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 1-2, 5-6, 8, 10-14, 16, 21-29 are pending.
Claims 3-4, 7, 9, 15, and 17-20 are cancelled.
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, 5-6, 8, 10-13, 16, 21-26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Tomaini (US 6,145,272) in view of O’Connor et al (“O’Connor”) (US 5,217,339) and Gilley et al (“Gilley”) (US 2020/0385992).
Re claim 1, Tomaini discloses a fastener system (Fig. 1, Fig. 2B, Fig. 4A), comprising:
a plate (11) including:
a first surface (top surface of 11) and a second surface (bottom surface of 11) opposite the first surface (top surface of 11),
wherein the first surface (top surface of 11) is an uppermost surface (Fig. 2B) of the plate (11),
an aperture (12D, which receives 14) extending through the plate (11) from the first surface (top surface of 11) to the second surface (bottom surface of 11),
wherein the aperture (12D, which receives 14) includes a peripheral edge (edge thereof),
an outer perimeter edge (outer edge of 11), wherein the outer perimeter edge (outer edge of 11) is an outermost edge (Fig. 2B) of the plate (11),
wherein the first surface (top surface of 11) of the plate (11) is continuously convex (Fig. 2A; Col 3 lines 28-29) from the aperture (12D, which receives 14) to the outer perimeter edge (outermost edge of 11) of the plate (11),
wherein the plate (11) is adapted to be installed on a roof structure (16, 18) with the second surface (bottom surface of 11) of the plate (11) engaging (Fig. 4A) an upper surface (upper surface of 16/18) of the roof structure (16, 18),
wherein the roof structure (16, 18) includes a first layer (16), wherein the first layer (16) includes the upper surface (upper surface of 16) of the roof structure (16, 18), and wherein the roof structure (16, 18) includes a second layer (18) below (Fig. 4A) the first layer (16), and
a plurality of protrusions (11B) extending outwardly from (Fig. 2B) the second surface (bottom of 11) of the plate (11),
wherein the plurality of protrusions (11B) is adapted to grip (Col 3 lines 41-59) the upper surface (upper surface of 16) of the roof structure (16, 18),
wherein the plurality of protrusions (11B) does not penetrate (Col 3 lines 41-59) the second layer (18); and
a fastener (14) having a head (head of 14) and shank portion (shank of 14);
wherein the head (head of 14) of the fastener (14) is installed within the aperture (12D, which receives 14) of the plate (11),
but fails to disclose an upper surface of the head of the fastener positioned at a depth below and distal from the first surface of the plate at the peripheral edge of the aperture, and wherein the roof structure with the fastener system installed therealong meets requirements for Very Severe Hail resistance according to FM Approvals FM 4470 VSH impact resistance testing standard for Single-Ply Polymer-Modified Bitumen Sheet, Built- Up Roof (BUR) and Liquid Applied Roof Assemblies.
However, O’Connor discloses an upper surface (upper surface of 22) of the head (22) of the fastener (14) positioned at a depth below (Fig. 4) and distal from (Fig. 4) the first surface (top of 12) of the plate (12) at the peripheral edge (edge of 42) of the aperture (42).
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 fastener system of Tomaini with an upper surface of the head of the fastener positioned at a depth below and distal from the first surface of the plate at the peripheral edge of the aperture as disclosed by O’Connor in order to provide a smooth upper surface (Col 3 lines 38-42).
In addition, Gilley discloses wherein the roof structure (200) with the fastener system (60) installed therealong (Fig. 10) meets requirements for Very Severe Hail resistance ([0048]) according to FM Approvals FM 4470 VSH impact resistance testing standard ([0127]) for Single-Ply Polymer-Modified Bitumen Sheet ([0103]), Built- Up Roof (BUR) ([0103]) and Liquid Applied Roof Assemblies ([0103]).
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 fastener system of Tomaini wherein the roof structure with the fastener system installed therealong meets requirements for Very Severe Hail resistance according to FM Approvals FM 4470 VSH impact resistance testing standard for Single-Ply Polymer-Modified Bitumen Sheet, Built- Up Roof (BUR) and Liquid Applied Roof Assemblies as disclosed by Gilley in order to protect the roof or roofing equipment from hail damage ([0004]) and/or other weather resistant properties ([0005]).
Re claim 5, Tomaini as modified discloses the fastener system of claim 1, wherein the second surface (bottom surface of 11) of the plate (11) is substantially flat (Fig. 2B).
Re claim 6, Tomaini as modified discloses the fastener system of claim 1, wherein the plurality of protrusions (11B) is adapted to inhibit lateral movement (Fig. 2B, as this is a statement of intended use, and as the plate would be incapable of sliding laterally) of the plate (11) relative to the upper surface (top of 16) of the roof structure (16, 18).
Re claim 8, Tomaini as modified discloses the fastener system of claim 1, wherein the plate (11) comprises a thermoplastic polymer, propylene, polypropylene, polyethylene, nylon, polyvinyl chloride, rubber, polyurethane, acrylonitrile butadiene styrene, acrylo nitrile styrene acrylate, carbon fiber, metal, or combinations thereof (Col 4 lines 19-23).
Re claim 10, Tomaini discloses a roof structure (Fig. 1, Fig. 2B, Fig. 4A), comprising:
a first layer (16) and a second layer (18), each of which is positioned over the roof deck (as modified below), wherein the first layer (16) is above (Fig. 4B) the second layer (18), wherein the first layer (16) includes an upper surface (upper surface of 16);
a plurality of fastener systems (Col 4 lines 34-35), each comprising:
a plate (11) having
a first surface (top of 11), wherein the first surface (top of 11) is an uppermost surface (Fig. 2B) of the plate (11),
a second surface (bottom of 11),
an aperture (12D, which receives 14) extending between the first and second surfaces (top/bottom of 11), and
wherein the aperture (12D, which receives 14) includes a peripheral edge (edge thereof),
an outer perimeter edge (outer edge of 11), wherein the outer perimeter edge (outer edge of 11) is an outermost edge (Fig. 2B) of the plate (11),
wherein the first surface (top surface of 11) of the plate (11) is continuously convex (Fig. 2A; Col 3 lines 28-29) from the aperture (12D, which receives 14) to the outer perimeter edge (outermost edge of 11) of the plate (11),
and a plurality of protrusions (11B) extending outwardly from (Fig. 2B) the second surface (bottom of 11); and
a fastener (14) having a head (head of 14) and a shank portion (shank of 14) adapted to penetrate (Fig. 4B, as this is a statement of intended use) the roof deck (as modified below);
wherein the plate (11) is positioned over (Fig. 4B) the first layer (16),
wherein the plurality of protrusions (11B) is adapted to grip (Col 3 lines 41-59) the upper surface (top of 16) of the first layer (16),
wherein the plurality of protrusions (11B) does not penetrate (Col 3 lines 41-59) the second layer (18);
wherein the fastener (14) is installed within the aperture (12D, which receives 14) of the plate (11),
but fails to disclose a roof deck, wherein the roof structure meets requirements for Very Severe Hail Resistance (VSH) according to FM Approvals FM 4470 USH impact resistance testing standard for Single-Ply, Polymer-Modified Bitumen Sheet, Built-Up Roof (BUR) and Liquid Applied Roof Assemblies, and the fastener installed with the shank portion penetrating the roof deck and with an upper surface of the head of the fastener positioned at a depth below and distal from the first surface of the plate at the peripheral edge of the aperture.
However, O’Connor discloses a roof deck (18), and the fastener (14) installed with the shank portion (shank of 14) penetrating the roof deck (18) and with an upper surface (upper surface of 22) of the head (22) of the fastener (14) positioned at a depth below (Fig. 4) and distal from (Fig. 4) the first surface (top of 12) of the plate (12) at the peripheral edge (edge of 42) of the aperture (42).
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 roof structure of Tomaini a roof deck, with the fastener installed with the shank portion penetrating the roof deck and with an upper surface of the head of the fastener positioned at a depth below and distal from the first surface of the plate at the peripheral edge of the aperture as disclosed by O’Connor in order to provide a smooth upper surface (Col 3 lines 38-42). In addition, roof decks provide support for roofing and are very well-known and common in the art.
In addition, Gilley discloses wherein the roof structure (200) with the fastener system (60) installed therealong (Fig. 10) meets requirements for Very Severe Hail resistance ([0048]) according to FM Approvals FM 4470 VSH impact resistance testing standard ([0127]) for Single-Ply Polymer-Modified Bitumen Sheet ([0103]), Built- Up Roof (BUR) ([0103]) and Liquid Applied Roof Assemblies ([0103]).
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 roof structure of Tomaini wherein the roof structure with the fastener system installed therealong meets requirements for Very Severe Hail resistance according to FM Approvals FM 4470 VSH impact resistance testing standard for Single-Ply Polymer-Modified Bitumen Sheet, Built- Up Roof (BUR) and Liquid Applied Roof Assemblies as disclosed by Gilley in order to protect the roof or roofing equipment from hail damage ([0004]) and/or other weather resistant properties ([0005]).
Re claim 11, Tomaini as modified discloses the roof structure of claim 10, but fails to disclose wherein the first layer comprises a polymer membrane overlying the roof deck.
However, Gilley discloses wherein the first layer (160) comprises a polymer membrane ([0103]) overlying (Fig. 17) the roof deck (152).
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 roof structure of Tomaini wherein the first layer comprises a polymer membrane overlying the roof deck as disclosed by Gilley in order to utilize a cheap, durable, readily formable, weather resistant material. In addition, 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. See also Ballas Liquidating Co. v. Allied industries of Kansas, Inc. (DC Kans) 205 USPQ 331.
Re claim 12, Tomaini as modified discloses the roof structure of claim 10, but fails to disclose wherein the second layer comprises an insulation layer positioned over an upper surface of the roof deck and the first layer comprises a polymer membrane overlying the insulation layer.
However, Gilley discloses wherein the second layer (156) comprises an insulation layer ([0103]) positioned over (Fig. 17) an upper surface (top of 152) of the roof deck (152) and the first layer (160) comprises a polymer membrane ([0103]) overlying (Fig. 17) the insulation layer (156).
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 roof structure of Tomaini wherein the second layer comprises an insulation layer positioned over an upper surface of the roof deck and the first layer comprises a polymer membrane overlying the insulation layer as disclosed by Gilley in order to utilize a cheap, durable, readily formable, weather resistant material, and to provide weather protection and temperature control as is the normal and logical manner of insulation. In addition, 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. See also Ballas Liquidating Co. v. Allied industries of Kansas, Inc. (DC Kans) 205 USPQ 331.
Re claim 13, Tomaini as modified discloses the roof structure of claim 10, wherein the second surface (bottom of 11) comprises a substantially flat surface (bottom of 11) adapted to be substantially flat against (Fig. 4B) the first layer (16).
Re claim 16, Tomaini as modified discloses the roof structure of claim 10, wherein the plurality of protrusions (11B) is adapted to inhibit lateral movement (Fig. 2B, as this is a statement of intended use, and as the plate would be incapable of sliding laterally) of the plate (11) relative to the upper surface (top of 16) of the roof structure (16, 18).
Re claim 21, Tomaini discloses a roof structure (Fig. 1, Fig. 2B, Fig. 4B), comprising:
a first layer (16) and a second layer (18), each of which is positioned over (Fig. 4B) the roof deck (as modified below), wherein the first layer (16) is over (Fig. 4B) the second layer (18),
a plurality of fastener systems (Col 4 lines 34-35), each of the plurality of fastener systems (Col 4 lines 34-35) comprising:
a plate (11) including:
a first surface (top surface of 11),
wherein the first surface (top of 11) is an uppermost surface (Fig. 2B) of the plate (11),
a second surface (bottom of 11) opposite the first surface (top surface of 11),
an outer perimeter (edge of 11) defining an outermost edge (edge of 11) of the plate (11),
an aperture (12D, which receives 14) extending through (Fig. 4B) the first and second surfaces (top/bottom of 11),
wherein the aperture (12D, which receives 14) includes a peripheral edge (edge thereof),
wherein the first surface (top surface of 11) of the plate (11) is continuously convex (Fig. 2A; Col 3 lines 28-29) from the aperture (12D, which receives 14) to the outer perimeter edge (outermost edge of 11) of the plate (11),
a plurality of protrusions (11B) extending downwardly from (Fig. 2B) the second surface (bottom of 11) of the plate (11) and being adapted to engage (Col 3 lines 41-59) the first layer (16),
wherein at least a portion (11CA) of the protrusions (11B) of the plurality of protrusions (11B) are arranged at spaced positions (Fig. 2B) along (as “along” does not require “at”) the perimeter (edge of 11) of the plate (11); and
a fastener (14) having a head (head of 14) and a shank portion (shank of 14) adapted to penetrate (Fig. 4B) the roof deck (as modified, as this is a statement of intended use);
wherein the plate (11) is positioned over (Fig. 4B) the first layer (16),
wherein the plurality of protrusions (11B) do not penetrate (Col 3 lines 41-59) the second layer (18);
wherein the fastener (14) is installed within the aperture (12D, which receives 14) of the plate (11);
wherein the plate (11) is adapted to be installed on the roof structure (16, 18) with the plurality of protrusions (11B) engaging (Col 3 lines 41-59) the first layer (16) as the fastener (14) penetrates the roof deck (14; as modified below);
wherein the plurality of protrusions (11B) are adapted to inhibit movement (Fig. 2B, as this is a statement of intended use, and as the plate would be incapable of sliding laterally) of the plate (11) relative to the at least one first layer (16),
but fails to disclose a roof deck, the fastener installed with the shank portion penetrating the roof deck and with an upper surface of the head of the fastener positioned at a depth below and distal from the first surface of the plate at the peripheral edge of the aperture, wherein the roof structure meets requirements for Very Severe Hail Resistance (VSH) according to FM Approvals FM 4470 USH impact resistance testing standard for Single-Ply, Polymer-Modified Bitumen Sheet, Built-Up Roof (BUR) and Liquid Applied Roof Assemblies, and the head of the fastener positioned below the first surface of the plate.
However, O’Connor discloses a roof deck (18), and the fastener (14) installed with the shank portion (shank of 14) penetrating the roof deck (18) and with an upper surface (upper surface of 22) of the head (22) of the fastener (14) positioned at a depth below (Fig. 4) and distal from (Fig. 4) the first surface (top of 12) of the plate (12) at the peripheral edge (edge of 42) of the aperture (42).
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 roof structure of Tomaini a roof deck, with the fastener installed with the shank portion penetrating the roof deck and with an upper surface of the head of the fastener positioned at a depth below and distal from the first surface of the plate at the peripheral edge of the aperture as disclosed by O’Connor in order to provide a smooth upper surface (Col 3 lines 38-42). In addition, roof decks provide support for roofing and are very well-known and common in the art.
In addition, Gilley discloses wherein the roof structure (200) with the fastener system (60) installed therealong (Fig. 10) meets requirements for Very Severe Hail resistance ([0048]) according to FM Approvals FM 4470 VSH impact resistance testing standard ([0127]) for Single-Ply Polymer-Modified Bitumen Sheet ([0103]), Built- Up Roof (BUR) ([0103]) and Liquid Applied Roof Assemblies ([0103]).
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 roof structure of Tomaini wherein the roof structure with the fastener system installed therealong meets requirements for Very Severe Hail resistance according to FM Approvals FM 4470 VSH impact resistance testing standard for Single-Ply Polymer-Modified Bitumen Sheet, Built- Up Roof (BUR) and Liquid Applied Roof Assemblies as disclosed by Gilley in order to protect the roof or roofing equipment from hail damage ([0004]) and/or other weather resistant properties ([0005]).
Re claim 22, Tomaini as modified discloses the roof structure of claim 21, wherein the plate (11) comprises a thermoplastic polymer, propylene, polypropylene, polyethylene, nylon, polyvinyl chloride, rubber, polyurethane, acrylonitrile butadiene styrene, acrylo nitrile styrene acrylate, carbon fiber, metal, or combinations thereof (Col 4 lines 19-23).
Re claim 23, Tomaini as modified discloses the roof structure of claim 21, wherein the aperture (12D, which receives 14) of the plate (11) comprises a first end (top end thereof) located along the first surface (top of 11) and a second end (bottom end thereof) that terminates at the second surface (bottom of 11) of the plate (11), wherein the second end (bottom end of thereof) of the aperture (12D, which receives 14) is adapted to lie substantially flat against (being a statement of intended use) the first layer (16).
Re claim 24, Tomaini as modified discloses the roof structure of claim 21, but fails to disclose wherein the plate further comprises a recessed portion defined between the first surface and the second surface; and wherein the head of the fastener is positioned within the recessed portion.
However, O’Connor discloses wherein the plate (12) further comprises a recessed portion (at 22) defined between the first surface (top of 12) and the second surface (bottom of 12); and wherein the head (22) of the fastener (14) is positioned within the recessed portion (at 22).
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 roof structure of Tomaini wherein the plate further comprises a recessed portion defined between the first surface and the second surface; and wherein the head of the fastener is positioned within the recessed portion as disclosed by O’Connor in order to provide a smooth upper surface (Col 3 lines 38-42).
Re claim 25, Tomaini as modified discloses the roof structure of claim 21, but fails to disclose wherein the plate comprises an ellipsoid- shaped cross section, and has a diameter of 2 inches to 3 inches.
However, it would have been obvious as a matter of choice to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the roof structure of Tomaini wherein the plate comprises an ellipsoid- shaped cross section in order to distribute stresses or forces in a particular direction, instead of uniformly. In addition, it has been held that a mere change in shape of a component is within the level of ordinary skill in the art absent persuasive evidence that a particular configuration of the claimed shape is significant. In re Dailey, 357 F.2d 669, 149.
In addition, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the roof structure of Tomaini wherein the plate has a diameter of 2 inches to 3 inches in order to ensure sufficient size to effectively distribute loads and stress. In addition, a change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
Re claim 26, Tomaini as modified discloses the roof structure of claim 21, wherein the first layer (16) comprises at least one insulation layer (Col 3 liens 57-59) positioned over an upper surface (Gilley: top of 152) of the roof deck (Gilley: 152), a membrane (Gilley: 160), or combinations thereof (Gilley: Fig. 17).
Claim(s) 2, 14, 27-29 is/are rejected under 35 U.S.C. 103 as being unpatentable over Tomaini (US 6,145,272) in view of O’Connor et al (“O’Connor”) (US 5,217,339), Gilley et al (“Gilley”) (US 2020/0385992) and Olvera et al (“Olvera”) (US 5,607,272).
Re claim 2, Tomaini as modified discloses the fastener system of claim 1, wherein the first surface (top of 11) of the plate (11) extends substantially continuously from (Fig. 2B) the outer perimeter edge (outer edge of 11) to the plurality of flaps (as modified below),
but fails to disclose wherein plate includes a plurality of flaps integrally formed at the first surface of the plate, wherein each of the plurality of flaps is resiliently biased such that each of the plurality of flaps is moveable between a first position, in which each of the plurality of flaps is substantially planar with the first surface of the plate, and a second position, in which each of the plurality of flaps extends inwardly within the aperture when the fastener engages each of the plurality of flaps during installation of the fastener in the aperture, wherein each of the plurality of flaps is automatically moveable from the second position to the first position after the fastener is installed within the aperture of the plate so as to cover the head of the fastener.
However, Olvera discloses wherein the plate (7) includes a plurality of flaps (49) integrally formed (Fig. 1) at the first surface (top of 7) of the plate (7), wherein each of the plurality of flaps 949) is resiliently biased (Col 5 lines 62-67) such that each of the plurality of flaps (49) is moveable between a first position (Fig. 2), in which each of the plurality of flaps (49) is substantially planar with (Fig. 2) the first surface (top of 7) of the plate (7), and a second position (Fig. 6C), in which the flap (49) extends inwardly within (Fig. 6C) the aperture (29) when the fastener (nail) engages the flap (49) during installation of the fastener (nail) in the aperture (29), wherein each of the plurality of flaps (49) is automatically moveable from (Col 5 lines 62-67) the second position (Fig. 6C) to the first position (Fig. 2) after the fastener (nail) is installed within (Fig. 8) the aperture (29) of the plate (7) so as to cover the head (of the nail) of the fastener (nail).
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 fastener system of Tomaini wherein plate includes a plurality of flaps integrally formed at the first surface of the plate, wherein each of the plurality of flaps is resiliently biased such that each of the plurality of flaps is moveable between a first position, in which each of the plurality of flaps is substantially planar with the first surface of the plate, and a second position, in which each of the plurality of flaps extends inwardly within the aperture when the fastener engages each of the plurality of flaps during installation of the fastener in the aperture, wherein each of the plurality of flaps is automatically moveable from the second position to the first position after the fastener is installed within the aperture of the plate so as to cover the head of the fastener as disclosed by Olvera in order to prevent intrusion of unwanted material into the aperture after installation.
Re claim 14, Tomaini as modified discloses the roof structure of claim 10, wherein the first surface (top of 11) of the plate (11) extends substantially continuously from (Fig. 2B) the outer perimeter edge (outer edge of 11) to the plurality of flaps (as modified below),
but fails to disclose wherein plate includes a plurality of flaps integrally formed at the first surface of the plate, wherein each of the plurality of flaps is resiliently biased such that each of the plurality of flaps is moveable between a first position, in which each of the plurality of flaps is substantially planar with the first surface of the plate, and a second position, in which each of the plurality of flaps extends inwardly within the aperture when the fastener engages each of the plurality of flaps during installation of the fastener in the aperture, wherein each of the plurality of flaps is automatically moveable from the second position to the first position after the fastener is installed within the aperture of the plate so as to cover the head of the fastener.
However, Olvera discloses wherein the plate (7) includes a plurality of flaps (49) integrally formed (Fig. 1) at the first surface (top of 7) of the plate (7), wherein each of the plurality of flaps 949) is resiliently biased (Col 5 lines 62-67) such that each of the plurality of flaps (49) is moveable between a first position (Fig. 2), in which each of the plurality of flaps (49) is substantially planar with (Fig. 2) the first surface (top of 7) of the plate (7), and a second position (Fig. 6C), in which the flap (49) extends inwardly within (Fig. 6C) the aperture (29) when the fastener (nail) engages the flap (49) during installation of the fastener (nail) in the aperture (29), wherein each of the plurality of flaps (49) is automatically moveable from (Col 5 lines 62-67) the second position (Fig. 6C) to the first position (Fig. 2) after the fastener (nail) is installed within (Fig. 8) the aperture (29) of the plate (7) so as to cover the head (of the nail) of the fastener (nail).
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 roof structure of Tomaini wherein plate includes a plurality of flaps integrally formed at the first surface of the plate, wherein each of the plurality of flaps is resiliently biased such that each of the plurality of flaps is moveable between a first position, in which each of the plurality of flaps is substantially planar with the first surface of the plate, and a second position, in which each of the plurality of flaps extends inwardly within the aperture when the fastener engages each of the plurality of flaps during installation of the fastener in the aperture, wherein each of the plurality of flaps is automatically moveable from the second position to the first position after the fastener is installed within the aperture of the plate so as to cover the head of the fastener as disclosed by Olvera in order to prevent intrusion of unwanted material into the aperture after installation.
Re claim 27, Tomaini as modified discloses the fastener system of claim 2, Olvera discloses wherein each of the plurality of flaps (49) includes a free end (Fig.1, proximate 3), wherein each of the free ends (proximate 3) is proximate to a center point (3) of the aperture (29).
Re claim 28, Tomaini as modified discloses the fastener system of claim 27, Olvera discloses wherein the free ends (proximate 3) of the plurality of flaps (49) form an opening (Fig. 1, at 3) of the aperture (29), and wherein the shank (of the nail) of the fastener (the nail) is configured to be inserted in (Fig. 2-8) the opening (at 3).
Re claim 29, Tomaini as modified discloses the fastener system of claim 28, Olvera discloses wherein the plurality of flaps (49) includes four flaps (Fig. 1 disclosing more than 4), but fails to disclose wherein the opening is cross-shaped.
However, it would have been obvious as a matter of choice to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the fastener system of Tomaini wherein the opening is cross-shaped in shape in order to reduce the machining and/or cutting of the flaps required, as to create a cross-shape, only 4 flaps would be required instead of the numerous flaps disclosed by Olvera. In addition, it has been held that a mere change in shape of a component is within the level of ordinary skill in the art absent persuasive evidence that a particular configuration of the claimed shape is significant. In re Dailey, 357 F.2d 669, 149.
Response to Arguments
Claim Rejections 35 USC 112: Applicant’s argument with respect to the claims rejected under 35 USC 112 is persuasive and rejection of the claims pursuant to 35 USC 112 (for the reasons stated in the previous rejection) is hereby withdrawn.
Claim Rejections 35 USC 103: Applicant’s arguments with respect to all claims have been considered but are moot as they do not apply to any of the combination of references relied upon in the above.
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 KYLE WALRAED-SULLIVAN whose telephone number is (571)272-8838. The examiner can normally be reached Monday - Friday 8:30am - 5:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brian Mattei can be reached on (571)270-3238. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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KYLE WALRAED-SULLIVAN
Primary Examiner
Art Unit 3635
/KYLE J. WALRAED-SULLIVAN/Primary Examiner, Art Unit 3635
