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.
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.
Claim 1-3, 5, 10, 11, 15, 16, 18, 19 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 10, 11, 15, 16, 18 and 19 of copending Application No. 19/291,737 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 10 of ‘737 includes all the limitations of claims 1-3, 10 and 15-17 of the instant application; claim 11 of ‘737 includes all the limitations of claims 5 and 11 of the instant application; claim 15 of ‘737 reads on claim 15 of the instant invention, likewise for claims 16, 18, and 19 of ‘737 which correspond to claims 16, 18, and 19 respectively of the instant application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim Rejections - 35 USC § 102
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, 2, 4, 5, 15, 16 and 18, are rejected under 35 U.S.C. 35 U.S.C. 102(a)(1) as being anticipated by Moran (US 6530496).
Regarding claims 1, 2, 15, 16, Moran discloses a container 100 fully capable of holding a coating material, the container, fig. 4, comprising:
a container body 10 having a front, a rear, a right side, a left side, and a container bottom that define a cavity for receiving a coating material (the container of Moran is three dimensional, the term “side” is interpreted broadly and not as having distinct walls that delimit a front from a side), a rim 20 extends around the top of the container, fig. 2,
an upper projection 62b and a lower projection 62a projecting rearwardly from the rear of the container body, the projections are hollow and define slots at the top and bottom of the rear, the slots configured to receive respective ends of 61a and 61b of a flexible band 60, fig. 4, attached to the rear of the container body.
The flexible band of Moran is movable via a pin 63b that moves within a slot 65 such that the handle 61 (finger grip) is capable of being flush against the body of the container or pulled away from the container, col. 5: 10-40. The handle is pulled away when pin 63b slides within slot 65 such that the pin is at the top of the slot, is flush when the pin is at the bottom of the slot, and that handle is capable of being positioned at an intermediate distance from the body when the pin is located centrally in the slot, fig. 4.
Regarding claim 4, the projection at 62b of Moran can be used to rest a thumb.
Regarding claims 5 and 18, as seen in fig. 4, the bottom of the container of Moran has a downward projecting rib at 50.
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.
Claim(s) 1, 2, 6, 9, 15, 16, 19, and 20, are rejected under 35 U.S.C. 103 as being unpatentable over Byrne (US 7191913) in view of Teti Jr. et al. (US 4064594).
Regarding claims 1 and 15, Byrne discloses a container 100 for a coating material (paint), the container comprising:
an adjustable flexible band (handle 106), col. 3: 25-45 movable between multiple distances from the body to accommodate different hand sizes, col. 3: 37-43. The flexible band of Byrne can be at a resting position distance, fig. 1G, can be pushed toward the container into a second position such that the distance between the handle and rear of the container decreases, or it can be expanded via hinge 109 to accommodate a larger hand such that the handle is at a third distance away from the rear of the container.
The flexible band of Byrne is not attached via slots on a top rear and at a bottom rear. The flexible band of Byrne is not capable of lying flush against the container wall.
However, Teti teaches an adjustable handle 10 for a container, the handle formed from a flexible band (strap) 12 having lugs 14 at each end of the band, fig. 1, the band is allowed to lay flat or be bowed upwardly when being used, col. 2: 55-end. The lugs of the band are retained in slots (recesses 26) formed by end covers 18 so that the lugs can readily slide in the slots, col. 3: 10-25, fig. 10 and 12.
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 fixed attachment means of the handle of Byrne to have handle ends movable within slots in order to allow the handle to lie flat when not in use as per the teaching of Teti. In addition, if the handle lies flat, the reduced handle profile has the added benefit of allowing containers to be more readily nested within one another.
The handle of Byrne as modified above is adjustable between a flat position, a fully extended position, and an intermediate position where the handle is not fully extended.
Regarding claims 2 and 16, Byrne discloses, fig. 1A, the container body additionally includes a front, a right side, a left side, and a bottom, and a rim portion extending around tops of the front, rear, right side, and left side.
Regarding claims 6 and 19, Byrne further discloses a magnet 111 housed in the rear for supporting a brush within the cavity, fig. 1A.
Regarding claims 9 and 20, Byrne discloses the container body has inwardly extending portions 105 extending into the cavity, fig. 1B.
Claim(s) 7 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Byrne and Teti as applied to claim 1 above, and further in view of Accardo et al. (US 5341969).
Regarding claims 7 and 8, the references applied above teach all of claim 1, as applied above. Byrne does not teach a bail attached to the container body.
Accardo teaches a container for paint 1, fig. 2. The container includes a bail handle 93 (not shown) attached via ears 95, fig 1, 3, and 5, extending from the left and right sides of the container wherein the bail has a first end attached to the first ear and a second end attached to the second ear, col. 7: 15-30.
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 container of Byrne to include ears near the top and a bail handle as per the teaching of Accardo in order to hold the container from above the center of gravity of the container for carrying the container while walking.
Claim(s) 1-4, 10, 12 - 17, 19, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Byrne in view of Teti and Fuhr (US 4164299).
Regarding claims 1-3, 10, 15, 16, 17, Byrne discloses a container 100 for a coating material (paint), the container comprising:
a front, a right side, a left side, and a bottom, and a rim portion extending around tops of the front, rear, right side, and left side,
an adjustable flexible band (handle 106), col. 3: 25-45 movable between multiple distances from the body to accommodate different hand sizes, col. 3: 37-43. The flexible band of Byrne can be at a resting position distance, fig. 1G, can be pushed toward the container into a second position such that the distance between the handle and rear of the container decreases, or it can be expanded via hinge 109 to accommodate a larger hand such that the handle is at a third distance away from the rear of the container.
The flexible band of Byrne is not attached via slots on a top rear and at a bottom rear. The flexible band of Byrne is not capable of lying flush against the container wall.
However, Teti teaches an adjustable handle 10 for a container, the handle formed from a flexible band (strap) 12 having lugs 14 at each end of the band, fig. 1, the band is allowed to lay flat or be bowed upwardly when being used, col. 2: 55-end. The lugs of the band are retained in slots (recesses 26) formed by end covers 18 so that the lugs can readily slide in the slots, col. 3: 10-25, fig. 10 and 12.
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 fixed attachment means of the handle of Byrne to have handle ends movable within slots in order to allow the handle to lie flat when not in use as per the teaching of Teti. In addition, if the handle lies flat, the reduced handle profile has the added benefit of allowing containers to be more readily nested within one another.
The handle of Byrne as modified above is adjustable between a flat position, a fully extended position, and an intermediate position where the handle is not fully extended.
Byrne teaches a single wiping bar projecting upward 124, fig. 1A, from the rim portion to define regions to wipe off coating material.
Fuhr is analogous art in regard to containers 10 for holding coating material (paint). The container of Fuhr has wiping rims 28, 30, 32, on three sides, fig. 1, col. 2: 20-35.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to duplicate the wiping bars on the rim of Byrne to be on the front as well as on left and right sides as taught by Fuhr in order to have additional wiping surfaces.
Regarding claims 12 and 19, Byrne further discloses a magnet 111 housed in the rear for supporting a brush within the cavity, fig. 1A.
Regarding claims 4 and 13, Byrne as modified above to have the handle components taught by Teti, include end covers 18 which when applied to the rear of the container, are projections extending from a rear which would allow a user to rest a thumb on the top flat surface of the cover.
Regarding claims 14 and 20, Byrne discloses the container body has inwardly extending portions 105 extending into the cavity, fig. 1B.
Claim(s) 5, 11, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Byrne and Teti as applied to claims 1 and 15 above, or Byrne, Teti and Fuhr as applied to claims 1, 10, and 15 above, and further in view of Armstrong (US 4927046).
Regarding claims 5, 11, and 18, the references applied above teach all of claims 1, 10, and 15, as applied above. The references applied above do not teach ribs projecting from the bottom of the container body.
Armstrong is analogous art in regard to containers for holding coating material. Armstrong further teaches projections at 8, fig. 3 and 4 projecting upwardly from the bottom of the container body in order to provide a space for finger tips and allow the container to be more easily held as well as providing rigidity to the container, col. 4: 37-45.
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 bottom of the container of Byrne to include fingertip relief ribs in order to provide a means for holding the container more easily as per the teaching of Armstrong.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MOLLIE L IMPINK whose telephone number is (571)270-1705. The examiner can normally be reached Monday-Friday (7:30-3:30).
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MOLLIE LLEWELLYN IMPINK
Primary Examiner
Art Unit 3799
/MOLLIE IMPINK/Primary Examiner, Art Unit 3799
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