DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of Claims
Claims 1-9 are pending.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 1/26/26 has been entered.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “Transport means” in claim 2.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. As noted by Applicant’s Remarks, page 5-6, the transport means is interpreted as being a staircase, a spiral staircase, and functional equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 4-6, 8 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. This is a new matter type rejection.
Re claim 4, claim 4 recites, “said tower structure does not support the weight of said canopy structure” in lines 4-5. However, after a review of the original disclosure (and of the disclosure of the applications to which the pending application claims priority, if such priority is claimed), the Examiner can find no support for this limitation. There is no mention of the tower structure supporting or not supporting the weight of anything. Thus, there appears to be no support as originally filed for the limitation. In the event that the Applicant is of the opinion that this language is supported as originally filed, the Examiner requests Applicant to please cite to where the language is supported as originally filed.
Re claim 5, claim 5 recites, “said tower structure is positioned adjacent to, yet not under, said canopy structure” in the last two lines. However, after a review of the original disclosure (and of the disclosure of the applications to which the pending application claims priority, if such priority is claimed), the Examiner can find no support for this limitation. There is no mention of the tower structure being positioned adjacent to, yet not under, said canopy structure. Moreover, the figures appear to all show the tower structure at least partially under the canopy structure. Thus, there appears to be no support as originally filed for the limitation. In the event that the Applicant is of the opinion that this language is supported as originally filed, the Examiner requests Applicant to please cite to where the language is supported as originally filed.
Re claim 8, claim 8 recites, “said tower structure is positioned adjacent to, yet not under, said canopy structure.” However, after a review of the original disclosure (and of the disclosure of the applications to which the pending application claims priority, if such priority is claimed), the Examiner can find no support for this limitation. There is no mention of the tower structure being positioned adjacent to, yet not under, said canopy structure. Moreover, the figures appear to all show the tower structure at least partially under the canopy structure. Thus, there appears to be no support as originally filed for the limitation. In the event that the Applicant is of the opinion that this language is supported as originally filed, the Examiner requests Applicant to please cite to where the language is supported as originally filed.
Claim 6 is rejected as being dependent on a rejected claim.
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 4-6, 8 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.
Re claim 4, claim 4 recites, “said tower structure does not support the weight of said canopy structure” in lines 4-5. However, after a review of the original disclosure (and of the disclosure of the applications to which the pending application claims priority, if such priority is claimed), the Examiner can find no support for this limitation. There is no mention of the tower structure supporting or not supporting the weight of anything. Thus, it is unclear as to how the tower structure does not support weight. For the purposes of this examation, this language will be interpreted as within the scope of the claim as if properly supported as originally filed.
Re claim 5, claim 5 recites, “said tower structure is positioned adjacent to, yet not under, said canopy structure” in the last two lines. However, after a review of the original disclosure (and of the disclosure of the applications to which the pending application claims priority, if such priority is claimed), the Examiner can find no support for this limitation. There is no mention of the tower structure being positioned adjacent to, yet not under, said canopy structure. Moreover, the figures appear to all show the tower structure at least partially under the canopy structure. Thus, it is unclear as to how the tower structure is positioned adjacent to, yet not under, said canopy structure. For the purposes of this examation, this language will be interpreted as within the scope of the claim as if properly supported as originally filed.
Re claim 8, claim 8 recites, “said tower structure is positioned adjacent to, yet not under, said canopy structure.” However, after a review of the original disclosure (and of the disclosure of the applications to which the pending application claims priority, if such priority is claimed), the Examiner can find no support for this limitation. There is no mention of the tower structure being positioned adjacent to, yet not under, said canopy structure. Moreover, the figures appear to all show the tower structure at least partially under the canopy structure. Thus, it is unclear as to how the tower structure is positioned adjacent to, yet not under, said canopy structure. For the purposes of this examation, this language will be interpreted as within the scope of the claim as if properly supported as originally filed.
Claim 6 is rejected as being dependent on a rejected claim.
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) 1 and 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cajiga et al (“Cajiga”) (US 2014/0123467) in view of Bennett et al (“Bennett”) (US 5,042,612).
Re claim 1, Cajiga discloses a multifuel fueling platform (10), comprising:
a tower structure (middle 14);
a canopy structure (12) supported on legs (left/right 14) a predetermined distance above ground (Fig. 1; [0070]);
an energy source (28), said energy source (28) being housed within ([0072]) said canopy structure (12);
but fails to disclose wherein said tower structure includes a work platform extending therefrom and over said energy source, thereby providing access thereto, wherein said tower structure provides direct access to a top side of said work platform, said top side being an opposing side of said work platform from that which is adjacent said energy source.
However, Bennett discloses wherein said tower structure (12) includes a work platform (38) extending therefrom (Fig. 1) and over (Fig. 1) said energy source (82), thereby providing access thereto (Col 5 lines 21-28), wherein said tower structure (12) provides direct access to (Fig. 1) a top side (top side of 38) of said work platform (38), said top side (top side of 38) being an opposing side of (Fig. 1) said work platform (38) from that which is adjacent (Fig. 1) said energy source (82).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the multifuel fueling platform of Cajiga wherein said tower structure includes a work platform extending therefrom and over said energy source, thereby providing access thereto, wherein said tower structure provides direct access to a top side of said work platform, said top side being an opposing side of said work platform from that which is adjacent said energy source as disclosed by Bennett in order to enable a user to perform work tasks on the upper portion of the energy source safely (Col 5 lines 21-28).
Re claim 9, Cajiga discloses a multifuel fueling platform (10), comprising:
a tower structure (middle 14);
a canopy structure (12) supported on legs (left/right 14) a predetermined distance above ground (Fig. 1; [0070]);
an energy source (28), said energy source (28) being housed within ([0072]) said canopy structure (12);
but fails to disclose wherein said tower structure includes a work platform extending therefrom and over said energy source, thereby providing access to said energy source through said work platform.
However, Bennett discloses wherein said tower structure (12) includes a work platform (38) extending therefrom (Fig. 1) and over (Fig. 1) said energy source (82), thereby providing access (Col 5 lines 21-28) to said energy source (82) through said work platform (38).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the multifuel fueling platform of Cajiga wherein said tower structure includes a work platform extending therefrom and over said energy source, thereby providing access to said energy source through said work platform as disclosed by Bennett in order to enable a user to perform work tasks on the upper portion of the energy source safely (Col 5 lines 21-28).
Claim(s) 2-3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cajiga et al (“Cajiga”) (US 2014/0123467) in view of Townsend et al (“Townsend”) (US 3,768,016).
Re claim 2, Cajiga discloses a multifuel fueling platform (10), comprising:
a tower structure (middle 14);
a canopy structure (12) supported on legs (left/right 14) a predetermined distance above ground (Fig. 1; [0070]) to facilitate the passage of land vehicles thereunder (52 being a fuel dispenser; [0085]), said canopy structure (middle 14) being releasably affixed ([0073] discloses that 14 is connected to 24 via brackets 32, [0072] discloses that 24 is included in 12, and [0080] discloses bolts may be used to fix 32 to 14 and 24; as such, 12 is releasably attached to middle 14 via removal of bolts within 32) to said tower structure (12);
an energy source (28), said energy source (28) being housed within ([0072]) said canopy structure (12);
wherein said tower (middle 14) provides access ([0082]) to said canopy (12) from said ground (Fig. 1), as well as providing operational supply ([0082]) of one of a liquid, gaseous and electrical energies ([0091], [0095]) to said energy source (28),
but fails to disclose the tower enables a human being to access the canopy via transport means positioned within said tower.
However, Townsend discloses the tower (T) enables a human being to access (via 13) the canopy (R) via transport means (13) positioned within (Fig. 2) said tower (T).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the multifuel fueling platform of Cajiga wherein the tower enables a human being to access the canopy via transport means positioned within said tower as disclosed by Townsend in order to allow for internal climbing for maintenance for higher level structures, the internal staircase saving exterior space by being disposed interior to said tower instead of exterior to said tower.
Re claim 3, Cajiga as modified discloses the multifuel fueling platform according to claim 2, Townsend discloses wherein: said transport means (13) includes a stairway (13) defined within said tower structure (T).
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cajiga et al (“Cajiga”) (US 2014/0123467) in view of Beaver et al (“Beaver”) (US 10,940,380).
Re claim 4, Cajiga discloses a multifuel fueling platform (10), comprising:
a canopy structure (12) supported on legs (left/right 14) a predetermined distance above ground (Fig. 1; [0070]), said canopy structure (middle 14) being releasably affixed ([0073] discloses that 14 is connected to 24 via brackets 32, [0072] discloses that 24 is included in 12, and [0080] discloses bolts may be used to fix 32 to 14 and 24; as such, 12 is releasably attached to middle 14 via removal of bolts within 32) to a tower structure (12) positioned adjacent said canopy structure (12);
an energy source (28), said energy source (28) being housed within ([0072]) said canopy structure (12);
but fails to disclose wherein said tower structure does not support the weight of said canopy structure.
However, Beaver discloses wherein said tower structure (100) does not support the weight of said canopy structure (400).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the multifuel fueling platform of Cajiga wherein said tower structure does not support the weight of said canopy structure as disclosed by Beaver in order to provide a separate structure for additional features which need not be load bearing.
Claim(s) 5-6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cajiga et al (“Cajiga”) (US 2014/0123467) in view of Crown (US 2,021,544) and Beaver et al (“Beaver”) (US 10,940,380).
Re claim 5, Cajiga discloses a multifuel fueling platform (10), comprising:
a tower structure (middle 14);
a canopy structure (12) supported on legs (left/right 14) a predetermined distance above ground (Fig. 1; [0070]), said canopy structure (middle 14) being releasably affixed ([0073] discloses that 14 is connected to 24 via brackets 32, [0072] discloses that 24 is included in 12, and [0080] discloses bolts may be used to fix 32 to 14 and 24; as such, 12 is releasably attached to middle 14 via removal of bolts within 32) to said tower structure (12);
an energy source (28), said energy source (28) being housed within ([0072]) said canopy structure (12);
but fails to disclose wherein said tower structure includes a work platform providing access to said energy source, and wherein said tower structure is positioned adjacent to, yet not under, said canopy structure.
However, Crown discloses wherein said tower structure (11) includes a work platform (27, 23) providing access to the energy source (page 2 lines 12-25).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the multifuel fueling platform of Cajiga wherein said tower structure includes a work platform providing access to said energy source as disclosed by Crown in order to enable an operator to access an upper part of the structure (page 2 lines 12-25), and to provide additional coverage the structure below.
In addition, Beaver discloses wherein said tower structure (100) is positioned adjacent to, yet not under (Fig. 1), said canopy structure (400).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the multifuel fueling platform of Cajiga wherein said tower structure is positioned adjacent to, yet not under, said canopy structure as disclosed by Beaver in order to provide a separate structure for additional features which need not be load bearing, and which can be accessed exterior to the canopy structure.
Re claim 6, Cajiga as modified discloses the multifuel fueling platform according to claim 5, Crown discloses wherein: said work platform (27, 23) is positioned above (Fig. 1) said canopy structure (18).
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cajiga et al (“Cajiga”) (US 2014/0123467) in view of Crown (US 2,021,544), Beaver et al (“Beaver”) (US 10,940,380) and Pierik et al (“Pierek”) (US 2005/0220917).
Re claim 7, Cajiga as modified discloses the multifuel fueling platform according to claim 5, but fails to disclose wherein: said canopy structure includes a base frame, said base frame being selectively detachable from said canopy structure and detachably accommodating said energy source.
However, Pierik discloses said canopy structure (12) includes a base frame (17), said base frame (17) being selectively detachable from ([0041]) said canopy structure (12) and detachably accommodating ([0041]) said energy source (per the above).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the multifuel fueling platform of Cajiga said canopy structure includes a base frame, said base frame being selectively detachable from said canopy structure and detachably accommodating said energy source as disclosed by Pierik in order to provide for disassembly ([0010]) which would permit repair and/or transportation.
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cajiga et al (“Cajiga”) (US 2014/0123467) in view of Beaver et al (“Beaver”) (US 10,940,380) and Pierik et al (“Pierek”) (US 2005/0220917).
Re claim 5, Cajiga discloses a fueling platform (10), comprising:
a tower structure (middle 14);
a canopy structure (12) supported on legs (left/right 14) a predetermined distance above ground (Fig. 1; [0070]), said canopy structure (middle 14) being selectively affixed ([0073] discloses that 14 is connected to 24 via brackets 32, [0072] discloses that 24 is included in 12, and [0080] discloses bolts may be used to fix 32 to 14 and 24; as such, 12 is releasably attached to middle 14 via removal of bolts within 32) to said tower structure (12);
an energy source (28), said energy source (28) being housed within ([0072]) said canopy structure (12);
but fails to disclose wherein said tower structure is positioned adjacent to, yet not under, said canopy structure.
However, Beaver discloses wherein said tower structure (100) is positioned adjacent to, yet not under (Fig. 1), said canopy structure (400).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the fueling platform of Cajiga wherein said tower structure is positioned adjacent to, yet not under, said canopy structure as disclosed by Beaver in order to provide a separate structure for additional features which need not be load bearing, and which can be accessed exterior to the canopy structure.
In addition, Pierik discloses said canopy structure (12) includes a base frame (17), said base frame (17) being selectively detachable from ([0041]) said canopy structure (12) and detachably securing ([0041]) said energy source (per the above).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the fueling platform of Cajiga said canopy structure includes a base frame, said base frame being selectively detachable from said canopy structure and detachably securing said energy source as disclosed by Pierik in order to provide for disassembly ([0010]) which would permit repair and/or transportation.
Response to Arguments
Response to General Comments:
Applicant argues that Cajiga never teaches or suggested the possibility of even desirability of utilizing a transport means within the tower to gain access to the canopy. Cajiga is not relied upon as disclosing this feature. The relevant question is not “does Cajiga explicitly recognize a need for the claimed feature.” The relevant question is what would have been obvious to a person having ordinary skill in the art. This question is addressed in the above rejection. Applicant’s contention regarding Crown have been addressed in the previous Office Action.
Request for Reconsideration of Finality of Office Action:
Requests for reconsideration of finality of Office Actions may be petitioned. In addition, broadening (removal of a feature) does not add distinctness to a previously presented claim. The claim remains patentably indistinct from the previously presented claim.
Claim Rejections 35 USC 112: Applicant’s argument with respect to the claims rejected under 35 USC 112 have been considered but are not persuasive.
Response to Arguments Presented under 35 USC 112(a)
On page 8, Applicant again argues that there is support in [0044] for the limitation, “said tower structure does not support the weight of said canopy structure.” This argument was addressed in the previous Final Rejection and need not be addressed again. Applicant is referred to the 9/25/25 Final Rejection for a response therein. In addition, as stated in the previous rejection, “A statement that a particular feature supports a canopy is not the same as saying another feature does not support the canopy.” In other words, a statement that the canopy is supported by 106 and 108 does not equate to a statement that the tower does not support the canopy. In response, Applicant contends that such a statement would require Applicant to make the patent disclosure too comprehensive and not easily digestable. This is not the applicable standard. The standard under 35 USC 112(a) requires support for each limitation as originally filed. As explained above, there is no support for this limitation. Moreover, Applicant contends that the requirement is that one of ordinary skill could make and use the invention without undue experimentation. Again, this is not the applicable standard. The standard argued by Applicant applies to enablement rejections, not new matter rejections. The standard under 35 USC 112(a) requires support for each limitation as originally filed. Applicant further contends that they do not have the burden of listing all structures that do not have a particular function. The burden of support is specifically on Applicant. Applicant is unambiguously required to provide support for all claimed features regardless of those features being positive or negative limitations. There is no support for this limitation, and as such, rejection of claim 4 under 35 USC 112(a) is maintained.
On page 9, with respect to claims 5 and 8, Applicant argues that the specification as originally filed supports the claim limitation, “the tower structure being positioned adjacent to, yet not under, said canopy structure.” Again, Applicant argues [0047] states that tower 102 is formed to define a modular metal superstructure 118 that may be positioned adjacent the canopy. This argument was addressed in the previous Final Rejection and need not be addressed again. Applicant is referred to the 9/25/25 Final Rejection for a response therein. In response, Applicant further contends that the drawings make clear that the tower 102 and 118 are separate from the canopy. Being “separate from” does not equate to, “being positioned adjacent to, yet not under.” In addition, Applicant contends that the drawings provide support for the tower structure being adjacent to the canopy. In addition, Applicant contends that the tower structure, there are no portions of Applicant’s structure physically under the canopy. Regardless of the accuracy of this statement, the claim language states “being positioned adjacent to, yet not under.” There is no support for this limitation as originally filed, as discussed previously and in the above. Rejection of claim 4 under 35 USC 112(a) is maintained.
Applicant’s arguments concerning the canopy structure including a base frame and being selectively detachable from….is persuasive. Rejection of claims 5 and 8 for this claim language is withdrawn.
Response to Arguments Presented under 35 USC 112(b)
Each argument mirrors those of the rejections under 35 USC 112(a) in the above. As such, each argument is addressed above. Rejection of claims 4-6 and 8 under 35 USC 112(b) are maintained for the reasons stated above.
Claim Rejections 35 USC 103: Applicant’s arguments with respect to all claims have been considered but are not persuasive.
Response to Arguments Presented in the General Comments
On page 4, Applicant provides a list of benefits to the present invention. While such benefits are appreciated, such benefits are not claimed and thus, no comments are necessary.
On page 5, Applicant states, “the claims clearly recite that a human being is able to gain access to the elevated fuel canopy, from the ground, via transport means positioned within the tower structure.” Although it is noted stated which claim Applicant refers to, and since Claim 1 does not require any such feature, it would appear that Applicant is referring to Claim 2. Applicant argues that Cajiga does not provide access by a human being, etc. Cajiga is not relied upon disclosing such. Townsend is relied upon disclosing these features.
On page 5, Applicant argues that Crown does not show any work platform positioned above Crown’s energy source which provides access to those sources. Applicant stats that 23 is positioned below containers 55, and that 27 provides no access to containers 55. Claim 1 recites, “a work platform…over said energy source, thereby providing access thereto.” A “work platform” is extremely broad. The claims make no mention of any particular structure that would satisfy constituting a “work platform.” Merriam-Webster defines a “platform” as “a flat horizontal surface that is usually higher than the adjoining area.” Clearly, both 23 and 27 meet this definition. Each may be considered a “work platform” because “work” may be done on each. Moreover, 27 is very clearly positioned over the energy source. Finally, “providing access” is extremely broad. The claims do not make any mention of how access is provided. A person could simply reach over the edge of 27 and that would constitute access. The claims are simply far broader than what Applicant contends and as such, the prior art meets the claim.
Response to Arguments Presented under 35 USC 103(a)
On page 15, regarding claim 1, Applicant argues Crown. Crown is no longer relied upon in the rejection of claim 1 rendering these arguments moot.
On page 16, regarding claims 2-3, Applicant argues that Cajiga and Crown are non-analogous art. Crown is not relied upon in the rejection of claims 2-3. This argument will be addressed under the assumption Applicant meant Townsend. A reference is analogous to the claimed invention if it (1) is in the same field of endeavor or (2) is reasonably pertinent to the problem being solved by the claimed invention. The field of endeavor of Applicant’s claims 2-3 is fueling platforms. [0012] of Cajiga states, “It is one general object of the present invention to provide a mobile fuel distribution station.” Thus, Cajiga fits squarely within the field of endeavor of Applicant’s claimed invention and constitutes analogous art. Part of the problem being solved by the claimed invention includes access to an upper level via transportation within a tower. This is expressly disclosed by Townsend. Thus, Townsend is reasonably pertinent to the problem being solved by the claimed invention and thus constitutes analogous art. Applicant underlines the argument that Cajiga never even suggested the need as desirable. This is not the standard. The standard is not “what does Cajiga expressly state would be beneficial to improve upon the invention.” The standard is what would have been obvious to a person having ordinary skill. This standard is applied in the above rejection. Next, Applicant states that Cajiga does not teach or suggest any transport means in its tower at all. If this statement precluded obviousness, no obviousness rejection would be supported unless a prior art reference specifically stated a need for the claimed feature. Clearly, this is not correct. In addition, Applicant contends that the modification is based on impermissible hindsight reasoning. It must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). As the transport means in a tower is disclosed in the prior art, it is within the level of ordinary skill. Modification would be beneficial for those reasons provided in the above.
On page 17, regarding claim 4, Applicant argues that Beaver is non-analogous art. A reference is analogous to the claimed invention if it (1) is in the same field of endeavor or (2) is reasonably pertinent to the problem being solved by the claimed invention. The field of endeavor of Applicant’s claims 4 is fueling platforms. Part of the problem being solved by the claimed invention includes a tower structure which does not support the weight of a canopy. Beaver specifically addresses this problem and thus, is reasonably pertinent to the problem being solved by the claimed invention and thus, constitutes analogous art. Applicant underlines the argument that Cajiga never even suggested the need as desirable. This is not the standard. The standard is not “what does Cajiga expressly state would be beneficial to improve upon the invention.” The standard is what would have been obvious to a person having ordinary skill. This standard is applied in the above rejection. Next, Applicant states that Cajiga does not teach or suggest any transport means in its tower at all. If this statement precluded obviousness, no obviousness rejection would be supported unless a prior art reference specifically stated a need for the claimed feature. Clearly, this is not correct. In addition, Applicant contends that the modification is based on impermissible hindsight reasoning. It must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). As the transport means in a tower is disclosed in the prior art, it is within the level of ordinary skill. Modification would be beneficial for those reasons provided in the above.
On page 18, regarding claims 5-6, Applicant contends that there is no motivation for the proposed modification. Motivation was proposed in the above. Applicant further contends that the modification is based on impermissible hindsight. This argument is also addressed in the above remarks.
On page 19, regarding claim 7, Applicant contends that there is no motivation for the proposed modification. Motivation was proposed in the above. Applicant further contends that the modification is based on impermissible hindsight. This argument is also addressed in the above remarks.
On page 20, regarding claim 8, Applicant contends that there is no motivation for the proposed modification. Motivation was proposed in the above. Applicant further contends that the modification is based on impermissible hindsight. This argument is also addressed in the above remarks. Applicant further highlights features of claim 8, but provides no specific arguments as to why the prior art does not read on those highlighted features.
On page 21, Applicant argues new claim 9. This claim is addressed in the above. It is noted that the prior art discloses access to the top of the energy source via (through) a work platform. If the intention is to instead claim an opening (if this is Applicant’s intention of the word “through”), such language should be utilized.
Conclusion
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KYLE WALRAED-SULLIVAN
Primary Examiner
Art Unit 3635
/KYLE J. WALRAED-SULLIVAN/Primary Examiner, Art Unit 3635
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