Background of Invention in White).
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 Snodgrass (US 20210400928), Veazey (US 7992509), Olsson (US 6564748), Na (KR 20110096651 A), Kim (KR 20170126236 A), and Kang (KR 20210016914 A).
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.
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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.
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/B.V.S./Examiner, Art Unit 3642
/JOSHUA D HUSON/ Supervisory Patent Examiner, Art Unit 3642