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.
Priority
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in Australia on 07/06/2017. It is noted, however, that applicant has not filed a certified copy of the AU2017902650 application as required by 37 CFR 1.55.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 11/12/2025 has been entered.
Response to Amendment
Amendments to the claims, filed on 11/12/2025, are accepted and do not introduce new matter.
Previous 112(a) and 112(b) rejections have been overcome by amendments; these rejections are now withdrawn. Claim 12 language “covering” is amended to “spraying” which has proper antecedent basis in disclosure. Claims 19, 20, 22 language “locating” is removed; thus removing new matter from these claims and no longer render the claims indefinite.
Claims 1-3, 5-6, 8-14, 16-22 and 24-25 are pending; claims 4, 7, 15 and 23 are cancelled; claim 25 is new.
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 21-22 and 25 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.
Claim 21 discloses: “creating a water-based fire retardant”. However, independent claim 1 already discloses a water-based fire retardant. This is considered double inclusion, which renders the claim indefinite because it is unclear if there are one or more than one water-based fire retardants. For examination purposes and based on disclosure, claim 21 will be interpreted as: said water-based fire retardant.
Claim 22 is indefinite for depending on claim 21.
The term “essentially incombustible” in claim 25 is a relative term which renders the claim indefinite. The term “essentially” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. As such, it is unclear what constitutes the asset being essentially incombustible.
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, 5-10, 18-22 and 24-25 are rejected under 35 U.S.C. 103 as being unpatentable over Doten (U.S. 2011/0203812) in view of Maguire (U.S. 2005/0269109).
Regarding claim 1, Doten teaches a method of preserving a building (H) or similar asset having at least one exterior surface (as seen in Fig 1, the building H has exterior surfaces) from destruction by a bushfire (F), said method comprising the steps of
a. prior to the arrival of said bushfire at said asset or building, spraying the asset or building with a water-based fire retardant (fire retardant S, which is water based; see abstract) ejected from a nozzle (70) located above the asset or building (see Fig 1) and mounted on a helicopter (A) carrying said water-based fire retardant (as seen in Fig 1) (as seen in Fig 1 and disclosed in Par 0004: the fire retardant is applied to an area near the building in advance of an approaching fire, i.e. prior to the arrival of the fire, to impede the progress of the fire); and
b. refraining from attempting to extinguish the bushfire (Par 0004 of Doten discloses: “[fire retardant] is applied to an area to either directly extinguish fire or to treat an area in advance of an approaching fire to impede the progress of the fire, or otherwise suppress fire in the area being treated” as such, Doten teaches three different methods, one of them being spraying the fire suppressant in advance of the fire to impede its progress; therefore Doten teaches a method that includes a step of refraining from attempting to extinguish the bushfire, as claimed).
However, Doten does not teach the step of spraying that includes spraying the at least one exterior surface of said building or asset, wherein the at least one exterior surface of the asset or building includes walls of the building.
Maguire teaches a method of protecting buildings or assets from a bushfire, comprising a step of spraying fire retardant that includes spraying side walls of an asset or building (18) with a water-based fire retardant (as seen in Fig 1 and disclosed in par 0015: “by applying an effective amount of [fire retardant] to cool the house 18 below the combustible temperature of the materials constituting the house 18, the fire will not be rekindled once the liquid nitrogen has evaporated and dissipated”); wherein the at least one exterior surface of the asset or building includes walls of the building (as seen in Figs 1-3, the walls of the building are sprayed with fire retardant).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Doten to incorporate the teachings of Maguire to provide a step in which at least one exterior surface, i.e. walls, of the building or asset is sprayed with the fire retardant because this will ensure that the entirety of the property will be further protected from an impeding fire (as disclosed in par 0015 of Maguire, spraying the fire retardant onto the fire protects it from kindling). This assures the building or asset is safer in case the approaching fire gets in close proximity to the building or asset. Furthermore, Doten discloses that its nozzle can point in directions that are other than vertical, such as away from the aircraft, i.e. sideways, (see Pars 0032 and 0013); as such, with this teaching and the modification in view of Maguire, the method includes spraying the fire retardant towards a wall of the building.
Regarding claim 2, Doten and Maguire teach the method as defined in claim 1. However, they do not explicitly teach the method wherein the height above ground level of said helicopter whilst spraying is in the vicinity of 20 meters.
Nonetheless Doten teaches that “The aircraft can be flown at a variable height to adjust a width of lines being treated with fire suppression gel; a process called "striping." When the aircraft flies lower this line is narrower. When the aircraft flies higher this line is wider”, as disclosed in paragraph 0010. As such, it would have been obvious to one of ordinary skill in the art to fly the helicopter at 20 meters above ground or any other height, depending the desired width of the spray pattern taking into consideration the size and intensity of the fire, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves routine skill in the art (see MPEP 2144.05 II A). As in the case of in re Aller, the courts decided that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation."
Regarding claim 5, Doten and Maguire teach the method as defined in claim 1 wherein the asset or building has a perimeter that is susceptible to attack by radiant heat, flames, or embers emitted from the bushfire (perimeter defined by line L, seen in Fig 1), and the method further comprises the step of maneuvering the helicopter substantially in an arc (helicopter A is maneuvers about an arc, see shape of L in Fig 1) about the susceptible perimeter whilst spraying at least one the exterior surface of the asset or building with the fire retardant (as seen in Fig 1, the helicopter sprays the retardant S about an arc defined by the perimeter of L; in combination with Maguire, at least one exterior surface is sprayed – as disclosed in Par 0015).
Regarding claim 6, Doten and Maguire teach the method as defined in claim 1, wherein the at least one exterior surface of the building includes a roof of the building (as seen in Fig 1 of Doten, the exterior surface of the building has a roof. Moreover, as seen in Fig 1 of Maguire, the spray covers the roof of the building) (Note: the claims are directed towards a method of preserving a building from a bushfire; as such the actual structure of the building has limited patentable weight, since the claims are not directed towards an apparatus claim; in other words, this claim does not recite a method step, it merely states features of the building or asset).
Regarding claim 8, Doten and Maguire teach the method as defined in claim 1, wherein the at least one exterior surface of the building includes recesses in the sides of the building including door alcoves and verandahs (as seen in Fig 1 of Doten, the exterior surface of the building includes recesses such as alcoves, i.e. spaces around the windows, and verandahs, i.e. projection of the roof in relation to the side walls. Moreover, as seen in Fig 1 of Maguire, the spray covers the entirety of the building) (Note: the claims are directed towards a method of preserving a building from a bushfire; as such the actual structure of the building has limited patentable weight, since the claims are not directed towards an apparatus claim; in other words, this claim does not recite a method step, it merely states features of the building or asset).
Regarding claim 9, Doten and Maguire teach a method of preserving a plurality of buildings (H, seen in Fig 1 of Doten; as disclosed in Par 0003: after an area is treated, such as Fig 1, “the helicopter then repeats the filling procedure for additional treatment of areas with water”’ as such, Doten teaches that the method repeats when water is depleted and is refilled in additional areas, which include other buildings; further proof of this stated in Par 0039 which discloses “The color line 75 supplies a colorant which can be added to the hydrated gel before being sprayed from the discharge, such as in the form of the nozzle 70, so that areas that have been treated can more easily be seen” this implies that method being performed in other areas to treat other buildings) or similar assets, and thereby ameliorating the destructive effect of a bushfire (F) in destroying or damaging said buildings or similar assets by burning or radiant heat (as seen in Fig 1 and disclosed in par 0004 of Doten), said bushfire having at least one fire front travelling in a corresponding fire front direction (direction and front of fire F, as seen in Fig 1); said method comprising the step(s) of the method as defined in claim 1 performed for each of said plurality of assets or buildings (Doten discloses performing the process of protecting a building, as seen in Fig 1, in areas that haven’t been treated, thus the process is performed on the plurality of assets or buildings ), and wherein the helicopter is flown in said fire front direction and in advance of said fire front (as seen in Fig 1), and the spraying of the at least one exterior surface (in combination, Maguire teaches spraying of exterior surface) of each of said plurality of assets or buildings is performed substantially sequentially in said fire front direction (once one area and its building is treated, a subsequent area is then treated).
Alternatively, if it is found out that Doten does not teach the method for preserving a multiplicity of buildings or assets, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Doten to incorporate a step of performing the method on a plurality of buildings or assets in order to protect any further assets that may be in the way of the fire path of the bushfire, since Doten discloses that when the water in the tank is depleted, the aircraft returns to a water reservoir to refill its tank in order to treat another area in danger of fire (paragraph 0011).
Regarding claim 10, Doten and Maguire teach the method as defined in claim 9 including the steps of sequentially spraying the at least one exterior surface of each of the assets or buildings of a first sequence of assets or buildings to thereby empty the water tank of the helicopter, refilling the water tank of the helicopter, and sequentially spraying the at least one exterior surface of each of the assets or buildings of a second sequence of assets or buildings (as disclosed in paragraphs 0003 and 0011, the helicopter refills the tank with water after a first sequence of firefighting and returns to perform another sequence; as modified by Maguire, the exterior surfaces of each building or asset are sprayed).
Regarding claim 18, Doten and Maguire teach the method of claim 1, further comprising: c. flying a helicopter to arrive at the building or similar asset in advance of the bushfire (Par 0004 of Doten discloses treating in advance of the bushfire, with the helicopter A – see Fig 1).
Regarding claim 19, Doten and Maguire teach the method of claim 18 further comprising: d. containing the fire-retardant gel concentrate within a gel tank located in the helicopter (Par 0032 of Doten discloses containing a gel concentrate in a gel reservoir, i.e. tank).
Regarding claim 20, Doten and Maguire teach the method of claim 19, further comprising: e. containing the water within a water tank (water bucket 20) located on the helicopter (as disclosed in Par 0032 of Doten).
Regarding claim 21, as best understood, Doten and Maguire teach the method of claim 20, further comprising: f. creating a water-based fire retardant by mixing the fire-retardant gel concentrate with the water (Par 0032 of Doten discloses mixing the gel with water to create the fire retardant).
Regarding claim 22, as best understood, Doten and Maguire teach the method of claim 21, further comprising: g. controlling the amount of fire-retardant gel concentrate fed to the nozzle using a proportioner (combiner 40) located in the helicopter (as seen in Figs 1-2, the helicopter includes the delivery system 10, which includes the proportioner 40).
Regarding claim 24, Doten and Maguire teach the method of claim 1, wherein the nozzle is mounted on a main body of the helicopter (nozzle 70 is attached to the main body of the helicopter through suspension lines 29) (Note: the claim does not specify the nozzle being directly mounted on the main body of the helicopter).
Regarding claim 25, as best understood, Doten and Maguire teach the method of claim 1, further comprising rendering the asset or building essentially incombustible for a period of at least 6 hours after performance of step a (since, Doten and Maguire teach all of the claimed functions of step a, their method is deemed capable of rendering the building incombustible for a period of at least 6 hours, as claimed).
If it is found out that the method as taught by Doten and Maguire does not teach this function, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to select any suitable amount of fire retardant being sprayed onto the building, such that the building remains incombustible for any given period of time, including 6 hours, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves routine skill in the art. As it was determined in In re Aller: "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation" (see MPEP 2144.05 II A). In the present case, Doten and Maguire discloses all the general structure of the claim. Therefore, it would be obvious to find an optimal or workable amount of fire retardant, so that the building is protected for a particular time after being sprayed.
Claims 3 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Doten (U.S. 2011/0203812) in view of Maguire (U.S. 2005/0269109); further in view of Bisson (U.S. 5,135,055).
Regarding claim 3, Doten and Maguire teach the method as defined in claim 1. However, they do not teach wherein the nozzle can be reoriented in both elevation and azimuth relative to the helicopter for controlling a sprayed direction of the nozzle ejecta.
Bisson teaches an airborne firefighting system wherein the nozzle can be reoriented in both elevation and azimuth relative to the helicopter for controlling a sprayed direction of the nozzle ejecta (Bisson teaches an airborne firefighting system that uses a helicopter to spray firefighting fluid from a nozzle that moves in a wide range of horizontal angles and vertical angles, i.e. it is reoriented in elevation and azimuth, as disclosed in col 4, lines 47-53 and seen in Fig 6).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Doten to incorporate the teachings of Bisson to provide a nozzle that can be oriented in all angles respect to the aircraft in order to have adjustable nozzles to appropriately delivery fire retardant the area threated (as disclosed in col 5, lines 30-36). Furthermore, Doten discloses that its nozzle can point in directions that are other than vertical, such as away from the aircraft, i.e. sideways, (see Pars 0032 and 0013); thus, one of ordinary skill in the art would modify Doten with Bisson to achieve this function with more accuracy.
Regarding claim 11, Doten and Maguire teach the method as defined in claim 1. However, Doten does not teach the method wherein the step of spraying the at least one exterior surface of said asset or building with said water-based fire retardant ejected from said nozzle located above the asset or building and mounted on a helicopter includes spraying the fire-retardant at an angle between 20° and 45° downwardly from horizontal.
Bisson teaches an airborne firefighting system wherein a nozzle located above an asset or building (12) and mounted on a helicopter (10) includes spraying the fire-retardant at an angle between 20 degrees and 45 degrees downwardly from horizontal (Bisson teaches a nozzle that moves in a wide range of horizontal angles and vertical angles, i.e. it is reoriented in elevation and azimuth. As disclosed in col 4, lines 47-53: the angles include 20 and 45 degrees, as claimed), wherein the exterior walls of building 12 are treated (as seen in Fig 1).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Doten and Maguire to incorporate the teachings of Bisson to provide a nozzle that can be oriented in 20-45 degree angles with respect to the horizon in order to have adjustable nozzles to appropriately delivery fire retardant the area threated (as disclosed in col 5, lines 30-36). Furthermore, Doten discloses that its nozzle can point in directions that are other than vertical, such as away from the aircraft, i.e. sideways, (see Pars 0032 and 0013); thus, one of ordinary skill in the art would modify Doten with Bisson to achieve this function with more accuracy.
Claims 12-14 and 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Doten (U.S. 2011/0203812) in view of Bisson (U.S. 5,135,055) and Maguire (U.S. 2005/0269109).
Regarding claim 12, Doten teaches a method of preserving a multiplicity of buildings (H, seen in Fig 1; as disclosed in Par 0003: after an area is treated, such as Fig 1, “the helicopter then repeats the filling procedure for additional treatment of areas with water”’ as such, Doten teaches that the method repeats when water is depleted and is refilled in additional areas, which include other buildings; further proof of this stated in Par 0039 which discloses “The color line 75 supplies a colorant which can be added to the hydrated gel before being sprayed from the discharge, such as in the form of the nozzle 70, so that areas that have been treated can more easily be seen” this implies that method being performed in other areas to treat other buildings), or similar structural assets, from destruction by a bushfire (F) having a fire front (fire front of F, seen in Fig 1), said method comprising the steps of:
(i) flying a helicopter (A), including at least one tank (20) and having a nozzle (70) mounted on the helicopter (as seen in Figs 1 and 2) movable towards a first one of said multiplicity of buildings or assets (nozzle 70, dispenses retardant S onto a first building or asset, as seen in Fig 1), prior to arrival of said fire front at said first one of said multiplicity od said buildings or assets (as seen in Fig 1 and disclosed in Par 0004: the fire retardant is applied to an area near the building in advance of an approaching fire, i.e. prior to the arrival of the fire, to impede the progress of the fire),
(ii) flying said helicopter in a first loop around said first building or asset whilst spraying a water-based fire retardant (S, water based, as disclosed in abstract) from said nozzle (as seen in Fig 1, the helicopter is flown around the building H, see train of retardant L, i.e. loop),
(iii) flying said helicopter away from said fire front and towards a second one of said multiplicity of buildings or assets (as stated above and in Pars 0003, 0011 and 0039, the process of protecting building H repeats in a separate area that has not been treated yet; as such, the helicopter A flies towards a second building or asset), prior to arrival to said fire front at said second building or asset (as seen in Fig 1 and disclosed in Par 0004: the fire retardant is applied to an area near the building in advance of an approaching fire, i.e. prior to the arrival of the fire, to impede the progress of the fire),
(iv) flying said helicopter in a second loop around said second building or asset whilst spraying a water-based fire retardant from said nozzle so as to spray said second building or asset (as stated above and in Pars 0003, 0011 and 0039, the process of protecting building H repeats in a separate area that has not been treated yet; as such, the helicopter A does a second loop around the second building and sprays fire retardant S, as seen in Fig 1),
(v) at all times during flying of said helicopter refraining from attempting to extinguish said bushfire (Par 0004 of Doten discloses: “[fire retardant] is applied to an area to either directly extinguish fire or to treat an area in advance of an approaching fire to impede the progress of the fire, or otherwise suppress fire in the area being treated” as such, Doten teaches three different methods, one of them being spraying the fire suppressant in advance of the fire to impede its progress; therefore Doten teaches a method that includes a step of refraining from attempting to extinguish the bushfire, as claimed), and
(vi) repeating steps (iii) - (v) for third and subsequent buildings or assets until substantially all of said water-based fire retardant has been sprayed from said nozzle (as stated above and in Pars 0003, 0011 and 0039, when the storage tank is emptied, the helicopter then refills the tank and the process of protecting building H repeats in a separate area that has not been treated yet, wherein this includes a third area, which includes a third building or asset).
However, Doten does not teach the nozzle being movable in azimuth and elevation; and wherein spraying involves spraying at least one exterior surface of said first building or asset and said second building or asset; wherein said at least one exterior surface of said first building or asset includes at least one wall of said first building or asset and said at least one exterior surface of said second building or asset includes at least one wall of said second building or asset.
Bisson teaches an airborne firefighting system wherein the nozzle can be reoriented in both elevation and azimuth relative to the helicopter for controlling a sprayed direction of the nozzle ejecta (Bisson teaches an airborne firefighting system that uses a helicopter to spray firefighting fluid from a nozzle that moves in a wide range of horizontal angles and vertical angles, i.e. it is reoriented in elevation and azimuth, as disclosed in col 4, lines 47-53 and seen in Fig 6).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Doten to incorporate the teachings of Bisson to provide a nozzle that can be oriented in all angles respect to the aircraft in order to have adjustable nozzles to appropriately delivery fire retardant the area threated (as disclosed in col 5, lines 30-36).
Maguire teaches a method of extinguishing fires wherein a step of spraying includes covering the exterior walls of an asset or building (18) with a water-based fire retardant (as seen in Fig 1 and disclosed in par 0015: “by applying an effective amount of liquid nitrogen to cool the house 18 below the combustible temperature of the materials constituting the house 18, the fire will not be rekindled once the liquid nitrogen has evaporated and dissipated” It is clear that Maguire teaches engulfing the house with fire retardant, i.e. spraying all the exterior walls. Further support for this is disclosed in par 0020 which states the amount of fire retardant needed depending on the size of the house); wherein the at least one exterior surface of the asset or building includes walls of the building (as seen in Figs 1-3, the walls of the building are sprayed with fire retardant).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Doten to incorporate the teachings of Maguire to provide a step in which at least one exterior surface, i.e. walls, of the building or asset is sprayed with the fire retardant because this will ensure that the entirety of the property will be further protected from an impeding fire (as disclosed in par 0015 of Maguire, spraying the fire retardant onto the fire protects it from kindling). This assures the building or asset is safer in case the approaching fire gets in close proximity to the building or asset. Furthermore, Doten discloses that its nozzle can point in directions that are other than vertical, such as away from the aircraft, i.e. sideways, (see Pars 0032 and 0013); as such, with this teaching and the modification in view of Maguire, the method includes spraying the fire retardant towards a wall of the building.
Alternatively, if it is found out that Doten does not teach the method for preserving a multiplicity of buildings or assets, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Doten to incorporate a step of performing the method on a plurality of buildings or assets in order to protect any further assets that may be in the way of the fire path of the bushfire, since Doten discloses that when the water in the tank is depleted, the aircraft returns to a water reservoir to refill its tank in order to treat another area in danger of fire (paragraph 0011).
Regarding claim 13, Doten, Bisson and Maguire teach the method as defined in claim 12. However, they do not teach the method wherein the height above ground level of said helicopter whilst spraying is in the vicinity of 20 meters.
Nonetheless Doten teaches that “The aircraft can be flown at a variable height to adjust a width of lines being treated with fire suppression gel; a process called "striping." When the aircraft flies lower this line is narrower. When the aircraft flies higher this line is wider”, as disclosed in paragraph 0010. As such, it would have been obvious to one of ordinary skill in the art to fly the helicopter at 20 meters above ground or any other height, depending the desired width of the spray pattern taking into consideration the size and intensity of the fire, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves routine skill in the art (see MPEP 2144.05 II A). As in the case of in re Aller, the courts decided that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation."
Regarding claim 14, Doten, Bisson and Maguire teach the method as defined in claim 13 wherein the at least one exterior surface of the building or asset includes a roof of the building or asset (as seen in Fig 2 and disclosed in Par 0015 of Maguire, the entirety of the building is sprayed, which includes the roof) (Note: the claims are directed towards a method of preserving a multiplicity of buildings from a bushfire; as such the actual structure of the building has limited patentable weight, since the claims are not directed towards an apparatus claim; in other words, this claim does not recite a method step, it merely states features of the building or asset).
Regarding claim 16, Doten, Bisson and Maguire teach the method as defined in claim 12 wherein the at least one exterior surface of the building or asset includes recesses in the sides of the building or asset including door alcoves and verandahs (as seen in Fig 2 and disclosed in Par 0015 of Maguire, the entirety of the building is sprayed, which includes any door alcoves or verandahs the building may have) (Note: the claims are directed towards a method of preserving a multiplicity of buildings from a bushfire; as such the actual structure of the building has limited patentable weight, since the claims are not directed towards an apparatus claim; in other words, this claim does not recite a method step, it merely states features of the building or asset).
Regarding claim 17, Doten, Bisson and Maguire teach the method as defined in claim 16 wherein following step (vi) the helicopter is flown away from the fire front to a location where the water-based fire retardant can be replenished (as disclosed in Pars 0003 and 0011 of Doten), the helicopter is flown towards an unsprayed building or asset adjacent the fire front, and step (vi) is repeated (as stated in rejection of claim 12, the prior art discloses repeating the process for areas that haven’t been sprayed), all the while not attempting to extinguish the bushfire (as disclosed in Par 0004, the retardant is sprayed in front of an approaching fire to impede the progress of the fire; i.e. the retardant is not sprayed to extinguish the fire per se).
Response to Arguments
Applicant's arguments with respect to prior art rejections have been fully considered but they are not persuasive.
Applicant argues that it would not be obvious to modify Doten to spray the walls of the building because Doten teaches the nozzle only capable of spraying in a downwards direction. Examiner respectfully disagrees. Doten discloses in Pars 0013 and 0032 that the nozzle can point in other directions, such as away from the vehicle, i.e. sideways. As such, this argument is not persuasive.
Applicant argues that it would not be obvious to modify Doten with Maguire because of the following reasons:
1) Applicant argues that Maguire does not cure the deficiencies of Doten because Maguire is solely directed at spraying liquid nitrogen into the building. Examiner respectfully disagrees. Nowhere in the disclosure of Maguire it is stated that the fire retardant is sprayed strictly into the interior of the building. In fact, as shown in the figures and disclosed in Par 0015, the retardant is sprayed onto the building. This is particularly clear from Fig 3, which shows a helicopter spraying the outside of the building.
2) Applicant argues that the motivation to combine previously used by examiner of “to ensure that the entirety of the property will remain at a temperature below the combustible temperature of the materials of the building (as disclosed in Par 0015 of Maguire)” would not occur because Maguire teaches using liquid nitrogen which would evaporate if sprayed on the exterior of the building. Examiner notes that this motivation is no longer relied on in the current rejection. Nonetheless, Doten is modified by Maguire merely to also spray the exterior of the building, as such the fire retardant used by Doten remains unchanged and would regardless offer a similar benefit of maintaining the exterior protected from high temperature, since the fire retardant of Doten works to discourage the combustion of materials (see Par 0004). As such, this argument is not persuasive.
3) Applicant argues that one of ordinary skill in the art would not look to Maguire to solve the deficiencies of Doten because Maguire is intended to extinguish an existing fire and not directed at treating an object in advance of a fire. Examiner respectfully disagrees. One of ordinary skill in the art would look for Maguire to spray the outside walls of the building whether is before or during a fire; it is an obvious modification to the method of Doten in order to directly protect and cool of the building ahead of an approaching fire. The fact that Maguire teaches extinguishing an existing fire is not a conflicting method compared to Doten; and one of ordinary skill in the art would spray the building (as taught by Maguire) ahead of fire (as taught by Doten) in order to further protect the asset, in case the fire comes close enough to the asset.
4) and 5) Applicant argues that the modification of Doten with Maguire would render Doten unsatisfactory for its intended purpose because Doten uses a water-based retardant and Maguire uses liquid nitrogen. Applicant argues that Doten would not work as intended if liquid nitrogen was used. Examiner respectfully disagrees and notes that Maguire was used to modify Doten to simply spray the exterior of the building, the type of suppressant used by Doten was not modified and remains the same. As such, Examiner asserts that the modification would not render Doten incapable of performing its intended task. This argument is non-commensurate with the way the claims were rejected; as such, the argument is unpersuasive.
Examiner notes that these rebuttals apply to arguments made against the rejections of independent claims 1 and 12. Nonetheless, regarding arguments made against modification using Bisson, Examiner notes that Bisson was used merely to modify the actual nozzle of Doten, such that it can spray in different directions. The fact that the greater system of Bisson operates in a different way than Doten has no bearing on the rejections, since the modification in view of Bisson do not rely on modifying the whole system of Doten, merely to modify the type of nozzle used.
For these reasons, Examiner maintains the current grounds of rejection.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JUAN C BARRERA whose telephone number is (571)272-6284. The examiner can normally be reached on M-F Generally 10am-4pm and 6-8pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, ARTHUR O. HALL can be reached on 571-270-1814. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
If there are any inquiries that are not being addressed by first contacting the Examiner or the Supervisor, you may send an email inquiry to TC3700_Workgroup_D_Inquiries@uspto.gov.
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/JUAN C BARRERA/
Examiner, Art Unit 3752
/STEVEN M CERNOCH/Primary Examiner, Art Unit 3752