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 .
DETAILED ACTION
Election/Restriction
Restriction to one of the following inventions is required under 35 U.S.C. 121:
I. Claims 1-19, drawn to a plant support device, classified in A01G 9/128.
II. Claim 20, drawn to a method of using a plant support device, classified in A01G 9/12.
The inventions are independent or distinct, each from the other because:
Inventions I and II are related as product and process of use. The inventions can be shown to be distinct if either or both of the following can be shown: (1) the process for using the product as claimed can be practiced with another materially different product or (2) the product as claimed can be used in a materially different process of using that product. See MPEP § 806.05(h). In the instant case the product as claimed can be used in a materially different process of using that product such as a process of supporting pipes instead of plants.
Restriction for examination purposes as indicated is proper because all the inventions listed in this action are independent or distinct for the reasons given above and there would be a serious search and/or examination burden if restriction were not required because one or more of the following reasons apply: there would be additional searches (due to independent or distinct embodiments/alternatives) for additional set of claims; there would be different field of search (i.e., carry out different search strategies or search queries and/or searching different classes/subclasses or electronic resources); and there would be separate status in the art due to recognized divergent subject matter.
Applicant is advised that the reply to this requirement to be complete must include (i) an election of an invention to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected invention.
The election of an invention may be made with or without traverse. To reserve a right to petition, the election must be made with traverse. If the reply does not distinctly and specifically point out supposed errors in the restriction requirement, the election shall be treated as an election without traverse. Traversal must be presented at the time of election in order to be considered timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are added after the election, applicant must indicate which of these claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
During a telephone conversation with Attorney Chloe Goodliv on 2/3/26 a provisional election was made without traverse to prosecute the invention of Group 1, claims 1-19. Affirmation of this election must be made by applicant in replying to this Office action. Claim 20 has been withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
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 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.
Claims 1-15 are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by JP 4471417 (JP’417).
For claim 1, JP’417 teaches a plant support device, comprising:
a first clip portion (7A) having a first projecting portion (3A) extending outwardly from the first clip portion; and a second clip portion (7B) connected to the first portion and having a second projecting portion (3C), the second projecting portion extending outwardly from the second clip portion, wherein the first clip portion and the second clip portion are selectively movable between an open position and a closed position, the closed position defined by the first projecting portion being disposed adjacent to the second projecting portion (see Figures 1-6 and 9).
For claim 2, JP’417 teaches a hinge (4,5) separating the first clip portion and the second clip portion.
For claim 3, JP’417 teaches a divot (4) is centrally disposed on the hinge.
For claim 4, JP’417 teaches the hinge is configured to enable the open position and the closed position of the first clip portion and the second clip portion.
For claim 5, JP’417 teaches the first projecting portion is disposed adjacent the hinge at a first distance and the second projecting portion is disposed adjacent the hinge at a second distance.
For claim 6, JP’417 teaches the first distance is equal to the second distance.
For claim 7, JP’417 teaches the first projecting portion is tapered and the second projecting portion is tapered.
For claim 8, JP’417 teaches the first clip portion includes an interior surface that is substantially uninterrupted.
For claim 9, JP’417 teaches first projecting portion extends outwardly from the first clip portion towards a tab receiver of the second clip portion (see Figure 3 for example).
For claim 10, JP’417 teaches the first projecting portion includes a first tip pointed towards the tab receiver (see Figure 3 for example).
For claim 11, JP’417 teaches the second projecting portion extends outwardly from the second clip portion towards a tab of the first clip portion (see Figure 3 for example).
For claim 12, JP’417 teaches the second projecting portion includes a second tip pointed towards the tab (see Figure 3 for example).
For claim 13, JP’417 teaches the second clip portion includes a third projecting portion (8) extending outwardly from the second clip portion (see Figure 3 for example).
For claim 14, JP’417 teaches the third projecting portion (8) includes a third tip pointed towards a tab of the first clip portion (see Figure 3 for example).
For claim 15, JP’417 teaches the third projecting portion (8) is configured to provide a third holding position when the first clip portion and the second clip portion is in the closed position (see Figure 3 for example).
Claim Rejections - 35 USC § 103
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.
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.
Claims 16-19 are rejected under 35 U.S.C. 103 as being unpatentable over JP 4471417 (JP’417) in view of KR 20160000104 (KR’104).
For claim 16, as described above, JP’417 discloses most of the claimed invention except for mentioning wherein the second clip portion includes a plurality of ridges.
KR’104 teaches that it is old and well known in the art to provide a plant support device having a clip portion (200) includes a plurality of ridges (180) therein (see Figure 5 for example).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the plant support device of JP’417 so as to include a plurality of ridges within the clip portions, in a similar manner as taught in KR’104, so as to provide more grip to the overall plant support device.
For claim 17, JP’417 as modified by KR’104 (emphasis on KR’104) further teach wherein the plurality of ridges (180) includes a first set of ridges spaced from a second set of ridges by a curved portion of the second clip portion (see Figure 5 for example).
For claim 18, JP’417 as modified by KR’104 (emphasis on KR’104) further teach wherein each of the ridges (180) of the first set of ridges extend along an entirety of an interior of the second clip portion from a first edge to a second edge (see Figure 5 for example).
For claim 19, JP’417 as modified by KR’104 (emphasis on KR’104) further teach wherein each of the ridges (180) of the second set of ridges extend along an entirety of an interior of the second clip portion from a first edge to a second edge (see Figure 5 for example).
Conclusion
Note, although the examiner recites certain excerpts for the prior art, MPEP 2141.02 VI states “PRIOR ART MUST BE CONSIDERED IN ITS ENTIRETY, INCLUDING DISCLOSURES THAT TEACH AWAY FROM THE CLAIMS”.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TRINH T NGUYEN whose telephone number is (571)272-6906. The examiner can normally be reached on Monday-Friday 7:00-3:30.
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, Timothy Collins can be reached on 571-272-6886. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/TRINH T NGUYEN/Primary Examiner, Art Unit 3644