DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of Claims
Claims 1-8, 12, 14-16, 18, 21, 24, 26, 45-47 and 59 are pending.
Claims 9-11, 13, 17, 19-20, 22-23, 25, 27-44, 48-58 and 60-67 are cancelled.
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.
Claim(s) 1-4, 7-8, 12, 18, 21, 24, 26, 45-46 and 59 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wang (US 2007/0022699) in view of Gronlund et al (“Gronlund”) (US 2019/0071918).
Re claim 1, Wang discloses a fenestration assembly (Fig. 1, Fig. 4) comprising:
a fenestration frame (1, 3), the fenestration frame (1, 3) comprising
an exterior subunit (1), the exterior subunit (1) defining a receiving channel (12);
an interior subunit (3), wherein a portion (31) of the interior subunit (3) fits within (at 12) the receiving channel (12), wherein the portion (31) of the interior subunit (3) that fits within (Fig. 4) the receiving channel (12) comprises a first outer wall (top wall of 31) opposite from a second outer wall (bottom wall of 31 at 32) and an interior channel (within 3) defined between the first outer wall (top wall of 31) and the second outer wall (bottom wall of 31 proximate 32),
but fails to disclose the interior subunit comprising particles and/or fibers; and a polymer resin.
However, Gronlund discloses the interior subunit (Wang: 3; Gronlund: 300) comprising particles and/or fibers (Claim 1); and a polymer resin (Claim 1).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the fenestration assembly of Wang with the interior subunit comprising particles and/or fibers; and a polymer resin as disclosed by Gronlund in order to increase strength including in wind loading ([0067]), and to provide better cost, performance and aesthetic properties ([0004]).
Re claim 2, Wang as modified discloses the fenestration assembly of claim 1, the interior subunit (3) further comprising a tongue (31 being a tongue).
Re claim 3, Wang as modified discloses the fenestration assembly of claim 2, wherein the tongue (31) engages (Fig. 4) the receiving channel (12).
Re claim 4, Wang as modified discloses the fenestration assembly of claim 3, wherein the receiving channel (12) surrounds (Fig. 4) the tongue (31) on at least three sides (Fig. 4).
Re claim 7, Wang as modified discloses the fenestration assembly of claim 1, the fenestration frame (1, 3) further comprising an adhesive ([0025]), wherein the adhesive ([0025]) is disposed between a surface (any surface of 31) of the receiving channel (12) and a surface (of 1) of a distal end (as no point of reference is provided) of a tongue (31), thereby coupling the tongue (31) within the receiving channel (12).
Re claim 8, Wang as modified discloses the fenestration assembly of claim 7, but fails to disclose wherein the adhesive is disposed between an exterior most surface of the receiving channel and a surface of an exterior most surface of the tongue.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the fenestration assembly of Wang wherein the adhesive is disposed between an exterior most surface of the receiving channel and a surface of an exterior most surface of the tongue in order to ensure the end of the tongue is coupled to the channel instead of just the length thereof, providing better connection thereto. It has been held that rearrangement of parts is considered within the level of ordinary skill in the art. In re Japikse, 181 F.2d 1019.
Re claim 12, Wang as modified discloses the fenestration assembly of claim 7, but fails to disclose wherein the adhesive has a thickness of at least 0.03 inches and not more than 0.06 inches.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify [the fenestration assembly of Wang wherein the adhesive has a thickness of at least 0.03 inches and not more than 0.06 inches in order to ensure a sufficient amount of adhesive to maintain connection between components. It has been held that a change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
Re claim 18, Wang as modified discloses the fenestration assembly of claim 1, wherein the exterior subunit (1) exhibits less thermal expansion than ([0019] discloses that 1 and 3 may be different materials, and example materials plastic, aluminum alloy, wooden surfaces on plastic cores; a selection of these materials, one for 1 and one for 3 would result in 1 having less thermal expansion than 3) the interior subunit (3).
Re claim 21, Wang as modified discloses the fenestration assembly of claim 1, Gronlund discloses the particles and/or fibers comprising at least 1 wt. % wood particles (Table 1).
Re claim 24, Wang as modified discloses the fenestration assembly of claim 1, Gronlund discloses the particles and/or fibers comprising wood particles and glass fibers (Table 1).
Re claim 26, Wang as modified discloses the fenestration assembly of claim 1, wherein a proximal portion (right side of 12) of the receiving channel (12) is defined by a body member (right wall of 12); and wherein a distal portion (left side of 12) of the receiving channel (12) is defined between a first extension (top extension wall of 12) and a second extension (bottom extension wall of 12).
Re claim 45, Wang as modified discloses the fenestration assembly of claim 1, Gronlund discloses wherein the exterior subunit (Wang: 1) is a pultrusion ([0217]); wherein the interior subunit (Wang: 3) is an extrusion ([0217]).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the fenestration assembly of Wang with pultruding and extruding as disclosed by Gronlund in order to provide a well-known, inexpensive, repeatable process of formation.
It should further be noted that the language “protrusion” and “extrusion” is considered product-by-process; therefore, determination of patentability is based on the product itself. See M.P.E.P. §2113. 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).
Re claim 46, Wang as modified discloses the fenestration assembly of claim 1, Gronlund discloses wherein the exterior subunit (Wang: 1) is an extrusion ([0217]); wherein the interior subunit (Wang: 3) is an extrusion ([0217]); and wherein the interior subunit (3) is formed with a different composition ([0056]) than the exterior subunit (1).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the fenestration assembly of Wang with extruding as disclosed by Gronlund in order to provide a well-known, inexpensive, repeatable process of formation.
It should further be noted that the language “extrusion” is considered product-by-process; therefore, determination of patentability is based on the product itself. See M.P.E.P. §2113. 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).
Re claim 59, Wang discloses a fenestration frame (1, 3) comprising:
a series of at least two dual component structural members (each jamb per [0015]) comprising a first component (one jamb 1) and a second component (another jamb 1);
the first component (one jamb 1) comprising
a receiving channel (12), the receiving channel (12) being defined by a first side portion (top of 12), a second side portion (bottom of 12), and a base portion (right side of 12) connecting the first side portion (top of 12) with the second side portion (bottom of 12);
the second component (3) comprising
a tongue portion (31) that engages the receiving channel (12) of the first component (one jamb 1) to combine the first component (1) and the second component (3) into a structural member (being the jambs 1/3), wherein the tongue (31) comprises a first outer wall (top wall of 31) opposite from a second outer wall (bottom wall of 31) and an interior channel (interior to 31) defined between the first outer wall (top wall of 31) and the second outer wall (bottom wall of 31),
but fails to disclose the first component as a fiber-reinforced polymeric material, the second component as a particulate-filled polymeric material.
However, Gronlund discloses the first component (Wang: 1; Gronlund: 300) as a fiber-reinforced polymeric material (Claim 1; see also [0039]) and the second component (Wang: 3; Gronlund: 300) as a particulate-filled polymeric material (Table 1).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the fenestration assembly of Wang with the first component as a fiber-reinforced polymeric material, the second component as a particulate-filled polymeric material as disclosed by Gronlund in order to increase strength including in wind loading ([0067]), and to provide better cost, performance and aesthetic properties ([0004]).
Claim(s) 47 is/are rejected under 35 U.S.C. 103 as being unpatentable over Toll et al (“Toll”) (US 2017/0356235) in view of Gronlund et al (“Gronlund”) (US 2019/0071918).
Re claim 47, Toll discloses a fenestration assembly (10) comprising:
a fenestration frame (14), the fenestration frame (14) comprising
an exterior extrusion (14a);
the exterior extrusion (14a) defining a receiving channel (14c);
an interior subunit (14b), wherein the interior subunit (14b) fits within (at 14d) the receiving channel (14c),
but fails to disclose the exterior extrusion comprising at least 30 wt. % glass fibers and a first polymer resin, and the interior subunit comprising particles and/or fibers and a second polymer resin.
However, Gronlund discloses the exterior subunit (Toll: 14a; Gronlund: 300) comprising particles and/or fibers (Claim 1) and a first polymer resin (Claim 1; see also [0039]) and the interior subunit (Toll: 14b; Gronlund: 300) comprising particles and/or fibers (Claim 1) and a second polymer resin (Claim 1; see also [0039]).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the fenestration assembly of Toll with the exterior extrusion comprising at least 30 wt. % glass fibers and a first polymer resin, and the interior subunit comprising particles and/or fibers and a second polymer resin as disclosed by Gronlund in order to increase strength including in wind loading ([0067]), and to provide better cost, performance and aesthetic properties ([0004]).
Claim(s) 5-6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wang (US 2007/0022699) in view of Gronlund et al (“Gronlund”) (US 2019/0071918) and Kerscher et al (“Kerscher”) (US 209/0211183).
Re claim 5, Wang as modified discloses the fenestration assembly of claim 1, but fails to disclose the exterior subunit comprising: a first projection; and a second projection, wherein the first projection and the second projection extend within the receiving channel from opposite sides of the receiving channel.
However, Kerscher discloses the exterior subunit (Fig. 19 324) comprising: a first projection (356); and a second projection (356), wherein the first projection (356) and the second projection (356) extend within the receiving channel (350) from opposite sides (Fig. 19) of the receiving channel (350).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the fenestration assembly of Wang with the exterior subunit comprising: a first projection; and a second projection, wherein the first projection and the second projection extend within the receiving channel from opposite sides of the receiving channel as disclosed by Kerscher in order to facilitate alignment and depth insertion into the receiving channel.
Re claim 6, Wang as modified discloses the fenestration assembly of claim 5, but fails to disclose the tongue comprising: a first recess, wherein the first recess is configured to accept the first projection; and a second recess, wherein the second recess is configured to accept the second projection.
However, Kerscher discloses the tongue (362) comprising: a first recess (370), wherein the first recess (370) is configured to accept the first projection (356); and a second recess (370), wherein the second recess (370) is configured to accept the second projection (356).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the fenestration assembly of Wang with the tongue comprising: a first recess, wherein the first recess is configured to accept the first projection; and a second recess, wherein the second recess is configured to accept the second projection as disclosed by Kerscher in order to facilitate alignment and depth insertion into the receiving channel.
Claim(s) 14-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wang (US 2007/0022699) in view of Gronlund et al (“Gronlund”) (US 2019/0071918) and Marstein (WO2012/169901).
Re claim 14, Wang as modified discloses the fenestration assembly of claim 1, but fails to disclose the fenestration frame further comprising a connector, wherein the connector extends through a portion of the exterior subunit and into a portion of the interior subunit.
However, Marstein discloses the fenestration frame (22) further comprising a connector (18), wherein the connector (18) extends through a portion of the exterior subunit (13) and into a portion of the interior subunit (23).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the fenestration assembly of Wang with the fenestration frame further comprising a connector, wherein the connector extends through a portion of the exterior subunit and into a portion of the interior subunit as disclosed by Marstein in order to more rigidly secure the components together.
Re claim 15, Wang as modified discloses the fenestration assembly of claim 14, Marstein discloses wherein the connector (18) allows a limited degree of independent movement (due to the gapping such as at 15 and below 163 in Fig. 3, allowing for relative flexure) of the exterior subunit (13) relative to the interior subunit (23).
Re claim 16, Wang as modified discloses the fenestration assembly of claim 14, Marstein discloses wherein the connector (18) extends through a lateral portion (14) of the exterior subunit (13) and into a lateral portion (24) of the interior subunit (23).
Response to Arguments
Claim Rejections 35 USC 102: Applicant’s arguments with respect to all claims
have been considered and are persuasive. However, there are no longer any rejections presented under 35 USC 102 in the above
Claim Rejections 35 USC 103: Applicant’s arguments with respect to all claims have been considered but are generally moot as they do not apply to any combination of references in the above, as a result of Applicant’s amended necessitating new grounds of rejection considering Wang.
No amendment has necessitated a new ground of rejection for claim 47, and thus, a response to Applicant’s arguments is included herein.
Applicant argues that the configuration requiring at least 30 wt. % glass fibres and a first polymer resin is no an obvious combination to a person of ordinary skill in the art. Applicant cites the specification stating benefits of use of the materials, and recites that because the interior portion is not subjected to the same environmental stresses as the exterior portion, different materials can be used without loss of efficiency. It is first noted that there is no claim language that requires “different” materials. The claim requires the exterior extrusion with a first resin, and the interior extrusion with a second resin, but makes no mention as to what the resins are, or that they are different in any way. In addition, Applicant points out that the Office Action recognizes Toll fails to disclose these features and asserts that Gronlund remedies Toll’s deficiencies, and alleges that the proposed motivation to combine is improper. As noted in the above, such a modification would have been obvious in order to increase strength including in wind loading ([0067]), and to provide better cost, performance and aesthetic properties ([0004]).
Applicant contends that such motivation and the combination constitutes impermissible hindsight. However, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). A person of ordinary skill would look to Gronlund to modify Toll for those reasons identified above. The materials of Gronlund as well as the motivation to utilize them is knowledge within the level of ordinary skill as evidenced by the explicit suggestions in Gronlund.
Applicant contends that Gronlund fails to provide a reason as to why it would be beneficial to modify Toll to include the (1) specific materials required by claim 47 or (2) include two different types of materials as required by claim 47. First, the cited rationale discusses the benefits of the material use of Gronlund. Second, as discussed above, there is no claim language requires “different” materials.
As such, the prior art meets the claim.
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 KYLE WALRAED-SULLIVAN whose telephone number is (571)272-8838. The examiner can normally be reached Monday - Friday 8:30am - 5:00pm.
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, Brian Mattei can be reached at (571)270-3238. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
KYLE WALRAED-SULLIVAN
Primary Examiner
Art Unit 3635
/KYLE J. WALRAED-SULLIVAN/Primary Examiner, Art Unit 3635