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 .
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 (i.e., changing from AIA to pre-AIA ) 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 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 2 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Handwerker (USP 7,726,710).
Regarding claim 2: Handwerker discloses a cover (as seen in figures 1-7) capable of being employed to cover for an excavator’s bucket bushings and pins and tipping link area, the cover consisting of a flexible (column 2, lines 30-35) rectangular panel and an attachment strap (as seen in figure 6, at 30,22) capable of affixing the cover to an excavator’s articulating arm where said panel would inherently protect the tipping link area from an intrusion of excavated materials by the excavated material pushing said rectangular panel into position to protect the bushings, pins, and tipping link area.
Claim Rejections - 35 USC § 103
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 (i.e., changing from AIA to pre-AIA ) 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 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 and 3 are rejected under 35 U.S.C. 103 as being unpatentable over Bailey (USP 5,398,355).
Regarding claims 1 and 3: Bailey discloses a cover (as seen in figures 1-5) capable of covering an excavator’s bucket line and tipping link area, the cover consisting of a flexible rectangular panel (as seen in figure 1, at 31) and an attachment strap (as seen in figure 1, at 13) capable of affixing the cover to an excavator’s articulating arm. Further, Bailey discloses the rectangular panel and the attachment strap can be constructed from natural or synthetic rubber (column 3, lines 15-20), and where the attachment strap is affixed to the rectangular panel by one or more rivets (as seen in figure 1, at 15; also, column 3, lines 5-6) but fails to show the dimensions of the panel of strap as claimed by the applicant. However, it would have been an obvious matter of design choice to determine an appropriate size for both the panel and the attachment strap, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level or ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Further, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention, to contrive any number of desirable ranges for the dimensions of the panel and attachment strap limitation disclosed by Applicant, 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, 105 USPQ 233. Also, it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). Refer to MPEP § 2144.05.
Regarding the limitation of “heavy duty natural or synthetic rubber”. Bailey discloses the claimed invention as discussed above except for not specifically disclosing that the “natural or synthetic rubber” is “heavy duty”. However, the phrase “heavy duty” is recognized to be notoriously broad and open to interpretation. Further, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to employ a more durable material in the specific working environment, since 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 as a matter of obvious design choice. In re Leshin, 125 USPQ 416. It is also common knowledge to choose a material that has sufficient strength, durability, flexibility, hardness, etc. for the application and intended use of that material.
Response to Arguments
Applicant's arguments filed September 30, 2025 have been fully considered but they are not persuasive.
Regarding claim 2, applicant’s representative argues: “The purpose of the Handwerker invention is vastly different than the purpose of the present invention. The Handwerker invention is designed to “be placed over a surface, such as a work surface in a work area, a driveway and the like (column 2 lines 30-35). Handwerker Claims 1, 5, 11, and 16 refine the invention’s purpose as the removal of snow from an area. Removal of snow from a work surface, driveway and the like is inconsistent with the protection of mechanical parts of an excavator from damage from the intrusion of materials being excavated..”; however, these arguments are not germane. Claim 2 simply requires a cover having “a flexible panel” and “an attachment strap” which the Handwerker device clearly contains. The remainder of the claim contains language of the cover’s intended use and because Handwerker, although not disclosed to be used in such a manner, could be employed to cover the various parts of an excavator bucket the Handwerker reference anticipates claim 2 as currently written.
Regarding claims 1 and 3, as discussed in the above rejection under 35 USC 103, the Bailey reference is employed as a broad teaching of the constructure of a generic covering along with its allied and notoriously well-known components of a flexible panel, various straps and fastener means. Further and as discussed above, to then vary that broad teaching of a covering to being of a specific size and material of manufacture for a specific use would be an obvious modification of Bailey and thus allow Bailey to render claims 1 and 3 obvious, as currently written.
Conclusion
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 ROBERT ERIC PEZZUTO whose telephone number is (703)756-1320. The examiner can normally be reached Monday-Friday 7am-3:30pm.
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/ROBERT E PEZZUTO/Examiner, Art Unit 3671
/JOSEPH M ROCCA/Supervisory Patent Examiner, Art Unit 3671