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 .
Reissue Applications
For reissue applications filed on or after September 16, 2012, all references to 35 U.S.C. 251 and 37 CFR 1.172, 1.175, and 3.73 are to the current provisions.
Applicant is reminded of the continuing obligation under 37 CFR 1.178(b), to timely apprise the Office of any prior or concurrent proceeding in which U.S. Patent No. 11,026,521 (hereinafter the ‘521 patent) and/or Reissued Patent No. RE50,463 (hereinafter the ‘463 reissued patent) is or was involved. These proceedings would include any trial before the Patent Trial and Appeal Board, interferences, reissues, reexaminations, supplemental examinations, and litigation.
Applicant is further reminded of the continuing obligation under 37 CFR 1.56, to timely apprise the Office of any information which is material to patentability of the claims under consideration in this reissue application.
These obligations rest with each individual associated with the filing and prosecution of this application for reissue. See also MPEP §§ 1404, 1442.01 and 1442.04.
Multiple Reissue Applications
This reissue application is a continuation of reissue application 18/206,922, now Reissued Patent No. RE50,463. 37 CFR 1.177(a) requires that all multiple reissue applications resulting from a single patent must include as the first sentence of their respective specifications a cross reference to the other reissue application(s). Accordingly, the first sentence of each reissue specification must provide notice stating that more than one reissue application has been filed, and it must identify each of the reissue applications and their relationship within the family of reissue applications, and to the original patent. An example of the suggested language to be inserted is as follows:
Notice: More than one reissue application has been filed for the reissue of Patent No. 11,026,521. The reissue applications are application number 18/206,922 filed June 7, 2023 (now Reissued Patent No. RE50,463), and application number 19/196,896 filed May 2, 2025, which is a continuation reissue of Patent No. 11,026,521.
See MPEP § 1451.
Reissue Oath/Declaration
The reissue declaration filed on May 2, 2025, which is a copy of the reissue declaration filed in the parent reissue application, is defective because it fails to properly identify at least one error which is relied upon to support this reissue application. See 37 CFR 1.175 and MPEP §§ 1414-1414.01.
Where a continuation reissue application is filed with a copy of the reissue oath/declaration from the parent reissue application, and the parent reissue application is not abandoned, the copy of the reissue oath/declaration is improper under 35 U.S.C. 251 unless it is accompanied by a statement explaining compliance with 37 CFR 1.175(f)(2). If the same error corrected in the parent reissue application is also being corrected in the continuation reissue application, but the error is being corrected in a different way, a statement is needed to explain compliance with 37 CFR 1.175(f)(2). See MPEP § 1414, subsection II.D. In this case, applicant has failed to explain why the filing of the copy of the reissue declaration from the parent reissue application is sufficient to ensure that an error is correctly identified by the continuation reissue application. See MPEP § 1451, subsection II.B.
Consent of Assignee
This application is objected to under 37 CFR 1.172(a) as lacking proper written consent of all assignees owning an undivided interest in the patent. The consent of the assignee must be in compliance with 37 CFR 1.172. See MPEP 1410.01.
The consent of assignee (i.e., Form PTO/AIA /53) filed in the instant application is a copy of the consent of assignee filed in the parent reissue application. Such a copy of the assignee consent is acceptable only if it gives consent for an error that was (a) identified in the parent reissue application (e.g., in the reissue oath/declaration filed in the parent reissue application), and (b) corrected in the continuation reissue application. See MPEP § 1451, subsection II.
In this case, applicant has failed to explain why the filing of the copy of the reissue declaration from the parent reissue application is sufficient to ensure that an error is correctly identified by the continuation reissue application, as explained above. See MPEP § 1451, subsection II. Thus, applicant has failed to establish that consent was made in the parent reissue application for the error now corrected in the continuation reissue application.
A newly executed assent of the assignee in compliance with 37 CFR 1.172 and 3.73 is required in reply to this Office action.
Information Disclosure Statements
The information disclosure statements (IDS) submitted on July 21, September 15, and October 14 of 2025, and on February 4, May 14, and July 24 of 2026, are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements have been considered by the examiner.
In addition, examiner has considered the references cited during the original prosecution of the patent and during prosecution of the first reissue application. Any reference again cited/applied in this reissue application is listed on the PTO-892 form included herewith. Should applicant wish to ensure that all of the references cited in the original patent are considered and cited in this reissue application, an IDS in compliance with 37 CFR 1.97 and 1.98 should be filed in this reissue application listing the additional references. See MPEP §§ 609 and 1406.
Claim Rejections - 35 USC § 251
35 U.S.C. 251 states:
(a) IN GENERAL.—Whenever any patent is, through error, deemed wholly or partly inoperative or invalid, by reason of a defective specification or drawing, or by reason of the patentee claiming more or less than he had a right to claim in the patent, the Director shall, on the surrender of such patent and the payment of the fee required by law, reissue the patent for the invention disclosed in the original patent, and in accordance with a new and amended application, for the unexpired part of the term of the original patent. No new matter shall be introduced into the application for reissue.
(b) MULTIPLE REISSUED PATENTS.— The Director may issue several reissued patents for distinct and separate parts of the thing patented, upon demand of the applicant, and upon payment of the required fee for a reissue for each of such reissued patents.
(c) APPLICABILITY OF THIS TITLE.— The provisions of this title relating to applications for patent shall be applicable to applications for reissue of a patent, except that application for reissue may be made and sworn to by the assignee of the entire interest if the application does not seek to enlarge the scope of the claims of the original patent or the application for the original patent was filed by the assignee of the entire interest.
(d) REISSUE PATENT ENLARGING SCOPE OF CLAIMS.—No reissued patent shall be granted enlarging the scope of the claims of the original patent unless applied for within two years from the grant of the original patent.
Claims 1-20 are rejected under 35 U.S.C. 251 as failing to correct an error in the original patent. Claims 1-20 of the original ‘521 patent were superseded by the reissuance of claims 1-20 in the ‘463 reissued patent. As explained in MPEP § 1451, subsection II, “all of the claims of the patent to be reissued must be presented in both the parent reissue application and the continuation reissue application in some form, i.e., as amended, as unamended, or as canceled. The same claim of the patent cannot, however, be presented for examination in both the parent reissue application and the continuation application, as a pending claim, in either its original or unamended versions.”
If Applicant wishes to revise claims 1-20 of the original ‘521 patent in a different way in this continuing reissue application, then claims 1-20 in this continuing reissue application would be canceled, and new claims 21-40 would be added to include the desired revisions. The cancelation of claims 1-20 in this continuing reissue application will not prejudice Applicant’s rights in the amended version of claims 1-20 because those rights are retained via the first reissue application. Claims 1-20 continue to exist in the first reissue application, and both the first and second reissue applications taken together make up the totality of the correction of the original patent. See MPEP § 1451.
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 1-20 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.
Claims 1-20 are indefinite because the invention of claims 1-20 present one coverage in the first ‘463 reissued patent and a different coverage in the present reissue application. This is inconsistent. See MPEP § 1451.
In addition, claim 3 recites the limitation “the torso support.” There is insufficient antecedent basis for this limitation in the claims. For the purpose of examination, “the torso support” is interpreted to mean --the torso support portion--.
Additionally, in claim 4, it is unclear whether “the thigh support strap” refers to a particular one of the “one or more thigh support straps,” or to each of the one or more thigh support straps. For the purpose of examination, “the thigh support strap” is interpreted to mean --each of the one or more thigh support straps--.
Specification
The disclosure is objected to because of the following informalities:
In col. 2, lines 51-52, it appears that “a second end coupled to the waist belt the upper torso support” should read --a second end coupled to the upper torso support--, consistent with col. 2, lines 19-20.
In col. 3, line 55, “an child” should read --a child--.
Appropriate correction is required.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference signs mentioned in the description: “314” and “316” in col. 9, lines 25-33.
The drawings are objected to because reference number “162” is used twice in Fig. 2B to denote different parts, in a first instance indicating a seat side edge (consistent with the specification at col. 4, line 49-col. 5, line 5) and in a second instance apparently indicating some part of the waist belt. It appears to the examiner that the second instance of “162” should be deleted.
Corrected drawing sheets in compliance with 37 CFR 1.173(b)(3) are required in reply to the Office action to avoid abandonment of the application. Amendments in reissue applications are different from standard utility application practice and are governed by 37 CFR 1.173. In particular, 37 CFR 1.173(b)(3) reads (with emphasis added):
Drawings. One or more patent drawings shall be amended in the following manner: Any changes to a patent drawing must be submitted as a replacement sheet of drawings which shall be an attachment to the amendment document. Any replacement sheet of drawings must be in compliance with § 1.84 and shall include all of the figures appearing on the original version of the sheet, even if only one figure is amended. Amended figures must be identified as "Amended," and any added figure must be identified as "New." In the event that a figure is canceled, the figure must be surrounded by brackets and identified as "Canceled." All changes to the drawing(s) shall be explained, in detail, beginning on a separate sheet accompanying the papers including the amendment to the drawings.
(i) A marked-up copy of any amended drawing figure, including annotations indicating the changes made, may be included. The marked-up copy must be clearly labeled as "Annotated Marked-up Drawings" and must be presented in the amendment or remarks section that explains the change to the drawings.
(ii) A marked-up copy of any amended drawing figure, including annotations indicating the changes made, must be provided when required by the examiner.
The objection to the drawings will not be held in abeyance. See also MPEP 1453.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, when the claim limitation uses the term “means” or “step,” or a generic placeholder used as a substitute for “means,” modified by functional language and not modified by sufficient structure, material, or acts for performing the claimed function.
In this case, the term “biasing mechanism” in claim 4 is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the term “mechanism” is a generic placeholder modified by the functional language “biasing” without reciting sufficient structure, material, or acts for performing the claimed biasing function. The term “biasing mechanism” is thus construed to cover the corresponding structure described in the specification and equivalents thereof. With respect to the biasing mechanism, the specification discloses the following:
A carrier can also include a biasing mechanism 412 coupled to each thigh support strap 402. The biasing mechanism(s) can be formed of an elastic material or other material and can act to pull thigh support straps 403 laterally toward the lateral centerline of carrier 100 to prevent gaps in the seat as needed. Additionally, biasing mechanism 412 can act to cover gaps between hammock portion 420 and thigh support straps 402. According to some embodiments, fabric bridge 240 (FIGS. 2A, 2B) or gussets 390 (FIG. 3) can act as biasing mechanism 412.
Col. 12:15-24; see also col. 4:63-65, 8:30-34, and 11:33-37.
Thus, the biasing mechanism is construed to be a fabric bridge, a gusset, or equivalents thereof.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of pre-AIA 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 –
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of application for patent in the United States.
Claims 1-4, 6-8, 14, and 17 are rejected under pre-AIA 35 U.S.C. 102(b) as being anticipated by Hwang (US Patent Pub. 2002/0011503, hereinafter Hwang).
Regarding claim 1, Hwang discloses a child carrier (baby carrier of Figs. 7-8; ¶¶ 48-50) comprising:
a main body including a torso support portion (“back supporter,” ¶ 14) and a hammock portion (bottom sheet 116) coupled to the torso support portion (as shown in Fig. 7; see also ¶ 30);
one or more thigh support straps (auxiliary supporter 119a and/or 119b, Fig. 7; ¶ 49) configured to form a seat with the hammock portion (see Figs. 7-8),
wherein each of the one or more thigh support straps (119a, 119b) extends to a side of the main body, defines an outward end portion adapted to selectively attach to the torso support portion at multiple locations (each thigh support strap 119a and 119b being selectively attachable/detachable to the torso support section at two locations via two adjustment straps 140 or 141; see Figs. 7-8), and defines an inward end portion proximate to the main body (see annotated Fig. 7 below),
wherein the hammock portion (116) and the one or more thigh support straps (119a, 119b) form the seat to support the child in an inward-facing ergonomic spread-squat position when each of the thigh support straps are attached at one of the multiple locations (see Fig. 8); and
one or more shoulder straps (152a, 152b, Figs. 7-8; ¶ 51), wherein the one or more shoulder straps (152a, 152b) are coupled to the main body and configured to support the main body (see Figs. 7-8; ¶¶ 51).
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The examiner notes that “in an inward-facing ergonomic spread-squat position or an outward-facing ergonomic spread-squat position” are claimed in the alternative. Hwang teaches one of the two claimed alternatives and therefore anticipates the claim.
Regarding claim 2, Hwang teaches the claimed invention substantially as claimed, as set forth above for claim 1. Hwang further teaches the seat has a first shape when the one or more thigh support straps (119a or 119b) couple to the torso support portion at a first location (i.e., at a first location of the supporter 119a or 119b relative to the torso support portion) and a second shape when the one or more thigh support straps (119a or 119b) couple to the torso support portion at a second location (i.e., by adjusting the supporter 119a or 119b at a second location relative to the torso support portion via adjustment straps 140 or 141; see ¶ 49: “the adjustment straps 140 and 141 can be adjusted according to the body shape of the baby”).
Regarding claim 3, Hwang further discloses each of the one or more thigh support straps (119a, 119b) is sized to wrap around a portion of the child’s pelvis, bottom, and thigh (see Fig. 7 and ¶ 14) when the one or more thigh support straps are coupled to the torso support portion in the first location or the second location (e.g., at either one or both of the straps 141 for thigh support strap 119b).
Regarding claim 4, Hwang further discloses a biasing mechanism (adjustment straps 140 for thigh support strap 119a, or adjustment straps 141 for thigh support strap 119b) coupled to each of the one or more thigh support straps (119a, 119b). As discussed above, the term “biasing mechanism” is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, to cover a fabric bridge, a gusset, or equivalents thereof. The adjustment straps (140) of Hwang are understood to be equivalent to a fabric bridge, because they are flexible members that bridge the gap between the edge of each of the thigh support straps and the torso support section and perform the same disclosed function of pulling the thigh support strap laterally toward a lateral centerline of the carrier (compare to Applicant’s specification at col. 12:15-24).
Regarding claim 6, Hwang further teaches the hammock portion (116) and the one or more thigh support straps (119a or 119b) pass from an inward side of a child carrying area to an outward side of the child carrying area to form the seat (see Figs. 7-8).
Regarding claims 7 and 8, Hwang further discloses a waist belt (180, Fig. 7; ¶ 50) (claim 7) coupled to the hammock portion (116, Fig. 7, ¶ 50; the waist belt 180 being coupled to the hammock portion 116 via the auxiliary supporters 119a, 119b) (claim 8).
Regarding claim 14, Hwang further discloses the hammock portion (116) of the seat is narrower than the torso support portion of the main body (see Fig. 7).
Regarding claim 17, Hwang further discloses the inward end portion of each of the thigh support straps (119a, 119b, Fig. 7) is adapted to be coupled to the hammock portion (116; ¶ 49) and a waist belt (180; ¶ 50).
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim 5 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Hwang in view of David (UK Patent No. GB 2,026,848 A, hereinafter David).
Regarding claim 5, Hwang teaches the claimed invention substantially as claimed, as set forth above for claim 4. Hwang does not teach a gusset extending between an edge one of the one or more thigh support straps and an edge of the hammock portion. However, David teaches that it was known prior to Applicant’s invention to include a gusset (side gussets 12, Fig. 4; pg. 1:75-77) extending between an edge of a strap (in this case, straps 10) and an edge of a hammock portion (seat portion 2) of a child carrier. The examiner notes that the function of a gusset for adding strength or expansion is well known in the sewing art, the term “gusset” being defined as “a triangular insert, as in the seam of a garment, for added strength or expansion” (American Heritage® Dictionary of the English Language, Fifth Edition). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Hwang by adding a gusset as taught by David extending between an edge of the thigh support strap and an edge of the hammock portion, as part of the biasing mechanism, in order to strengthen the child carrier at the connection of the thigh support strap to the hammock portion and/or to facilitate expansion of the seat at the adjustable connections (140, 141) of the thigh support straps to the main body.
Claims 9-12, 15-16, and 20 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Hwang in view of Linday (US Patent No. 4,986,458, hereinafter Linday).
Regarding claim 9, Hwang teaches the claimed invention substantially as claimed, as set forth above for claim 8. Although one of ordinary skill in the art would reasonably expect that the waist belt and the hammock portion of Hwang would, in use, cooperate to distribute at least a portion of the child’s weight to the hips of a wearer (since the hammock portion on which the child sits is connected to the waist belt worn on the wearer’s hips), Hwang is silent with respect to this function and does not explicitly disclose that the waist belt and the hammock portion cooperate to distribute a majority of the child’s weight to the wearer’s hips. However, Linday teaches that it is old and well known to configure a waist belt and a hammock portion of a child carrier to cooperate to distribute a majority of a child’s weight to the wearer’s hips. See col. 1:10-15: “the weight of the infant is distributed so that the majority of the weight is not borne by the shoulders which would not only be uncomfortable but would readily impart fatigue to the carrier. Instead, the majority of the weight of the infant is borne by the lower torso, especially the hips.” See also col. 3:67-4:4. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Hwang by configuring the waist belt and the hammock portion to cooperate, in use, to distribute a majority of the child’s weight to the wearer’s hips, as taught by Linday, so that the carrier is more comfortable and causes less fatigue for the wearer.
Regarding claims 10-12, Hwang teaches the claimed invention substantially as claimed, as set forth above for claim 1. Hwang does not explicitly teach an adjustable collar. However, Linday teaches a similar child carrier (Figs. 1-5) comprising an adjustable collar (head support flap 20 of pouch 1; col. 5:1-10) (claim 10) configured to be positioned according to an orientation of the child (col. 5:3-10; see Figs. 3 and 5) (claim 11) and formed from a main body of the carrier (pouch 1 being formed from “a blank of canvas, cloth or like material,” col. 2:47-52; see Fig. 3) (claim 12). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Hwang by adding an adjustable collar as taught by Linday configured to be positioned according to an orientation of the child and formed from the main body, in order to provide head support when the carrier is used for an infant and to fold out of the way when the carrier is used for an older child.
Regarding claim 15, Hwang teaches the claimed invention substantially as claimed, as set forth above for claim 1. Hwang does not explicitly teach that the main body is a single piece of material. However, Linday teaches a similar child carrier (Figs. 1-5) comprising a main body (pouch 1) that similarly includes a torso support portion and a hammock portion (see Figs. 3 and 5), wherein the main body (1) is a single piece of material (“[t]he pouch is advantageously made from a blank of canvas, cloth or like material,” col. 2:48-50). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Hwang by making the main body from a single piece of material, as taught by Linday, in order to simplify construction of the carrier.
Regarding claim 16, Hwang teaches the claimed invention substantially as claimed, as set forth above for claim 1. Hwang does not explicitly teach that the hammock portion and the torso support portion comprise a unitary construction. However, Linday teaches a similar child carrier (Figs. 1-5) comprising a main body (pouch 1) that similarly includes a torso support portion and a hammock portion (see Figs. 3 and 5), wherein the hammock portion and the torso support portion comprise a unitary construction (“[t]he pouch is advantageously made from a blank of canvas, cloth or like material,” col. 2:48-50). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Hwang by making the hammock portion and the torso support portion a unitary construction, as taught by Linday, in order to simplify construction of the carrier.
Regarding claim 20, Hwang teaches the claimed invention substantially as claimed, as set forth above for claim 1. Hwang further teaches the carrier is adapted to be worn by a wearer in a back carry position (Fig. 8). Hwang does not explicitly teach that the carrier is adapted to be alternatively worn in a front carry or a side carry position. However, Linday teaches a similar child carrier (Figs. 1-5) adapted to be alternatively worn by a wearer in a front carry position (Fig. 3), a back carry position (“[t]he carrier may also be used to carry an infant on the back of the wearer,” Abstract), or a side carry position (Fig. 5). See Abstract, lines 3-9: “The harness comprises adjustable shoulder straps and an adjustable girth strap so arranged as to enable the carrying pouch to be switched from a position of frontal support to a position of side support … The carrier may also be used to carry an infant on the back of the wearer.” Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Hwang by adapting the carrier to be alternatively worn by a wearer in a front carry, back carry, or side carry position, as taught by Linday, so that the carrier can be conveniently used in a wearer’s preferred orientation.
Claim 13 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Hwang in view of Wang (US Patent Pub. 2011/0290831, hereinafter Wang).
Regarding claim 13, Hwang teaches the claimed invention substantially as claimed, as set forth above for claim 1. Hwang further teaches that the hammock portion (116) and the thigh support straps (119a, 119b) are adapted to form the seat such that the child is supported in a manner whereby the flexion of the child’s hip joint is at least 90 degrees from the coronal plane (see Fig. 8). The spreading angle (interpreted to mean the angle between the child’s legs when the child is in the carrier) would appear in view of Fig. 8 to average at least very close to the claimed range of between 45-55 degrees from the median plane, in use, but Hwang is silent with respect to this function. However, Wang teaches that it is old and well known to configure a spreading angle of a child carrier to average between 45-55 degrees from the median plane (“the baby’s legs are usually at a 90-degree or greater angle because the thighs are supported and the baby’s legs straddle the caregiver’s body,” ¶ 8; a total of 90-degree or greater angle between the two legs including an average of 45 degrees or greater for each leg from the median plane), for the health of the baby’s hip and spine development (¶ 8). See also Fig. 2B-C and ¶¶ 42-43. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Hwang by configuring the seat such that the spreading angle averages between 45-55 degrees from the median plane, in use, as taught by Wang, in order to aid healthy hip and spine development of the child.
Claim 18 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Hwang in view of Lindblom (WO 2009/034233 A1, hereinafter Lindblom).
Regarding claim 18, Hwang teaches the claimed invention substantially as claimed, as set forth above for claim 17. Hwang does not teach a hinge joining the inward end portion of the thigh support strap to the hammock portion. However, Lindblom teaches a child carrier (1, Figs. 1 and 3) comprising a thigh support (widening section 3 or 4 of carrying section which support the child’s thighs; see pg. 1:14-15, “the carrying section should support the child’s thighs down until the knees”; and pg. 2:4-5, “width adjustment of the carrier’s carrying section is designed in a way that allows the width to be increased easily as the child grows”) joined to a hammock portion (i.e., the lower portion of the carrying section 2, adjacent to the hip belt 31) with a hinge (vertical edge of widening section 3 or 4 hinged to permit folding for storage in pockets 6; see Figs. 1 and 3, and pg. 4:23-26) having an axis of rotation of the hinge parallel to a lateral centerline of the child carrier (i.e., a vertical centerline when oriented as shown in Fig. 1; compare to Applicant’s lateral centerline 234 in Fig. 2A) when the carrier is in a flat configuration (see Figs. 1 and 3). Lindblom teaches that the hinge is convenient for permitting the thigh support to be folded away into a pocket when the thigh support is not needed (pg. 1:25-26; see also pg. 2:12-15). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Hwang by joining the inward end portion of the thigh strap to the hammock portion with a hinge as taught by Lindblom having an axis of rotation parallel to the lateral centerline of the carrier when the carrier is in a flat configuration, so that the thigh support strap can be folded out of the way when not needed.
Claim 19 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Hwang in view of Hoaglan (US Patent No. 5,020,709, hereinafter Hoaglan).
Regarding claim 19, Hwang teaches the claimed invention substantially as claimed, as set forth above for claim 1. Hwang does not teach a frame element incorporated in the torso support portion. However, in the art of child carriers, Hoaglan teaches that it may in some cases be desirable to incorporate a frame element (frame 72, Fig. 9) in a torso support portion of the carrier (col. 4:47-55), in order to support larger, heavier children (col. 1:17-51; col. 4:51-53). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Hwang by incorporating a frame element as taught by Hoaglan in the torso support portion, in order to support larger, heavier children.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Reissued Patent No. 50,463. Although the claims at issue are not identical, they are not patentably distinct from each other because instant claims 1-20 are broader and therefore encompass the invention of claims 1-20 of the ‘463 reissued patent.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Laura L. Davison whose telephone number is (571)270-0189. The examiner can normally be reached Monday - Friday, 8:00 a.m. - 4:00 p.m. ET.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eileen Lillis can be reached at (571)272-6928. 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.
/Laura Davison/Reexamination Specialist, Art Unit 3993
Conferees:
/PETER C ENGLISH/Reexamination Specialist, Art Unit 3993
/Patricia L Engle/SPRS, Art Unit 3991
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