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 .
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)(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 1 is rejected under 35 U.S.C. 102(a)(2) as being anticipated by Nooner [U.S. 10,643,117].
For claim 1, the security device (Col. 9, Ln. 22: movement alarm feature) taught by Nooner includes the following claimed subject matter, as noted, 1) the claimed housing is met by the top case (No. 100) and bottom case (No. 110) comprising an engagement assembly (receiving portion No. 130) to be operably coupled to a curved surface of a product (Fig. 1), and 2) the claimed wireless signal generator is met by the wireless circuitry (No. 212) disposed within the housing (Fig. 2), the wireless signal generator being configured to output a wireless signal for detection by theft deterrence equipment (Col. 9, Lns. 15-18: movement recognition feature may record accelerometer data transmitted by the electronic device 10 taken by an accelerometer), wherein the engagement assembly comprises a curved base (Fig. 4) and a plurality of flexible wings (Fig. 16, No. 132), where the plurality of flexible wings is configured to provide an adjustable coupled surface that flexes to conform to surfaces of products having different curvatures (Col. 16, Lns. 24-28: one or more of the plurality of flaps 132 is best to accommodate the diameter of the neck 2 of the beverage container 1).
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 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,374,201. Although the claims at issue are not identical, they are not patentably distinct from each other because the current claim does not have the amended subject matter regarding the first flexible wing affixed to the security device at a pivot and extends away from the pivot wherein a thickness of the first flexible wing adjacent to the pivot is larger than a thickness of the first flexible wing at the tip found in claim 1 of the ‘201 reference, thereby rendering the claim broader than the parent reference.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Ott et al [U.S. 5,574,430] is a monitoring sensor for articles susceptible to theft.
Adams [U.S. 5,886,633] includes a multiconductor cord to a security apparatus.
Rand et al [U.S. 6,215,400] comprises a security anchor having flexible wings.
Marsilio et al [U.S. 7,259,674] secures around a generally cylindrical article.
Blonigen et al [U.S. 7,871,009] maintains RFID labels on a web carrier.
Zhang et al [U.S. 8,525,675] is particularly useful with bottles and a bottle neck.
Norman et al [U.S. 9,607,259] attaches an electronic tag to a neck of a bottle.
Piccoli [U.S. 10,181,243] provides a belt attached to a housing in a security device.
Komori et al [US 2020/0117971] is an RF-tagged tool with flexible rubber.
Zhang [U.S. 11,037,421] includes a seal and tag assembly for a merchandise box.
Sandoval et al [U.S. 11,798,386] relates to an anti-theft device having an arm hook.
Eden et al [U.S. 12,000,178] secures a security tag holder to a body.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN A. TWEEL JR whose telephone number is (571)272-2969. The examiner can normally be reached M-F 8-4.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Davetta W Goins can be reached at 571-272-2957. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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JAT
9/24/2026
/JOHN A TWEEL JR/Primary Examiner, Art Unit 2689
