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 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 § 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 1-3, 5, 7-12, 14, 16, 18-21, and 30-31 are rejected under 35 U.S.C. 103 as being unpatentable over “Landscape Pavers” (NPL; hereinafter will be referred to as “Archatrak”) in view of “How to Install Archatrak Porcelain Pavers on Sand or Gravel Beds” (NPL; hereinafter will be referred to as “Archatrak’s Installation”), “What is Polymeric Sand and How Is It Used for Locking Patio Pavers?” (NPL; hereinafter will be referred to as “Unilock”), “Avoid These Top 5 Mistakes When Installing Polymeric Sand” (NPL: hereinafter will be referred to as “SEK”), “RCP Block & Brick: How to Install Interlocking Pavers (NPL; hereinafter will be referred to as “RCP”), “Paver Roller Compactor: Compacting Pavers”, a blog post from How to Hardscape (NPL; hereinafter will be referred to as “How Frcprcpto Hardscape”), and Concrete Masonry & Hardscapes Association “Edge Restraints for Interlocking Concrete Pavements” (NPL; hereinafter will be referred to as “CMHA”).
Regarding claim 1, Archatrak teaches a method of installing a porcelain tile installation for vehicular use (page 1), comprising:
a plurality of porcelain tiles (images on pages 1 and 2) and a plurality of spacers (page 2), the plurality of porcelain tiles positioned in a pattern (images on pages 1 and 2), wherein each respective porcelain tile comprises a thickness of about 3 cm (“3 cm thick T30 pavers”; page 1).
Since Archatrak discloses that the tiles can be as small as 4” x 4” and in slabs as large as 48” x 96” (page 1), it is obvious to one of ordinary skill in the art that the one or more porcelain tiles can comprise any of the width and length measurements in the claim, since Archatrak’s range in size encompasses the sizes of tiles claimed.
Archatrak’s Installation (which is from a link directly from Archatrak’s page 2) teaches details of the installation guidelines and discloses that the installation includes covering a compacted aggregate surface (step 7) with a tile bed composition (step 9) to obtain a tile bed, compacting the tile bed to obtain a compacted tile bed surface (step 9), installing a plurality of porcelain tiles and a plurality of spacers on the compacted tile bed surface (step 11 and image on page 3) to obtain an intermediate porcelain tile installation; and wherein the one or more respective spacers comprises a base component (flat circular base; image on page 2) positioned under adjacent tiles of the plurality of porcelain tiles and a vertical component having four elements arranged in a plus (+) shape (four arms shown on image on page 2) positioned between respective sidewalls of the adjacent tiles, the vertical component providing a joint defined by a spaced distance between the adjacent tiles (image on page 3). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use Archatrak’s Installation with Archatrak since those installation guidelines were explicitly disclosed for those tiles.
Archatrak Installation show a spacer with a vertical component comprised elements each having a thickness of 3/16” (step 11, second to last page). While the resulting combination fails to explicitly disclose that each element of the vertical component of the spacer has a thickness in the range of 3 mm to 4 mm, lacking criticality (as evidenced by Applicant’s specification [0026] that the thickness can be in the range of 2 mm up to 7 mm), this is a mere matter of change in size that does not provide a patentable distinction. 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 thickness of each element of the vertical component of the spacer to be in the range of 3 mm to 4 mm if it was desired to have a joint of 3 mm to 4 mm. It has been held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984). Additionally, Examiner notes, as stated in the Response to Arguments below, that the NPL reference “Porcelain Pavers Installation” by Landmark Outdoor (filed 5/13/2024) shows that it is known in the art that 3/16” is functionally equivalent to 4 mm. The resulting combination would meet the limitation “to improve structural integrity of the adjacent tiles” since this is just a desired result and the resulting combination includes the elements that are required to supposedly achieve this result.
Archatrak further discloses the method step of filing gaps between the tiles with polymeric sand (page numbered “2/6” line 8) but fails to explicitly disclose activating the polymeric sand composition. Unilock explains what polymeric sand is and discloses that a light mist of water is sprayed over the polymeric sand after it has been placed to activate the binding agent (page 2). It would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to activate the polymeric sand composition of the resulting combination in view of Unilock’s disclosure to set the joint and tiles in place. The resulting combination includes a first joint-filled porcelain tile surface.
Unilock further discloses sweeping polymeric sand into the gaps (which are joints) between the pavers, then compacting, and that this process can be repeated a couple of times to ensure that the pavers are completely surrounded by polymeric sand and the polymeric sand spreads thoroughly into every crack (top half of page 2). 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 resulting combination to apply additional polymeric sand composition into the joint in view of Unilock’s further disclosure of repeating the process a couple of times to ensure that the joint is completely filled for a sturdier joint.
While the resulting combination fails to explicitly disclose wetting the joint with a controlled amount of water, SEK teaches using polymeric sand as paving joint material and discloses top five mistakes to avoid when installing polymeric sand including the dangers of under-watering and over-watering (see #2). 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 resulting combination to wet the joint with a controlled amount of water in view of SEK to activate and set the joint successfully.
While the resulting combination fails to disclose the plurality of porcelain tiles positioned in an interlocking pattern, RCP teaches installing pavers and discloses a plurality of tiles in an interlocking (staggered) pattern (top image on page 2). It would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to modify the resulting combination to install the plurality of tiles in an interlocking pattern in view of RCP’s disclosure since an interlocking pattern is an old and well-known alternative when laying tiles.
While Archatrak’s Installation discloses the step of compacting the first joint-filled porcelain tile surface with a compactor to obtain a compacted first joint-filled porcelain tile surface by tapping with a mallet, How to Hardscape teaches compacting a first joint-filled porcelain tile surface with a roller compactor as an alternative to labor-intensive tapping with a rubber mallet to obtain a compacted first joint-filled porcelain tile surface (second paragraph on page numbered “5/7” of How to Hardscape) and the step of applying polymeric sand into the joints between tiles and running a compactor over the tile installation (pages numbered “3/7”-“4/7” of How to Hardscape) to help set the tile installation into the bedding layer (which is synonymous with the tile bed). It would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to modify the resulting combination by including the step of compacting the first joint-filled porcelain tile surface with a compactor in the form of a roller compactor to obtain a compacted first joint-filled porcelain tile surface in view of How to Hardscape’s disclosure to help set the tile installation into the tile bed and replacing the labor intensive step of manually tapping with a mallet (How to Hardscape’s page “5/7”, second paragraph and as discussed above). The resulting combination includes compacting both the porcelain tiles and the polymeric sand composition of the first joint-filled porcelain tile surface with a compactor by the application of vibrational forces to pack the polymeric sand composition into the joints (“These machines help to delicately compact the pavers or slabs into the bedding layer and to consolidate the jointing compound by gently rolling over the material and vibrating the product downwards”, (first paragraph on the page numbered “3/7” of How to Hardscape; emphasis added by Examiner), wherein compacting both the porcelain tiles and the polymeric sand composition results in a compacted first joint-filled porcelain tile surface. The act of compacting would naturally reduce the number of air pockets present between particles of the sand composition.
While the resulting combination fails to disclose that a cement pad is installed atop the compacted aggregate at a border of the porcelain tile installation adjacent to the tile bed, CMHA discloses paver installation and discloses installing a submerged concrete edge to restrain pavers (bottom of page 4 and Figure 8), which is atop a compacted aggregate base and adjacent to a bed of bedding sand (synonymous to the compacted aggregate surface and tile bed of the resulting combination) as shown in Figure 8. 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 resulting combination to install a cement pad (concrete includes cement) atop the compacted aggregate surface at a border of the porcelain tile installation, adjacent to the tile bed, in view of CMHA’s disclosure as a way to restrain an area of tiles.
Regarding claim 2, the resulting combination includes using polymeric sand composition in the joints of the tiles. How to Hardscape further discloses that with tight joint products such as polymeric sand, more than one pass with the compactor may be required to ensure the jointing compound is fully consolidated to ensure that the pavers/tiles remain in place (page numbered “4/7”). It would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to modify the resulting combination by further adding the polymeric sand composition into each respective joint of the compacted first joint-filled porcelain tile surface to obtain a second joint-filled porcelain tile surface and further compacting the second joint-filled porcelain tile surface with a compactor to obtain a compacted second joint-filled porcelain tile surface in view of How to Hardscape’s further disclosure to minimize the chance of pavers later settling into the sand/tile bedding and creating an uneven surface.
Regarding claim 3, the resulting combination makes obvious the method step of further adding the polymeric sand composition into each respective joint of the compacted second joint-filled porcelain tile surface to obtain a third joint-filled porcelain tile surface if it is observed that there was settling in the joints, one would further add polymeric sand composition to close or minimize the gap. In view of How to Hardscape disclosing more than one pass with the compactor in order to fully consolidate the jointing compound, the resulting combination makes obvious the method step of compacting the third joint-filled porcelain tile surface with a compactor to obtain a compacted third joint-filled porcelain tile surface if one sees that repeating the step is necessary to fully consolidate the jointing compound.
Regarding claim 7, the resulting combination includes the base component (flat circular base; image on page 2 of Archatrak’s Installation) of the one or more respective spacers comprising a substantially flat top surface and a substantially flat bottom surface, and wherein the vertical component projects upward from the top surface of the base component (image on page 2 of Archatrak’s Installation).
Regarding claim 8, while the resulting combination fails to disclose the limitation claimed, it is
obvious to one of ordinary skill in the art to have the tile bed comprise a composition comprising
components having a particle size in a range of 3/8 inch or less since it is known and common sense to use finer particles closest to the tiles so as to not cause dips or unevenness when laying the tiles (the
bigger the particles, the bigger and deeper the gaps between the particles).
Regarding claim 9, the resulting combination from claim 1 includes the explanation (Unilock’s page 2) that activating the polymeric sand composition comprises wetting each respective joint with water.
Regarding claim 10, while the resulting combination fails to disclose the method step claimed,
SEK further discloses the method step of covering the paving installation with a tarp to prevent rain from overwatering the polymeric sand which would wash out the polymers or cause polymeric sand to wash all over the top of the pavers (notes 2 and 4). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to cover the porcelain tile installation for vehicular use of the resulting combination with a water-resistant material such as a tarp in view of SEK’s disclosure to prevent extra water in the joints. It would further be obvious to cover for a period of 12 to 48 hours to allow substantial time for the polymers in the polymeric sand composition to cure properly.
Regarding claim 11, Archatrak’s Installation further discloses the method steps of compacting a native subgrade surface with a compactor to obtain a compacted subgrade surface (step 4 on page 1); covering the compacted subgrade surface with aggregate (step 6 on page 1); and compacting the aggregate with a compactor to obtain the compacted aggregate surface (step 7 on page 1). It would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to modify the resulting combination to further include the method steps of compacting a native subgrade surface with a compactor to obtain a compacted subgrade surface; covering the compacted subgrade surface with aggregate; and compacting the aggregate with a compactor to obtain the compacted aggregate surface since they are explicitly disclosed to be used with Archatrak’s tiles.
Regarding claim 12, Archatrak’s Installation discloses the aggregate comprises a plurality of stones using ¾” stone screenings, which is about 1”.
Regarding claim 14, the resulting combination includes the claim limitation since Archatrak discloses the one or more porcelain tiles of the plurality of porcelain tiles comprises a thickness of about 3 cm.
Regarding claim 16, while the resulting combination fails to explicitly disclose that each
respective porcelain tile comprises a plurality of unpolished sidewalls, the Examiner took Official Notice in the office action dated 9/22/2022 that porcelain pavers with unpolished sidewalls are old and well-known. Applicant failed to challenge the Official Notice in their arguments. Under the guidelines of MPEP 2144.03, to adequately traverse Official Notice, an applicant must specifically point out the supposed errors in the Examiner’s action including stating why the noticed fact is not considered to be common knowledge or well-known in the art. A general allegation that the claims define a patentable invention without any reference to the Examiner’s assertion of Official Notice would be inadequate. Since applicant did not adequately traverse the Examiner’s assertion of Official Notice, the facts are now considered to be admitted prior art (MPEP 2144.03). Applicant’s traversal is considered inadequate because there was no reference to the Examiner’s assertion of Official Notice. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to choose porcelain tiles each comprising a plurality of unpolished sidewalls since unpolished sidewalls would result in a cheaper tile and would not be visible to people using the top surface when installed.
Regarding claim 18, the resulting combination from claims 1-3 include the method steps claimed except for the last line. SEK further discloses the step of covering the project with a tarp to protect the surface if there is rain shortly after finishing the installation of polymeric sand before it is fully set (which is after activation) to prevent the situation of polymeric sand all over the tile surface (see #4). 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 resulting combination to cover the activated polymeric sand composition after activation in an effort to prevent a mess in view of SEK’s disclosure (#4) as discussed above.
Regarding claim 19, Archatrak’s Installation further discloses the method steps of compacting a native subgrade surface with a compactor to obtain a compacted subgrade surface (step 4 on page 1); covering the compacted subgrade surface with aggregate (step 6 on page 1); and compacting the aggregate with a compactor to obtain the compacted aggregate surface (step 7 on page 1). It would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to modify the resulting combination from claim 18 to further include the method steps of compacting a native subgrade surface with a compactor to obtain a compacted subgrade surface; covering the compacted subgrade surface with aggregate; and compacting the aggregate with a compactor to obtain the compacted aggregate surface since they are explicitly disclosed to be used with Archatrak’s tiles.
Regarding claim 20, the resulting combination includes the explanation (Unilock’s page 2) that activating the polymeric sand composition comprises wetting each respective joint with water.
While the resulting combination fails to disclose the method step claimed, SEK teaches using polymeric sand as paving joint material and discloses the method step of covering the paving installation with a tarp to prevent rain from overwatering the polymeric sand which would wash out the polymers or cause polymeric sand to wash all over the top of the pavers (notes 2 and 4). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to cover the porcelain tile installation for vehicular use of the resulting combination with a water-resistant material such as a tarp in view of SEK’s disclosure to prevent extra water in the joints. It would further be obvious to cover for a period of 12 to 48 hours to allow substantial time for the
polymers in the polymeric sand composition to cure properly.
Regarding claim 21, since the resulting combination includes a roller compactor, it includes the limitation of the compactor delivering vibrational forces to the first joint-filled porcelain tile surface (“vibratory force of the machine”, How to Hardscape’s pages 2-3).
Regarding claims 30-31, the resulting combination from claims 1 and 18 includes the cement pad defining a cement border surface that is substantially coplanar with the compacted tile bed surface as modified in the resulting combination (as suggested in CMHA’s Figure 8).
Regarding claim 5, while the resulting combination from claim 30 fails to explicitly disclose the limitation of the claim, since Archatrak discloses installing one or more edge restraints to a border surface in a position adjacent to the sidewall of the porcelain tiles on the border surface (Archatrak’s page 2 lines 7-8), 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 resulting combination to install one or more edge restraints to the cement border surface in a position adjacent to the sidewall of the porcelain tiles on the cement border surface as a way to ensure that the tiles remain in place by adding an additional restraint that minimizes horizontal movement as an extra layer of security.
Claims 22-23 are rejected under 35 U.S.C. 103 as being unpatentable over Archatrak in view of Archatrak’s Installation, Unilock, SEK, RCP, How to Hardscape, and CMHA as applied above, further in view of Frank et al., US 7,516,558 B2.
Regarding claims 22-23, while the resulting combination fails to disclose the limitation claimed, Frank teaches a spacer for use between adjacent tiles and discloses that arms of the spacer can have a structural weakness (scored line as shown in Figure 1) that allows each arm to be broken off with an appropriate amount of force (column 4 lines 19-39), which is snapped off. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify one or more of the vertical components to be configured to be snapped off to modify the plus (+) shape of the vertical component in view of Frank’s disclosure for versatility of the spacer.
Claims 32-33 are rejected under 35 U.S.C. 103 as being unpatentable over Archatrak in view of Archatrak’s Installation, Unilock, SEK, RCP, How to Hardscape, and CMHA as applied above, further in view of DE 20 2011 103 629 U1 (hereinafter will be referred to as “DE ‘629”).
Regarding claims 32-33, while the resulting combination fails to disclose the limitations claimed, DE ‘629 teaches a tile spacer with four arms and discloses a width of one or more of the arms tapers inward at an interior end of the arm proximate to a center of the spacer so that there is a weakened portion to allow the arm to be broken off if it is not required (fourth paragraph on the second page of the English translation and last paragraph on page 3 of the English translation; Figure 1). 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 resulting combination to have a width of one or more of the four elements of each of the plurality of spacers tapers inward at an interior end of the element proximate to a center of the vertical component in view of DE ‘629’s disclosure to have a versatile spacer where one or more of the elements can be broken away if not needed, as opposed to having multiple types of spacers on hand.
Response to Arguments
Applicant's arguments filed 12/16/2025 have been fully considered but they are not persuasive.
Applicant’s arguments regarding the first set of rejections as previously applied are moot since that rejection is no longer applied.
Applicant asserts (first full paragraph on the page numbered “15” of Remarks) that How to Hardscape’s compacting does not include “by the application of vibrational forces” because the roller compactor delicately compacts the porcelain slabs by gently rolling over them. However, this is not persuasive since Applicant is misrepresenting the disclosure of How to Hardscape. The remainder of the sentence that Applicant references literally states “and vibrating the product downwards.” The entirety of the disclosure reads “These machines help to delicately compact the pavers or slabs into the bedding layer and to consolidate the jointing compound by gently rolling over the material and vibrating the product downwards” (first paragraph on the page numbered “3/7” of How to Hardscape).
Applicant further asserts (second full paragraph on the page numbered “15” of Remarks) that How to Hardscape “even teaches away from applying such vibrational forces to porcelain slabs”. This is not persuasive since Applicant is misrepresenting the disclosure of How to Hardscape. How to Hardscape clearly discloses “compacting pavers or slabs with a regular plate compactor can be a costly mistake if you do not know what you are doing…This is what makes a paver roller compactor an alternative to the best plate compactor for pavers. What this machine does is act as a plate compactor that vibrates and rolls its way across the surface of the system to achieve consolidation and compaction…This is especially important when rolling over products such as porcelain…” (last two paragraphs on the page numbered “4/7” of How to Hardscape). As evidenced by How to Hardscape’s disclosure on the page numbered “3/7” and “4/7”, a paver roller compactor compacts a porcelain tile surface by rolling with vibrational forces. The portion of Applicant’s argument that is emphasized in bold and Italics is irrelevant because the rejection does not rely on a regular plate compactor.
Applicant does not provide substantial arguments to the dependent claims, only relying on the arguments to independent claims 1 and 18 and stating that Frank fails to cure the deficiencies.
Newly-added claims 32-33 have been addressed in the rejection above.
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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/KATHERINE J CHU/ Examiner, Art Unit 3671
/CHRISTOPHER J SEBESTA/ Supervisory Patent Examiner, Art Unit 3671