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 .
Election/Restrictions
Examiner acknowledges the response to the Election of Species requirement. Claims 1-8, 21-23, and 25-40 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 2/20/2026. Claims 9-20 and 24 are prosecuted below.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 10, 14(10), 15, 20, and 24 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Re Clm 10: This claim recites “ranges from 3.3 to 4.8 or from 3.4 to 4.9”. Examiner notes that the alternative ranges overlap, making it unclear as to what the limitation is requiring, since any ratio within the narrow range would also be within the broader range.
Re Clm 15: This claim recites “ranges from 0.58 to 0.83 or from 0.42 to 0.61”. Examiner notes that the alternative ranges overlap, making it unclear as to what the limitation is requiring. Any ratio between 0.42 and 0.83 would satisfy this language.
Re Clm 20: This claim recites “the apertured panels are”. Examiner notes that only one apertured panel has been set forth, and therefore the limitation lacks antecedent basis.
Re Clm 24: This claim doubly recites the majority of the claim, specifically “wherein the first foot includes a front surface contacting portion, a rear surface contacting portion, and a raised center portion connecting the front surface contacting portion to the rear surface contacting portion, the raised center portion being attached to the bottom of the outer frame assembly”. This is previously recited in the last limitation of claim 9. It is unclear if any of this structure is being doubly required or not.
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.
Claims 9, 12-13, 18-20, and 24 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by DE 9318439, hereafter ‘439.
Re Clm 9: ‘439 discloses (figs 1 and 2) a mobile fence unit comprising: an outer frame assembly (frame members 1 and 3); an apertured panel (made of wire strands 7) attached to the outer frame assembly (as shown); and a first foot (12) attached to a bottom of the outer frame assembly (see fig 1); wherein the first foot includes a front surface contacting portion (right portion), a rear surface contacting portion (left portion), and a raised center portion (central cylindrical portions) connecting the front surface contacting portion to the rear surface contacting portion, the raised center portion being attached to the bottom of the outer frame assembly (receiving the bottom of vertical frame member 1).
Re Clm 12: ‘439 discloses wherein the first front surface contacting portion, and the rear surface contacting portion are identically configured (see fig 1).
Re Clm 13: ‘439 discloses a first slider pad attached to the front surface contacting portion, and a second slider pad attached to the rear surface contacting portion (see square pads at bottom of front and rear contacting portions).
Re Clm 18: ‘439 discloses wherein the outer frame assembly comprises a plurality of tube members, or a plurality of C channel members (from members are tubular members 1 and 3).
Re Clm 19: ‘439 discloses a horizontally extending cross-brace member (5) extending from a first lateral side of the outer frame assembly to a second lateral side of the outer frame assembly (see fig 1), and the apertured panel is split into a first half (top) and a second half (bottom), wherein the first half extends from a top of the outer frame assembly to the horizontally extending cross-brace member, and the second half extends from the bottom of the outer frame assembly to the horizontally extending cross-brace member (as shown in fig 1).
Re Clm 20: ‘439 discloses wherein the outer frame assembly is formed by the plurality of tube members, and the apertured panels are fastened or otherwise attached to some or all of the plurality of tube members (see figs 1 and 2).
Re Clm 20: ‘439 discloses wherein the first foot includes a front surface contacting portion, a rear surface contacting portion, and a raised center portion connecting the front surface contacting portion to the rear surface contacting portion, the raised center portion being attached to the bottom of the outer frame assembly and defining a cutout. Examiner notes that the raised center portion is a hollow cutout that receives the bottom of vertical frame members 1.
Claim Rejections - 35 USC § 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.
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.
Claims 10, 11, 14, and 15 are rejected under 35 U.S.C. 103 as being unpatentable over DE 9318439, hereafter ‘439.
Re Clms 10, 11, 14, and 15: Examiner notes that ‘439 is silent with respect to the dimensions and ratios of dimensions of the foot portions as set forth in these claims. However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the present invention to have provided the claimed ratio of dimensions of the various foot portions, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. Examiner further notes that the optimization of proportions in a prior art device is a design consideration within the skill of the art. In re Reese, 290 F.2d 839, 129 USPQ 402 (CCPA 1961). Examiner notes that different size and shape fence panels are known for their intended purpose and providing such dimensions would have been readily available as optimized dimensions.
Claims 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over DE 9318439, hereafter ‘439, in view of Greaves et al. (US 2022/0333402).
Re Clm 16: ‘439 fails to disclose wherein the apertured panel comprises a sheet metal member with a plurality of cutouts. Examiner notes that sheet metal panels with a plurality of cutouts are known in the art, as referenced and taught by Greaves et al. This is taught for the purpose of providing a stronger panel with more protection. Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the present invention to have replaced the metal wire strand panel of ‘439 with a sheet metal panel (with cutouts) by simple substitution of one known device element for another known device element, for the purpose of providing a stronger and more protective barrier/fence panel.
Re Clm 17: ‘439 as modified above discloses wherein the sheet metal member defines an effective projected area, an overall area defined by an overall height of the sheet metal member multiplied by an overall width of the sheet metal member, and a ratio of the effective projected area divided by the overall area falls within a predetermined range. Examiner notes that the ratio of any “effective projected area” divided by any “overall area” would fall with a “predetermined range”.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JONATHAN PETER MASINICK whose telephone number is (571)270-3060. The examiner can normally be reached Monday-Friday 8a-5p EST.
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/JONATHAN P MASINICK/Primary Examiner, Art Unit 3678