DETAILED ACTION
This is a Final Office Action addressing the response dated 30 July 2026.
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 .
Disposition of the Claims Presented
The following is a status of the claims at present:
Claims 1, 3-5, 7-15, 17-21, 23, 24, 27 and 29 are pending
Claims 2, 6, 16, 22, 25, 26, 28 and 30-50 are cancelled
Information Disclosure Statement
The Information Disclosure Statements Dated 03 August 2023 and 26 January 2024, were considered in the prior Office action. Upon review the examiner was unable to locate reference 5 under the Non-Patent Literature section of the 26 January 2024 IDS titled, “Skid Patecher-10A Asphalt Plant and Recycler…”. Applicant is also encouraged to review Non-Patent Literature reference 3, which references PCT/US2022/15160, whereas applicant provided the written opinion for PCT/US2022/015610.
Specification
Applicant’s amendment to the Specification is entered.
Response to Arguments
The following addresses applicant’s remarks/arguments dated 27 July 2026. Applicant’s courtesies were appreciated.
Claim rejections – 35 USC 112(b) (response: beginning page 13)
Applicant’s amendments to the claims overcome the rejections under this heading and they are withdrawn.
Regarding applicant’s argument with respect to the use of plurality language, the examiner finds applicant’s argument persuasive and withdraws the rejection.
Claim rejections – 35 USC 103 (response beginning page 14)
Applicant’s arguments are noted but respectfully not persuasive. Applicant argues the modification of the embodiments would not be obvious (response: page 16). The examiner respectfully disagrees. Paragraph [0025] of Fox states as follows:
It will be apparent to those skilled in the art that various modifications and variations can be made in the present subject matter without departing from the scope or spirit of the present subject matter. For instance, features illustrated or described as one embodiment can be used on another embodiment to yield still a further embodiment. Thus, it is intended that the present subject matter cover such modifications and variations as come within the scope of the appended claims and their equivalents. (emphasis added)
As the disclosure states, features from one embodiment can be used with respect to another embodiment. This is further noted that the inventions in Figs. 1 and 10 are referred to in the same manner: a mobile mixing device (compare paragraph [0051] with [0078]). The scoop would permit the invention in Fig. 1 to scoop material in similar manner as Fig. 10. This, in light of the clear language that features are interchangeable among embodiments would permit an obvious modification as indicated by the examiner. As a result, the examiner maintains the rejection is proper.
Applicant’s argument regarding impermissible hindsight is not persuasive (response: beginning page 16). As indicated above, the prior art has a clear teaching on permitting interchangeability of features. Applicant further argues a different problem to be solved by the present invention. While not disputing this feature, the examiner is not required to follow applicant’s disclosure in making a rejection under 35 USC 103. See MPEP 2145(X)(A), which states, “[a]ny judgment on obviousness is in a sense necessarily a reconstruction based on hindsight reasoning, but so long as it takes into account only knowledge which was within the level of ordinary skill in the art at the time the claimed invention was made and does not include knowledge gleaned only from applicant’s disclosure, such a reconstruction is proper." In re McLaughlin, 443 F.2d 1392, 1395, 170 USPQ 209, 212 (CCPA 1971). The examiner relies on the teaching of Fox for a rationale to modify the reference, and concludes the rejection is proper.
Regarding Applicant’s discussion of Backers (Response: page 17), the reference was cited to incorporate the wall flights. Applicant’s argument stands or falls with respect to the issues previously addressed, which will not be addressed again here for brevity.
Claim Rejections - 35 USC § 103
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 (i.e., changing from AIA to pre-AIA ) 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 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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1, 3-5 and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fox et al. (U.S. Publication 2017/0246764 A1)
Claim 1: Fox discloses A mobile mixing attachment (Fig. 1A, 10) for use on a skid-steer (12, however, this is functional language not positively claiming the skid-steer), the mobile mixing attachment comprising:
a rotatable mixing drum (20) comprising a body (22) that forms an internal cavity (24 as shown) and having a forward end (22A) and a bottom end (Fig. 4: 22B), the mixing drum comprising a mouth (26) at the forward end of the body that provides access to the internal cavity of the mixing drum (as shown);
a drum chassis (20A) configured to hold and rotate the mixing drum (as shown and as disclosed generally, see paragraph [0062]);
an attachment plate (42) secured to a rear portion of the drum chassis proximal to the bottom end of the body (as shown), the attachment plate configured to engage one or more attachment couplers (as shown, the attachment plate is “configured to” engage the couplers e.g., 16) on lift arms of a skid-steer.
The embodiment in Fig. 1A does not disclose the scoop, however, the embodiment in Fig. 10 shows a similar system that includes a scoop (Fig. 10: 98) comprising a forward scooping lip (edge distal from the drum) and a rear loading end (edge opposite the scooping lip) positioned in front of the mouth of the mixing drum (as exemplified), the scoop being secured to the drum chassis (as shown). It would have been obvious at the time of filing to a person having ordinary skill in the art to have the scoop on the embodiment in Fig. 1A, as the purpose of the scoop is to facilitate loading material into the drum and the drum is a common feature in both embodiments, resulting in an obvious variant that would perform in the manner as intended.
Claim 3: The obvious modification of Fox provides The mobile mixing attachment according to claim 1, except wherein the forward scooping lip of the scoop comprises a flat edge extending outward across the width of a forward most portion of the scoop with side walls extending upward on either side of the flat edge. It would have been obvious at the time of filing to a person having ordinary skill in the art as a matter of design choice to have this limitation because a configuration of an invention is a matter of choice that a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed subject matter was significant. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). See MPEP §2144.04. To have the claimed shape would permit the scoop to function in like manner to the scoop with the arcuate shape as shown in Fig. 10. The result of the obvious modification of the prior art provides wherein the scoop comprises a sloped body that slopes upward from the flat edge to the rear loading end positioned in front of the mouth of the mixing drum (as exemplified in Fig. 10).
Claim 4: the obvious modification of the prior art provides the mobile mixing attachment according to claim 3, wherein the slope body is wider at a forward portion at the forward scooping lip and more narrow at the rear loading end positioned in front of the mouth of the mixing drum (as shown generally in Fig. 10, this limitation is met).
Claim 5: the obvious modification of the prior art provides The mobile mixing attachment according to claim 4, wherein the slope body comprises curved walls that narrow the slope body toward the rear loading end positioned in front of the mouth of the mixing drum to form funnel for funneling material from the forward scooping lip to the mouth of the mixing drum (as shown generally in Fig. 10, the limitation is met with the curved walls that narrow the body).
Claim 17: the obvious modification of the prior art provides The mobile mixing attachment according to claim 1, wherein the scoop comprises securement arms (as rendered obvious in Fig. 10 connecting the scoop 98 to the system), each securement arm having a forward end and a distal end (as shown), the securement arms secured on opposing sides of the scoop at the forward ends (as shown). The embodiment in Fig. 10 does not specifically show the securement arms are attached to the drum chassis on the distal end; however, it would have been obvious at the time of filing to a person having ordinary skill in the art to arrange the parts as necessary because rearrangement of parts is considered an obvious matter of design choice. (See In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975)(the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice.) One having ordinary skill in the art would have the arms connected as claimed in order to permit proper function of the system.
The result of the obvious modification of the prior art would permit the securement arms hold the scoop stationary with the rear loading end positioned in front of the mouth of the mixing drum such that material to be processed picked up by the scoop slides down the scoop into the mouth of the mixing drum (as would be the function).
Claim(s) 27 and 29 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fox in view of Backers Maschinenbau (DE 102015001564, hereafter “Backers” and equivalent)
Claim 27: Fox provides The mobile mixing attachment according to claim 1, wherein the body of the mixing drum comprises a back wall that forms the rear of the internal cavity (as shown generally).
Fox does not provide language directed to the wall flights. Backers teaches a similar system that has the back wall comprising back wall flights (67) that extend outward from the back wall into the internal cavity; and wherein the back wall flights comprise four back wall flights (as shown; the language “comprising” is inclusive and means more than four flights can be present). It would have been obvious at the time of filing to a person having ordinary skill in the art to include flights in order to aid in facilitating mixing of the materials within the drum. Fox in view of Backers further does not provide each back wall flight having a first portion extending perpendicular from the back wall of the body of the mixing drum and a second portion extending at an angle from the first portion. It would have been obvious at the time of filing to a person having ordinary skill in the art as a matter of design choice to have this limitation because a configuration of an invention is a matter of choice that a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed subject matter was significant. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). See MPEP §2144.04. One having ordinary skill in the art would have the shape of the flights in order to maximize mixing efficiency.
Claim 29: the obvious modification of the prior art provides The mobile mixing attachment according to claim 1, except wherein each of the sidewall flights comprises a barb extending outward at angle from the baffle configured to rip open bags of aggregate used in making asphalt. It would have been obvious at the time of filing to a person having ordinary skill in the art as a matter of design choice to have this limitation because a configuration of an invention is a matter of choice that a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed subject matter was significant. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). See MPEP §2144.04. One having ordinary skill in the art would have the shape of the flights in order to maximize mixing efficiency.
Allowable Subject Matter
Claims 7, 18-21, 23 and 24 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 8-15 are allowed
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 WILLIAM V GILBERT whose telephone number is (571)272-9055. The examiner can normally be reached M-F 0800-0430 Eastern.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eileen Lillis can be reached at 571.272.6928. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/WILLIAM V GILBERT/Primary Examiner, Art Unit 3993
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