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.
Claim 1 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No.11697252. Although the claims at issue are not identical, they are not patentably distinct from each other because it discloses window well composed of a plurality of long fibers forming a long fiber reinforced thermoplastic forming a body having a plurality of ribs, wherein at least one of said ribs has a variable vertical height wherein the variable vertical height is parallel to a major face of the body, wherein at least some long fibers within the long fiber reinforced thermoplastic are omnidirectional, relative to other long fibers in the thermoplastic and wherein the variable vertical height of the at least one rib having a variable vertical height includes a smaller height in a center of the body and a greater height at ends of the body when the window well is in an installed position.
3. For claim 3 is rejected on the ground of double patenting as being unpatentable over claim 4 of US 11697252 (reference patent).
For claim 4 is rejected on the ground of double patenting as being unpatentable over claim 12 of US 11697252 (reference patent).
For claim 7 is rejected on the ground of double patenting as being unpatentable over claim 7 of US 11697252 (reference patent).
For claim 8 is rejected on the ground of double patenting as being unpatentable over claim 14 of US 11697252 (reference patent).
For claim 9 is rejected on the ground of double patenting as being unpatentable over claim 1 of US 11697252 (reference patent).
For claim 13 is rejected on the ground of double patenting as being unpatentable over claim 4 of US 11697252 (reference patent).
For claim 14 is rejected on the ground of double patenting as being unpatentable over claim 12 of US 11697252 (reference patent).
For claim 16 is rejected on the ground of double patenting as being unpatentable over claim 10 of US 11697252 (reference patent).
For claim 17 is rejected on the ground of double patenting as being unpatentable over claim 14 of US 11697252 (reference patent).
Claim(s) 2, 10-12 is rejected on the ground of double patenting as being unpatentable over claim 2 of US 11697252 (reference patent) .Claims 2, 10-12 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11697252 in view of Hirasaka (US 5194462).
Regarding Claims 2, 10-12, reference patent discloses window well comprises of long fiber reinforced thermoplastic. In the related field of endeavor pertaining to the art, Hirasaka teaches fiber reinforcing plastic sheet with length between 3-50mm which meets the claimed limitation.
Also, It would have been obvious at the time the invention was made to a person having ordinary skill in the art to have the dimensions as claimed because applicant failed to state a criticality for the necessity of the limitation and the prior art of record is capable of being dimensioned to meet the limitation as claimed. See MPEP 2144.04 (IV) (A) citing In re Rose, 220 F.2d 459 (CCPA 1955)
Claims 5-6, 15 rejected on the ground of nonstatutory double patenting as being unpatentable over claim1 of U.S. Patent No. 11697252 in view of Albertelli (US 20110262701).
Regarding Claims 5-6, 15, reference patent discloses window well further comprises a fabric veil on top of the fiber reinforced thermoplastic. In the related field of endeavor pertaining to the art, Albertelli teaches protective and decorative outer layer that would be embedded in the underlying plastic material ([0032]).
Therefore it would have been obvious to one of ordinary skill in the art at the time of filing to have modified the reference patent of the combination as applied by employing a veil as taught in Albertelli to provide a protective and decorative outer layer that would be embedded in the underlying plastic material making up the molded window well with the veil being embedded into the plastic ([0032]).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEBJANI ROY whose telephone number is (571)272-8019. The examiner can normally be reached 9:30-5:30 pm.
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/DEBJANI ROY/Examiner, Art Unit 1741
/ALISON L HINDENLANG/Supervisory Patent Examiner, Art Unit 1741
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