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 .
Specification
The disclosure is objected to because of the following informalities:
1) On page 1, in paragraph 0001, line 2: The phrase --now U.S. Patent No. 12,383,077,-- should be inserted after the phrase “filed on September 15th, 2021,”.
2) On page 1, in paragraph 0001, line 4: The phrase --now U.S. Patent No. 11,147,392,-- should be inserted after the phrase “2018,”.
Appropriate correction is required.
Claim Objections
Claims 1-6, 9, 11, 13, 15-21 and 24 are objected to because of the following informalities:
1) In claim 1, line 11: The term “second” should be changed to --first--, and the term “the” should be changed to --each--.
2) In claim 1, line 13: The last instance of the term “the” should be changed to
--each--.
3) In claim 1, line 14: The term “second” should be changed to --first--.
4) In claim 1, line 15: The first instance of the term “second” should be changed to --first--.
5) In claim 1, line 22; claim 3, lines 1, 2 & 7; claim 4, line 1; claim 5, line 1; claim 13, line 11; claim 16, lines 1, 2 & 7; claim 17, line 1 and in claim 18, line 1: The term “the” should be changed to --each--.
6) In claim 1, line 25: The second instance of the term “member” should be changed to --members--.
7) In claim 1, lines 26, 31 & 32; claim 2, line 5; claim 11, line 3; claim 13, lines 20, 24 & 28; claim 15, line 5; the last line of claim 21 and in claim 24, line 3: The term “member” should be changed to --members--.
8) In claim 3, line 3 and in claim 16, line 3: Both instances of the term “the” should be changed to --each--.
9) In claim 3, line 5 and in claim 16, line 5: Both instances of the term “portion” should be changed to --portions--, and the term “engages” should be changed to --engage--.
10) In claim 3, line 6; claim 5, line 2; claim 16, line 6 and in claim 18, line 2: The first instance of the term “the” should be changed to --each--.
11) In claim 3, line 8 and in claim 16, line 8: The term “portion” should be changed to --portions--.
12) In claim 3, line 9 and in claim 16, line 9: The term “portion” should be changed to --portions--, and the last instance of the term “the” should be changed to
--each--.
13) In claim 5, line 3 and in claim 18, line 3: The phrase “portion abuts” should be changed to --portions abut--, and the term “member” should be changed to
--members--.
14) In claim 6, line 2: The term “first” should be changed to --second--, and the term “the” should be changed to --each--.
15) In claim 6, line 3: The term “first” should be changed to --second--.
16) In claim 9, line 10 and in claim 21, line 12: The first instance of the term “member” should be changed to --members--.
17) In claim 13, line 15: The second “,” should be deleted.
18) In claim 19, line 2: The term “first” should be deleted, and the term “the” should be changed to --each--.
19) In claim 19, line 3: The term “first” should be deleted.
20) In claim 20, line 2: The term “second” should be deleted, and the first instance of the term “the” should be changed to --each--.
21) In claim 20, line 4: The second instance of the term “the” should be changed to
--each--, and the term “second” should be deleted.
22) In claim 21, line 2: The term “second” should be deleted.
23) In claim 21, line 9: The second instance of the term “the” should be changed to
--each--.
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); and 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 1-25 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5 and 7-12 of U.S. Patent No. 11,147,392. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-25 are generic to all that is recited in claims 1-5 and 7-12 of U.S. Patent No. 11,147,392. In other words, claims 1-5 and 7-12 of U.S. Patent No. 11,147,392 fully encompass the subject matter of claims 1-25 and therefore anticipate claims 1-25. Since claims 1-25 are anticipated by claims 1-5 and 7-12 of the patent, they are not patentably distinct from claims 1-5 and 7-12. Thus the invention of claims 1-5 and 7-12 of the patent is in effect a “species” of the “generic” invention of claims 1-25. It has been held that the generic invention is anticipated by the species, see In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993). Since claims 1-25 are anticipated (fully encompassed) by claims 1-5 and 7-12 of the patent, claims 1-25 are not patentably distinct from claims 1-5 and 7-12, regardless of any additional subject matter present in claims 1-5 and 7-12.
Claims 1-25 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6, 8-13, 16-22, 25-30, 32-38 and 41-46 of U.S. Patent No. 12,383,077. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-25 are generic to all that is recited in claims 1-6, 8-13, 16-22, 25-30, 32-38 and 41-46 of U.S. Patent No. 12,383,077. In other words, claims 1-6, 8-13, 16-22, 25-30, 32-38 and 41-46 of U.S. Patent No. 12,383,077 fully encompass the subject matter of claims 1-25 and therefore anticipate claims 1-25. Since claims 1-25 are anticipated by claims 1-6, 8-13,
16-22, 25-30, 32-38 and 41-46 of the patent, they are not patentably distinct from claims 1-6, 8-13, 16-22, 25-30, 32-38 and 41-46. Thus the invention of claims 1-6, 8-13, 16-22, 25-30, 32-38 and 41-46 of the patent is in effect a “species” of the “generic” invention of claims 1-25. It has been held that the generic invention is anticipated by the species, see In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993). Since claims 1-25 are anticipated (fully encompassed) by claims 1-6, 8-13, 16-22, 25-30, 32-38 and 41-46 of the patent, claims 1-25 are not patentably distinct from claims 1-6, 8-13, 16-22, 25-30, 32-38 and 41-46, regardless of any additional subject matter present in claims 1-6, 8-13, 16-22, 25-30, 32-38 and 41-46.
Allowable Subject Matter
The examiner respectfully asserts that none of the limitations of the play yard as currently recited in claims 1-25 can be rejected under 35 U.S.C. §§§ 102, 103 and 112; accordingly, claims 1-25 are considered as being allowable if the claim objections and the double patenting rejections indicated above were fully overcome.
Conclusion
The prior art made of record and not relied upon is considered pertinent to Applicant's disclosure: U.S. Patent Application Publication 2025/0351976 A1 to Mountz is the patent application publication of this application, and CN 10820435 B to Mountz is a foreign patent document which is in the same patent family as this application.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT G SANTOS whose telephone number is (571)272-7048. The examiner can normally be reached Monday-Friday 9am-11:30am and 2pm-7:30pm.
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/ROBERT G SANTOS/Primary Examiner, Art Unit 3673
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