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 .
Response to Arguments/Amendments
1. Applicant argues that the rejection of dependent claim 2 (of which current claim 1 incorporates) of the previous Office Action included subject matter of Fauner that was directed to a different embodiment that the Examiner did not use, and therefore would not be relevant to the rejection of claim 1. Specifically, nozzle D’ is related to a handheld embodiment shown in Figure 3, and not the embodiment in Figures 1 and 2 upon which the Examiner relied upon for the rejection of claim 1. Admittedly, the rejection of claim 2 was a poorly written rejection by the Examiner. However, the same subject matter of claim 2 was also incorporated into claim 7, the rejection of which noted that Fauner did teach of nozzle D related to the embodiment shown in Figures 1 and 2 and even cited paragraph [0061], which was additionally cited in the rejection of claim 1. Consequentially it is the Examiner’s opinion that since Applicant has both read [0061] of Fauner and the rejection of claim 7 of the previous Office Action, they are in fact aware that Fauner teaches the subject matter of dependent claim 2 of claims list of 11/08/2025. Further, the incorporation of the rejection from claim 7 of the previous Office Action in the rejection of claim 1 of the current Office Action would not constitute a new rejection, and under the principals of compact prosecution, these arguments are unpersuasive and this Office Action should be a Final Rejection.
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.
2. Claims 1 and 8-11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Fauner (DE 19861085A1; previously presented).
Regarding claim 1, Fauner teaches an assembly for preparing an injectable composition ([0038]), that can be a sealant ([0018]) shown in Figure 2 that comprises at least a first storage means (storage container- Vy), a second storage means (storage container- V1), a third storage means (storage container- V2), a device for generating a first mixture that is linked to the second and third storage means (mixing chamber- M in Figure 1 or M1 in Figure 2; [0061]) and a device for generating a second mixture that is linked to the first storage means and the device for generating a first mixture (mixing chamber- M2; [0064]). Fauner teaches of a device that injects the second mixture at the output of the final mixing chamber (nozzle- D or D’; [0061]; see Figures 1 and 3), which when applied to the multiple mixing chamber embodiment is the second mixing chamber. The nozzle would be the unlabeled triangle at the bottom of the second mixing chamber.
The substances of each of these storge devices is material worked upon, which MPEP 2115 teaches- “Claim analysis is highly fact-dependent. A claim is only limited by positively recited elements. Thus, "[i]nclusion of the material or article worked upon by a structure being claimed does not impart patentability to the claims." In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963); see also In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935).” Fauner teaches that the first storage means is noted as being able to hold a curing agent ([0064]), which can be a liquid ([0021]), which establishes a feasibility of storing a silicate resin-based liquid component. The second storage means is noted as being capable of holding a reaction partner ([0061]), which can be a liquid ([0021]), which establishes a feasibility of storing a liquid component based on diphenylmethane di-isocyanate. The third storage means is noted as holding a nano-fine substance that can be a powder, liquid, or gas ([0061]), which establishes a feasibility of storing an organic or mineral filler. Since Fauner’s apparatus is described as having the capability of storing the various components as claimed, these limitations do not differentiate from the prior art of Fauner.
The preamble limitation “for the sealing of an anchor bolt in a dedicated recess of a rock structure” is an intended use of the claimed apparatus and is of no significance to the claim construction, which is in line with the teachings of MPEP 2111.02.II- “If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction. Shoes by Firebug LLC v. Stride Rite Children’s Grp., LLC, 962 F.3d 1362, 2020 USPQ2d 10701 (Fed. Cir. 2020)”.
Regarding claim 2, Fauner teaches the inclusion of an injection device for injecting the second mixture, which is mounted at the output of the device (nozzle- D’; [0068]; shown in Figure 3).
Regarding claim 8, Fauner teaches that the device for generating the first mixture is a mixing mechanism (mixing chamber- M1; [0064]).
Regarding claim 9, Fauner teaches that the device for generating the second mixture can involve a static mixer (static mixing tube; [0040]).
Regarding claim 10, Fauner teaches that the device for generating the second mixture can involve a dynamic mixer (stirrer; [0040]).
Regarding claim 11, Fauner teaches a frame-forming support structure (spray gun; [0068]), that as seen in Figure 3 is arranged to allow a joint transportation of the different constituent elements of the assembly.
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.
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.
3. This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
4. Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Fauner.
Regarding claim 3, Fauner teaches of additional storage means before the second mixer (storage container- Vz; [0064]; see Figure 2), this additional storage means in conjunction with the first storage means would allow for separate storage of a fastsetting silicate resin-based silicate compound and of a the slowsetting silicate resin-based silicate compound, which are “materials worked upon”. Fauner does teach the inclusion of additional mixing chambers (“at least one further mixing chamber”- [0064]), but does not teach that such an additional mixing chamber would create an additional intermediate mixture that combines the contents of Vy and Vz. However, it should be noted that Fauner teaches it is ideal for chemical reactions to only occur in the second mixing chamber, so that only the second mixing chamber has to be cleaned ([0066]). In the case that two non-interacting additives are the contents of Vy and Vz, which have the need to be physically mixed prior to the final reaction mixing in mixing chamber 2 (M2), it would have been obvious to one of ordinary skill in the art before the effective filing date of the proposed invention that one of the additional mixing chambers would mix the contents of Vy and Vz for the advantage of only needing to clean the second mixing chamber, and no other chambers.
5. Claims 4-7 are rejected under 35 U.S.C. 103 as being unpatentable over Fauner in view of Oberg (US 2008/0085161; previously presented).
Regarding claim 4, Fauner teaches that the mixing of the stored components can be operated automatically ([0050]). Fauner does not teach of a specific device to do so. Oberg teaches of a device (CPU- 4) that controls the apparatus of an anchor bolt installation apparatus (drill rig- 1; [0021]) that includes a conventionally known mixture injection unit (equipment- 3; [0025]), which would correspond to Fauner’s assembly. If in control of Fauner’s assembly, the device would have the mixing instructions of Fauner, and therefore would be a dispensing command and control unit as per the 112(f) interpretation. The advantage of Oberg’s control unit is that is this allows for remote operation ([0029]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the proposed invention to use the drill rig and CPU of Oberg for the apparatus of Fauner for the advantage of remote operation.
Regarding claim 5, in applying Oberg as in claim 4, Oberg teaches the inclusion of a sensor for detecting the position of the drilling rig that is integrated into the dispensing command and control unit (S4; [0022]; see Figure 1). The position of the rig is an external parameter.
Regarding claim 6, in applying Oberg as in claim 4, Oberg teaches that the dispensing command and control unit is associated with at least one user interface (computer- 5; [0027]).
Regarding claim 7, in applying Oberg as in claim 4, Oberg teaches that the dispensing command and control unit actuates the injection device while operating ([0026]).
Conclusion
6. THIS ACTION IS MADE FINAL. 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.
7. Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALEXANDER S WRIGHT whose telephone number is (571) 272-8343. The examiner can normally be reached Monday- Friday 8:30am-5:00 pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Philip Tucker can be reached on 571-273-1095. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALEXANDER S WRIGHT/Examiner, Art Unit 1745
/ALEX B EFTA/Primary Examiner, Art Unit 1745
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