DETAILED ACTION
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.
Claims 1-17 and 23-28 are 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.
The newly added recitation in the final paragraph of claim 1 continue to be narrative, vague, indefinite, a process type recitation and has no clear scope. The construction that enables this action is not recited. The product cannot be patented based upon the manner in which is performs when essentially being deconstructed. These added limitations are so indefinite as to preclude examination. Structure which enables this action must be clearly and positively recited in order to overcome the prior art.
Claim 26 recites “at least one wire rope are spaced apart” and “at least one wire rope are moved closer together.” This is indefinite because in its broadest form, it is unclear how one rope “are” capable of these configurations. Claims 26 and its dependent, claim 27, have not been further treated on the merits.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-5, 8-16 and 23-25 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Heimbecker (U.S. Patent Application Publication 2007/0252124).
Heimbecker discloses an impact device having a contact element (222) and a guide member (102) configured to receive and retain a wire rope (108, 110). The device is capable of acting in the manner claimed in the event of a collision (paragraph 77, for example). Because Heimbecker meets all positive structural recitations, it is deemed to be capable of meeting the newly added recitations. Note the 112 rejection, above.
Regarding claim 2, the guide member appears to have a length/width range as claimed (Figure 9, for example).
Regarding claim 3, Heimbecker appears to have the ratio claimed.
Regarding claims 4, 5 and 12, see Figures 4 and 5, for example.
Regarding claim 8, the slot in plate (222) creates a weakened area since the dimension above it is less than the remainder of the plate.
Regarding claim 9, the plate is naturally deformable, depending upon the severity of the impact, for example.
Regarding claim 10, there is an opening (Figure 5, for example).
Regarding claim 11, the wire ropes are directed through the slot, which is located below the contact element.
Brake pads (120, 122) appear to meet the recitations of claim 13
The tapered shape of the guide member (102) meets recitations of claim 14
Regarding claim 15, there is a base (116, 118) that contacts the ground (via 190, 266).
Heimbecker operates in the manner of the method claims.
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 2, 6, 7, 17 and 28 are rejected under 35 U.S.C. 103 as being unpatentable over Heimbecker (U.S. Patent Application Publication 2007/0252124), as applied above.
As discussed above, the ratio of claim 2 appears to be met. Further, it would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to have used any relative dimensions best suited to a functioning apparatus. Dimensions are not patentably distinguishing in this instance.
Regarding claims 6 and 7, the examiner takes Official notice that it is known to form impact absorbing elements as claimed in order to absorb impact as desired. For this reason, it would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to have configured Heimbecker as claimed.
Regarding claim 17, it would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to have used additional wire ropes as desired in order to strengthen the barrier. This is a duplication of existing parts, which cannot patentably distinguish an apparatus.
Regarding claim 28, it is not clear if the contact element has a semi-circular shape in plan view; however, since the object is configured for impact, it would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to have used a curved profile in order to, for example, prevent sharp edges from engaging an oncoming object; thereby potentially increasing safety.
Response to Arguments
Applicant's arguments filed 7 January 2026 have been fully considered but they are not persuasive. The “configured to” language added to claim 8 overcomes the 112 rejection; however, claim 1 continues to improperly recite process recitations within the product claim. The claim must clearly recite structure which enables or configures the device for the action, with the action being preceded by such language (e.g., “configured to”) in order to clearly distinguish the product.
As pointed out in the 112 rejection, new claims 26 and 27 appear to have no meaning in their broadest form.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GARY S HARTMANN whose telephone number is (571)272-6989. The examiner can normally be reached 11-7:30.
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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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/GARY S HARTMANN/Primary Examiner, Art Unit 3671
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