DETAILED ACTION
Claims 1-15 are currently pending. Claims 1-15 are maintained in rejection despite Applicant’s amendments/arguments filed 11/26/2025. A response to Applicant’s arguments can be found at the end of this Office action. This Office action is final.
Priority
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in Austria on 07/09/2020. It is noted, however, that applicant has not filed a certified copy of the AT A50591/2020 application as required by 37 CFR 1.55.
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.
Claim(s) 1-3 and 6 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Theurer (US 4,046,079) (“Theurer ‘079”).
Referring to Claim 1: Theurer ‘079 discloses a machine (1) for compacting a ballast bed of a track (2, 3, 6) comprising:
a machine frame (10)
a plurality of rail-based running gears (15)
a height-adjustable stabilising unit (9) wherein the machine frame is supported on said plurality of rail based running gears and connected thereto (Fig. 1), comprising
- a vibration drive (16),
a spreading drive (51, 52);
- an axle with wheel flange rollers (23, 24) movable on rails (2, 3) of the track, whose distance to each other extending perpendicularly to the longitudinal direction of the machine can be varied by means of a spreading drive (51, 52) (Fig. 6) (Col. 8, lines 33-44),
a plurality of clamping drives (13);
- a roller clamp (33) that can be pressed against the rails by means of said plurality of clamping drives (13) (Figs. 2 and 6) (Col. 8, lines 59-66),
wherein the spreading drive (51, 52) and/or the plurality of clamping drives are set up to apply a predefined variable horizontal load force to the rails (Col. 8, lines 41-44), and that said measuring device (54) is arranged to detect a rail head deflection and/or track gauge change caused by the variable load force (Figs. 2 and 6) (Col. 8, lines 45-58).
Referring to Claim 2: Theurer ‘079 discloses a machine (1) according to claim 1, wherein control signals, which cause a periodically changed load force, are stored in a control equipment (54) for actuating the spreading drive (51, 52) and the clamping drives (13) (Col. 8, lines 38-66).
Referring to Claim 3: Theurer ‘079 discloses a machine (1) according to claim 1 or 2, wherein the measuring device (54) is coupled to the axle of the wheel flange rollers (23, 24) (Fig. 6).
Referring to Claim 6: Theurer ‘079 discloses a machine (1) according to claim 1, wherein a position determination unit (53, 54) is arranged for a location-specific detection of rail head deflections and/or the track gauge change (Col. 8, lines 38-66) (Fig. 6).
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.
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Theurer ‘079 in view of Theurer (US 5,113,767) (“Theurer ‘767”).
Referring to Claim 7: Theurer ‘079 discloses a machine (1) according to claim 1, wherein
Theurer ‘079 does not specifically teach two stabilising units are arranged one behind the other. However, Theurer ‘767 teaches a continuous action ballast compacting machine, comprising two stabilising units (12, 12) arranged one behind the other (Figs. 1 and 2) (Col. 5, lines 3-4). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, for Theurer ‘079 to use two stabilising units arranged one behind the other, as taught by Theurer ‘767, in order to enhance the stabilization/vibrating capabilities of the vehicle with a reasonable expectation of success.
Claim(s) 4, 5 and 8-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Theurer ‘079 in view of Plasser et al. (US 3,828,440) (“Plasser ‘440”).
Referring to Claim 4: Theurer ‘079 does not specifically teach that the measuring device is coupled to an evaluation device, and that the evaluation device is set up to evaluate a rail fastening on the basis of the detected rail head deflection and/or track gauge change. However, Plasser ‘440 teaches track surveying, wherein the measuring device is coupled to an evaluation device (Col. 2, lines 34-49), and that the evaluation device is set up to evaluate a rail fastening on the basis of the detected rail head deflection and/or track gauge change (Fig. 5) (Col. 6, line 40 – Col. 7, line 3). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, for Theurer ‘079 to use the axle applied forces and the resulting gauge measurements as a means for evaluating the rail fastening condition, as taught by Plasser ‘440, in order to provide additional useful information, in the form of a survey of the quality of the rail fastening on the ties, with a reasonable expectation of success.
Referring to Claim 5: Theurer ‘079 does not specifically teach that the evaluation device is set up to evaluate rail head deflections and/or track gauge values detected at a measuring point as a function of a progression of changed load values in order to assess a condition of rail fastenings positioned in the area of the measuring point. However, Plasser ‘440 teaches track surveying, wherein the evaluation device (Col. 2, lines 34-49) is set up to evaluate rail head deflections and/or track gauge values detected at a measuring point as a function of a progression of changed load values in order to assess a condition of rail fastenings positioned in the area of the measuring point (Fig. 5) (Col. 6, line 40 – Col. 7, line 3). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, for Theurer ‘079 to use the axle applied forces and the resulting gauge measurements as a means for evaluating the rail fastening condition, as taught by Plasser ‘440, in order to provide additional useful information, in the form of a survey of the quality of the rail fastening on the ties, with a reasonable expectation of success.
Referring to Claim 8: Theurer ‘079 teaches a method for operating a machine (1) according to claim 1, with the stabilising unit (9) with the wheel flange rollers (23, 24) being lowered onto the rails (2, 3) of the track, wherein the rails are subjected to a predefined variable horizontal load force by means of the spreading drive (51, 52) and/or the clamping drives (13), and that a rail head deflection and/or track gauge change caused by the horizontal load force is detected by means of the measuring device (Fig. 6) (Col. 8, lines 33-44)
Theurer ‘079 does not teach that the track gauge change is used to indicate a condition of a rail fastening. However, Plasser ‘440 teaches track surveying, wherein the measuring device is coupled to an evaluation device (Col. 2, lines 34-49), and that the evaluation device is set up to indicate a condition of a rail fastening on the basis of the detected track gauge change (Fig. 5) (Col. 6, line 40 – Col. 7, line 3). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, for Theurer ‘079 to use the axle applied forces and the resulting gauge measurements as a means for evaluating the rail fastening condition, as taught by Plasser ‘440, in order to provide additional useful information, in the form of a survey of the quality of the rail fastening on the ties, with a reasonable expectation of success.
Referring to Claim 9: Theurer ‘079 does not specifically teach that the horizontal load force is periodically changed by means of a control equipment with a frequency that is lower than a vibration frequency of the vibration drive. However, Plasser ‘440 teaches track surveying, wherein the relationship between vibration frequency and the rail fastening condition is recognized (Col. 8, lines 41-47). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention for Theurer ‘079 to periodically change the horizontal load force by means of a control equipment with a frequency that is lower than a vibration frequency of the vibration drive, 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 only routine skill in the art. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II)(A).
Referring to Claim 10: Theurer ‘079 does not specifically teach that the rails are subjected to a first horizontal load force by means of the stabilising unit, and that the rails are subjected to a second horizontal load force by means of a further stabilising unit. However, Plasser ‘440 teaches track surveying, wherein the rails (4) are subjected to a first horizontal load force (K1) by means of the stabilising unit (2B, 2C), and that the rails are subjected to a second horizontal load force (K2) by means of a further stabilising unit (2A) (Fig. 5) (Col. 6, line 40 – Col. 7, line 3). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention for Theurer ‘079 to use first and second horizontal load forces applied to the rails using first and second stabilising units, as taught by Plasser ‘440, in order to determine the modulus of elasticity of the rails, and produce a survey of the quality of the rail fastening on the ties with a reasonable expectation of success.
Referring to Claim 11: Theurer ‘079 further teaches a method according to claim 8, wherein the machine (1) is moved continuously along the track (2, 3) (Col. 2, lines 11-16).
Referring to Claim 12: Theurer ‘079 does not specifically teach that the track gauge change is detected and evaluated as a function of the varied load force by means of an evaluation device. However, Plasser ‘440 teaches track surveying, wherein the track gauge change is detected and evaluated as a function of the varied load force by means of an evaluation device (Col. 2, lines 34-49) (Col. 6, line 40 – Col. 7, line 3). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention for Theurer ‘079 to use an evaluation device to evaluate track gauge change as a function of the varied load force, as taught by Plasser ‘440, in order to determine the modulus of elasticity of the rails, and produce a survey of the quality of the rail fastening on the ties with a reasonable expectation of success.
Referring to Claim 13: Theurer ‘079 does not specifically teach that rail head deflection values and/or track gauge values detected at a measuring point by means of the evaluation device are jointly evaluated as a function of different load force values. However, Plasser ‘440 teaches track surveying, wherein track gauge values detected at a measuring point by means of the evaluation device (Col. 2, lines 34-49) are jointly evaluated as a function of different load force values (K1, K2) (Fig. 5) (Col. 6, line 40 – Col. 7, line 3). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention for Theurer ‘079 to use an evaluation device to evaluate track gauge change as a function of different load force values, as taught by Plasser ‘440, in order to determine the modulus of elasticity of the rails, and produce a survey of the quality of the rail fastening on the ties with a reasonable expectation of success.
Claim(s) 14 and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Theurer ‘079 in view of Plasser ‘440 and Theurer et al. (US 4,391,134) (“Theurer ‘134”).
Referring to Claim 14: Theurer ‘079 does not specifically teach that a position determination unit is used to determine the position of the measuring device for a location-specific detection of the rail head deflections and/or the track gauge changes. However, Theurer ‘134 teaches a measuring apparatus for rail head running surface irregularities, wherein “[o]dometer 20 emits signal pulses corresponding to the distance traveled by machine 1 and transmission line 21 transmits these signal pulses to device 40 so that the measuring data recorded and stored therein are correlated with respective locations of the track by suitable markers appearing on the graphs showing the rail head deformations. Each additional guide roller is connected to the recording and memory device 40 by transmission line 47 to coordinate the selected measuring reference with the measuring data recorded and stored in device 40.” (Col. 7, lines 5-15). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention for Theurer ‘079 to use a position determination unit to record measurements relative to the position of the measuring device, as taught by Plasser ‘440, in order to record useful surveying information with reference to locations with a reasonable expectation of success.
Referring to Claim 14: Theurer ‘079 does not specifically teach that evaluation data of a respective rail fastening is stored with reference to its location in order to assess its condition. However, Theurer ‘134 teaches a measuring apparatus for rail head running surface irregularities, wherein “[o]dometer 20 emits signal pulses corresponding to the distance traveled by machine 1 and transmission line 21 transmits these signal pulses to device 40 so that the measuring data recorded and stored therein are correlated with respective locations of the track by suitable markers appearing on the graphs showing the rail head deformations. Each additional guide roller is connected to the recording and memory device 40 by transmission line 47 to coordinate the selected measuring reference with the measuring data recorded and stored in device 40.” (Col. 7, lines 5-15). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention for Theurer ‘079 to use a position determination unit to record measurements relative to the position of the measuring device, as taught by Plasser ‘440, in order to record useful surveying information with reference to locations with a reasonable expectation of success.
Response to Arguments
Applicant argues that the measuring device 54 of Theurer ‘079 is part of a lining reference system regarding the lateral position of the track panel and does not teach measurement of a rail head deflection and/or track gauge change caused by a variable, horizontal load force, as recited in claim 1, and it is not obvious to modify Theurer ‘079 because there is no need for such measuring of stabilizing operations. Examiner responds that measuring device 54 of Theurer ‘079 is capable of detecting “[a]ny deviation of the lateral track position from a desired position” (Col. 8, lines 47-49), and that the lateral track position is directly tied to both rail head deflection and track gauge change, since the rail had is part of the track and the track gauge is determined by the lateral track position of both rails. Further, measuring device 54 operates in coordination with the hydraulic drive load forces applied to the rail (Col. 8, lines 33-58). Thus, measuring device 54 of Theurer ‘079 may be reasonably interpreted as arranged to detect a rail head deflection and/or track gauge change caused by a variable load force.
Applicant argues that the unforeseeable effect of the present invention is to detect weak spots of the track at the same time as the dynamic stabilizing operation, the stabilizing unit being used in combination with the measuring device, which is not part of a lining reference system. Examiner responds that applicant is making arguments that are more narrow than what is recited in the claims. The claim language does not exclude lining operations, and further, the lining operations of Theurer ‘079 are directly tied to the stabilization of the track, e.g., “The lining movement is greatly facilitated by the vibratory force to which the track and ballast are subjected during the lining.” (Col. 8, lines 56-58). Thus, this argument of unforeseeable effect is unconvincing to distinguish from the prior art.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ZACHARY L KUHFUSS whose telephone number is (571)270-7858. The examiner can normally be reached Monday - Friday 10:00am to 6:00 pm CDT.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Samuel (Joe) Morano can be reached on (571)272-6682. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ZACHARY L KUHFUSS/Primary Examiner, Art Unit 3617