DETAILED ACTION
Information Disclosure Statement
The information disclosure statement filed 20 July 2023 includes two typographical errors in the reference numbers not matching the inventors. One reference has been corrected by the examiner, but one is unclear regarding which reference has been intended.
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.
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 and 19 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.
The traffic cone is intended use in each of independent claims 1 and 14; however, claims 4 and 19 recited additional limitations directed solely to this feature. This is improper, since the cone is not part of the claimed invention. Additionally, it is unclear how a “delineator” further limits a cone, since this term is typically a broader version of devices that includes cones. For both of these reasons, claims 4 and 19 have not been further treated on the merits.
Claim Rejections - 35 USC § 102
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.
Claims 1, 2, 5 and 8 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Shea (U.S. Patent 5,758,868).
Shea discloses a warning tape holder having a main body (Figures 1 and 2) and receptacle (12). The receptacle extends from the main body and includes an opening (defined by 12). Because the opening is round, it broadly meets the recitation of “adapted to receive an upper portion of a traffic cone.” The receptacle includes a perimeter wall and the main body includes a plurality of through slots (13a) to receive a warning tape (11). Note there is no structure recited with respect to the main body that distinguishes it from the device of Shea.
Regarding claim 2, the receptacle is a closed loop.
Regarding claim 5, the top is flat (Figure 1) and it is reasonably assumed that the bottom (not shown) is as well. Also note the 103 rejection.
Regarding claim 8, the entire upper surface is coplanar.
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.
Claims 3, 5, 6, 10 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Shea, as applied above.
Regarding claim 3, the loop is closed; however, it would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to have used an open loop in order to optionally fit a different sized posts, for example. Also, since the other receptacles (13) are configured in this manner, it is clear that such a reconfiguration is not outside of ordinary skill.
Claim 5 is deemed to be met. Further, it would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to have arranged the lower surface to be flat in order to be symmetrical and/or reversible, for example. There is no patentable distinction in making a device symmetrical.
Regarding claim 6, it would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to have configured Shea in any manner deemed best suited to mating with another structure.
Regarding claim 10, it would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to have used additional slots as desired in order to mate with additional fence/tape sections. This is a duplication of existing parts which cannot patentably distinguish an apparatus.
Regarding claim 12, it would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to have used any relative sizes as desired to fit adjacent devices. Size is not a patentable feature in this instance.
Allowable Subject Matter
Claims 7, 9, 11 and 13 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claims 14-18 and 20 are allowed.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The additional references teach tape holders, some of which meet at least claim 1 recitations.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GARY S HARTMANN whose telephone number is (571)272-6989. The examiner can normally be reached 11-7:30.
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GARY S. HARTMANN
Primary Examiner
Art Unit 3671
/GARY S HARTMANN/Primary Examiner, Art Unit 3671
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