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 .
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.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
Claims 7, 9, 19-21, 26, 35, and 39-42 (and claims 27, 43, and 45 through dependency) are rejected under 35 U.S.C. 112(a) as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor at the time the application was filed, had possession of the claimed invention.
Claim 7 ultimately depends from claim 1. Claim 1 requires a fastener coupling the impact receiving post to the foundation cage, which Applicant’s specification ([0072]; fastener 163) discloses to be applicable to the embodiment shown in Figures 11-14, and it is only applicable to that embodiment because there is no such disclosure for the embodiments shown in Figures 1-10. The only fastener for the embodiment shown in Figures 1-10 is 138 which is disclosed to be for coupling the post/core, damper, and cover to each other, and fastener 138 is far above the foundation cage as shown in Figures 2 and 3 so fastener 138 has nothing to do with the foundation cage. The platform as claimed in claim 7 pertains to horizontal rod 144 shown in Figure 1, and has nothing to do with the embodiment shown in Figures 11-14. Claim 7 is rejected because there is no written description of an embodiment that mixes these structural elements from these different, alternate embodiments.
Similar to the rejection to claim 7, claims 9, 19-21, 35, and 39-42 are rejected because there is no written description of an embodiment that mixes the structural elements of the embodiment shown in Figures 11-14 which pertains to claim 1 and alternate embodiments shown in Figures 1-10 which require different foundation cages and different fasteners. Accordingly, claims 9, 19-21, 35, and 39-42, which claim features in the embodiments in Figures 1-10, fail to comply with the written description requirement and are issues of new matter.
Claim 26 as amended fails to comply with the written description requirement and is an issue of new matter. Applicant appears to be mixing different embodiments; some features of the foundation cage pertain to the embodiment shown in Figures 1-4 (foundation cage defining a cylindrical three-dimensional lattice structure) and in that embodiment the fastener 138 is above the foundation cage and therefore cannot serve to couple the impact receiving post to the foundation cage, while the newly added limitation requires a fastener that is received in a hole in the post that couples the impact receiving post to the foundation cage, which Applicant’s specification and drawings discloses to be in an alternate embodiment of Figures 11-14 with fastener 163. Applicant is mixing different embodiments with no support for such. Since claims 27, 43, and 45 depend from claim 26, these claims also fail to comply with the written description requirement and are issues of new matter.
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.
Claims 7, 9, 19-21, 26, 35, and 39-42 (and claims 27, 43, and 45 through dependency) are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
As stated above in the 112(a) rejections, Applicant is mixing different embodiments with no support for such. Therefore, it is unclear what Applicant is trying to claim with these claims. Accordingly, claims 7, 9, 19-21, 26, 35, and 39-42 (and claims 27, 43, and 45 through dependency) will not be further treated on the merits until correction is provided. If there is no art rejection for any of these claims, it is not because they are considered to have allowable subject matter, but rather because they will not be further treated on the merits due to the 112(a) and 112(b) rejections until correction is provided.
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 1-2, 4-6, 10-11, 14, 16-18, 24-25, 37-38, and 44 are rejected under 35 U.S.C. 103 as being unpatentable over Darcy, US 7,775,738 B2 in view of McCue et al., US 2010/0172692 A1.
Regarding claim 1, Darcy teaches a barrier system comprising:
an impact receiving post (14) having a solid cross section (solid steel; column 4 line 7), the impact receiving post being bendable (Figure 3F) and having a proximal end and a distal end;
a foundation cage (frame 40 of 12a) coupled to an outside surface of and overlapping the proximal end of the impact receiving post (it must to be able to be bolted together as shown in Figure 6) and configured for installation beneath a ground surface (column 2 lines 39-40); and
a fastener (bolt 64; Figure 6) that is received in a hole in the impact receiving post and protrudes from at least one side in the impact receiving post, coupling the impact receiving post to the foundation cage (“posts 14 are immovably anchored to frame 40 in reaction mass 12 by a suitable strong attachment means. For example…by bolts 64”; column 5 lines 4-6).
While Darcy fails to disclose a cover disposed on the distal end of the impact receiving post, McCue teaches an impact receiving post and discloses a damper (load ring 36) coupled to an outer surface of the post wherein the damper extends at least partially along a length of the post and a cover (40; Figures 2-3) disposed on the distal end of the post. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Darcy’s impact receiving post to include a damper coupled to an outer surface of the impact receiving post wherein the damper extends at least partially along a length of the impact receiving post and a cover disposed on the distal end thereof in view of McCue’s disclosure for a more resilient post.
Regarding claim 2, the resulting combination above as modified with McCue includes the limitations of the claim.
Regarding claim 4, the resulting combination includes the cover extending over an outer surface of the damper.
Regarding claim 5, since McCue discloses that the cover (40) can be formed of schedule 40 pipe ([0031]) which is conventionally known to be stainless steel, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the cover of the resulting combination to be stainless steel in view of McCue's further disclosure for a resilient post.
Regarding claim 6, the resulting combination includes the foundation cage comprising a plurality of members that form a three-dimensional lattice structure.
Regarding claim 10, the resulting combination includes the foundation cage including a beam (lateral stabilizing T-beam 56 as shown in Figure 5, unnumbered in Figure 6A) which extends from a top of the foundation cage to a bottom of the foundation cage, and wherein the beam extends from a first lateral side of the foundation cage to a second lateral side of the foundation cage, the second lateral side of the foundation cage opposite the first lateral side of the foundation cage.
Regarding claim 11, the resulting combination from claim 10 includes a through-hole and the impact receiving post extending through the through-hole.
Regarding claim 14, while the resulting combination fails to disclose the limitation claimed, Darcy and McCue explicitly disclose a bollard that has an upper end that can be displaced by bending, and that in some environments a bollard may need to absorb larger impacts, such as areas with vehicles. According to ASTM F3016, the standard is met when the displacement distance of the distal end of a post is less than 48 inches when the post is struck by a 5,000 lb vehicle traveling at up to 30 mph; at a displacement greater than 48 inches, it fails to meet the standard. It would have been obvious to one of ordinary skill in the art to design the foundation cage and the impact post such that the displacement of the impact of the distal end of the impact receiving post to 48 inches or less when the bollard system is struck by a vehicle weighing up to 5,000 pounds and traveling at up to 10 mph when the foundation cage and at least a portion of the impact receiving post are installed in concrete beneath the ground surface if it was desired to meet the standard for ASTM F3016.
Regarding claim 16, while the resulting combination fails to explicitly disclose that the impact receiving post has a diameter of about 4 inches, McCue further discloses that the impact receiving post can have dimensions as needed to dictate the properties desired to withstand the impact force of a particular installation as would be understood by those of ordinary skill in the art ([0026]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the diameter of the impact receiving post to be about 4 inches in view of McCue's disclosure based on common engineering.
Regarding claim 17, while the resulting combination fails to explicitly disclose that the impact receiving post has a height of about 30 inches, McCue discloses that the impact receiving post can have a height of about 36 inches ([0026]) and also discloses that the impact receiving post dimensions can be modified at a particular installation as would be understood by those of ordinary skill in the art ([0026]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the impact receiving post of the resulting combination to have a height of about 30 inches in view of McCue's further disclosure if it was desired to have a slightly shorter impact receiving post and barrier.
Regarding claim 18, McCue discloses that the impact receiving post can have a height of about 36 inches ([0026]). While the resulting combination fails to explicitly disclose the limitations of the claim, McCue further discloses that the impact receiving post can have dimensions as needed to dictate the properties desired to withstand the impact force of a particular installation as would be understood by those of ordinary skill in the art ([(0026]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the impact receiving post to have a diameter of about 4 inches and a height extending from the foundation cage of about 30 inches to about 54 inches in view of McCue's disclosure based on common engineering.
Regarding claims 24 and 25, while the resulting combination fails to disclose the limitations claimed, since Darcy discusses security and defending from attack by assault vehicles such as cars and trucks (column 1 lines 19-22), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to design the foundation cage and the impact receiving post to limit a displacement of the distal end of the impact receiving post to 48 inches or less when the barrier is struck by a vehicle weighing up to 5,000 pounds and traveling at up to 10 mph or 20 mph to maintain the function of a barrier, otherwise the barrier could just flop over and not function as intended.
Regarding claim 37, the resulting combination includes the three-dimensional lattice structure of the foundation cage at least partially touches the impact receiving post where the foundation cage overlaps the impact receiving post (Figures 6 and 6A).
Regarding claim 38, the resulting combination includes the foundation cage being configured to maintain the orientation of the impact receiving post relative to the ground surface during installation of the barrier system.
Regarding claim 44, since the fastener of the resulting combination is a bolt, it is a threaded fastener.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Darcy in view of McCue as applied above to claim 2, further in view of Johnston, US 2012/0090207 A1.
Regarding claim 3, while McCue discloses that the damper can be made of any of a plurality of materials but fails to explicitly disclose elastomeric material, Johnston teaches a bollard and discloses a damper (compressible foam pads 40, [0035] lines 1-3), between a core and a cover/shield which is similar to the resulting combination. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the damper of the resulting combination to be made of an elastomeric material in view of Johnston's disclosure as an alternate material for a barrier damper.
Allowable Subject Matter
Claim 36 is allowed.
Claim 13 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Response to Arguments
Applicant’s arguments with respect to claims 1-7, 9-11, 14, 16-21, 24-27, 35, and 37-45 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. The rejection has been modified to address the newly-added limitation of the fastener, and no longer relies on OmniStop and Fehr. McCue is not relied on for the newly-added limitation of the fastener.
Applicant does not provide additional arguments for the dependent claims, only relying on the arguments for the independent claims pertaining to the newly added limitation.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATHERINE J CHU whose telephone number is 571-272-7819. The examiner can normally be reached M-F generally 9:30-5:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Christopher Sebesta can be reached at 571-272-0547. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KATHERINE J CHU/Examiner, Art Unit 3671
/CHRISTOPHER J SEBESTA/Supervisory Patent Examiner, Art Unit 3671
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