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 .
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.
Specification
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 it uses the prohibited term “disclosure” in line 1. 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 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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 24 and 26-35 is/are rejected under 35 U.S.C. 103 as being unpatentable over NPL document rennlist.com - How to Make a Front Splitter (https://rennlist.com/forums/racing-and-drivers-education-forum/576073-how-to-make-a-front-splitter.html) in view of NPL Document TrackJunkies, and further in view of Shinedling (US 7,661,753).
Regarding Claims 24, 31 and 32, Rennlist discloses a front splitter, the front splitter comprising a front edge and a rear edge, the front edge being curved along at least a portion thereof (see Rennlist, Post #31, 25 June 2010), and the front splitter being made substantially of an aluminum composite material (Alumalite®), the aluminum composite material comprising a first layer, a second layer, and a substantially solid thermoplastic core disposed between the first layer and the second layer (Alumalite® is a polypropylene core between two sheets of aluminum). It does not appear that Rennlist and TrackJunkies discloses an intermittent front end. Shinedling discloses an adjustable splitter for a vehicle in which the font of the splitter may include intermittent concave and convex portions (see Fig.3). Neither Rennlist nor Shinedling appear to disclose the thickness of the splitter. TrackJunkies discloses a front splitter formed of an aluminum composite which includes two layers of aluminum on each side of a solid thermoplastic core (see page 9/15; Mark II splitter formed of DiBond; DIBOND® ACM is comprised of two pre-painted sheets of 0.012" aluminum with a solid polyethylene core; and comes in sheets of 2-4mm thick). Before the effective filing date of the present application, it would have been obvious to one having ordinary skill in the art to use the thickness of the composite of TrackJunkies for the splitter of Rennlist in order to have a solid, stronger and well-known material for the splitter. Use of the surface of Shinedling for the front edge of the combination of Rennlist and TrackJunkies would give the splitter a unique appearance, but also to allow the tuning of aerodynamic advantage the splitter provides based upon a flow profile.
Regarding Claims 26 and 3, Shinedling discloses a first convex portion centrally disposed along the front edge (Fig. 3; central portion), a first concave portion extending from the first convex portion, a second concave portion extending from the first convex portion and being laterally opposed from the first concave portion (see annotated Fig. 3 below).
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Regarding Claim 27, Shinedling discloses a second convex portion extending between the first concave portion and the rear edge and a third convex portion extending between the second concave portion and the rear edge (see annotated Fig. above).
Regarding Claim 28, Shinedling further discloses a connector 110 for attaching the front splitter to a vehicle.
Regarding Claims 29, 30, 34 and 35, The connector 110 of Shinedling is configured to raise or lower the front edge of the front splitter in response to an adjustment of the connector via lengthening or shortening.
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 16-22, 24-29 and 31-34 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 4 and 5 of U.S. Patent No. 12,286,165. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Claim 1 of the ‘165 patent fully anticipates claims 16 and 21 of the present application.
Claim 2 of the ‘165 patent fully anticipates claims 17, 24, 25, 28, 31, 32 and 34 of the present application.
Claim 4 of the ‘165 patent fully anticipates claims 19, 20, 26, 27 and 33 of the present application.
Claim 5 of the ‘165 patent fully anticipates claims 22 and 29 of the present application.
Claims 23, 29 and 35 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 2 and 5 of U.S. Patent No. 12,286,165 in view of Shinedling (US 7,661,753).
Regarding Claims 23, 29 and 35, the ‘165 patent discloses the use of a connector to attach the splitter to the vehicle, but appears to be silent as to shortening or lengthening the connector to adjust. Shinedling discloses a splitter for a vehicle, including connectors 110 which are adjustable by shortening or lengthening the connector. Before the effective filing date of the present application, it would have been obvious to one having ordinary skill in the art to shorten/lengthen the connectors of the ‘165 patent, as taught by Shinedling, to adjust the position of the splitter to improve the aerodynamic efficiency.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JASON S DANIELS whose telephone number is (571)270-1167. The examiner can normally be reached Monday - Thursday 7:00 am - 5:00 pm.
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, Amy Weisberg can be reached at 571-270-5500. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JASON S DANIELS/Primary Examiner, Art Unit 3612
