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 § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-3, 5-17, and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Nunn (US 2016/0227740) in view of Sacra (US 2009/0071411).
For claims 1, 3, 5, 12, 17 and 19, Nunn discloses a multi-layered pet toy comprising:
a first panel and a second panel, the first panel and the second panel each including:
an outer layer (40) defining an exterior surface of the multi-layered pet toy;
an intermediate layer (42) coupled to the outer layer;
an inner layer (46) coupled to the intermediate layer; and
a noisemaker disposed between the first panel and the second panel (see Figure 5 for example).
Nunn lacks a binding wrapped around a periphery of the outer layer, the intermediate layer, and the inner layer of the first panel and the second panel and sewn to the outer layer, the intermediate layer, and the inner layer of both the first panel and the second panel.
Sacra teaches that it is old and well known in the art of pet toy to provide a binding (40) wrapped around a periphery of the outer layer, the intermediate layer, and the inner layer of the first panel and the second panel and sewn (22) to the outer layer, the intermediate layer, and the inner layer of both the first panel and the second panel (see Figures 2 and 3 for example).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the pet toy assembly of Nunn so as to include the use of a sewing binding, in a similar manner as taught in Sacra, so as to provide a more efficient way of securing a plurality of panel layers together.
For claim 2, Nunn as modified by Sacra (emphasis on Nunn) further teach wherein the outer layer, the intermediate layer, and the inner layer are comprised of different materials.
For claims 6 and 13, as described above, Nunn as modified by Sacra disclose most of the claimed invention except for mentioning the method/process of forming is injection molding.
It is noted that the method/process of forming the product (i.e., injection molding) is not germane to the issue of patentability of the product itself. The patentability of the product does not depend on its method/process of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. However, if the method/process as claimed does provide an important outcome in the final result of the product itself then an Official Notice is taken that fabricating by injection molding process is well known in the art.
Therefore, it would have been obvious to one having ordinary skill in the art at the time the invention was made to have modified the pet toy assembly of Nunn as modified by Sacra so as to include the use of the method/process of injection molding since such method/process is an old and well known technique used throughout the art of manufacturing pet toy to reduce the overall cost.
For claim 7, Nunn as modified by Sacra (emphasis on Nunn) further teach wherein the outer layer (40) is comprised of a plush textile including pile extending from a base textile (see [0031]).
For claims 8 and 14, Nunn as modified by Sacra (emphasis on Nunn) further teach wherein the intermediate layer is comprised of nylon (see [0003]).
For claims 9 and 15, Nunn as modified by Sacra (emphasis on Nunn) further teach wherein the inner layer is comprised of a thermoplastic elastomer (see [0032]).
For claim 10, Nunn as modified by Sacra (emphasis on Nunn) further teach wherein an adhesive couple the intermediate layer to the outer layer (see [0023], [0041]).
For claims 11, 15 and 20, Nunn as modified by Sacra (emphasis on Nunn) further teach wherein the inner layer (46) is thicker than each of the outer layer (40) and the intermediate layer (42) (see Figure 5 for example).
Claims 4 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over the references as applied to claims 1 and 17 above, and further in view of Ritchey (US 6663457).
For claims 4 and 18, as described above, Nunn as modified by Sacra disclose most of the claimed invention except for mentioning wherein the inner layer includes one or more protrusions configured to abut the noisemaker.
Ritchey teaches that it is old and well known in the art of pet toy to provide the inner layer includes one or more protrusions (72) configured to abut the noisemaker (68) (see Figure 6 for example).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the pet toy assembly of the references as applied to claims 1 and 17 above so as to include one or more protrusions therein, in a similar manner as taught in Ritchey, so as to abut the noisemaker and produce sound to stimulate the pet at play.
Conclusion
Note, although the examiner recites certain excerpts for the prior art, MPEP 2141.02 VI states “PRIOR ART MUST BE CONSIDERED IN ITS ENTIRETY, INCLUDING DISCLOSURES THAT TEACH AWAY FROM THE CLAIMS”.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TRINH T NGUYEN whose telephone number is (571)272-6906. The examiner can normally be reached on Monday-Friday 7:00-3:30.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Timothy Collins can be reached on 571-272-6886. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/TRINH T NGUYEN/Primary Examiner, Art Unit 3644
