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 .
Response to Arguments
Applicant's arguments filed September 25, 2025 have been fully considered but they are not persuasive.
Applicant’s argument that the lateral sides of the next adjacent Waters panels are not designed for their edges to be in non-contacting alignment with each other; instead, they are designed to be in contact with each other when edge aligned is noted but is not considered persuasive because the lateral sides 35 and 35’ of panels 10” and 10’, respectively, are never in contact with each other. Fig. 12 of Waters shows a significant gap between the lateral sides 35 and 35’, and horizontal arms 48 and 48’ physically prevent the lateral sides 35 and 35’ from being in contact. Applicant argues that the edge aligned adjacent gate units are in contact with each other through their horizontal arms, however the horizontal arms are not considered part of the lateral sides or part of the panels. The claimed invention only requires the lateral sides to be in non-contacting edge alignment with a gap between the lateral sides. Thus, the gap in Waters between lateral sides 35 and 35’ which is present when the lateral sides are in non-contacting edge alignment satisfies the claim limitations.
Applicant’s argument that the design of the Waters panels does not allow the panels to move laterally toward each other due to thermal expansion of the panels is noted but is not considered persuasive because at the very least, the panels of Waters are relatively movable in expansion after relatively moving in contraction because the expansion will only compensate for the contraction and will not reduce the gap between panels shown in Fig. 12. Said another way, the panels of Waters are capable of contracting and then expanding back to the original side due to thermal conditions. Further, Applicant argues that the horizontal arm of lower flange 48’ impinges directly on the base 47 of upper flange 48 to prevent the panels from moving toward each other, however support for this claim is not found in Waters. In paragraph 0073, Waters describes that the horizontal arms 48 and 48’ overlay but there is no mention regarding contact between the horizontal arms and the vertical portions of the angles. Practically speaking, forming the angles such that the horizontal arm 48’ contacts the base 47 of flange 48 as suggested by Applicant would create potential problems in the field resulting from construction tolerances where the panels may not align properly. For both of these reasons, Waters discloses that the panels are moveable relative to one another by thermal expansion and contraction as claimed.
Applicant’s remaining arguments have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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, 2, 5, 7, 8 and 11-13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Waters, Jr (US 2012/0163916), hereinafter referred to as Waters.
Regarding claim 1, Water discloses an apparatus comprising a plurality of next adjacent structural panels rotationally movable up and down together between substantially horizontal and substantially vertical positions (e.g. 10’ and 10’, Fig.’s 1, 9 and 12), each panel having a top surface (e.g. 31), a bottom surface (e.g. 32), a front end (e.g. 33), a back end (e.g. 34), and lateral sides in non-contacting edge alignment with the next adjacent panel (e.g. 35 and 35’, Fig.’s 5 and 12), said next adjacent panels being separated from one another by a gap between adjacent lateral sides of said edge aligned panels (e.g. Fig. 12 shown between 35 and 35’), said next adjacent panels being laterally moveable relative to one another by thermal expansion and contraction and transversely moveable relative to one another (e.g. Fig. 12, paragraph 0072), said next adjacent panels being moveably connected across said gap by (a) a flexible water impermeable gasket having a segment spanning said gap and portions distal to said segment secured to said panels proximate said lateral sides adjacent said gap (e.g. 93, Fig. 12, paragraph 0072), and, (b) a tensile member having end segments secured to said panels proximate said lateral sides adjacent said gap and an intermediate flexible joint segment spanning said gap (e.g. 94, Fig. 12, paragraph 0072), said flexible joint segment allowing thermal expansion and contraction lateral movement of said next adjacent panels relative to one another and allowing transverse movement of one said panel relative to the next adjacent panel (e.g. Fig. 12, paragraph 0072, wherein the flexible joint segment is longer than the gap thereby allowing relative movement between the panels in any direction), said contraction and transverse movements spreading a tension load over said flexible joint segment spanning said gap (e.g. Fig. 12, paragraph 0072, wherein the flexible joint segment will be subjected to a tension load when the relative movement between the panels exceeds the length of the flexible joint segment).
Regarding claim 2, Waters further discloses that said tensile member is a strap comprising a fiber reinforced material (e.g. glass rod fill, Fig. 12, paragraph 0072).
Regarding claim 5, Waters further discloses that said panels have a height that runs from said back end to at least proximate the front end of the panels, and in which said tensile strap has a length that runs said height of said panels (e.g. paragraph 0072 wherein the strap must run the height of the panel to prevent passage of water between the panels as intended, similar to 52 in Fig. 3).
Regarding claim 7, Waters further discloses that said lateral sides of said next adjacent edge aligned panels each have an edge aligned flange attached to said panel lateral side adjacently below said panel top surface, said flanges defining said gap between the lateral sides of said panels (e.g. 47 and 47’, or 48 and 48’, Fig. 12).
Regarding claim 8, Waters further discloses that said panels have a height that runs from said back end to at least proximate the front end of the panels, and in which said flanges and said gasket have a length that runs said height of said panels (e.g. paragraph 0072 wherein the flanges and the gasket must run the height of the panel to prevent passage of water between the panels as intended, similar to 52 in Fig. 3).
Regarding claim 11, Waters further discloses that said panels comprise flood barriers arranged on land proximate a water frontage shoreline (e.g. Fig. 1, paragraph 0036 and/or 50) and resident in at least one support pan situated in or on said land (e.g. 20, Fig. 1, paragraph 0059), said lateral sides of said panels when resident in said pan have an imagined projected intersecting angle to said shoreline (e.g. Fig.’s 1 and 3), said panels having a height that runs from said back end to at least proximate the front end of the panels (e.g. Fig.’s 1 and 5), said panels residing in said support pan hingedly rotatable on a substantially horizontal axis of rotation at said back end of the panels for said panels to be rotated upwardly to an upright position where water invading from said shoreline will be impounded behind said bottom surface of the panels (e.g. Fig. 1, paragraph 0076), said gasket running said height of the panels to prevent water impounded at said bottom surface of the panels from penetrating between said next adjacent panels (e.g. paragraph 0072 wherein the gasket must run the height of the panel to prevent passage of water between the panels as intended, similar to 52 in Fig. 3).
Regarding claim 12, Waters further discloses that said panels are buoyant and rotate upward buoyantly on invasion of water from said shoreline (e.g. paragraph 0076).
Regarding claim 13, Waters further discloses that said tensile member is a strap comprising a fiber reinforced material (e.g. glass rod fill, Fig. 12, paragraph 0072).
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 3, 4 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Waters, Jr (US 2012/0163916) as applied to claims 2 and 13 above, and further in view of Bachmann et al (US 4,732,413).
Regarding claim 3, Waters discloses the invention substantially as applied above but does not disclose that said fiber is a metal. Bachmann teaches an apparatus comprising a plurality of next adjacent structural panels (e.g. 14 and 14, Fig.’s 1 and 2), each panel having a lateral side in non-contacting edge alignment with the next adjacent panel (e.g. lateral/vertical flange of 14, Fig.’s 1 and 2), said next adjacent panels being separated from one another by a gap between adjacent lateral sides of said edge aligned panels (e.g. Fig. 2), said next adjacent panels being laterally moveable relative to one another by thermal expansion and contraction and transversely moveable relative to one another (e.g. claim 1), said next adjacent panels being moveably connected across said gap by (a) a flexible water impermeable gasket having a segment spanning said gap and portions distal to said segment secured to said panels proximate said lateral sides adjacent said gap (e.g. 12, Fig.’s 2 and 6, col. 2, line 67 – col. 3, line 2), and, (b) a tensile member having end segments secured to said panels proximate said lateral sides adjacent said gap and an intermediate flexible joint segment spanning said gap (e.g. 11/13, Fig.’s 2 and 6), said flexible joint segment allowing thermal expansion and contraction lateral movement of said next adjacent panels relative to one another and allowing transverse movement of one said panel relative to the next adjacent panel (e.g. claim 1), said contraction and transverse movements spreading a tension load over said flexible joint segment spanning said gap (e.g. Fig. 2 wherein movement beyond the length of the gasket 10 will induce tension in the flexible joint segment), wherein said tensile member is a strap comprising a fiber reinforced material (e.g. Fig. 6, col. 3, lines 9-10), and wherein said fiber is a metal (e.g. wire, col. 3, lines 9-10). It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to use metal as taught by Bachmann for the fibers of Waters because such is a known material and it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use.
Regarding claims 4 and 14, Waters discloses the invention substantially as applied above but does not disclose that said tensile strap comprises an interwoven polyester fabric. Bachmann teaches an apparatus comprising a plurality of next adjacent structural panels (e.g. 14, Fig.’s 1 and 2), each panel having a lateral side in non-contacting edge alignment with the next adjacent panel (e.g. lateral/vertical flange of 14, Fig.’s 1 and 2), said next adjacent panels being separated from one another by a gap between adjacent lateral sides of said edge aligned panels (e.g. Fig. 2), said next adjacent panels being laterally moveable relative to one another by thermal expansion and contraction and transversely moveable relative to one another (e.g. claim 1), said next adjacent panels being moveably connected across said gap by (a) a flexible water impermeable gasket having a segment spanning said gap and portions distal to said segment secured to said panels proximate said lateral sides adjacent said gap (e.g. 12, Fig.’s 2 and 6, col. 2, line 67 – col. 3, line 2), and, (b) a tensile member having end segments secured to said panels proximate said lateral sides adjacent said gap and an intermediate flexible joint segment spanning said gap (e.g. 11/13, Fig.’s 2 and 6), said flexible joint segment allowing thermal expansion and contraction lateral movement of said next adjacent panels relative to one another and allowing transverse movement of one said panel relative to the next adjacent panel (e.g. claim 1), said contraction and transverse movements spreading a tension load over said flexible joint segment spanning said gap (e.g. Fig. 2 wherein movement beyond the length of the gasket 10 will induce tension in the flexible joint segment), wherein said tensile member is a strap comprising a fiber reinforced material (e.g. Fig. 6, col. 3, lines 9-10), and wherein said tensile strap comprises an interwoven polyester fabric (e.g. col. 3, lines 6-13). It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to use an interwoven polyester fabric as taught by Bachmann for the strap of Waters because such is a known material and it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use.
Claims 21 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Waters, Jr (US 2012/0163916) in view of Scuero (US 2016/0076211).
Regarding claim 21, Waters discloses an apparatus comprising a plurality of next adjacent structural panels not contacting each other (e.g. 10’ and 10’, Fig.’s 1, 9 and 11), each panel having a planar top and bottom surface blocking water passage through the panel (e.g. 31 and 32, Fig. 5), each panel further having a front end (e.g. 33, Fig. 5), a back end (e.g. 34, Fig. 5), and lateral sides in edge alignment with the next adjacent panel (e.g. 35 and 35’, Fig.’s 9 and 11), said panels having a height that runs from said back end to at least proximate the front end of the panels (e.g. Fig. 5), each panel having a projection extending from said lateral side a length that runs said height of said panels (e.g. 48’ and 48, Fig. 11), said projections being in edge alignment with each other and defining a gap between them (e.g. Fig. 11), said next adjacent panels being connected across said gap by (a) a gasket having a length that runs said height of said panels (e.g. 53, Fig. 11, paragraph 0071), said gasket having a segment spanning said gap and portions distal to said segment secured to said projections (e.g. Fig. 11, paragraph 0071) and, (b) a tensile member having end segments secured to said projections and an intermediate joint segment spanning said gap (e.g. 52, Fig. 11, paragraph 0071). Waters does not disclose that the gasket is a flexible water impermeable gasket or that the intermediate joint segment is a flexible joint segment allowing thermal expansion and contraction lateral movement of said next adjacent panels relative to one another and allowing transverse rotational movement of one said panel relative to the next adjacent panel. Scuero teaches an apparatus comprising a plurality of next adjacent structural panels not contacting each other (e.g. 12.4 and 12.5, Fig.’s 11 and 12, paragraph 0080), each panel having lateral sides in edge alignment with the next adjacent panel (e.g. sides facing gap 16, Fig.’s 11 and 12) and defining a gap between them (e.g. 16, Fig.’s 11 and 12), said next adjacent panels being moveably connected across said gap by (a) a flexible water impermeable gasket having a segment spanning said gap and portions distal to said segment secured to said panels (e.g. 21, Fig.’s 11 and 12, paragraph 0060) and, (b) a tensile member having end segments secured to said panels and an intermediate flexible joint segment spanning said gap (e.g. 23, Fig.’s 11 and 12, paragraph 0061), said flexible joint segment allowing thermal expansion and contraction lateral movement of said next adjacent panels relative to one another and allowing transverse rotational movement of one said panel relative to the next adjacent panel (e.g. Fig.’s 11 and 12, paragraph 0081), said contraction and transverse movement spreading a tension load over said flexible joint segment spanning said gap (e.g. paragraphs 0061 and 0081 wherein movement beyond the length of the strip 17A will induce tension in the flexible joint segment). It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to moveably connect the panels of Waters with a flexible water impermeable gasket and a tensile member as taught by Scuero for the expected benefit of compensating for movements between the panels without causing excessive stress or breakage of the gasket and without losing the waterproofing features of the joint (e.g. Scuero, paragraph 0018).
Regarding claim 22, Waters discloses an apparatus comprising a plurality of next adjacent structural panels not contacting each other (e.g. 10’ and 10’, Fig.’s 1, 9 and 11), each panel having a planar top and bottom surface blocking water passage through the panel (e.g. 31 and 32, Fig. 5), each panel further having a front end (e.g. 33, Fig. 5), a back end (e.g. 34, Fig. 5), and lateral sides in edge alignment with the next adjacent panel (e.g. 35 and 35’, Fig.’s 9 and 11), said lateral sides of said next adjacent edge aligned panels each having an orthogonal flange with upper and lower arms (e.g. 48’ and 48, Fig. 11), said lower arms being attached to said panel lateral side adjacently below said panel top surface (e.g. Fig. 11), said upper arms of said flanges being in edge alignment defining a gap between them (e.g. Fig. 11), said next adjacent panels being connected across said gap by (a) a gasket having a segment spanning said gap and portions distal to said segment secured to said flanges (e.g. 53, Fig. 11, paragraph 0071), and (b) a tensile member having end segments secured to said flanges and an intermediate joint segment spanning said gap (e.g. 52, Fig. 11, paragraph 0071). Waters does not disclose that the gasket is a flexible water impermeable gasket or that the intermediate joint segment is a flexible joint segment allowing thermal expansion and contraction lateral movement of said next adjacent panels relative to one another and allowing transverse movement of one said panel relative to the next adjacent panel. Scuero teaches an apparatus comprising a plurality of next adjacent structural panels not contacting each other (e.g. 12.4 and 12.5, Fig.’s 11 and 12, paragraph 0080), each panel having lateral sides in edge alignment with the next adjacent panel (e.g. sides facing gap 16, Fig.’s 11 and 12) and defining a gap between them (e.g. 16, Fig.’s 11 and 12), said next adjacent panels being moveably connected across said gap by (a) a flexible water impermeable gasket having a segment spanning said gap and portions distal to said segment secured to said panels (e.g. 21, Fig.’s 11 and 12, paragraph 0060), and (b) a tensile member having end segments secured to said panels and an intermediate flexible joint segment spanning said gap (e.g. 23, Fig.’s 11 and 12, paragraph 0061), said flexible joint segment allowing thermal expansion and contraction lateral movement of said next adjacent panels relative to one another and allowing transverse movement of one said panel relative to the next adjacent panel (e.g. Fig.’s 11 and 12, paragraph 0081), said contraction and transverse movement spreading a tension load over said flexible joint segment spanning said gap (e.g. paragraphs 0061 and 0081 wherein movement beyond the length of the strip 17A will induce tension in the flexible joint segment). It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to moveably connect the panels of Waters with a flexible water impermeable gasket and a tensile member as taught by Scuero for the expected benefit of compensating for movements between the panels without causing excessive stress or breakage of the gasket and without losing the waterproofing features of the joint (e.g. Scuero, paragraph 0018).
Allowable Subject Matter
Claims 16-20 are allowed.
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.
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/S.N.L./Examiner, Art Unit 3678
/AMBER R ANDERSON/Supervisory Patent Examiner, Art Unit 3678