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 .
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 2-6, 8-9, 11-13, 15-16, and 20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3, 10, 15-16, 17, and 20 of U.S. Patent No. 12,446,566. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the US Patent anticipate the current claims.
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.
Claims 2-5, 8-9, 12-15, and 17-18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Matney (US 2014/0352199).
In re. claim 2, Matney teaches an apparatus for capturing target animals, comprising: a floor (52); a roof (21); and walls (17) coupled between the floor and the roof to form an enclosed cage (fig. 1); and an entry (3) on the cage (fig. 1), the entry including a frame (19, 20), a hole (4/15) on the frame (figs. 1 and 6), spikes (71) directly coupled to the frame (fig. 7), and one or more deflectors (15, or alternatively side door (35)) directly coupled to the frame (fig. 7), the spikes and the one or more deflectors configured and arranged to allow the target animals to enter the cage through the hole and to prevent the entered target animals from exiting the cage through the hole (figs. 8-9).
In re. claim 3, Matney teaches the apparatus of claim 2, wherein the spikes (71) are configured to be temporarily bent from a rest state during each entry of one or more animals of the target animals (fig. 9) and to return to the rest state after that entry (fig. 8).
In re. claim 4, Matney teaches the apparatus of claim 2, wherein the one or more deflectors (15, or alternatively side door (35)) are configured to be temporarily bent from a rest state during each entry of one or more animals of the target animals (figs. 8 and 9) and to return to the rest state after that entry (fig. 7).
In re. claim 5, Matney teaches the apparatus of claim 2, wherein the entry is on the roof (figs. 1 and 4).
In re. claim 8, Matney teaches the apparatus of claim 2, further comprising an attracting device (bait (13)) configured to be placed in the cage and to attract the target animals (fig. 7).
In re. claim 9, Matney teaches the apparatus of claim 8, wherein the attracting device is configured to be detachably attached to a portion of the cage (bait placed in the bait station (14)) (para [0021]).
In re. claim 12, Matney teaches a method for capturing target animals, comprising: allowing the target animals to enter an enclosed cage through an entry (3) of the cage (figs. 8-9), the cage formed by a floor (52); a roof (21); and walls (17) coupled between the floor and the roof (fig. 1); and preventing the entered target animals from leaving the cage through the entry (fig. 9), wherein the entry includes a frame (19, 20), a hole (4/15) on the frame (figs. 1 and 6), spikes (71) directly coupled to the frame (fig. 7), and one or more deflectors (15, or alternatively side door (35)) directly coupled to the frame (fig. 7), the spikes and the one or more deflectors configured and arranged to allow the target animals to enter the cage through the hole and to prevent the entered target animals from exiting the cage through the hole (figs. 8-9).
In re. claim 13, Matney teaches the method of claim 12, wherein: allowing the target animals to enter the cage through the entry comprises allowing each spike of the spikes to be temporarily bent from a rest state when an animal of the target animals is entering the cage through the hole (fig. 9; and preventing the entered target animals from leaving the cage through the entry comprises returning the each bent spike to the rest state after that animal has entered the cage (fig. 7).
In re. claim 14, Matney teaches the method of claim12,wherein:allowing the target animals to enter the cage through the entry comprises allowing each deflector of the one or more deflectors (15, or alternatively side door (35)) to be temporarily bent from a rest state when an animal of the target animals is entering the cage through the hole (figs. 8-9); and preventing the entered target animals from leaving the cage through the entry comprises returning the each bent deflector to the rest state after that animal has entered the cage (fig. 7).
In re. claim 15, Matney teaches the method of claim 12, further comprising sizing the hole to allow specified types of birds to enter the cage through the entry (sizing the hole for an animal allows birds of equivalent size to enter) (para [0008]).
In re. claim 17, Matney teaches the method of claim 12, further comprising sizing the hole to allow specified types of rodents (87) to enter the cage through the entry (fig. 8).
In re. claim 18, Matney teaches the method of claim 12, further comprising luring the target animals into entering the cage using an attracting device configured to produce a sound effect or a visual effect (ingress of water (55) creates sound and is a visual effect) (para [0027]), (bait (13) creates the visual effect in figure 7).
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.
Claims 2, 5-7, 12, and 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Koyanagi (JP 2004097001) in view of Vasseghi (US 2008/0256842).
In re. claim 2, Koyanagi teaches an apparatus for capturing target animals, comprising: a floor (fig. 1); a roof (1); and walls (4-7) coupled between the floor and the roof to form an enclosed cage (fig. 1); and an entry on the cage (fig. 6), the entry including a frame (B1a, B1b) (fig. 6), a hole (T1, T2, T3) on the frame, spikes (WP2, WP3) directly coupled to the frame (fig. 6), the spikes configured and arranged to allow the target animals to enter the cage through the hole and to prevent the entered target animals from exiting the cage through the hole (because this projects obliquely downward direction, there is no possibility that birds fly out first entrance) (para [0011]).
Koyanagi fails to disclose one or more deflectors configured and arranged to allow the target animals to enter the cage through the hole and to prevent the entered target animals from exiting the cage through the hole.
Vasseghi teaches spikes (28) (fig. 2) and one or more deflectors (44) configured and arranged to allow the target animals to enter the cage through the hole and to prevent the entered target animals from exiting the cage through the hole (para [0022] and [0024]).
Therefore, it would have been prima facie obvious to one having ordinary skill in the art at the time the invention was filed to have modified Koyanagi to incorporate the teachings of Vasseghi to have one or more deflectors, for the purpose of providing a closed position of the trap, preventing unintentional capture of additional animals.
In re. claim 5, Koyanagi as modified by Vasseghi (see Koyanagi) teach the apparatus of claim 2, wherein the entry is on the roof (fig. 1).
In re. claim 6, Koyanagi as modified by Vasseghi (see Koyanagi) teach the apparatus of claim 5, wherein the roof comprises a sloped roof (2, 3) including at least one slope having a slope upper end and a slope lower end (fig. 1), and the entry is positioned at the slope lower end (fig. 1).
In re. claim 7, Koyanagi as modified by Vasseghi (see Koyanagi) teach the apparatus of claim 6, wherein the roof comprises solid and mesh portions (wire mesh frame and solid connecting part (WHo)) (fig. 6) (para [0030]).
In re. claim 12, Koyanagi teaches a method for capturing target animals, comprising: allowing the target animals to enter an enclosed cage through an entry of the cage (fig. 6), the cage formed by (fig. 1); a roof (1); and walls (4-7) coupled between the floor and the roof (fig. 1); and preventing the entered target animals from leaving the cage through the entry (para [0011])), wherein the entry includes a frame (B1a, B1b) (fig. 6), a hole (T1, T2, T3) on the frame, spikes (WP2, WP3) directly coupled to the frame (fig. 6), the spikes configured and arranged to allow the target animals to enter the cage through the hole and to prevent the entered target animals from exiting the cage through the hole (figs. 8-9) (because this projects obliquely downward direction, there is no possibility that birds fly out first entrance) (para [0011]).
Koyanagi fails to disclose one or more deflectors configured and arranged to allow the target animals to enter the cage through the hole and to prevent the entered target animals from exiting the cage through the hole.
Vasseghi teaches spikes (28) (fig. 2) and one or more deflectors (44) configured and arranged to allow the target animals to enter the cage through the hole and to prevent the entered target animals from exiting the cage through the hole (para [0022] and [0024]).
Therefore, it would have been prima facie obvious to one having ordinary skill in the art at the time the invention was filed to have modified Koyanagi to incorporate the teachings of Vasseghi to have one or more deflectors, for the purpose of providing a closed position of the trap, preventing unintentional capture of additional animals.
In re. claim 15, Koyanagi as modified by Vasseghi (see Koyanagi) teach the method of claim 12, further comprising sizing the hole to allow specified types of birds to enter the cage through the entry (para [0001]).
In re. claim 16, Koyanagi as modified by Vasseghi (see Koyanagi) teach the method of claim 15, wherein allowing the target animals to enter the cage through the entry comprises allowing the specified types of birds to enter the cage through the entry on the roof, the roof includes at least one slope (2, 3) having a slope upper end and a slope lower end, and the entry is positioned adjacent to the slope lower end (fig. 1).
Claims 8-11 and 18-21 are rejected under 35 U.S.C. 103 as being unpatentable over Koyanagi as modified by Vasseghi as applied to claims 2 and 12 above, and further in view of Dunigan (US 2011/0126777).
In re. claim 8, Koyanagi as modified by Vasseghi fail to disclose an attracting device configured to be placed in the cage and to attract the target animals.
Dunigan teaches an attracting device configured to be placed in the cage and to attract the target animals (para [0028]) (fig. 1).
Therefore, it would have been prima facie obvious to one having ordinary skill in the art at the time the invention was filed to have modified Koyanagi as modified by Vasseghi to incorporate the teachings of Dunigan to have the recited attracting device, since the flow/splashing/movement of the water can be heard such that the fountain serves as an attractant to birds (Dunigan, para [0028]).
In re. claim 9, Koyanagi as modified by Vasseghi and Dunigan (see Dunigan) teach the apparatus of claim 8, wherein the attracting device is configured to be detachably attached to a portion of the cage (para [0030]).
In re. claim 10, Koyanagi as modified by Vasseghi and Dunigan (see Dunigan) teach the apparatus of claim 9, wherein the attracting device comprises a running water source configured to create a water fountain, the running water source including a water reservoir and an electric water pump arranged to produce a water fountain (para [0028]) (fig. 1).
In re. claim 11, Koyanagi as modified by Vasseghi and Dunigan (see Dunigan) teach the apparatus of claim 10, wherein the attracting device further comprises a bait station (120) (para [0029]).
In re. claim 18, Koyanagi as modified by Vasseghi fail to disclose luring the target animals into entering the cage using an attracting device configured to produce at least one of a sound effect or a visual effect.
Dunigan teaches luring the target animals into entering the cage using an attracting device configured to produce at least one of a sound effect or a visual effect (para [0028]) (fig. 1).
Therefore, it would have been prima facie obvious to one having ordinary skill in the art at the time the invention was filed to have modified Koyanagi as modified by Vasseghi to incorporate the teachings of Dunigan to have the recited attracting device, since the flow/splashing/movement of the water can be heard such that the fountain serves as an attractant to birds (Dunigan, para [0028]).
In re. claim 19, Koyanagi as modified by Vasseghi and Dunigan (see Dunigan) teach the method of claim 18, wherein luring the target animals into entering the cage comprises producing a water fountain inside the cage using the attracting device (para [0028]) (fig. 1).
In re. claim 20, Koyanagi as modified by Vasseghi and Dunigan (see Dunigan) teach the method of claim 19, wherein luring the target animals into entering the cage further comprises placing one or more bait stations (120) inside the cage (para [0029]).
In re. claim 21, Koyanagi as modified by Vasseghi and Dunigan (see Dunigan) teach the method of claim19, wherein luring the target animals into entering the cage further comprises placing a decoy ((bait (120) is a decoy of an easily obtainable food source) inside the cage (para [0029]).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO-892.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Christopher D. Hutchens whose telephone number is (571)270-5535. The examiner can normally be reached M-F 9-5.
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/C.D.H./
Primary Examiner
Art Unit 3647
/Christopher D Hutchens/Primary Examiner, Art Unit 3647
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