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 § 112
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.
Claims 5-10 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 5 recites “a vertical axis of the biasing element” as an independent element of the climb safety device which is indefinite, because the axis alone is not a structural element. Rather, it is an imaginary line running through the center of the biasing element. The axis cannot be used or attached to anything, nor can it serve in function other than as a reference for a coordinate system. The claim should instead be amended to specify that the biasing element comprises a vertical axis. Dependent claims 6-8 fail to cure the deficiency.
Claim 9 recites “the attachment member affixed to an elevated structure” which is indefinite, because the elevated structure is necessarily outside the scope of the invention. In other words, the climb safety device is designed to be used with an elevated structure, e.g., tower, but the climb safety device is not disclosed by Applicant as actually including the tower. Therefore, it is indefinite for the elevated structure to be incorporated into the claim as an aspect or element of the invention, as opposed to the climb safety device being configured to be used with an elevated structure. Dependent claim 10 fails to cure the deficiency.
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim 9 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ostrobrod (US 2017/0260762 A1).
Regarding claim 9, Ostrobrod discloses a climb safety device (abstract, regarding a cable grab safety device) comprising:
a biasing element (spring member 100; fig. 4), load bearing member (brake lever 16; fig. 2), and attachment member (primary frame assembly 18; fig. 1);
the attachment member (18) affixed to an elevated structure (para. [0035], regarding the cable grab 10 functions as a brake when a workman falls by having the lever 16 move the pulley wheel 76 rearwardly against the cable 12, which forces the cable against the inner wall 28; Examiner notes that the cable may be elevated; see also the related rejection under §112(b) detailed hereinabove);
a guide pin (pin 84; fig. 4) fixed to the load bearing member (via the pulley roller 76 slidingly mounted to the brake lever 16, as shown in figs. 3-5) and movable in a vertical slot in the attachment member (slot 90, as shown in figs. 4-5; Examiner notes that the slot 90 can be considered to be vertical depending on the frame of reference);
the biasing element for bearing a load placed on the load bearing member (as shown in figs. 4-5; see para. [0041]); and,
the guide pin and slot for limiting compression of the biasing element (as shown in fig. 5; Examiner notes that the spring member 100 would naturally tend to be compressed between the plates 54, 56 as downward force is placed on one end of the spring member 100 so as to expand/unwind the spring, as shown in fig. 5).
Allowable Subject Matter
Claims 5-8 and 10 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) set forth in this Office action.
Response to Arguments
Applicant's arguments filed on February 3, 2026, have been fully considered but they are not persuasive.
Applicant argues (Remarks, pp. 7-8) that Ostrobod’s cable grab device is not equivalent to the instant climb safety device of claim 9. However, this argument is moot because it is not relevant that the two devices be identical, only that the cable grab device read on the language of claim 9. Currently, claim 9 does not preclude cable grab devices and is broad enough such that the cable grab device of Ostrobod reads on the claim.
Applicant further argues (Remarks, pp. 8-9) that Ostrobod does not anticipated claim 9 because Ostrobod does not teach “the attachment member affixed to an elevated structure.” Examiner disagrees. In examining the amended claim in light of the §112(b) rejection detailed hereinabove, Ostrobod does indeed to an attachment member than can be affixed to an elevated structure (which is the boundary of the scope of the claim, as explained above). Therefore, claim 9 remains rejected under §102.
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 BRADY W FRAZIER whose telephone number is (469)295-9263. The examiner can normally be reached Monday-Friday 9:00am-5:00pm CT.
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/BRADY W FRAZIER/ Primary Examiner, Art Unit 3647