Detailed Action
Notice of Pre-AIA or AIA Status
1. 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 § 112
2. 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.
Claim 4 is 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 4 lacks antecedent basis with respect to the finger guard in line 1. For purposes of the prior art rejections that follow, claim 4 is considered as being dependent upon claim 3.
Claim Rejections - 35 USC § 102
3. 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, 5, 16 and 19-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by FR Patent No. 2932661 to Gueytron.
Referring to claim 1, Gueytron discloses a shellfish shucking knife comprising: an elongated handle – at 4, sized to fit in a user’s hand – see figure 1, and an elongated blade – at 1, connected to the elongated handle – see figure 1, the elongated handle – at 4, and the elongated blade – at 1, having an axis – see longitudinal axis in figure 1, wherein the elongated blade – at 1, includes a proximal end adjacent the elongated handle – at 4 – see connection of 1 to 4 in figure 1, and a distal end – free end of 1 as seen in figure 1, a cutting edge – lower edge of 1, and a non-dominant hand edge – top of 1, opposite the cutting edge – see figure 1, a hinge blade – at 2, extending from the cutting edge generally orthogonal to the axis – see at 2 in figure 1, a primary muscle blade – front lower edge of 1, along the cutting edge – see bottom of 1, distal to the hinge blade – at 2 – see at the front lower edge of 1 in figure 1, a secondary muscle blade – top front edge of 1, along the non-dominant hand edge – see figure 1, and a side shucking blade at the distal end – see rounded tip of 1 in figure 1.
Referring to claim 5, Gueytron further discloses the hinge blade – at 2, extends from the cutting edge – at 1, at an angle of about 70 degrees to about 135 degrees relative to the axis – see about 90 degrees in figure 1.
Referring to claim 16, Gueytron further discloses the side shucking blade – at the tip of 1, is formed where the primary muscle blade – bottom of 1, and the secondary muscle blade – top of 1, meet – see figure 1.
Referring to claim 19, Gueytron further discloses the side shucking blade – at the tip of 1, has a half circle shape – see figure 1.
Referring to claim 20, Gueytron further discloses the side shucking blade – at the tip of 1, has an elliptical, parabolic, or oval shape – see parabolic shape in figure 1.
Claim Rejections - 35 USC § 103
4. 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) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gueytron as applied to claim 1 above, and further in view of U.S. Patent No. 4,442,570 to Lynn.
Referring to claim 2, Gueytron does not disclose the elongated handle comprises two mirror image parts that are secured together with a portion of the elongated blade therebetween. Lynn does disclose the elongated handle – at 26-32, comprises two mirror image parts – at 26, that are secured together with a portion of the elongated blade – at 12,14, therebetween – see figure 2. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Gueytron and add the blade secured between parts of the handle as disclosed by Lynn, so as to yield the predictable result of better securing the blade to the handle for repeated use as desired.
Claim(s) 3-4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gueytron as applied to claim 1 above, and further in view of U.S. Patent No. 9,888,698 to Morsell et al.
Referring to claim 3, Gueytron does disclose the elongated handle – at 4, includes a power grip pad – see outer surface of 4 in figure 1. Gueytron does not disclose the elongated handle includes a thumb pad, and a finger guard, the finger guard adjacent the proximal end of the elongated blade. Morsell et al. does disclose the elongated handle – at 300, includes a power grip pad – at 310,320,330,340, a thumb pad – at 360-363, and a finger guard – at 350-353, the finger guard – at 350-353, adjacent the proximal end of the elongated blade – at 100,101 – see at 352 in figure 1a. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Gueytron and add the thumb pad and finger guard of Morsell et al., so as to yield the predictable result of making the device more comfortable while allowing the user to better manipulate the device during use.
Referring to claim 4, Gueytron as modified by Morsell et al. further discloses a portion of the finger guard – at 351, is configured to form a kick stand – see figure 1a of Morsell et al. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Gueytron and add the thumb pad and finger guard of Morsell et al., so as to yield the predictable result of making the device more comfortable while allowing the user to better manipulate the device during use.
Claim(s) 6-13, 15 and 17-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gueytron as applied to claim 1 above.
Referring to claims 6 and 7, Gueytron does not disclose the hinge blade extends from the cutting edge at a distance of about 10 mm to about 65 mm above the elongated handle, and the hinge blade extends from the cutting edge at a distance of about 35 mm above the elongated handle. However, as seen in applicant’s originally filed disclosure in pages 2 and 5-7 of applicant’s originally filed specification, applicant places no criticality/particular reason for having the claimed dimensions in that as seen in pages 5-7 of applicant’s originally filed specification, applicant discloses the dimensions are effective but does not provide reasoning/rationale as to what makes these claimed dimensions more effective than other non-claimed dimensions and given the device of Gueytron is a handheld tool that functions similar to applicant’s claimed device, making the components of Gueytron to have the claimed dimensions would not render the device of Gueytron inoperable for its intended purpose of shucking oysters. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Gueytron and make the hinge blade extend any suitable distance from the cutting edge including the claimed distances, so as to yield the predictable result of ensuring the hinge blade engages sufficient portions of the oyster to facilitate cutting of the oyster as desired.
Referring to claims 8 and 9, Gueytron does not disclose the hinge blade extends about 4 mm to about 25 mm from the axis, and the hinge blade extends about 13 mm from the axis. However, as seen in applicant’s originally filed disclosure in pages 2 and 5-7 of applicant’s originally filed specification, applicant places no criticality/particular reason for having the claimed dimensions in that as seen in pages 5-7 of applicant’s originally filed specification, applicant discloses the dimensions are effective but does not provide reasoning/rationale as to what makes these claimed dimensions more effective than other non-claimed dimensions and given the device of Gueytron is a handheld tool that functions similar to applicant’s claimed device, making the components of Gueytron to have the claimed dimensions would not render the device of Gueytron inoperable for its intended purpose of shucking oysters. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Gueytron and make the hinge blade extend any suitable distance from the axis including the claimed distances, so as to yield the predictable result of ensuring the hinge blade engages sufficient portions of the oyster to facilitate cutting of the oyster as desired.
Referring to claims 10 and 11, Gueytron does not disclose he hinge blade extends about 2.25 mm to about 6.5 mm along the cutting edge and the hinge blade extends about 3.5 mm along the cutting edge. However, as seen in applicant’s originally filed disclosure in pages 2 and 5-7 of applicant’s originally filed specification, applicant places no criticality/particular reason for having the claimed dimensions in that as seen in pages 5-7 of applicant’s originally filed specification, applicant discloses the dimensions are effective but does not provide reasoning/rationale as to what makes these claimed dimensions more effective than other non-claimed dimensions and given the device of Gueytron is a handheld tool that functions similar to applicant’s claimed device, making the components of Gueytron to have the claimed dimensions would not render the device of Gueytron inoperable for its intended purpose of shucking oysters. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Gueytron and make the hinge blade extend any suitable distance along the cutting edge including the claimed distances, so as to yield the predictable result of ensuring the hinge blade engages sufficient portions of the oyster to facilitate cutting of the oyster as desired.
Referring to claims 12 and 13, Gueytron does not disclose the hinge blade has a thickness of about 0.4 mm to about 2.25 mm, and the hinge blade has a thickness of about 1.2 mm. However, as seen in applicant’s originally filed disclosure in pages 2 and 5-7 of applicant’s originally filed specification, applicant places no criticality/particular reason for having the claimed dimensions in that as seen in pages 5-7 of applicant’s originally filed specification, applicant discloses the dimensions are effective but does not provide reasoning/rationale as to what makes these claimed dimensions more effective than other non-claimed dimensions and given the device of Gueytron is a handheld tool that functions similar to applicant’s claimed device, making the components of Gueytron to have the claimed dimensions would not render the device of Gueytron inoperable for its intended purpose of shucking oysters. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Gueytron and make the hinge blade any suitable thickness including the claimed thicknesses, so as to yield the predictable result of ensuring the hinge blade engages sufficient portions of the oyster to facilitate cutting of the oyster as desired.
Referring to claim 15, Gueytron does not disclose the primary muscle blade has a length of about 60 mm. However, as seen in applicant’s originally filed disclosure in pages 2 and 5-7 of applicant’s originally filed specification, applicant places no criticality/particular reason for having the claimed dimensions in that as seen in pages 5-7 of applicant’s originally filed specification, applicant discloses the dimensions are effective but does not provide reasoning/rationale as to what makes these claimed dimensions more effective than other non-claimed dimensions and given the device of Gueytron is a handheld tool that functions similar to applicant’s claimed device, making the components of Gueytron to have the claimed dimensions would not render the device of Gueytron inoperable for its intended purpose of shucking oysters. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Gueytron and make the muscle blade any suitable length including the claimed length, so as to yield the predictable result of ensuring the blade engages sufficient portions of the oyster to facilitate cutting of the oyster as desired.
Referring to claims 17 and 18, Gueytron does not disclose the side shucking blade has a thickness of about 0.1 mm to about 0.75 mm, and the side shucking blade has a thickness of about 0.3 mm. However, as seen in applicant’s originally filed disclosure in pages 2 and 5-7 of applicant’s originally filed specification, applicant places no criticality/particular reason for having the claimed dimensions in that as seen in pages 5-7 of applicant’s originally filed specification, applicant discloses the dimensions are effective but does not provide reasoning/rationale as to what makes these claimed dimensions more effective than other non-claimed dimensions and given the device of Gueytron is a handheld tool that functions similar to applicant’s claimed device, making the components of Gueytron to have the claimed dimensions would not render the device of Gueytron inoperable for its intended purpose of shucking oysters. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Gueytron and make the side shucking blade any suitable thickness including the claimed thicknesses, so as to yield the predictable result of ensuring the blade engages into portions of the oyster to facilitate cutting of the oyster as desired.
Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gueytron as applied to claim 1 above, and further in view of U.S. Patent Application Publication No. 2003/0134585 to Maloni.
Referring to claim 14, Gueytron does not disclose the primary muscle blade has a length of about 25 mm to about 75 mm. Maloni does disclose the primary muscle blade – at bottom edge of 21,22, has a length of about 25 mm to about 75 mm – see paragraph [0017] detailing a length of 2.875 inches equating to 73 mm. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Gueytron and add the primary muscle blade having a length of 73 mm as disclosed by Maloni, so as to yield the predictable result of ensuring the blade has sufficient surface contact with the oyster during use as desired.
Conclusion
5. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
The following patents are cited to further show the state of the art with respect to oyster/shellfish shucking/cutting knives in general:
U.S. Pat. No. 75,917 to Berger – shows oyster knife
U.S. Pat. No. 162,606 to Berger – shows oyster knife
U.S. Pat. No. 191,384 to Temple – shows oyster knife
U.S. Pat. No. 829,353 to Rand – shows oyster knife
U.S. Pat. No. 1,352,108 to Arthur – shows oyster knife
U.S. Pat. No. 3,991,466 to Smith – shows oyster knife
U.S. Pat. No. 4,477,943 to Grush – shows oyster knife
U.S. Pat. No. 4,551,886 to Couche et al. – shows oyster knife
U.S. Des. No. D740,624 to Furman – shows oyster knife
FR Pat. No. 2559661 to Ostoj – shows oyster knife
FR Pat. No. 2783147 to Masson – shows oyster knife
FR Pat. No. 2809607 to Le Tallec – shows oyster knife
FR Pat. No. 2875115 to Mira – shows oyster knife
WIPO No. 2010/054435 to Siminis – shows oyster knife
WIPO No. 2012/026759 to Jeong et al. – shows oyster knife
6. Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID J PARSLEY whose telephone number is (571)272-6890. The examiner can normally be reached Monday-Friday, 8am-4pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Peter Poon can be reached at (571) 272-6891. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DAVID J PARSLEY/Primary Examiner, Art Unit 3643