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 .
Examiner’s Note
The Examiner acknowledges the amendments of claims 1 – 2. Claims 12 – 15 have been cancelled. Claims 16 – 20 are withdrawn from consideration. Claims 1 – 11 are examined herein.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1 – 2 & 11 are rejected under 35 U.S.C. 103 as being unpatentable over Lineback (U.S. Patent No. 4,463,699 A), in view of in view of Akiyama et al. (JP 2020-019897A).
With regard to claim 1, Lineback teaches a component for a sailing craft (i.e., “vehicle”), comprising a hull hatch lid (cover) (30) comprising a lower lid (182/282) formed of a fiberglass composite (i.e., “a fiberglass-reinforced polymer body”) (Col. 11, Lines 43 – 45) and formed as a single unitary piece (282 of Fig. 14B). Fiberglass composites of the sailing craft may be formed of fiberglass bat (i.e., “glass fabric”) impregnated with resin (Col. 24, Lines 10 – 30). The hatch lid is shaped to close an opening (280) of the vehicle (Col. 10, Line 66 – Col. 11, Line 46, & Figs. 8 & 14 shown below). More specifically, Lineback teaches an elastomeric seal (294) of opening (280) interposed between the upper lip (296) and the mating hinge portion (298) of the lower lid (282) (Fig. 14A), for example, a polyurethane (rubber) seal (328) arranged at the interface of the fiberglass composite (284) and the hull lip (324) (Col. 11, Lines 12 – 36, & Fig. 14C).
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Lineback teach the rear beam tube (34) and the bowing of the mast (480) are pultruded fiberglass constructions (i.e., “pultruded fiberglass body”), but do not explicitly teach the fiberglass composite (“body”) that forms the lower lid of the hatch lid (30) is formed with a pultrusion device.
However, claim 1 defines the product by how the product was made. Thus, claim 1 is a product-by-process claim. For purposes of examination, product-by-process claims are not limited to the manipulation of the recited steps, only the structure implied by the steps. See MPEP 2113. In the present case, the recited steps imply a structure having fiberglass-reinforced plastic profiles with constant cross-sections. The reference suggests such a product.
Examiner refers applicant to MPEP § 2113 [R - 1] regarding product-by-process claims. “The patentability of a product does not depend on its method or production. If the product in the product-by-process claim is the same as or obvious from a product or the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777, F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citation omitted)
Once the examiner provides a rationale tending to show that the claimed product appears to be same or similar to that of the prior art, although produced by a different process, the burden shifts to the applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product. In re Marosi, 710 F.2d 798, 802, 218, USPQ 289, 292 (Fed. Cir. 1983)
When reading the preamble in the context of the entire claim, the recitation “a component for a rail vehicle” is not limiting because the body of the claim describes a complete invention and the language recited solely in the preamble does not provide any distinct definition of any of the claimed invention’s limitations. Thus, the preamble of the claim(s) is not considered a limitation and is of no significance to claim construction. See Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305, 51 USPQ2d 1161, 1165 (Fed. Cir. 1999). See MPEP § 2111.02.
Furthermore, a recitation of the intended use (for a rail vehicle) of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
Lineback fails to teach the pultruded fiberglass-reinforced polymer has a glass fabric content by weight that is greater than a cured polymer resin content by weight.
Akiyama et al. teach automobile parts, such as hoods, boot lids, doors (i.e., a hatch cover) (paragraph [0054]) comprising a fiber-reinforced plastic molded body formed of glass fibers and a thermoplastic resin, wherein the volume ratio of the continuous fiber and the thermoplastic resin is such that the volume content of the continuous fiber in the mold is 50% or more, preferably 65% or more. When the fiber content is increased, the strength of the molded article also increases (paragraph [0022]). Exemplary thermoplastic resin includes polyurethane-based resins (paragraph [0048]).
Therefore, based on the teachings of Akiyama et al., it would have been obvious to a person of ordinary skill in the art prior to the effective filing date to adjust the amount of fiberglass content in the resin through routine experimentation in order to increase the strength of the fiberglass reinforced hull hatch lid taught by Lineback. 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).
Lineback teaches a hull hatch lid for a sailing craft (marine vehicle). A hull hatch lid may be used as a hatch/door component for use in any type of vehicle. Therefore, the cited prior art structure is capable of performing the intended use, which meets the claim.
With regard to claim 2, as discussed above for claim 1, based on the teachings of Akiyama et al., it would have been obvious to a person of ordinary skill in the art prior to the effective filing date to adjust the amount of fiberglass content in the resin through routine experimentation in order to increase the strength of the fiberglass reinforced hull hatch lid taught by Lineback.
With regard to claim 11, Lineback fails to teach a portion of the pultruded fiberglass-reinforced polymer body has a respective thickness in a direction between an upper end of the pultruded fiberglass-reinforced polymer body and a lower end of the pultruded fiberglass-reinforced polymer body, and where the respective thickness of a portion of the pultruded fiberglass-reinforced polymer body is approximately constant along a longitudinal direction of the pultruded fiberglass-reinforced polymer body.
However, it would have been obvious to one of ordinary skill in the art that the thickness of a portion of the fiberglass-reinforced composite that forms a lower lid (282) is constant when the reference does not teach any variation of fiberglass-reinforced polymer body thickness.
Claim(s) 3 is rejected under 35 U.S.C. 103 as being unpatentable over Lineback & Akiyama et al., as applied to claim 1 above, and further in view of Haymond et al. (U.S. Patent No. 8,056,486 B2).
With regard to claim 3, Lineback teaches the fiberglass-reinforced composite that forms the lower lid (282) includes U-shaped side portions (322) (i.e., “a first side extension and an opposing and second side extension”) (Figs. 14A – C & Col. 10, Line 66 – Col. 11, Line 46).
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Although Lineback implies the central section of the fiberglass composite curves away from the first and second extensions at the cutoff left portion of Fig. 14B shown above, a curved central section is not explicitly taught by the reference.
Haymond et al. teach a car hatch cover comprising a center section 52 extending substantially the entire length of panel 40 and two generally vertical side sections skirts 54 & 56 disposed to opposed sides of longitudinal centerline 42 and integrally formed with the center section 52 so as to inhibit the hatch cover from leaking when exposed to weather element. The center section 52 of panel 40 preferably has a vaulted (i.e., curved) formation to allow the hatch cover to shed water when installed in a railcar (Col. 6, Lines 42 – 57).
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Therefore, based on the teachings of Haymond et al., it would have been obvious to one of ordinary skill in the art prior to the effective filing date to form the center section of the hatch taught by Lineback with a vaulted (curved) shape to allow the hatch to shed water.
Claim(s) 4 & 6 are rejected under 35 U.S.C. 103 as being unpatentable over Lineback & Akiyama et al., as applied to claim 1 above, and further in view of Devin et al. (U.S. Patent No. 6,398,286 B1).
With regard to claims 4 & 6, Lineback teaches a polyurethane (rubber) seal (328) arranged at the interface of the fiberglass composite (284) and the hull lip (324). However, Lineback fails to teach the presence of endcaps coupled to the fiberglass-reinforced polymer body, wherein a first gasket is engaged with the fiberglass-reinforced polymer body by the first endcap at the first end of the body and a second endcap at the opposing send end of the body wherein the second gasket is engaged with the fiberglass-reinforced polymer body by the second endcap at the first end of the body and the second endcap at the opposing send end of the body.
Devin et al. teach a lightweight motor-vehicle bonnet (i.e., hood) comprising reinforcements (i.e., “first and second endcaps”) (3,3’) and a shell composed of a laminated composite sheet (i.e., “composite”) (1’), wherein reinforcements comprise crimping of the outer edges 4,4,’ of the reinforcements 3,3’ and rear edges of the shell, with the incorporation of a sealing mastic and adhesive (i.e., “a gasket”) (Example 2 & Fig. 2 below). Reinforcements (endcaps) and said shell are fastened together by crimping and by adhesive bonding and a sealing mastic (i.e., “gasket”) (Col. 5, Lines 36 – 49). One of the main functions of the reinforcing means is to stiffen the bonnet along the edge (i.e., “end”) of bonnet, especially in torsion and in flexural (Col. 1, Lines 18 – 20).
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Therefore, based on the teachings of Devin et al., it would have been obvious to one of ordinary skill in the art prior to the effective filing date to incorporate steel reinforcing means into at least two opposing edges (i.e., “first end cap” and “second end cap”) of the fiberglass-reinforcing body of the hatch taught by Lineback in order to stiffen the body and prevent torsion or flexing, and joining each of said the first and second reinforcements (first and second endcaps) with a sealant mastic (“first and second gasket,” respectively).
Claim(s) 5 is rejected under 35 U.S.C. 103 as being unpatentable over Lineback, Akiyama et al., & Devin et al., as applied to claim 4 above, and further in view of Showa et al. (JP H06-059853 B).
With regard to claim 5, as discussed above for claims 4 & 6, Devin et al. do teach the sealing/adhesive (i.e., “gasket”) arranged at the interface between the body and the endcap, wherein the gasket rubber material seals the interface. However, Devin et al. do not teach the sealing/adhesive is composed of a rubber material.
Showa et al. teach a method of sealing panels of a vehicle body comprising joining edge portions of an outer panel and an inner panel (pg. 6) with a mastic seal material comprising synthetic rubber because rubber has excellent rust resistance (pgs. 3 – 4).
Therefore, based on the teachings of Showa et al., it would have been obvious to one of ordinary skill in the art prior to the effective filing date to use a sealant formed of a synthetic rubber adhesive material for achieving sealed joint for joining panels of a vehicle with excellent rust resistance.
Claim(s) 7 – 8 are rejected under 35 U.S.C. 103 as being unpatentable over Lineback & Akiyama et al., as applied to claim 1 above, and further in view of Iwano (US 2016/0251039 A1).
With regard to claim 7, Lineback fails to teach the pultruded fiberglass-reinforced polymer body includes a thinner central section joined to each of a first thicker section and a second thicker section, with the first thicker section tapering to a first side section via a first transition second and with the second thicker section tapering to an opposing, second side section via a second transition section. See Fig. 7 above.
Iwano teaches a structural body used as a vehicle door panel (paragraphs [0021], [0030] – [0031]), wherein the body comprising fiberglass-reinforced composite has differing thicknesses (paragraphs [0031] – [0032]). By providing gradually changing thickness portions, it is difficult for molding defects, that are due to differences in contractions at the time of solidifying, to arise (paragraphs [0007], [0011], [0045]). The structural body is structured of thermoplastic resin that contains reinforcing fibers, and, at the gradually changing portions, the reinforcing fibers are oriented along directions of connecting together the panel portions that are adjacent to one another (paragraphs [0009] & [0013]). The thickness of the fiber reinforced (FRP) material is set based on the desired strength of the respective portions of the panel (paragraphs [0032], [0034], [0053]).
Therefore, based on the teachings of Iwano, it would have been obvious to a person of ordinary skill in the art prior to the effective filing date to vary the thickness of a fiberglass reinforced door/hatch panel for a vehicle through routine experimentation in order to achieve the necessary strength based on desired strength of the panel portion. 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).
With regard to claim 8, as shown in Fig. 14A – 14C above, Lineback teaches the first side section joins to a first side extension via a first curved surface, and the second side section joins to a second side section via a second curved surface.
Claim(s) 9 is rejected under 35 U.S.C. 103 as being unpatentable over Lineback, Akiyama et al., & Iwano, as applied to claim 7 above, and further in view of Haymond et al. (U.S. Patent No. 8,056,486 B2).
With regard to claim 9, Lineback does not explicitly teach a radius of curvature of the first curved surface is about equal to a radius of curvature of the second curved surface.
Haymond et al. teach a car hatch cover comprising a center section 52 extending substantially the entire length of panel 40 and two generally vertical side sections or skirts 54 & 56 disposed to opposed sides of longitudinal centerline 42 and integrally formed with the center section 52 so as to inhibit the hatch cover from leaking when exposed to weather element. As shown in Figs. 4 – 5, the side section or skirts 54 & 56 has an angle (θ & β) (i.e., “first curved surface” and “second curved surface”) ranges between 80 – 120 degrees, more preferably 90 degrees, relative to the center section meet AAR specifications for predetermined sealing relationship with the top rim when the hatch is closed (Col. 6, Line 58 – Col. 7, Line 15 & Col. 2, Lines 20 – 31).
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Therefore, based on the teachings of Haymond et al., it would have been obvious to one of ordinary skill in the art prior to the effective filing date to form an angle of about 80 – 120 degrees of the first curved surface and the second curved surface to be the same, and therefore a radius of curvature of the first curved surface is about equal to a radius of curvature of the second curved surface, for a predetermined sealing relationship with the top rim when the hatch is closed.
Claim(s) 10 is rejected under 35 U.S.C. 103 as being unpatentable over Lineback & Akiyama et al., as applied to claim 1 above, and further in view of Tong (U.S. Patent No. 5,174,844A).
With regard to claim 10, Lineback fails to teach the pultruded fiberglass-reinforced polymer body is a homogeneous mixture of the glass fabric and the cured polymer resin that is formed via pultrusion.
Tong teaches a method of manufactured pultruded fiber-reinforced articles to form a uniform, stable, homogeneous composition (Col. 3, Lines 7 – 11 & Col. 5, Lines 64 - 58) comprising fiberglass filaments (Col. 4, Lines 48 – 68). Non-homogeneous impregnation of the fibers with the mixture yields disadvantageous results of non-homogeneous quality (Col. 6, Lines 13 – 20). A pultrusion process is suitable for high longitudinal strength articles (Col. 1, Lines 37 – 40).
Therefore, based on the teachings of Tong, it would have been obvious to one of ordinary skill in the art prior to the effective filing date to form the fiberglass-reinforced polymer body for the hatch lower lid taught by Lineback as a homogeneous mixture via pultrusion for preventing non-homogeneity quality in the final product.
Response to Arguments
Applicant argues, “Applicant has thus amended claim 1 to incorporate limitations presently cancelled from claim 2…Applicant respectfully asserts that the Office has misinterpreted Beer…Beer is directed to a two-layer glass fiber mat comprising a primary and a secondary layer which may be used in a thermosetting composite…Beer teaches the weight percent of the primary layer (12) in terms of the weight percent of the total mat solids comprising the combination of the primary and secondary layers of the mat (10). The primary layer and the secondary layer each comprises a plurality of coated glass fibers. Beer, however, does not disclose a comparison of the total glass fiber content (that is the total glass content of the combination of the primary and the secondary layer) to the thermosetting material (polymer resin) content in the finished composite material. Thus, Beer does not cure the deficiencies noted by the Office” (Remarks, Pgs. 9 – 10).
EXAMINER’S RESPONSE: Applicant’s arguments are persuasive. The rejection over Beer has been withdrawn. However, a new rejection has been made in view of Akiyama et al.
Applicant argues, “Claims 2 – 11 depend from and incorporate all the limitations of amended claim 1. Amended claim 1 is not rendered obvious under 35 U.S.C. 103 over Lineback in view of any combination of Beer, Devin, Showa, Iwano, Haymond, and Tong. Therefore, claims 2 – 11 are not obvious over Lineback in view of any combination of Beer, Devin, Showa, Iwano, Haymond, and Tong as a result of their dependencies” (Remarks, Pg. 10).
EXAMINER’S RESPONSE: Applicant is directed to the discussion above.
Applicant argues, “Claim 2 is amended to recite, at least in part ‘wherein the fiberglass-reinforced polymer body has a glass fabric content of 65% to 75%_by weight of the fiberglass-reinforced polymer body.’ As discussed above with respect to the 35 U.S.C. § 103 rejection of amended claim 1, Beer does not teach a ratio of glass content with respect to the resin content weight. As a result, Beer does not teach a percent glass content by weight of the cure fiberglass/resin material” (Remarks, Pg. 11).
EXAMINER’S RESPONSE: Applicant is directed to the discussion above.
Applicant argues, “Applicant particularly notes FIG. 11 of the Subject Application as filed as well as at [0064] – [0072] in which experimental evidence is presented show that the pultrusion samples having high glass content demonstrate greater strength properties than the non-pultrusion samples having similar content. Because the pultrusion fabricated fiberglass composite having a 65% - 75% total fiberglass composition demonstrates unusual and unexpected strength characteristics, it would not be obvious to one having ordinary skill in the art to generate a pultrusion fabricated fiberglass composition of 65% - 75% total weight. Thus, the combination of Lineback and Beer do not render amended claim 2 obvious under 35 U.S.C. 103 because the Office has failed to present a prima fascia case of obviousness of claim 2 under 35 U.S.C. 103 over Lineback in view of Beer” (Remarks, Pgs. 11 – 12).
EXAMINER’S RESPONSE: Applicant's arguments have been fully considered but they are not persuasive. First, Applicant asserts the samples formed by the pultrusion process results in high strength than samples formed by the non-pultrusion process. However, the primary reference of Lineback et al. teach the fiber-reinforced composite is formed by pultrusion. Therefore, based on Applicant’s own rationale, the pultruded fiber-reinforced composite taught by Lineback et al. will also have high mechanical strength.
Second, as discussed above, Akiyama et al. teach increasing the content of the fiberglass reinforcement in a thermoplastic mold article increases the strength of the molded article. Therefore, contrary to Applicant’s assertion, improved strength due to the fiberglass content is not unexpected.
Third, a showing of unexpected results must demonstrate a structural feature or result of a method of manufacturing that is different than the cited prior art. Applicant has failed to demonstrate an unexpected property that based on the method of manufacturing or a structural feature or any particular structural feature of the claimed vehicle component.
Applicant argues, “Claim 9 recites, at least in part ‘wherein a radius of curvature of the first curved surface is about equal to a radius of curvature of the second curved surface.’…Specifically, the Office asserts, ‘As shown in Figs. 4 – 5, the side section or skirts 54 & 56 has an angle … ranges between 80 – 120 degrees, more preferably 90 degrees…’ The office uses this wide range in angles as support that Haymond teaches that a radius of curvature of the first curved surface is about equal to a radius of curvature of the second curved surface. However, nowhere does Haymond explicitly teach the equality or near equality of the two radii of curvature. Applicant respectfully asserts that the Office has made a conclusory statement based on the reference that is not supported by the document in question.
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“Therefore, because the Office has relied upon a conclusory statement in the rejection of claim 9, the Office has failed to present a prima fascia case of obviousness of claim 9 under 35 U.S.C. § 103 over Lineback in view of Iwano and further in view of Haymond” (Remarks, Pgs. 12 – 13).
EXAMINER’S RESPONSE: Applicant's arguments have been fully considered but they are not persuasive. Applicant asserts that the recited limitation of claim 9 is not obvious based on the prior art because the cited prior does not explicitly teach the claimed subject matter. However, as noted in the MPEP §2142 by Applicant, a rejection under obviousness based on a conclusory statement may be proper when the there is “some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” The office action clearly articulated reasoning with a rational underpinning to support the legal conclusion of obviousness. Therefore, the rejection for obviousness under 35 U.S.C. § 103 was proper.
Applicant argues, “Claim 10, however, ‘recites wherein the fiberglass-reinforced polymer body comprises a homogeneous mixture of the glass fabric and the cured polymer resin.’ …Thus, any consideration of Tong must include the disclosure by Tong that a pultrusion process using a glass fabric is characterized by the grave disadvantage of having poor transverse directional performance characteristics…Therefore, if the Office includes Tong in the rejection of claim 10, it must accept Tong in its entirety including the teaching away from a pultrusion method using a glass fabric. Because Tong teaches away from the use of a glass fabric in the pultrusion process, Tong is not an admissible reference in the rejection of claim 10” (Remarks, Pgs. 15 – 16).
EXAMINER’S RESPONSE: Applicant's arguments have been fully considered but they are not persuasive. Applicant appears to have completely misinterpreted the teachings of the entire reference of Tong et al.
First, as Applicant pointed out, Tong et al. teach the use of a filament or fabric in the pultruded product may be used to prevent poor transverse directional performance. However, it is important to note that Tong et al. teach that a conventional pultrusion process using glass fabric would not result in an inoperable article for its intended use.
MPEP 2123 [R-6]. II. states:
Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 424 (CCPA 1971). "A known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use." In re Gurley, 27 F.3d 551, 554, 31 USPQ 2d 1130, 1132 (Fed. Cir. 1994)
Second, as noted in Applicant’s citation of Tong et al., Col. 1, lines 9 – 25 of Tong et al. teach their invention is an improved process of a modified pultrusion method to form a fiber-reinforced thermosetting resin product. Therefore, contrary to Applicant’s assertion, Tong et al. do not teach against forming a glass fabric via a pultrusion method, but rather teaches a modification of the conventionally known pultrusion techniques to form a pultruded glass fiber-reinforced fabric.
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 NICOLE T GUGLIOTTA whose telephone number is (571)270-1552. The examiner can normally be reached M - F (9 a.m. to 10 p.m.).
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, Frank Vineis can be reached at 571-270-1547. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/NICOLE T GUGLIOTTA/Examiner, Art Unit 1781
/FRANK J VINEIS/Supervisory Patent Examiner, Art Unit 1781
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