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 Interpretation
Claim 1 has been amended to include the limitation “for receiving a liquid curing material through an open bottom of the ballast compartment when the barrier element is oriented in an inverted position”. This appears to be a combination of two limitations that could be more clearly written. Since there is no support for “an open bottom of the ballast compartment when the barrier element is oriented in an inverted position” (based on Applicant’s drawings, when the barrier element is inverted, the opening would then be at the top), this limitation will be interpreted as “for receiving a liquid curing material through an open bottom of the ballast compartment” along with “for receiving a liquid curing material when the barrier element is oriented in an inverted position”. This interpretation aligns with Applicant’s specification and drawings and the claim limitation that the compartment is a fluid tight reservoir comprising a closed top.
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 1-4 and 8-18 are rejected under 35 U.S.C. 103 as being unpatentable over NL 2013140 B1 (hereinafter will be referred to as “NL ‘140”) in view of DE 10 2007 048 303 A1 (hereinafter will be referred to as “DE ‘303”); Ballesteros, US 5,137,391; Gertz, US 5,927,896; and Krage et al., US 5,425,594.
Regarding claim 1, NL ‘140 teaches a barrier element to block traffic and/or as a security precaution, comprising:
an elongated casing (2; Figures 1-4) comprising two opposing longitudinal side walls, an upper wall (12) joining the two longitudinal side walls, and a plurality of supports (8) connected to a lower side (bottom) of the elongated casing between the two opposing longitudinal side walls for resting the barrier element on a ground surface; and
ballast (3 shown in Figures 1 and 4) within an interior of the elongated casing between the two opposing longitudinal side walls.
While NL ‘140 discloses the ballast as blocks but fails to explicitly disclose a fillable ballast compartment, DE ‘303 teaches a traffic barrier element and discloses that the ballast can be a solid block ([0119]) or alternatively can be a fillable container and have the same shape as the solid block ([0118]) formed within an interior of the barrier element body. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify NL ‘140’s barrier element to substitute the barrier block with a fillable ballast compartment that has the same shape as NL ‘140’s block and formed within the interior of the elongate casing as an alternate way of providing ballast in view of DE ‘303’s disclosure as discussed above.
While DE ‘303 discloses that the ballast material can be a free-flowing substance ([0118]) but the resulting combination fails to explicitly disclose that the ballast is a liquid curing material, Ballasteros further discloses filling a barrier element with ballast such as concrete from a concrete mixer truck (Abstract). 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 the ballast compartment filled with a liquid curing material such as concrete from a concrete mixer truck in view of Ballasteros’s disclosure as an alternative ballast suitable for a roadway barrier. The resulting combination includes the limitation of “liquid curing material” since concrete from a mixer truck starts as liquid and is a curing material which hardens when it cures, and the resulting combination makes obvious that the ballast compartment would be a fluid tight reservoir for receiving the liquid curing material, otherwise the liquid could not be contained.
While the resulting combination fails to disclose that the liquid curing material is received through an open bottom of the ballast compartment when the barrier element is oriented in an inverted position, Gertz teaches a traffic barrier that is filled with ballast and discloses the barrier having an opening (38; Figure 2) for receiving ballast and then inverting the barrier in use so that the opening is at the bottom end. In view of NL ‘140’s elongated casing having an open bottom end (Figures 1 and 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 ballast compartment of the resulting combination to have the ballast compartment for receiving liquid curing material be received through an open bottom of the ballast compartment when the barrier element is oriented in an inverted position in view of Gertz’s disclosure as discussed above as an alternate way to fill the ballast compartment and to align with the open bottom of the elongated casing. The resulting combination makes obvious that since the ballast compartment has an open bottom, it would have a closed top to be a container.
While the resulting combination fails to disclose at least one casing support structure with the limitations as claimed in the last clause, Krage teaches a roadside barrier and discloses at least one casing support structure (internal frame/grate 102; Figure 10) that is disposed within an interior of an elongated casing between, and connected to, two opposing longitudinal side walls wherein the at least one casing support structure does not extend to the bottom of the casing (Figure 10). 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 include at least one casing support structure disposed within the interior of the elongated casing between the two opposing longitudinal side walls and connected to each of the two opposing longitudinal side walls in view of Krage’s disclosure that the internal frame strengthens the barrier against bending (Krage’s column 5 lines 32-33) to be able to strengthen the barrier of the resulting combination from bending. Since Krage discloses that the at least one casing support structure does not extend to the bottom of the casing but instead to an interior secondary bottom wall (Figure 10) which is the result of a feature, it is an obvious modification to have the at least one casing support structure connect to the closed top of the ballast compartment since the closed top of the ballast compartment of the resulting combination is synonymous with the interior secondary bottom wall, the feature being the ballast compartment in the resulting combination.
Regarding claim 2, the resulting combination makes obvious that the closed top and closed sides of the ballast compartment must be liquid tight in order to be able to hold the liquid concrete.
Regarding claim 3, since NL ‘140 shows the ballast to be rectangular, it appears obvious that the ballast compartment would have similar dimensions, which would be an elongated ballast compartment casing, to fit within the barrier element.
Regarding claim 4, the top and sides of the ballast compartment (inner surface of elongate casing) are made out of metal sheet material (metal plate casing; page 6 of English translation lines 26-27).
Regarding claim 8, the resulting combination includes the limitation since as shown in NL ‘140’s Figures 3 and 4, the ends of the elongated casing are provided with couplings (pins 11 and openings 24).
Regarding claim 9, the resulting combination includes the limitation since as shown in NL ‘140’s Figures 3 and 4, the couplings are connected to the ballast compartment (via plates 10 and 23 and side walls).
Regarding claim 10, the resulting combination includes the limitation since as shown in NL ‘140’s Figure 4, the ends (from a bird’s eye view looking down at the upper wall) of the elongated casing are chamfered (slanted walls connecting to upper wall shown in Figure 4).
Regarding claim 11, the resulting combination from claim 1 makes obvious that the ballast compartment is filled with the liquid curing material (Ballesteros’s teaching of concrete from a concrete mixer truck).
Regarding claim 12, the resulting combination includes the liquid curing material being concrete.
Regarding claim 13, the resulting combination includes the method steps claimed given that the resulting combination includes the barrier element having an open bottom (space between bottom flanges 20) that clearly exposes the ballast compartment (NL ‘140’s Figure 4), Gertz’s disclosure of filling ballast through an opening which is at the bottom end, which requires inverting the barrier element of the resulting combination, hardening the liquid curing material (since concrete must harden), and turning the barrier element back to a working position (Gertz discloses opening 38 being at the bottom).
Regarding claim 14, the resulting combination includes the limitation since as shown in NL ‘140’s Figure 1, the plurality of supports (8) are connected to the ballast compartment (via the bottom walls).
Regarding claim 15, the resulting combination includes the limitation since as shown in NL ‘140’s Figure 1, the plurality of supports (8) are connected to two opposing sides of the ballast compartment (bottom left side and bottom right side via the bottom walls).
Regarding claim 16, while the resulting combination includes at least one casing support structure but fails to explicitly disclose that the barrier element comprises a plurality of casing support structures, it has been held that mere duplication of parts has no patentable significance unless a new and unexpected result is produced. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960). 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 include a plurality of casing support structures for greater strength against bending.
Regarding claim 17, the resulting combination from claim 16 includes the plurality of casing support structures being disposed within the interior of the elongated casing between the two opposing longitudinal side walls and connected to the two opposing longitudinal side walls and the ballast compartment.
Regarding claim 18, since the plurality of casing support structures extend from one side wall to the other, they can provide structural stability to the barrier element.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over NL ‘140 in view of DE ‘303, Ballesteros, Gertz, and Krage and applied to claim 1 above, further in view of Bennet, US 1,421,150. Regarding claim 7, while the resulting combination fails to disclose that the ballast compartment is provided with at least one internal protrusion, Bennet discloses an uncured concrete-filled box/shell with pins, with “concrete adapted to be poured into the shell around said pins…, said pins being adapted to anchor the concrete into said shell after it [the concrete] has set therein” (bottom half of claim 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 ballast compartment of the resulting combination to have at least one internal protrusion if it was desired to ensure that the concrete remained in the ballast compartment by anchoring in view of Bennet’s disclosure that pins (which are at least one internal protrusion) would anchor the concrete in the shell (bottom half of claim 2).
Claims 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over NL ‘140 in view of DE ‘303, Ballesteros, Gertz, and Krage and applied to claim 3 above, further in view of Hotchkin, US 11,933,004 B2.
Regarding claim 19, the resulting combination from claim 3 includes an elongated ballast compartment casing. NL ‘140 shows multiple separate ballast compartments along the bottom of the barrier element (as shown in NL ‘140’s Figure 1) but the resulting combination fails to disclose the limitation claimed. Hotchkin teaches a barrier element and discloses a continuous ballast compartment (cavity 11, after the concrete cures becomes ballast block 15 shown in Figure 3) along the full length of the bottom of that barrier element. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the separate ballast compartments of the resulting combination to be a continuous elongated ballast compartment casing along the full length of the bottom of that barrier element in view of Hotchkin’s disclosure as discussed above based on obvious design choice as an alternate type of elongated ballast compartment casing for a barrier element. The resulting combination includes the elongated ballast compartment casing traversing each of the plurality of supports (NL ‘140’s plurality of supports 8 as shown in Figure 1).
Regarding claim 20, the resulting combination from claim 3 includes an elongated ballast compartment casing. NL ‘140 shows multiple separate ballast compartments along the bottom of the barrier element (as shown in NL ‘140’s Figure 1) but the resulting combination fails to disclose the limitation claimed. Hotchkin teaches a barrier element and discloses a continuous ballast compartment (cavity 11, after the concrete cures becomes ballast block 15 shown in Figure 3) along the full length of the bottom of that barrier element. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the separate ballast compartments of the resulting combination to be a continuous elongated ballast compartment casing along the full length of the bottom of that barrier element in view of Hotchkin’s disclosure as discussed above based on obvious design choice as an alternate type of elongated ballast compartment casing for a barrier element. The resulting combination includes each of the plurality of supports (NL ‘140’s plurality of supports 8 as shown in Figure 1) extending across the elongated ballast compartment casing since the elongated ballast compartment casing is continuous along the full length of the bottom of the barrier element.
Response to Arguments
Applicant’s arguments with respect to claims 1-4, 8-12, and 14-18 have been considered but are moot because Applicant is arguing the previous rejection against newly-added limitations. The rejection above has been modified to meet the newly-added limitations. Applicant’s arguments pertaining to Chinni are moot since Chinni is no longer relied on in the current rejection.
Applicant argues (on the page numbered “2”) that Ballesteros discloses the opening for ballast being at the top of the barrier, which is contrary to the claimed barrier element. This argument is not persuasive since that is an argument of bodily incorporation, and the rejection does not rely on Ballesteros’s location of the opening.
Applicant does not provide arguments to the dependent claims, only relying on the arguments for independent claim 1.
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 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
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