DETAILED ACTION
This is a first action on the merits addressing the disclosure provided 18 April 2023. The following is the status of the claims under examination:
Claims 1-20 are pending and examined.
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 .
Drawings
The drawings dated 18 April 2023 are entered.
Claim Objections
While not necessarily an objection, Claim 9 is an independent claims that incorporates independent claim 1. Upon final disposition of the claims, applicant would be encouraged to write claim 9 in long form, i.e., include the actual language of claim 1, as the claims are subject to renumbering and reordering.
Claims 19 and 20 are objected to as the preambles are directed to a method, however, they depend from claim 17 which is directed to a product. For examination purposes, the examiner interprets as though claims 19 and 20 each depend from Independent claim 18, which is an independent method claim.
Claim Rejections - 35 USC § 102 or 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.
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.
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.
Claim(s) 1-10, 13 and 15-17 is/are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Polk, Jr. et al. (U.S. Publication 2019/0257093 A1, hereafter “Polk” and equivalent) as evidenced by Penland, Jr, et al., U.S. Publication 2018/0030666 A1), Marshall (U.S. Publication 2012/0057932 A1) and Seaux et al. (U.S. Publication 2003/0113162 A1).
Below is a substantial reproduction of applicant’s claims addressing all limitations with the examiner’s comments in bold italics.
Claim 1: Polk discloses A construction mat section, comprising:
a bottom mat component (Fig. 6: 20);
a top mat component (15) configured to be securable to the bottom mat component (e.g., via screws as shown or via tongue and groove 100, 106);
a plurality of ribs (see annotated Fig. 8 from Polk, below, which displays common features between multiple species) formed in at least one of the top mat component and the bottom mat component (as shown); and
one or more reinforcing members (105) secured relative to at least some of the plurality of ribs.
Regarding the limitation “molded” as directed to the bottom and top mats, the language is considered product-by-process; therefore, determination of patentability is based on the product itself. See M.P.E.P. §2133. The patentability of the product does not depend on its method of production. If the product-by-process claim is the same as or obvious from a product of the same prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 777 F.2d 695 (Fed. Cir. 1985).
Should there be disagreement regarding “molded” being a product-by-process limitation, the examiner takes Official notice that such objects are well-known in the art based on overall shape and desired method of production. This is evidenced by similar systems including Penland, Jr., (paragraph [0008]); Marshall, (paragraph [0053]) and Seaux et al., (paragraph [0027]). Further, Polk teaches some of the features may be molded, (paragraph [0034]).
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Annotated Fig. 8 from Polk
Claim 2: Polk teaches The construction mat section of claim 1, wherein the plurality of ribs are arranged in pairs of ribs (as can be done, as this is performed mentally or as viewed in the system), with each pair of ribs including a first rib and a second rib (as would be the natural result of a pair or ribs), and at least some of the pairs of ribs include one of the one or more reinforcing members disposed between the first rib and the second rib (as shown in Fig. 6). While Polk does not disclose that the ribs are spaced less than one inch apart from the first rib, it would have been obvious at the time of filing to a person having ordinary skill in the art to have this limitation because optimization of a limitation will not support patentability of subject matter encompassed by the prior art unless there is evidence indicating such a limitation is critical. See M.P.E.P. §2144.05 "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454 (CCPA 1955) (Claimed process which was performed at a temperature between 40C and 80C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100C and an acid concentration 10%.) One having ordinary skill in the art would have the desired spacing based on the desired level of support and strength of the system.
Claim 3: Polk provides The construction mat section of claim 2, except wherein the reinforcing member is secured between the first rib and the second rib using a thermal process in which the first rib and the second rib are heated to at least 160 ºF. The language of this claim is considered product-by-process; therefore, determination of patentability is based on the product itself. See M.P.E.P. §2133. The patentability of the product does not depend on its method of production. If the product-by-process claim is the same as or obvious from a product of the same prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 777 F.2d 695 (Fed. Cir. 1985). The examiner takes the position that the reinforcing member and rib are unitary, which would be the result of securing the reinforcing member as claimed.
Claims 4 and 5: Polk provides The construction mat section of claim 2, except wherein for at least some of the pairs of ribs, the first rib and the second rib are spaced less than one half inch apart (claim 4), or wherein for at least some of the pairs of ribs, the first rib and the second rib are spaced less than one quarter inch apart (claim 5). It would have been obvious at the time of filing to a person having ordinary skill in the art to have this limitation because optimization of a limitation will not support patentability of subject matter encompassed by the prior art unless there is evidence indicating such a limitation is critical. See M.P.E.P. §2144.05 "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454 (CCPA 1955) (Claimed process which was performed at a temperature between 40C and 80C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100C and an acid concentration 10%.) One having ordinary skill in the art would have the desired spacing based on the desired level of support and strength of the system.
Claim 6: Polk provides The construction mat section of claim 1, wherein at least some of the one or more reinforcing members have a U-shaped (as shown in Fig. 6: 105) profile and fit over one or more of the ribs (100).
Claim 7: Polk provides The construction mat section of claim 1, wherein the one or more reinforcing members comprise a metal, a fibrous material, a polymeric material or combinations thereof (paragraphs [0032] and [0033] teach plastics may be used, which is a polymeric material).
Claim 8: Polk The construction mat section of claim 2, except wherein at least some of the one or more reinforcing members extend a length of at least some of the pairs of ribs spaced less than one inch apart. It would have been obvious at the time of filing to a person having ordinary skill in the art to have this limitation because optimization of a limitation will not support patentability of subject matter encompassed by the prior art unless there is evidence indicating such a limitation is critical. See M.P.E.P. §2144.05 "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454 (CCPA 1955) (Claimed process which was performed at a temperature between 40C and 80C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100C and an acid concentration 10%.) One having ordinary skill in the art would have the desired spacing based on the desired level of support and strength of the system.
Claim 9: Polk provides A construction mat assembly comprising four of the construction mat sections of claim 1, joined together (see Fig. 5 which teaches two mates joined together, and the teaching of Polk is for a modular construction mat system which would clearly have at least four mats based on the inherent use of the system. Should there be disagreement as to the number of mats connected in the disclosure, the examiner takes Official notice that it is notoriously well-known to have as many such mats connected as desired based on the overall space to be utilized by the mat system.
Claim 10: Polk discloses A construction mat section, comprising:
a top mat component (15) including a first mating surface (any surface configured to contact or otherwise connect to the lower mat is a mating surface using the broadest reasonable interpretation in light of applicant’s specification);
a bottom mat (20) component including a second mating (any surface configured to contact or otherwise connect to the lower mat is a mating surface using the broadest reasonable interpretation in light of applicant’s specification) surface in opposition with the first mating surface (as would be the case); and
a plurality of tubular reinforcing members (108) extending between the first mating surface and the second mating surface (as shown and as would be met).
Regarding the limitation “molded” as directed to the bottom and top mats, the language is considered product-by-process; therefore, determination of patentability is based on the product itself. See M.P.E.P. §2133. The patentability of the product does not depend on its method of production. If the product-by-process claim is the same as or obvious from a product of the same prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 777 F.2d 695 (Fed. Cir. 1985).
Should there be disagreement regarding “molded” being a product-by-process limitation, the examiner takes Official notice that such objects are well-known in the art based on overall shape and desired method of production. This is evidenced by similar systems including (Penland, Jr., paragraph [0008]; Marshall, paragraph [0053]) and Seaux et al., paragraph [0027]). Further, Polk teaches some of the features may be molded, (paragraph [0034]).
Claim 13: Polk discloses The construction mat section of claim 10, wherein at least some of the plurality of tubular reinforcing members comprise cylindrical reinforcing members (as shown they are cylindrical).
Claim 15: Polk discloses The construction mat section of claim 10, wherein the tubular reinforcing members are secured between the molded top mat component and the molded bottom mat component (as shown they are secured between the top and bottom mats as shown). Regarding the language “at a temperature of at least 160 ºF” the language is considered product-by-process; therefore, determination of patentability is based on the product itself. See M.P.E.P. §2133. The patentability of the product does not depend on its method of production. If the product-by-process claim is the same as or obvious from a product of the same prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 777 F.2d 695 (Fed. Cir. 1985).
.
Claim 16: Polk discloses The construction mat section of claim 10, except wherein the molded bottom mat component and the molded top mat component have a combined thickness of less than three inches. It would have been obvious at the time of filing to a person having ordinary skill in the art to have this limitation because optimization of a limitation will not support patentability of subject matter encompassed by the prior art unless there is evidence indicating such a limitation is critical. See M.P.E.P. §2144.05 "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454 (CCPA 1955) (Claimed process which was performed at a temperature between 40C and 80C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100C and an acid concentration 10%.) One having ordinary skill in the art would have the desired thickness based on the desired level of support and strength of the system.
Claim 17: Polk discloses The construction mat section of claim 10, wherein at least one of the molded top mat component and the molded bottom mat component further comprises a plurality of ribs in combination with the plurality of tubular reinforcing members (as shown in Fig. 7).
Claim(s) 11 and 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Polk in view of Penland, Jr. et al. (U.S. Publication 2018/0030666 A1, hereafter “Penland” and equivalent).
Claims 11 and 12: Polk provides The construction mat section of claim 10, except wherein the first mating surface comprises protuberances configured to accommodate each of the plurality of tubular reinforcing members (claim 11), or wherein the second mating surface comprises protuberances configured to accommodate each of the plurality of tubular reinforcing members (claim 12). Penland teaches a similar system that incorporates a tubular protuberance (Fig. 12-B: 490) that can fit in a tubular reinforcing member (420). It would have been obvious at the time of filing to a person having ordinary skill in the art to have a protuberance meet with a claimed reinforcement, whether on the top or bottom as rearrangement of parts, in order to facilitate alignment of the top panel with the bottom panel.
Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Polk in view of Weiss, Jr, et al. (U.S. Publication 2006/0045619 A1).
Claim 14: Jones discloses The construction mat section of claim 10, except wherein at least some of the tubular reinforcing members comprise steel reinforcing members. Weiss teaches a similar system that can be made of numerous materials, including plastic and steel (paragraph [0040]). It would have been obvious at the time of filing to a person having ordinary skill in the art to use the claimed material based on the desired use of the system. One having ordinary skill in the art would use steel instead of plastic based on the load carried and overall desired use. The examiner takes the position that a steel system will perform in the same manner as a plastic system.
Claim(s) 18 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jones et al. (U.S. Patent 9,506,255 B1).
Claim 18: Jones A method of forming a construction mat section, the method comprising:
providing a molded bottom mat component (Fig. 2: 30; see Col. 2, lines 20-32, which notes the mats can be molded) including a plurality of ribs (51);
positioning a reinforcement member (44 meets the limitation of “reinforcement member”) proximate at least some of the plurality of ribs (as shown);
securing a molded top mat component (20) to the molded bottom mat component.
Jones further teaches heating the molded bottom mat component to a temperature; allowing the molded bottom mat component to cool in order to lock the reinforcement member in position relative to the plurality of ribs (Col. 6, lines 20-28). Jones, however, does not teach the claimed temperature. As a result, the examiner takes the position that it would have been obvious at the time of filing to a person having ordinary skill in the art to use the claimed temperature to join the panels in the claimed manner, as one having ordinary skill in the art would optimize the temperature to a desired degree to achieve the claimed result. The examiner takes the position that this would be a matter of routine experimentation.
Claim 20: Jones The method of claim 17 [18], wherein securing the molded top mat component to the molded bottom mat component comprises using fasteners (104 and 106 are fasteners, and bolt with nut shown in Fig. 5 also constitute fasteners) .
Claim(s) 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jones in view of Sayre (U.S. Patent 2,317,960).
Claim 19: Jones discloses The method of claim 17 [18], except wherein securing the molded top mat component to the molded bottom mat component comprises using a cold molding process. Sayre teaches a similar system that involves both hot molding and cold molding (page 3, left column, lines 5-12). It would have been obvious at the time of filing to a person having ordinary skill in the art to use either hot or cold molding as art recognized equivalents that would perform equally as well. Using a cold molding process would not depart from the scope of operability of the panel in Jones.
Conclusion
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