DETAILED ACTION
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 .
Claim Objections
Claim 3-5, 8-11, and 19 objected to because of the following informalities: “retaining rod” should read “first retaining rod”. Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
Re: claims 1-3 and 19, “means for releasably coupling the first retaining rod”.
In light of the specification, the broadest reasonable interpretation of this limitation would be a slot or an opening with one of at least a hook, magnet, trigger clip, lobster claw clip, or snap clip to perform the function of releasably coupling the first retaining rod.
Claim Rejections - 35 USC § 102
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-3, 5, 12-15, and 19 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Elliot et al. (Patent No. 9,162,856).
Re: claim 1, Elliot et al. teaches a wheel retaining apparatus (Fig. 1) for retaining a wheeled machine (Fig. 5 - 45 being part of a vehicle) relative to a platform (15 & 21) comprising: a first retaining rod (Fig. 2 - 25) having a first end (Annotated Fig. 3 – first end), a second end (Annotated Fig. 3 – second end), and a length (Annotated Fig. 3 – Length); and a pair of brackets (Fig. 1 – 27) each comprising: a first channel member with an extended length (Annotated Fig. 1 – first channel member) for positioning on and affixation (See Fig. 6 & Col. 5 – Lines 5-6) to a platform (15 & 21), and a second channel member (Annotated Fig. 1 – second channel member) affixed to the first channel member (See Fig. 1) and extending out from the first channel member at an angle thereto (See Fig. 1 – angle being 90 degrees); wherein: the pair of brackets (27) are spaced apart from one another a first distance (Annotated Fig. 1-2 – first distance), the first distance between the brackets is such that the established space between the brackets is configured to receive at least one wheel of a wheeled machine (See Fig. 5 & 6); the length of the first retaining rod (Fig. 2 - 25) is greater than the first distance between the pair of brackets (See Fig. 2); the second channel member (Annotated Fig. 1 – second channel member) of each bracket includes a means for releasably coupling (Fig. 1 – 41) the first retaining rod, such that, upon at least one wheel (45) of a wheeled machine being received between the pair of brackets the first retaining rod is releasably coupled to the second channel member so as to retain the at least one wheel of the wheeled machine between the pair of brackets (See Fig. 5 & 6).
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Re: claim 2, Elliot et al. teaches wherein the means for releasably coupling (41) the first retaining rod (25) to the second channel member (Annotated Fig. 1 – second channel member) comprises an opening (41) on the second channel member configured to receive the retaining rod (See Fig. 2).
Re: claim 3, Elliot et al. teaches wherein the means for releasably coupling (41) the first retaining rod (25) to the second channel member (Annotated Fig. 1 – second channel member) comprises a slot (41) on the second channel member configured to receive the retaining rod (See Fig. 2).
Re: claim 5, Elliot et al. teaches wherein the first end (Annotated Fig. 3 – first end) and the second end (Annotated Fig. 3 – second end) of the retaining rod (25) are curved (Annotated Fig. 3 – Rounded).
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Re: claim 12, Elliot et al. further teaches the platform (15 & 21).
Re: claim 13, Elliot et al. further teaches wherein the platform (15 & 21) includes two pairs of brackets (27 & 29) spaced apart from one another at a third distance (Annotated Fig. 1-2 – third distance), a first pair of brackets (27) arranged to retain a first wheel (45) of the wheeled machine and a second pair of brackets (29) arranged to retain a second wheel (37) of the wheeled machine (See Fig. 6).
Re: claim 15, Elliot et al. teaches wherein each pair of brackets (27 & 29) are affixed to the platform (15 & 21) such that they are at least approximately parallel to one another (See Fig. 1).
Re: claim 19, Elliot et al. teaches a kit for retaining a wheeled machine (Fig. 1) on a platform (15 & 21) comprising: a first retaining rod (Fig. 2 – 25) having a first end (Annotated Fig. 3 – first end), a second end (Annotated Fig. 3 – second end), and a length (Annotated Fig. 3 – Length); a pair of first (Annotated Fig. 1 – first channel member) and second channel (Annotated Fig. 1 – second channel member) members, wherein each first channel member has an extended length for positioning on and affixation (See Fig. 6 & Col. 5 – Lines 5-6) to a platform (15 & 21), and each second channel member has a means for releasably coupling (Fig. 1 – 41) the [first] retaining rod; at least one fastener for affixing each of the first and second channel members together and/or affixing each of the first channel members to the platform (Annotated Fig. 3-1 – fastener); and instructions for installation and use (Col. 5 – lines 3-19) , wherein the instructions comprise directions for: affixing each first and second channel member together at an angle thereto to form a pair of brackets (See Fig. 1 – the first channel member and second channel member create a 90 degree angle on the apparatus); affixing the second channel member of each bracket (Through the first channel member – See Figures 2 &3) to a platform (15 &21) at a distance, orientation, and position so as to retain a wheeled machine (See Fig. 6) when at least one wheel (45), being received between the pair of brackets (See Fig. 6), is prevented from rolling backwards when the retaining rod is releasably coupled to each second channel member (See Fig. 5 – 42).
It is noted by the examiner that the fastener being claimed is interpreted as an element that prevents/restricts movement of the first and second members from the platform.
It is additionally noted that the instructions of installation would be inherent during normal use and operation of the device.
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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) 4, 8, 10, and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Elliot et al.
Re: claim 4, Elliot et al. teaches wherein the slot (41) comprises a first opening of a first size (See Fig. 2 at 41). Elliot et al. fails to teach a second opening of a second size less than the first size of the first opening, wherein: the first opening is configured to initially receive the retaining rod; the second opening is configured to receive the retaining rod from the first opening and retain it therein.
The change in form or shape, without any new or unexpected results, is an obvious engineering design. See In re Dailey, 149 USPQ 47 (CCPA 1966) (see MPEP § 2144.04).
Re: claim 8, Elliot et al. fails to teach wherein the [first] retaining rod length is adjustable.
The Courts held that adjustability, where needed, is not a patentable advance. See In re Stevens, 212 F.2d 197, 101 USPQ 284 (CCPA 1954) (see MPEP § 2144.04).
Re: claim 10, Elliot et al. is silent on wherein the retaining rod is between 3/8 of an inch and 1 inch in diameter.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of Elliot et al. to have a retaining rod diameter between 3/8 of an inch and 1 inch since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of Elliot et al. would not operate differently with the claimed diameter and since the retaining rod is intended to reside within the notches of the device, the device would function appropriately having the claimed diameter. Further, applicant places no criticality on the range claimed.
Re: claim 11, Elliot et al. is silent on wherein the retaining rod has a minimum yield strength of 40,000 PSI.
The selection of a known material, which is based upon its suitability for the intended use, is within the ambit of one of ordinary skill in the art. See In re Leshin, 125 USPQ 416 (CCPA 1960), Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945), and MPEP § 2144.07. In the instant case, the selection of a retaining rod that has a minimum yield strength of 40,000 psi is within the ambit of one of ordinary skill in the art as the retaining rod would need to prevent the rollback of the wheel of the wheeled vehicle; should the retaining rod be made of a weaker material with a lower minimum yield strength, the retaining rod would cause failure of the apparatus.
Re: claim 14, Elliot et al. is silent on wherein the third distance is between approximately 24-84 inches.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of Elliot et al. to have a third distance between approximately 24-84 inches since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of Elliot et al. would not operate differently with the claimed distance and since the device has the functionality to change distances and support different sized vehicles the device would operate with the claimed distance. Further, applicant places no criticality on the range claimed.
Re: claim 16, Elliot et al. is silent on wherein the second channel member includes a length such that a distal end thereof is spaced approximately 6-10 inches away from the platform.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of Elliot et al. to have length of approximately 6-10 inches away from the platform since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of Elliot et al. would not operate differently with the claimed distance and since the device has the functionality to change distances and support different sized vehicles the device would operate with the claimed distance. Further, applicant places no criticality on the range claimed.
Re: claim 18, Elliot et al. is silent on wherein the first distance is between 4 and 96 inches.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of Elliot et al. to have a first distance between 4 and 96 inches since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of Elliot et al. would not operate differently with the claimed distance and since the device has the functionality to change distances and support different sized vehicles the device would operate with the claimed distance. Further, applicant places no criticality on the range claimed.
Claim(s) 6-7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Elliot et al. in view of Thomsen (Patent No. 9,821,988).
Re: claim 6, Elliot et al. fails to teach a locking mechanism to lock the first retaining rod in place.
However, Thomsen teaches a locking mechanism (Fig. 7B - 24) to lock the first retaining rod (Fig. 2 - 20) in place.
Elliot et al. and Thomsen are considered to be analogous to the claimed invention because both are in the same field of object retaining. Therefore, it would have been obvious to one of ordinary skill in the art before to the effective filing date of the given invention to modify Elliot et al.’s first retaining rod with those of Thomsen’s clip or pin in order to provide the advantage of being able to better secure the retaining rod within the slot/opening of the second member such that the wheel is unable to knock the retaining rod loose.
Re: claim 7, Thomsen further teaches wherein the locking mechanism comprises at least one of a linchpin, nut, clip, and magnet (Col. 9 – Lines 60-67).
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Elliot et al. in view of Wickenberg (Patent No. 4,191,109).
Re: claim 9, Elliot et al. is silent on wherein the [first] retaining rod is rebar.
However, Wickenberg teaches a cargo-retaining bar (Fig. 1 – 10) is made of steel (Col. 1 – Lines 16-17).
Elliot et al. and Wickenberg are considered to be analogous to the claimed invention because both are in the same field of object retaining. Therefore, it would have been obvious to one of ordinary skill in the art before to the effective filing date of the given invention to modify Elliot et al.’s first retaining rod with those of Wickenberg’s composition in order to provide the advantage of higher durability and strength compared to other materials.
It is noted by the examiner that rebar is composed of steel (reinforced bar) for use in construction applications with concrete.
The simple substitution of one known element for another is likely to be obvious when predictable results are achieved. See KSR International Co. v. Teleflex Inc., 550 U.S. 398, 415-421, USPQ2d 1385, 1395 – 97 (2007) (see MPEP § 2143, B.).
Claim(s) 17 & 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Elliot et al. in view of Goman et al. (Patent No. 7,303,368).
Re: claim 17, Elliot et al. fails to teach wherein the platform comprises a portion of a trailer configured to carry wheeled machines.
However, Goman et al. teaches wherein the platform (Fig. 4 – 30) comprises a portion (26) of a trailer (18) configured to carry wheeled machines (Fig. 6 – 4).
Elliot et al. and Goman et al. are considered to be analogous to the claimed invention because both are in the same field of wheeled vehicle retaining. Therefore, it would have been obvious to one of ordinary skill in the art before to the effective filing date of the given invention to modify Elliot et al.’s platform with those of Goman et al.’s trailer in order to provide the advantage of being able to move wheeled vehicles with another vehicle.
Re: claim 20, Elliot et al. teaches a method for transporting a wheeled machine comprising: using the apparatus of claim 1 to secure at least one wheel (45) of a wheeled machine between the pair of brackets (See Fig. 6). Elliot et al. fails to teach transporting the wheeled machine.
However, Goman et al. teaches transporting the wheeled machine (Fig. 1).
Elliot et al. and Goman et al. are considered to be analogous to the claimed invention because both are in the same field of wheeled vehicle retaining. Therefore, it would have been obvious to one of ordinary skill in the art before to the effective filing date of the given invention to modify Elliot et al.’s platform with those of Goman et al.’s trailer in order to provide the advantage of being able to move wheeled vehicles with another vehicle.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Seale (Patent No. 11,813,973), Hardin et al. (US 2023/0278525 A1), Maynard (Patent No. 7,188,856), Kenny (US 2005/0047887 A1), and Kallstrom (Patent No. 5,735,410) disclose devices for retaining wheels on vehicles.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILIP C ADAMS whose telephone number is (571)272-3421. The examiner can normally be reached Monday-Thursday 7:30 - 4:00 CT.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Amy R Weisberg can be reached at 5712705500. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PHILIP CHARLES ADAMS/Examiner, Art Unit 3612
/AMY R WEISBERG/Supervisory Patent Examiner, Art Unit 3612