FINAL OFFICE ACTION
This application has been assigned or remains assigned to Technology Center 1700, Art Unit 1774 and the following will apply for this application:
Please direct all written correspondence with the correct application serial number for this application to Art Unit 1774.
Telephone inquiries regarding this application should be directed to the Electronic Business Center (EBC) at http://www.uspto.gov/ebc/index.html or 1-866-217-9197 or to the Examiner at (571) 272-1139. All official facsimiles should be transmitted to the centralized fax receiving number (571)-273-8300.
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 .
Priority
Acknowledgment is made of applicant's claim for domestic priority under 35 U.S.C. § 119(e).
Specification
The abstract is acceptable.
The title is acceptable.
Claim Rejections - 35 USC § 102
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.
The terms used in this respect are given their broadest reasonable interpretation in their ordinary usage in context as they would be understood by one of ordinary skill in the art, in light of the written description in the specification, including the drawings, without reading into the claim any disclosed limitation or particular embodiment. See, e.g., In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004); In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000); In re Morris, 127 F.3d 1048, 1054-55 (Fed. Cir. 1997); In re Zletz, 893 F.2d 319, 321-22 (Fed. Cir. 1989).
The Examiner interprets claims as broadly as reasonable in view of the specification, but does not read limitations from the specification into a claim. Elekta Instr. S.A.v.O.U.R. Sci. Int'l, Inc., 214 F.3d 1302, 1307 (Fed. Cir. 2000). "A claim is anticipated only if each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference." Verdegaal Bros. Inc. v. Union Oil Co. of California, 814 F.2d 628, 631 (Fed. Cir. 1987).
The express, implicit, and inherent disclosures of a prior art reference may be relied upon in the rejection of claims under 35 U.S.C. 102 or 103. "The inherent teaching of a prior art reference, a question of fact, arises both in the context of anticipation and obviousness." In re Napier, 55 F.3d 610, 613, 34 USPQ2d 1782, 1784 (Fed. Cir. 1995) (affirmed a 35 U.S.C. 103 rejection based in part on inherent disclosure in one of the references). See also In re Grasselli, 713 F.2d 731, 739, 218 USPQ 769, 775 (Fed. Cir. 1983). See MPEP 2112.
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 1-12 and 14-16 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by WEISBROD (US 4298288) published in NOV 1981.
The patent to WEISBROD discloses a mixing trailer comprising a frame 17 operable to be coupled to a vehicle; a compressor 54 disposed on the frame; bins 10, 12, 14, 16, or 40 coupled to the frame; mixing bin 31 coupled to the frame; a delivery connection 46 coupled with a delivery system 50, 52; delivery hose 50 with a distal end nozzle 52; fluid hoses 92 or 95 coupled with the nozzle 52 that can deliver a fluid from a fluid source 53 or 90; wherein the fluid source 53 or 90 is disposed on the frame; hose reels 94 for storing hoses 92 and 95 - Figure 1; wherein a point of application is at the nozzle 52 - col. 6, lines 37-68 and Figure 2; wherein the compressor 54 is fluidly coupled with the delivery connection and the nozzle to pneumatically convey substances through the hose 50 and out of the nozzle 52; wherein the bin 10 or 12 is accessible via a driver side (left side) of the frame 17; wherein the bin 12 is located lower than the bins 10, 14, or 18; wherein the conveying of the substances from the bins are individually controlled to deliver the substances within a predetermined ratio (col. 7, lines 1-28); wherein the mixing bin 31 includes a mixing auger 30 to mix and transfer the substances through the mixing bin to the delivery connection 46; wherein the bins include feed augers 18, 20, 22, and 42.
With regard to the amendatory language relating the operation of the trailer, the mixing bin 31 receives cement, gravel, and sand (i.e., dry ingredients) and wherein the mixing auger 30 mixes these dry ingredients together (col. 3, lines 41-48 - “In the mixing auger 30, the cement, pea gravel, and sand are mixed together”). Thus, the mixing bin and auger are quite capable of mixing these dry ingredients together to form a dry mixture prior to the addition of a fluid. The resultant dry mixture can then be received by the delivery connection 46 and then conveyed to the discharge nozzle 52 and combined with a fluid from fluid source 53 or 90.
Moreover, this now recited manner in which the recited mixing trailer is operated recites no further structure and as held in In re Casey, 370 F.2d 576, 152 USPQ 235 (CCPA 1967), "the manner or method in which such machine is to be utilized is not germane to the issue of patentability of the machine itself." See MPEP 2115. Nevertheless, the patent to WEISBROD discloses all of the recited structure irrespective of the manner in which said structure is operated, such as where the fluid is introduced:
APPARATUS CLAIMS MUST BE STRUCTURALLY DISTINGUISHABLE FROM THE PRIOR ART
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While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997) (The absence of a disclosure in a prior art reference relating to function did not defeat the Board’s finding of anticipation of claimed apparatus because the limitations at issue were found to be inherent in the prior art reference); see also In re Swinehart, 439 F.2d 210, 212-13, 169 USPQ 226, 228-29 (CCPA 1971);In re Danly, 263 F.2d 844, 847, 120 USPQ 528, 531 (CCPA 1959). “[A]pparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original).
Clearly, the dry ingredients can be combined via the mixing auger in the mixing bin (as taught in WEISBROD) and ultimately conveyed in dry form from the delivery connection to the discharge nozzle and combined with a fluid from said fluid sources within the nozzle, if desired. The presence of water valve 38 is capable of preventing water flow into the mixing bin, if desired to keep the mixture in dry form. The now recited usage of forming a dry mixture is merely an intended use. Such an intended use has not been afforded any patentable weight because it has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. Ex parte Masham, 2 USPQ2d 1647; In re Sebald, 122 USPQ 527; In re Lemin et al., 140 USPQ 273; In re Sinex, 135 USPQ 302; In re Pearson, 181 USPQ 641. In this instance, it is noted for purposes of appeal that Applicant has chosen to not include any possible structural distinctions of the invention to define over WEISBROD, but simply relies upon an operational use of forming a dry mixture.
Moreover, "[A] statement of intended use.., does not qualify or distinguish the structural apparatus claimed over the reference." In re Sinex, 309 F.2d 488, 492 (CCPA 1962); In re Tuominen, 671 F.2d 1359, 1361 (CCPA 1982) ("The only distinction to which Tuominen can aver is a difference in use, which cannot render the claimed composition novel."); In re Yanush, 477 F.2d 958, 959 (CCPA 1973) ("Appellant's use limitation does not impart a structural feature different from those of the prior art."); In re Casey, 370 F.2d 576, 580 (CCPA 1967) ("The claims in issue call for an apparatus or machine, viz. a tape dispensing machine. The manner or method in which such machine is to be utilized is not germane to the issue of patentability of the machine itself."); In re Hack, 245 F.2d 246, 248 (CCPA 1957) ("These cases are merely expressive of the principle that the grant of a patent on a composition or machine cannot be predicated on a new use of that machine or composition.").
An analysis of the amended claims 1 and 9 reveal that the Applicant relies upon the contents of the apparatus during an intended operation (the dry mixture) for patentability which mixture does not constitute structure of the apparatus whatsoever. Applicant should note it is well established in apparatus claims that “[e]xpressions relating the apparatus to contents thereof during an intended operation [the dry mixture] are of no significance in determining patentability of the apparatus claim.” Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969). Furthermore, “[i]nclusion of material or article worked upon by a structure being claimed does not impart patentability to the claims.” In re Young, 75 F.2d 966, 25 USPQ 69 (CCPA 1935) (as restated in In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963)). Accordingly, the recited “cement”, “sand”, “gunite”, “water” etc. are merely the contents of the apparatus during an intended operation and are thus of no patentable significance in the pending apparatus claims. WEISBROD discloses all of the recited structure of the claimed apparatus as outlined above and teaches the mixing of aggregates, sand, cement, and other additives in the mixing bin 31 via the auger 30 to form a mixture that is then discharged from the hose 50 and nozzle 52 via pneumatic conveyance under the action of the compressor 54- Figure 2 and per col. 6, lines 47-57:
To accelerate the slurry from the nozzle 52 with enough velocity for spraying, compressed air is injected into the flowing slurry at the nozzle. The compressed air is fed from a compressed air tank 90 mounted on the vehicle via flexible high pressure air pipe 92 (FIG. 1). Air is supplied to the air tank by the air compressor 54. The air pipe is coiled on an air hose reel 94 mounted at front of the vehicle (from which it may be fed) and is connected at its other end to the nozzle to inject the compressed air into the slurry to accomplish the desired spraying function.
Claim Rejections - 35 USC § 103
The terms used in this respect are given their broadest reasonable interpretation in their ordinary usage in context as they would be understood by one of ordinary skill in the art, in light of the written description in the specification, including the drawings, without reading into the claim any disclosed limitation or particular embodiment. See, e.g., In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004); In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000); In re Morris, 127 F.3d 1048, 1054-55 (Fed. Cir. 1997); In re Zletz, 893 F.2d 319, 321-22 (Fed. Cir. 1989). The Examiner interprets claims as broadly as reasonable in view of the specification, but does not read limitations from the specification into a claim. Elekta Instr. S.A.v.O.U.R. Sci. Int'l, Inc., 214 F.3d 1302, 1307 (Fed. Cir. 2000).
To determine whether subject matter would have been obvious, "the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved .... Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented." Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17-18 (1966).
The Supreme Court has noted:
Often, it will be necessary for a court to look to interrelated teachings of multiple patents; the effects of demands known to the design community or present in the marketplace; and the background knowledge possessed by a person having ordinary skill in the art, all in order to determine whether there was an apparent reason to combine the known elements in the fashion claimed by the patent at issue.
KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 1740-41 (2007). "Under the correct analysis, any need or problem known in the field of endeavor at the time of invention and addressed by the patent can provide a reason for combining the elements in the manner claimed." (Id. at 1742).
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.
The instant office action conforms to the policies articulated in the Federal Register notice titled “Updated Guidance for Making a Proper Determination of Obviousness” at 89 Fed. Reg. 14449, February 27, 2024, wherein the Supreme Court’s directive to employ a flexible approach to understanding the scope of prior art is reflected in the frequently quoted sentence, ‘‘A person of ordinary skill is also a person of ordinary creativity, not an automaton.’’ Id. at 421, 127 S. Ct. at 1742. In this section of the KSR decision, the Supreme Court instructed the Federal Circuit that persons having ordinary skill in the art (PHOSITAs) also have common sense, which may be used to glean suggestions from the prior art that go beyond the primary purpose for which that prior art was produced. Id. at 421–22, 127 S. Ct. at 1742. Thus, the Supreme Court taught that a proper understanding of the prior art extends to all that the art reasonably suggests, and is not limited to its articulated teachings regarding how to solve the particular technological problem with which the art was primarily concerned. Id. at 418, 127 S. Ct. at 1741 (‘‘As our precedents make clear, however, the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.’’). ‘‘The obviousness analysis cannot be confined . . . by overemphasis on the importance of published articles and the explicit content of issued patents.’’ Id. at 419, 127 S. Ct. at 1741. Federal Circuit case law since KSR follows the mandate of the Supreme Court to understand the prior art— including combinations of the prior art—in a flexible manner that credits the common sense and common knowledge of a PHOSITA. The Federal Circuit has made it clear that a narrow or rigid reading of prior art that does not recognize reasonable inferences that a PHOSITA would have drawn is inappropriate. An argument that the prior art lacks a specific teaching will not be sufficient to overcome an obviousness rejection when the allegedly missing teaching would have been understood by a PHOSITA—by way of common sense, common knowledge generally, or common knowledge in the relevant art. For example, in Randall Mfg. v. Rea, 733 F.3d 1355 (Fed. Cir. 2013), the Federal Circuit vacated a determination of nonobviousness by the Patent Trial and Appeal Board (PTAB or Board) because it had not properly considered a PHOSITA’s perspective on the prior art. Id. at 1364. The Randall court recalled KSR’s criticism of an overly rigid approach to obviousness that has ‘‘little recourse to the knowledge, creativity, and common sense that an ordinarily skilled artisan would have brought to bear when considering combinations or modifications.’’ Id. at 1362, citing KSR, 550 U.S. at 415–22, 127 S. Ct. at 1727. In reaching its decision to vacate, the Federal Circuit stated that by ignoring evidence showing ‘‘the knowledge and perspective of one of ordinary skill in the art, the Board failed to account for critical background information that could easily explain why an ordinarily skilled artisan would have been motivated to combine or modify the cited references to arrive at the claimed inventions.’’ Id.
From Norgren Inc. v. Int’l Trade Comm’n, 699 F.3d 1317, 1322 (Fed. Cir. 2012) (‘‘A flexible teaching, suggestion, or motivation test can be useful to prevent hindsight when determining whether a combination of elements known in the art would have been obvious.’’); Outdry Techs. Corp. v. Geox S.p.A., 859 F.3d 1364, 1370–71 (Fed. Cir. 2017) (‘‘Any motivation to combine references, whether articulated in the references themselves or supported by evidence of the knowledge of a skilled artisan, is sufficient to combine those references to arrive at the claimed process.’’). In keeping with this flexible approach to providing a rationale for obviousness, the Federal Circuit has echoed KSR in identifying numerous possible sources that may, either implicitly or explicitly, provide reasons to combine or modify the prior art to determine that a claimed invention would have been obvious. These include ‘‘market forces; design incentives; the ‘interrelated teachings of multiple patents’; ‘any need or problem known in the field of endeavor at the time of invention and addressed by the patent’; and the background knowledge, creativity, and common sense of the person of ordinary skill.’’ Plantronics, Inc. v. Aliph, Inc., 724 F.3d 1343, 1354 (Fed. Cir. 2013), quoting KSR, 550 U.S. at 418–21, 127 S. Ct. at 1741–42.
The Federal Circuit has also clarified that a proposed reason to combine the teachings of prior art disclosures may be proper, even when the problem addressed by the combination might have been more advantageously addressed in another way. PAR Pharm., Inc. v. TWI Pharms., Inc., 773 F.3d 1186, 1197–98 (Fed. Cir. 2014) (‘‘Our precedent, however, does not require that the motivation be the best option, only that it be a suitable option from which the prior art did not teach away.’’) (emphasis in original). One aspect of the flexible approach to explaining a reason to modify the prior art is demonstrated in the Federal Circuit’s decision in Intel Corp. v. Qualcomm Inc., 21 F.4th 784, 796 (Fed. Cir. 2021), which confirms that a proposed reason is not insufficient simply because it has broad applicability. Patent challenger Intel had argued in an inter partes review before the Board that some of Qualcomm’s claims were unpatentable because a PHOSITA would have been able to modify the prior art, with a reasonable expectation of success, for the purpose of increasing energy efficiency. Id. at 796–97. The Federal Circuit explained that ‘‘[s]uch a rationale is not inherently suspect merely because it’s generic in the sense of having broad applicability or appeal.’’ Id. The Federal Circuit further pointed out its pre-KSR holding ‘‘that because such improvements are ‘technology independent,’ ‘universal,’ and ‘even common-sensical,’ ‘there exists in these situations a motivation to combine prior art references even absent any hint of suggestion in the references themselves.’ ’’ Id., quoting DyStar Textilfarben GmbH v. C.H. Patrick Co., 464 F.3d 1356, 1368 (Fed. Cir. 2006) (emphasis added by the Federal Circuit in Intel). When formulating an obviousness rejection, the PTO may use any clearly articulated line of reasoning that would have allowed a PHOSITA to draw the conclusion that a claimed invention would have been obvious in view of the facts. MPEP 2143, subsection I, and MPEP 2144. Acknowledging that, in view of KSR, there are ‘‘many potential rationales that could make a modification or combination of prior art references obvious to a skilled artisan,’’ the Federal Circuit has also pointed to MPEP 2143, which provides several examples of rationales gleaned from KSR. Unwired Planet, 841 F.3d at 1003.
When considering the prior art in its entirety, note Allied Erecting v. Genesis Attachments, 825 F.3d 1373, 1381, 119 USPQ2d 1132, 1138 (Fed. Cir. 2016) ("Although modification of the movable blades may impede the quick change functionality disclosed by Caterpillar, ‘[a] given course of action often has simultaneous advantages and disadvantages, and this does not necessarily obviate motivation to combine.’" (quoting Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1165, 77 USPQ2d 1865, 1870 (Fed Cir. 2006) (citation omitted))). However, "the prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed…." In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004).
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over WEISBROD in view of FLOOD (US 2003/0002384 A1).
WEISBROD discloses a frame 17 with a projection at the front portion thereof (in front of 36 - Figure 1) but not a gooseneck operable to be coupled with a vehicle. FLOOD discloses a mixing trailer with a frame 20 having a gooseneck 18 at a front end thereof.
It would have been obvious to one skilled in the art before the effective filing date of the invention to have provided the frame of WEISBROD with a gooseneck on the frame as taught by FLOOD for the purpose of facilitating attaching the mixing trailer to a vehicle for transporting or towing the mixing trailer to a desired location for use [0031].
Allowable Subject Matter
No claims stand allowed.
Conclusion
For the reasons outlined in the rejections, the claims and accompanying arguments filed 14 JAN 2026 do not define over the prior art.
Applicant argues that in “both Weisbrod and Flood, the cement is mixed with water to create slurry in a mixing component that is mounted on the vehicle. That can provide many issues with cleaning, setting times, mixture ratios, etc. On the contrary, claim 1 recites that the mixing bin forms a dry mixture which is delivered to a delivery system where fluid is then combined with the dry mixture at the point of application to form gunite. The ratio of sand and concrete for the dry mixture can then be continually and easily adjusted without the forming of a slurry on the trailer, the setting of a slurry is not of concern, and cleaning is much simpler.” It is noted, however, that such issues such as cleaning, setting times, mixture ratio adjustment, etc. as argued are not claimed. Such arguments are of no patentable consequence because it is well settled that features not claimed may not be relied upon in support of patentability. In re Self, 671 F.2d 1344, 213 USPQ 1 (CCPA 1982). Although a claim should be interpreted in light of the specification disclosure, it is generally considered improper to read limitations contained in the specification into the claims. See In re Prater, 415 F.2d 1393, 162 USPQ 541 (CCPA 1969) and In re Winkhaus, 527 F.2d 637, 188 USPQ 129 (CCPA 1975), which discuss the premise that one cannot rely on the specification to impart limitations to the claim that are not recited in the claim. Nevertheless, it cannot be contemplated under any circumstances how these operational issues or properties of the mixture itself (i.e., setting times) can possibly constitute any structural features to distinguish over the prior art.
Accordingly, THIS ACTION IS MADE FINAL. 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 CHARLES COOLEY whose telephone number is (571)272-1139. The examiner can normally be reached M-F 9:30 AM - 6:00 PM.
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/CHARLES COOLEY/
Examiner, Art Unit 1774
DATED: 17 FEB 2026