Patent Application 17507522 - AIR DRIVEN TOY

Title: AIR DRIVEN TOY

Application Information

Invention Title: AIR DRIVEN TOY
Application Number: 17507522
Submission Date: 2025-05-21T00:00:00.000Z
Effective Filing Date: 2021-10-21T00:00:00.000Z
Filing Date: 2021-10-21T00:00:00.000Z
National Class: 446
National Sub-Class: 089000
Examiner Employee Number: 85766
Art Unit: 3711
Tech Center: 3700

Rejection Summary

102 Rejections: 0
103 Rejections: 7

Cited Patents

The following patents were cited in the rejection:

US 0085679🔗

Office Action Text

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 .

This action is in response to applicant’s remarks and amendments dated 03/27/2025. Claims 1 and 21 have been amended. Claims 16 and 18 have been cancelled. Claim 22 is new. Claims 1-15, 17, and 19-22 are currently pending.

Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the circuitry transferring energy from the fluid flow to a musical instrument and the musical instrument must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.

Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.

The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.

Claim 22 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Without any drawings showing components that would somehow collect energy from the fluid flow and then transfer it to a musical instrument, this claim is exceedingly unclear. This does not appear it would be a simple setup not requiring detailed drawings and a detailed explanation in the specification. The only explanation of this feature the examiner finds is a passing reference on page 8 paragraph 2 of applicants specification, which lacks any details as to how this feature would operate. There is no description of how energy would be extracted from the fluid flow. There is no description of how power would be transferred to a musical instrument. It is also unclear why a musical instrument would require power? Are these musical instruments simply internal noises? Are they physical elements? Are these electric instruments? Is the air somehow directed to the mouthpiece of these instruments? This claim (and the specification / drawings) is lacking physical details that would provide an understanding of what is attempting to be claimed. As currently written, this claim is so broad and vague that it is indefinite. Appropriate correction is required.

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 1-8, 10-12, 15, 19, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Wickart (US Patent No. 8,177,120 B2) in view of Goldfarb et al. (US Patent No. 4,045,906).
In Reference to Claim 1-8, 10-12, 15, and 19
Wickart teaches (Claim 1) An air driven toy comprising an air flow generator (items 12, 14, and 16, fig. 1), wherein the air flow generator includes a housing in which air flow is generated to provide a flow of fluid (items 12, 14, and 16, fig. 1), the housing defining an inlet sized to receive an object (item 18, fig. 1), an outlet through which the object exits the housing (where item 20 connects to item 16, not separately labeled), and at least one passage connected between the inlet and the outlet (space in item 16 between items 18 and tube 20 connection, fig. 1), wherein the inlet is arranged independently from the flow of fluid (item 18 is independent from fluid path from 14 to 20 through item 16, fig. 1), and wherein the object is projected through the outlet via the flow of fluid (column 3 lines 9-22); and a launch section removably couplable to the outlet of the air flow generator and configured to launch the object into the air via the flow of fluid (item 20, fig. 1; note tube 20 is selectively removable from item 22, as are all other tubes, see fig. 2B and column 3 lines 41-45, tubes are selectively connectable in a variety of ways; also note that “configured to launch the object into the air” is functional language, since end of the tube may be removed and used in this manner, it meets the claims, there is no specific structure here not found in the reference); [];
(Claim 2) further comprising a high static pressure fan arranged in the housing (column 2 lines 45-49);
(Claim 3) wherein the air flow generator is configured to generate suction in the housing and draw the object into the least one passage (column 3 lines 9-22);
(Claim 4) further comprising at least one connectible section that is removably couplable between the outlet of the air flow generator and the launch section for receiving the object from the air flow generator, the at least one connectible section defining at least one path for fluid flow through the at least one connectible section, wherein the air flow generator is configured to cause the object to be propelled through the at least one connectible section (any other tubing section or components, items 22, 28, 32, etc., fig. 1, column 3 lines 5-22; again note this is merely functional language, all of the components are “couplable” to each other, and may be arranged this way, meeting the claimed limitations);
(Claim 5) wherein the at least one connectible section includes a plurality of connectible sections that are removably couplable to each other (items 22, 28, and 32, fig. 1);
(Claim 6) wherein the plurality of connectible sections includes at least two tubular members that have at least one of a different diameter, a different length, or a different shape (items 28, and 32, shown having both different shapes and lengths);
(Claim 7) wherein the at least two tubular members includes at least one straight tubular member defining a linear path for fluid flow (column 3 line 32);
(Claim 8) wherein the at least two tubular members includes at least one serpentine tubular member defining a non-linear path for fluid flow (column 3 line 32 and fig. 1);
(Claim 10) wherein the at least one connectible section defines more than one path for the object through the at least one connectible section (items 28 and 32, fig. 1, also see fig. 5);
(Claim 11) wherein the at least one connectible section includes a connectible section configured to generate an auditory signal in response to the object and/or fluid flow passing through the connectible section (column 3 lines 22-26);
(Claim 12) wherein the at least one connectible section includes a connectible section configured to generate a visual signal in response to the object and/or fluid flow passing through the connectible section (column 3 lines 22-26);
(Claim 15) further comprising a selector to cause the al least one connectible section to perform a desired function (item 22, fig. 1);
(Claim 19) wherein the outlet is arranged at an angle relative to the inlet (item 18 is at a 90 degree angle relative to outlet at 20, fig. 1).
Wickart fails to teach batteries in the housing of claim 1. However, the examiner notes that Wickart teaches that there is an air flow generator that is powered (column 5 lines 47-56), which would inherently require a power source.
Regardless, Goldfarb teaches (Claim 1) wherein [an] air flow generator further comprises a battery disposed in [a] housing and configured to provide power to the air flow generator (items 34, fig. 1; column 3 lines 20-22).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have provided the powered air flow generator system of Wickart with the feature of batteries in the housing as taught by the powered air flow generator system of Goldfarb for the purpose of eliminating any need for an external power source, making the system self-contained, and more convenient for the users.
Further, the examiner notes that it has been held that the selection of a known item based on its suitability for its intended use is an obvious matter of engineering design choice. See Ryco, Inc. v. Ag-Bag Corp., 857 F.2d 1418, 8 USPQ2d 1323 (Fed. Cir. 1988). Since the device of Wickart has a powered airflow device, merely selecting a known power source to power the airflow device is an obvious matter of engineering design choice, and is not a patentable advance.

In Reference to Claim 21
Wickart teaches (Claim 21) An air driven toy comprising: an air flow generator (items 12, 14, and 16, fig. 1), wherein the air flow generator includes a housing in which air flow is generated to provide a flow of fluid (items 12, 14, and 16, fig. 1), the housing defining an inlet sized to receive an object (item 18, fig. 1), an outlet through which the object exits the housing (where item 20 connects to item 16, not separately labeled), and at least one passage connected between the inlet and the outlet (space in item 16 between items 18 and tube 20 connection, fig. 1); a launch section removably fluidly coupled to the outlet of the air flow generator (item 22, fig’s 1 and 2B), the launch section defining a first opening removably couplable to the outlet of the air flow generator (where item 20 connects to item 22, fig’s 1 and 2B) and a second opening termination in open air and unconnected to any other component such that an object propelled through the launch section is launched into the air (another opening of item 22, fig’s 1 and 2B, note that exit tubes of item 22 are removable, and when removed the device would operate this way, fig. 2B shows disconnected tubes); and at least one connectible section that is removably coupled between the air flow generator and the launch section for receiving the object from the air flow generator (item 20, fig. 1), the at least one connectible section defining at least one path for fluid flow through the at least one connectible section (fig. 1), wherein the air flow generator is configured to cause the object to be propelled through the at least one connectible section (column 5 lines 46 - 67), [].
Wickart fails to teach batteries in the housing of claim 21. However, the examiner notes that Wickart teaches that there is an air flow generator that is powered (column 5 lines 47-56), which would inherently require a power source.
Regardless, Goldfarb teaches (Claim 1) wherein [an] air flow generator further comprises a battery disposed in [a] housing and configured to provide power to the air flow generator (items 34, fig. 1; column 3 lines 20-22).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have provided the powered air flow generator system of Wickart with the feature of batteries in the housing as taught by the powered air flow generator system of Goldfarb for the purpose of eliminating any need for an external power source, making the system self-contained, and more convenient for the users.
Further, the examiner notes that it has been held that the selection of a known item based on its suitability for its intended use is an obvious matter of engineering design choice. See Ryco, Inc. v. Ag-Bag Corp., 857 F.2d 1418, 8 USPQ2d 1323 (Fed. Cir. 1988). Since the device of Wickart has a powered airflow device, merely selecting a known power source to power the airflow device is an obvious matter of engineering design choice, and is not a patentable advance.

Claims 1-8, 10-12, 15, 19, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Wickart in view of Goldfarb, alternately in view of Fuda (US Patent No. 1,033,094).
Wickart teaches all of claims 1-8, 10-12, 15, 19, and 21 as discussed above. Specifically, regarding claims 1 and 21, since Wickart teaches all of the claimed components, and, teaches that the components are selectively connectable to each other for rearrangement (fig. 2B, column 2 lines 41-45), Wickart if fully capable of disconnecting an end of tube 20 or an exit tube of item 22 and then launching an object into the air, meeting the claimed limitations.
However, in the alternate interpretation that Wickart somehow does not teach this launching feature, or that Wickart is not intended to launch an object into the air, an alternate rejection is set forth below:
Fuda teaches an air flow device (Claims 1 / 21) configured to launch [an] object into the air (page 1 lines 35 -58).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have provided the air flow amusement device of Wickart with the feature of launching the object(s) as taught by the air flow amusement device of Fuda for the purpose of adding a skill element to the device as taught by Fuda (page 1 lines 8-17) allowing the device to be used in an alternate manner for additional entertainment, making the device more versatile, and more interesting and attractive to the users.
Further, it has been held that omission of an element is an obvious matter of design choice if the function of the element is not desired. See In re Larson, 340 F.2d 965, 144 USPQ 347 (CCPA 1965); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975). If it were desirable for a user to use the device of Wickart to project items, the elements of either the diverter or a box would not be desired, therefore, omitting such an element would be an obvious matter of engineering design choice, and the resulting device would project the object(s) into the air. Further, the examiner notes that omitting the diverter or an end box would not change the operation of the device, but would make the device suitable for another known purpose, the purpose of projecting items, which is taught to be a desirable and interesting amusement feature in Fuda (page 1 lines 8-25).

Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Wickart, Goldfarb (alt. in view of Fuda) and further in view of Anderson (US Patent No. 3,697,071).
In Reference to Claim 9
The modified device of Wickart teaches all of claims 1 and 4 as discussed above.
Wickart fails to teach the feature of claim 9.
Anderson teaches (Claim 9) wherein [an] at least one connectible section includes an air flow reducer configured to decrease a diameter of the at least one connectible section, and/or an expander configured to increase the diameter of the at least one connectible section for changing air flow through the at least one connectible section (item 52, fig. 7).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have provided the air flow device of Wickart with the feature of an air flow reducer or expander as taught by the air flow device of Anderson for the purpose of allowing the user to vary the velocity of the air flow as desired as taught by Anderson (column 3 lines 32-40), making the device more customizable, more reliable, and more interesting and attractive to the users.

Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Wickart, Goldfarb (alt. in view of Fuda) further in view of Pena (US Patent No. 5,680,032).
In Reference to Claim 13
The modified device of Wickart teaches all of claims 1 and 4 as discussed above.
Wickart fails to teach the feature of claim 13.
Pena teaches (Claim 13) further comprising circuitry to transfer energy from the fluid flow to a rechargeable battery configured to power electronics associated with the at least one [device] (fig. 5, column 5 lines 42-53).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have provided the airflow system of Wickart with the feature of an air driven recharging device as taught by the airflow system of Pena for the purpose of providing an additional built in, clean, energy-efficient, self-contained, closed loop charging device for the system as taught by Pena (column 5 lines 53-54), making the system more efficient, more reliable, and more attractive to the users.

Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Wickart, Goldfarb (alt. in view of Fuda) in view of Mullin (US Patent No. 5,385,472).
In Reference to Claim 14
Wickart teaches all of claims 1 and 4 as discussed above.
Wickart fails to teach the feature of claim 14.
Mullin teaches (Claim 14) further comprising circuitry to transfer solar energy to a rechargeable battery configured to power electronics associated with the at least one connectible section (column 4 lines 14-18).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have provided the fluid piping device of Wickart with the feature of a solar powered circuitry as taught by the fluid piping device of Mullin for the purpose of providing an additional or alternative power source to the device, making the device more reliable, and more attractive to the users. Further, the examiner notes that it has been held that substituting one known element for another based on its suitability for its intended use is an obvious matter of engineering design choice. See Ryco, Inc. v. Ag-Bag Corp., 857 F.2d 1418, 8 USPQ2d 1323 (Fed. Cir. 1988). Since several well known power sources would work equally well for the purpose of powering portions of the device, merely claiming solar power, in particular, is an obvious matter of engineering design choice and is not a patentable advance.

Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Wickart, Goldfarb (alt. in view of Fuda) in view of Welch et al. (US Patent No. 2018/0085679 A1).
In Reference to Claim 17
Wickart teaches all of claim 1 as discussed above.
Wickart fails to teach the feature of claim 17.
Welch teaches (Claim 17) further comprising a remote control, wherein the [] flow generator and/or the at least one connectible section is remotely controlled (paragraph 0009 and claim 24).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have provided the tubular fluid flow device of Wickart with the feature of a remote control as taught by the fluid flow device of Welch for the purpose of providing an easier activation means for activating the device, making the device easier to use and more convenient for the users.

Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Wickart, Goldfarb (alt. in view of Fuda) in view of Niederer et al. (US Patent No. 6,499,409).
In Reference to Claim 20
Wickart teaches all of claim 1 as discussed above.
Wickart fails to teach the feature of claim 20.
Niederer teaches (Claim 20) wherein the air flow generator includes a controller, wherein an amount of air flow and/or a speed of the object provided by the air flow generator is variable via the controller (column 4 lines 24-33 and claim 5).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have provided the tubular air flow device of Wickart with the feature of providing a controller as taught by the tubular air flow device of Niederer for the purpose of allowing the user to better control the airflow through the device and thus the motion of the object within the tubes as taught by Niederer (column 4 lines 24-33), making the device more versatile, easier to use and control, and more attractive to the users.

Response to Arguments
Applicant's arguments filed 03/27/2025 have been fully considered but they are not persuasive.
Applicant’s argument that Wickart does not teach batteries in the housing is noted, but is not persuasive. Wickart teaches an air flow device that operates by hitting a button, which would inherently require a power source of some kind. The secondary reference of Goldfarb has been applied to address batteries as the power source, specifically. Further, simply selecting / claiming a well-known power source is not a patentable advance. See action above for further details.
Applicant’s arguments regarding the intended uses of the Wickart reference and applicants claimed intended use of “launching the object into the air” are noted, but are not persuasive.
The examiner notes here that it has been held that while features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. Further still, it has also been held that "The recitation of a new intended use for an old product does not make a claim to that old product patentable." In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997) (The absence of a disclosure in a prior art reference relating to function did not defeat the Board’s finding of anticipation of claimed apparatus because the limitations at issue were found to be inherent in the prior art reference); see also In re Swinehart, 439 F.2d 210, 212-13, 169 USPQ 226, 228-29 (CCPA 1971); In re Danly, 263 F.2d 844, 847, 120 USPQ 528, 531 (CCPA 1959). “Apparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original).
In this case, applicants’ arguments appear to be hinging on the limitation “launching the object into the air” instead of on any concrete physical elements. First, the device of Wickart is fully capable of launching an object into the air. Wickart specifically teaches that the tubing connections to each other and to the various components of the system are selectively removable / rearrangeable (See Wickart fig. 2B showing removable tubing connections, and column 3 lines 41-45 describing rearrangement of the components of the system). Therefore, tube 20 is fully capable of being removed from item 22 and then launching items into the air. Or, an exit tube on item 22 is fully capable of being removed to then launch items into the air. This meets the claimed limitations. This intended use does not add any structure not already found in Wickart.
Second, even if, in an alternate interpretation of Wickart, that this is somehow not how Wickart is set up, the secondary reference of Fuda was applied as an alternate rejection. Since the air current device of Wickart for moving objects through tubes clearly teaches removable tubing, using the device to launch objects would be obvious in view of the secondary reference of Fuda which teaches that air current devices are known to be used to launch objects, specifically for the purpose of using such a device for a skill game, which is taught by Fuda (page 1 lines 8-17). The same device can be used for multiple purposes. Simply putting forth an alternate / additional use for a prior art device does not destroy the primary purpose of the device. See action above for further details.

Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSEPH B BALDORI whose telephone number is (571)270-7424. The examiner can normally be reached Monday - Friday 9am to 5pm EST.
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/JOSEPH B BALDORI/Primary Examiner, Art Unit 3711