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 .
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the bag comprising both gussets on a side wall as well as bottom gussets must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claim 2 is objected to because of the following informalities: In claim 2 "are side gussets" is repeated twice. Appropriate correction is required.
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 8-14 are rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 10-12, 14, 15, 17 and 20 of U.S. Patent No. 11,793,120 in view of AU 2016201970.
Claims 10 and 20 of U.S. Patent No. 11,793,120 disclose claims 8 and 14 of the instant invention, respectively, but fail to disclose the bag being made of polyethylene terephthalate. AU 2016201970 teaches a grow bag comprising polyethylene terephthalate. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention with a reasonable expectation of success for the grow bag to comprise polyethylene terephthalate as to provide a water-impermeable bag (AU 2016201970, column 5: lines 15-20).
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 1-7 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.
The term “thin” in claim 1 is a relative term which renders the claim indefinite. The term “thin” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claim 1 contains the limitations “a tear strip provided in an area below said sealable top end” in both lines 7 and 10. The duplicate limitation should be removed.
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) 8, 10 is/are rejected under 35 U.S.C. 102(a)(1)/(a)(2) as being anticipated by Van Graas AU 2016201970.
Regarding claims 8 and 10, Van Graas further discloses a grow bag comprising a continuous sidewall comprising polyethylene terephthalate (Van Grass, page 5: lines 15-16) and formed into an elongated body, said body defining a fillable cavity (10) with a closed bottom and open top (Van Graas, Figure 8) adapted for heat sealing (Van Graas, page 7: lines 18-21); a score line (Van Graas, Figure 6) that is used as a tear strip to open the bag; one or more bottom gussets (22) configured to lay flat for shipping and deploy at planting; said gussets allowing the bag to be manufactured and shipped in a rectangular form that is deployable as a cylinder for use when planting; said bag configured elongated to allow sealing said top after filling with grow media (3) and allowing said bag to lay relatively flat for palletization.
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.
Claim(s) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Van Graas AU 2016201970.
Regarding claim 11, Van Graas discloses the device of claim 8 but fails to disclose the claimed dimensions of the bag. However, the claimed dimensions could be obtained by routine procedures producing predictable results. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention with a reasonable expectation of success to modify the invention of Van Graas so that the bag comprised the claimed dimensions depending on the size and type of plant the user intended to grow.
Claim(s) 8, 9, and 11-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Beckerman US 5,210,975 in view of Van Graas AU 2016201970..
Regarding claims 8 and 9, Beckerman further discloses a grow bag comprising a continuous sidewall comprising polymer (Beckerman, column 3: lines 14-19) and formed into an elongated body, said body defining a fillable cavity (Beckerman, abstract) with a closed bottom (32) and open top (Beckerman, column 4: lines 30-33) adapted for heat sealing (at 30); a score line (Beckerman, column 5: lines 59-61) that is used as a tear strip to open the bag; one or more side gussets (52) configured to lay flat for shipping and deploy at planting; said gussets allowing the bag to be manufactured and shipped in a rectangular form that is deployable as a cylinder for use when planting; said bag configured elongated to allow sealing said top after filling with grow media (18) and allowing said bag to lay relatively flat for palletization. Beckerman fails to disclose the grown bag comprising polyethylene terephthalate. Van Graas teaches a gusseted grow bag comprising polyethylene terephthalate Van Grass, page 5: lines 15-16. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention with a reasonable expectation of success for the poly bag of Beckerman to comprise polyethylene terephthalate as taught by Van Graas as to provide a water-impermeable bag (Van Graas, column 5: lines 15-20).
Regarding claim 11-13, Beckerman in view of Van Graas discloses the device of claims 8 and 9, respectively, but fails to disclose the claimed dimensions of the bag. However, the claimed dimensions could be obtained by routine procedures producing predictable results. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention with a reasonable expectation of success to modify the invention of Beckerman in view of Van Graas so that the bag comprised the claimed dimensions depending on the size and type of plant the user intended to grow.
Allowable Subject Matter
Claims 1-7 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
The following is a statement of reasons for the indication of allowable subject matter:
The prior art fails to disclose either alone or in combination the invention of claim 1 with a tear strip comprising a thin strip of fabric plasticized across a top area of said bag and punctured with a line of perforations to form a score line.
US 4,118,890 teaches a grow bag that is inflated before shipping, teaching against the grow bags lying flat for shipping.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: DE 102020120706.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KRISTEN C HAYES whose telephone number is (571)272-7881. The examiner can normally be reached M-F 8am-6pm.
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/KRISTEN C HAYES/Primary Examiner, Art Unit 3642