DETAILED ACTION
Response to Arguments
Applicant's arguments filed 14 AUG 25 have been fully considered but they are not persuasive.
In response to the assertion that “The claimed invention is directed to an innovative design in which conventional take down lugs are segregated, or placed on separate components,” the following.
Re: “innovative design,” the instant application for a utility patent and, thus, any design features not distinguished from the prior art by the language of the claims alone cannot be argued as overcoming the rejection(s) of record. Further note that it has been held that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art. In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947). MPEP § 2144.04(I). Here, as will be demonstrated more fully below, terms like “take down lug,” for example, are open to very broad yet reasonable interpretation, absent more clarifying, structural language in the claims.
Re: “conventional take down lugs,” it is noted that although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Thus, whether the prior art discloses similar take down lugs, for example, is immaterial, in part because Applicant has not so defined the term to mean that reasonably disclosed the prior art relied upon in the rejections.
In the Background section Applicant discloses AR-15 rifles (rifles that include take down lugs, as that term is known in the art: see ¶ [0004]). Applicant then includes AK-47 rifles in the same sentence, which rifles do not share this feature, i.e., an AK-47 lacks anything remotely resembling a take-down lug of an AR-15. However, because Applicant has included the two types among various other conventional rifles for purposes of discussion, e.g., ¶¶ [0004]-[0005], and addresses issues with “removal and replacement of different barrels for firearms … by the present disclosure,” ¶ [0006], a reader can only surmise that Applicant intends the disclosed invention to apply to more than those firearms known to include take down lugs akin to those of the AR-15 type. The broad yet reasonable construction used in the rejection(s) is not improper simply because the prior art fails to disclose and/or show exactly what Applicant does as a preferred embodiment.
The above is supported by, “The following description is merely exemplary in nature and is not intended to limit the present disclosure, application, or uses,” ¶ [0031], and
The description of the disclosure is merely exemplary in nature and, thus, variations that do not depart from the substance of the disclosure are intended to be within the scope of the disclosure. Such variations are not to be regarded as a departure from the spirit and scope of the disclosure. ¶ [0042].
All of which leads to the conclusion that not only that which is clearly shown but other constructions may suffice as meeting the claimed subject matter.
Lastly regarding claim language, though the elements must be arranged as required by the claim, this is not an ipsissimis verbis test, i.e., identity of terminology is not required. In re Bond, 910 F.2d 831, 15 USPQ2d 1566 (Fed. Cir. 1990). See MPEP § 2131. Thus, the prior art need not use identical language where its structure can be said to meet the claim, broadly yet reasonably.
In response to the argument that in US 7,905,071 to Davies “neither the receiver 15 nor the handguard portion 70 contains a take down lug,” the examiner must respectfully disagree. Given the language noted above, a “take down lug” need not necessarily be those associated with an AR-15 type rifle, but rather, may include other similar mechanisms. The plain definition of the term “lug” best fitting Applicant’s disclosure is: a part of something which sticks out, used as a handle or support, per OneLook.com, while the adjectival “take down” merely implies a certain functionality, here, having to do with disassembly. But a lug that is functional in disassembly must also be functional in assembly, which those shown in Applicant’s disclosure are. That is, one cannot assemble the rifle pieces shown without the take down lugs. Thus, such can also be construed as assembly/disassembly lugs, useful in keeping the rifle assembled and requiring separation from other parts during disassembly. Looking at Davies, e.g., Figs. 3, 5, and 8-9, the rearmost portion of receiver 15 clearly meets ‘a part that sticks out, used as a support.’ Similarly, thrust coupling 62 fairly meets the plain definition of the term.
In response to the argument that “by virtue of the receiver [15] having a “fixed” attachment, it cannot by definition have a “take down lug.” No lug whatsoever is illustrated or described in Davies relative to the receiver 15,” the examiner must respectfully disagree. As noted above, Davies need not disclose any of Applicant’s claim language in order to meet the structural limitations of the claims. Also as noted above, a take down lug can be construed much more broadly than Applicant insists as long as such an interpretation is reasonable. Given Applicant’s disclosure noted above, the interpretation of Davies does not appear to be unreasonable. That is, Applicant’s disclosed rear take down lug is just as “fixed” in attachment as the rearmost protruding portion of receiver 15 of Davies in the assembled state. Even if it were not, there is nothing in the claim to warrant such a narrow interpretation of the terms.
In response to the argument that “there would be no motivation to combine the teachings of [US 2015/0135573 to] DiChario with the structure of Davies because Davies is specifically concerned with accuracy while having removable barrels,” the examiner must respectfully disagree. The argument asserts that relying on the teachings of DiChario results in a less accurate firearm in Davies. However, Applicant fails to establish this must be the result, i.e., Applicant asserts so but provides to evidence to support the claim. See MPEP § 2145(I). Furthermore, the combined teachings should not be construed as requiring bodily incorporation, since the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). MPEP § 2145(III). Lastly, and only as one example of combining the teachings, a person of ordinary skill in the art could arrive at a construction wherein the receiver 15 attaches similarly to that of lug 62, instead of what appears to be use of a threaded connector between the receiver 15 and receiver channel 30 (see, e.g., Fig. 9).
For these reasons, the rejections based on art must stand.
Claim Rejections - 35 USC § 102
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-8 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Davies.
Re: claim 1, Davies discloses the claimed invention including a firearm assembly 10, e.g., Figs. 1-2, comprising: an upper receiver, inter alia, 15, configured to receive a barrel 12 therein (as set forth at col. 4, lines 3-6 (e.g., “4:3-6”); see, e.g., Fig. 8), the upper receiver comprising a rear take down lug (rearmost portion thereof, e.g., Fig. 3, i.e., for fixed attachment in channel 30, e.g., Figs. 4 and 6, 3:48-49); and a handguard rail, inter alia, 50, 75, configured to receive the upper receiver and the barrel therein (shown), the handguard rail comprising a front take down lug 62.
Re: claim 2, Davies further discloses wherein the front take down lug is an integral component of the handguard rail. It has been held that the term “integral” is sufficiently broad to embrace constructions united by such means as fastening and welding. In re Hotte, 177 USPQ 326, 328 (CCPA 1973). Here, Davies fairly discloses fastening and, thus, anticipates.
Re: claim 3, Davies further discloses wherein the front take down lug is a separate part secured to the handguard rail (shown).
Re: claim 4, Davies further discloses wherein the front take down lug is secured to the handguard rail with mechanical fasteners 86, e.g., Fig. 6, 5:29-35.
Re: claim 5, Davies further discloses wherein the upper receiver further comprises a set of retainer tabs (on 52, which is coupled to 15, e.g., 4:51-52) disposed along opposed exterior side surfaces of a rear portion of the upper receiver, e.g., Fig. 7, and the handguard rail comprises a set of opposed slots (within 76) extending along a rear portion of the handguard rail (shown), wherein the opposed slots are configured to receive the set of retainer tabs to locate the front take down lug relative to the rear take down lug, 4:53-65.
Re: claims 6-7, see claims 2-3, above. Mutatis mutandis, Davies fairly discloses integral and separate constructions.
Re: claim 8, Davies further discloses wherein set of retainer tabs are secured to the upper receiver with mechanical fasteners. As noted above, Davies discloses element 52 being coupled to the top of receiver 15, 4:51-52, while drawing figures of the elements, e.g., Fig. 6, clearly show mating holes in each element. Thus, whether expressly articulated by Davies, it is clear that some form of mechanical fastener is intended to accomplish the disclosed coupling.
Claim Rejections - 35 USC § 103
Claims 9-23 are rejected under 35 U.S.C. 103 as being unpatentable over Davies in view of DiChario.
Re: claim 9, Davies discloses the claimed invention as applied above including a firearm assembly 10, e.g., Figs. 1-2, comprising: a lower receiver 14 comprising a rear lug housing 30 and a front lug housing 44; an upper receiver 15 comprising a central cavity (for bolt 35, e.g., Fig. 3); a barrel 12 secured within the central cavity of the upper receiver, 4:3-6 (see also, e.g., Fig. 8); a handguard rail, inter alia, 50, configured to receive the upper receiver and the barrel therein (shown/disclosed), the handguard rail comprising a front take down lug 62; except for a rear take down lug on the upper receiver, a rear take down pin disposed through the rear take down lug and the rear lug housing, a front take down pin disposed through the front take down lug and the front lug housing, and, wherein the handguard rail is configured to pivot about the front take down pin when the rear take down pin is removed.
DiChario discloses a firearm assembly 100, e.g., Fig. 1, comprising: a lower receiver 112 comprising a rear lug housing (as evidenced by takedown pin 111’) and a front lug housing (as evidenced by takedown pin 111); an upper receiver 122, e.g., Fig. 2, comprising a central cavity 124, e.g., Fig. 3; a barrel 142 secured within the central cavity of the upper receiver, ¶ [0024]; a handguard rail 150, a rear take down lug 121’ on the upper receiver, a rear take down pin 111’ disposed through the rear take down lug and the rear lug housing, ¶ [0022]; a front take down pin 111 disposed through a front take down lug 121 and the front lug housing, id., and, wherein the handguard rail is configured to pivot about the front take down pin when the rear take down pin is removed (inherent in the construction shown: see also “AR-15 and M16,” ¶ [0005], which are well-known as including this pivoting feature/functionality) in the same field of endeavor for the purpose of replacing normally metallic elements/portions of firearms with molded polymeric materials, where possible, e.g., ¶¶ [0005], [0008]-[0010].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Davies as taught by DiChario in order to replace normally metallic elements/portions of firearms with polymeric materials with a reasonable expectation of success because DiChario further discloses that “Polymeric parts/components decrease the weight of the rifle while also decreasing material costs associated with fabrication of the rifle parts,” ¶ [0027], and “capitaliz[ing] upon the weight and cost savings afforded by polymeric materials while enjoying the mechanical and structural strength afforded by metal (i.e. aircraft grade aluminum),” ¶ [0008]. Further rationale: All claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination would have yielded predictable results to a skilled artisan at the time the invention was made.
Re: claim 10-23, see relevant claims, above.
Conclusion
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.
Any inquiry concerning this communication should be directed to Bret Hayes at telephone number (571) 272 – 6902, fax number (571) 273-6902, or email address bret.hayes@uspto.gov, which is preferred, especially for requesting interviews, general questions, etc. Note, however, that return correspondence cannot be made in the event that information subject to the confidentiality requirement as set forth in 35 U.S.C. § 122 has been included. See MPEP §§ 502.03 and 713.01, I, regarding email communications. The examiner can normally be reached Mondays through Fridays from 5:30 AM to 1:30 PM, Eastern.
The Central FAX Number is 571-273-8300.
If attempts to contact the examiner by telephone are unsuccessful, the examiner’s supervisor, Troy Chambers, can be reached at (571) 272 – 6874.
/Bret Hayes/
Primary Examiner, Art Unit 3641
23-Sep-25