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 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)(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) 1-6,8-14,16-18 is/are rejected under 35 U.S.C. 102a2 as being anticipated by Tropynina (20230160207).
Claim 1. Tropynina discloses a thermal break, comprising:
a shell (the portions of 100 that are the top and bottom element 5 as seen in the figures), comprising: an interior space defined by exterior walls (the horizontal portion of element 5); and
a plurality of shafts (at 2 the portions of 2 where the rebar extends through, there being a shaft between the vertical portions of 5 to accommodate the rebar 6) extending through the interior space between a first wall and an opposing second wall of the exterior walls (as seen in figures 1-2 where the shafts at 2/6 are between the top and bottom elements 5), the plurality of shafts shaped to receive and retain corresponding pieces of rebar (6); the corresponding pieces of rebar, retained in the plurality of shafts; the interior space being filled with concrete and insulation (paragraph 0034-0035 where 1 is an insulating block of low thermal conductivity and 2 is made of concrete-0035).
Claim 2. The thermal break of claim 1, wherein the shell further comprises at least one projection (as seen in figures 1-2 element 5 has a transverse projection on either side extending longitudinally along the first and second wall) extending longitudinally along each of the first wall and the second wall to provide a shear lock.
Claim 3. The thermal break of claim 2, wherein the first wall comprises a projection at the bottom of the thermal break (where the bottom element 5 has a first upwardly extending projection) and the second wall comprises a projection at the top of the thermal break (where the top element 5 has a downwardly extending projection-see annotated figure below).
Claim 4. The thermal break of claim 3, wherein each of the first wall and the second wall each comprises a further projection (4) located at midportion of the first wall and the second wall, respectively (where there is a projection 4 at a midportion longitudinally).
Claim 5. The thermal break of claim 1, wherein the plurality of shafts comprises a series of shafts arranged longitudinally (as seen in the figures 1-2).
Claim 6. The thermal break of claim 5, wherein the plurality of shafts comprises at least two series of shafts arranged longitudinally at different heights of the thermal break (as seen in figures 1-2).
Claim 8. The thermal break of claim 1, wherein the shell (defined by 200/300) further comprises a shield member (5) projecting upward from an upper surface of the shell (as seen in figures 1-2).
Claim 9. Tropynina discloses a shell for a thermal break, comprising:
an interior space defined by exterior walls (5); and
a plurality of shafts (at 2 or the portions of 2 where the rebar extends through 5 between the vertical portions of top and bottom 5, there being a shaft to accommodate the rebar 6) extending through the interior space between a first wall and an opposing second wall of the exterior walls (paragraph 0033), the plurality of shafts shaped to receive and retain corresponding pieces of rebar (such as 6).
Claim 10. The shell of claim 9, wherein the shell further comprises at least one projection (projections of 5 as noted in the annotated figure above) extending longitudinally along each of the first wall and the second wall to provide a shear lock.
Claim 11. The shell of claim 10, wherein the first wall comprises a projection at the bottom of the shell and the second wall comprises a projection at the top of the shell (as noted in the annotated figure and claim 3 above).
Claim 12. The shell of claim 11, wherein each of the first wall and the second wall each comprises a further projection (4) located at midportion of the first wall and the second wall, respectively (as noted in the figures 23-3 and claim 4 above).
Claim 13. The shell of claim 9, wherein the plurality of shafts comprises a series of shafts arranged longitudinally (as seen in the figures).
Claim 14. The shell of claim 13, wherein the plurality of shafts comprises at least two series of shafts arranged longitudinally at different heights of the shell (as seen in figures 1-2).
Claim 16. The shell of claim 9, further comprising a shield member (5) projecting upward from an upper surface of the shell (as seen in figures 1-2 where at least a portion of 5 extends upward).
Claim 17. Tropynina discloses a method of manufacturing a thermal break, the method comprising:
inserting rebar (6) through shafts provided in a shell (5), the shafts extending between opposing walls (the vertically extending members of 5) of the shell through an interior space of the shell, such that the rebar extends through the shell and protrudes from either opposing wall (as noted in the disclosure and seen at least figures 1-2);
inserting insulation (1-0032-0052) in the interior space of the shell (where insulation is in the space and necessarily inserted); and
filling the interior space with concrete (where 2 is concrete 0035,0053 and in the interior space and therefore necessary filling at least a portion of the interior space).
Claim 18. The method of claim 17, wherein the concrete completely submerges the insulation (as seen in the figures 1-2).
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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) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Tropynina (20230160207) in view of Braasch (20100095616).
Claim 20. Tropynina discloses the method of claim 17, but does not expressly disclose wherein the concrete is basalt or carbon fiber reinforced concrete. Braasch discloses that it is known to use basalt for concrete [0011].
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to pursue known design options known options and modify the concrete to be basalt or carbon fiber reinforced concrete, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.In the instant case it would have been obvious for at least the reason of having a lightweight concrete that reduces thermal conductivity and improves corrosion resistance.
Claim(s) 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Tropynina (20230160207).
Claim 19. Tropynina discloses the method of claim 17, but does not expressly disclose wherein the insulation is extruded foam, however does disclose that it is known to use extruded foam (paragraphs 0008-0009).
At the time the invention was filed, it would have been an obvious matter of design choice to a person of ordinary skill in the art to use extruded foam because applicant has not disclosed that extruded foam provides an advantage, is used for a particular purpose, or solves a stated problem. Rather Applicant discloses that any suitable insulation material may be used (paragraph 0020). One of ordinary skill in the art, furthermore, would have expected the prior art, and applicant' s invention to perform equally well with either the insulation material taught by the prior art or the claimed extruded foam because both material foams would perform the same function of insulating equally well considering.
Therefore, it would have been prima facie obvious to modify Tropynina to obtain the invention as specified in claim 19 because such a modification would have been considered a mere design consideration which fails to patentably distinguish over the prior art.
Claim(s) 7,15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Tropynina (20230160207) in view of Fritschi (20180023289).
Claims 7,15. Tropynina discloses the thermal break of claims 1,9 as above, but do not disclose wherein each shaft is defined by shaft walls tapering from initial diameters at the first wall and the second wall towards a smaller diameter waist sized to retain the rebar. It is known in the art to have a thermal break with a shaft for rebar where the shaft is defined by shaft walls tapering from initial diameters of t at the first wall and the second wall towards a smaller diameter waist sized to retain the rebar. For example Fritschi discloses a thermal break have shafts 3 with shaft walls tapering from an initial diameter (at 3f,3e) towards a smaller diameter waist sized to retain the rebar (at 3g,d see figure 5).
Accordingly, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to pursue known design options and modify the shafts of Tropynina to have shaft walls that taper from an initial diameter at the first and second walls to a smaller diameter to retain the rebar to achieve the predictable result of a thermal break that can be easily assembled and securely fastened to withstand forces and provide the desired thermal insulation.
Response to Arguments
Applicant's arguments filed 1/20/26 have been fully considered but they are not persuasive. Applicant’s argument that element 5 is a bottom railing and therefore not a shell is not persuasive. Applicant appears to have an overly narrow interpretation of the claim term “shell”, in the broadest reasonable interpretation of the term the top and bottom railing 5 are considered to be a shell in that they are a structural framework that enclose and cover at least a portion of the thermal break.
Applicants argument that the bottom railing has a plurality of shafts extending through the interior space is not persuasive. The interior space of the shell is the space between the top and bottom horizonal portions of 5 and the vertical extending flanges of both the top and bottom members 5. The shafts as defined in element 2 at the place where rebar 6 is in the element 2 (as noted in the rejection above) are certainly considered to be in the interior space of the shell.
It is noted that the office action relies on both the top and bottom elements 5 collectively to form the shell, the interior space being between them. The claim requires that the shaft extend through the interior space between a first wall and an opposing second wall. As noted in the rejection above the shafts are between the top element 5 and the bottom element 5, the horizontal portions of each of those constituting the exterior walls as noted in the rejection above. Therefor applicants arguments are not persuasive.
Applicants arguments at page 9 are not persasive. The claim does not preclude the shafts from being a distinct element of the shell. The claim requires the shell comprising a shaft extending through. Element 2 forms a shaft and it is within the interior space of the shell and therefore the assembly as a whole anticipates the claimed invention. It is noted that the claim does not requires that the shell and shaft are integral with one another. Railings 5 and blocks 2 do work as an assembly to provide shell having both an interior space defined by exterior walls and a plurality of shafts as claimed. Therefore applicants arguments are not persuasive.
The rebar 6 is in the element 2 and therefore necessarily during the manufacturing process the rebar was inserted by suitable manufacturing process to be embedded in the element 2, where the shell include shafts between the vertical members of top and bottom element 5, the shafts accommodating the rebar extending from the element 2.
Applicant argues that the step of “filling the interior space with concrete” requires pouring concrete, this is not persuasive. Preformed concrete blocks, such as element 2, can be positioned within the space and this positioning would satisfying the “filling with concrete” step as the remaining space is filled with the concrete of element 2.
Applicants argument that it would not have been a matter of obvious design choice to use extruded foam and that there is no evidence that extruded form would perform the same function of insulating equally well is not persuasive. The office action clearly points to applicants own disclosure at paragraph 0020 that states that any suitable insulation material may be used. Accordingly applicant indicates that the specific material of the foam is subject to a design choice, supporting that extruded foam would perform the same function equally well as applicant has not indicated it provides an advantage or solves a stated problem. Accordingly applicants arguments are not persuasive.
Applicant’s arguments with respect to the Tropynina in view of Fritschi are not persuasive. In response to applicant's argument that one could not combine the alleged teachings of Tropynina with those of Fritschi, 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. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Fritschi discloses the claimed shaft tapering, one of ordinary skill in the art upon review of Fritschi would understand to have shafts taper as claimed. Accordingly it would have been obvious to pursue known and modify the device of Tropynina to include known design features and structures to achieve the predictable result of thermal break that can be easily assembled and securely fastened to withstand forces and provide the desired thermal insulation. Accordingly applicants arguments are not persuasive.
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.
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JESSICA L. LAUX
Examiner
Art Unit 3635
/JESSICA L LAUX/Primary Examiner, Art Unit 3635