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 . Examiner acknowledges the response filed 5/19/2026. Claim 16 was canceled. Claims 1-8, 21-23, and 25-40 remain withdrawn. Claims 9-15, 17-20, and 24 are prosecuted below.
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 9-15, 17-20, and 24 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 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).
‘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 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.
Re Clm 12: ‘439 as modified in claim 9 above discloses wherein the first front surface contacting portion, and the rear surface contacting portion are identically configured (see fig 1).
Re Clm 13: ‘439 as modified in claim 9 above 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 17: ‘439 as modified in claim 9 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”.
Re Clm 18: ‘439 as modified in claim 9 above 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 as modified in claim 9 above 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 as modified in claim 9 above 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 24: ‘439 as modified in claim 9 above 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.
Response to Arguments
Applicant's arguments filed 5/19/2026 have been fully considered but they are not persuasive.
In response to Applicant’s argument that Greaves is non-analogous art, it has been held the determination that a reference is from a non-analogous art is twofold. First, we decide if the reference is within the field of the inventor’s endeavor (barriers). If it is not, we proceed to determine whether the reference is reasonably pertinent to the particular problem with which the inventor is involved. In re Wood, 202 USPQ 171, 174. In the case both references deal with barrier systems. Substituting one known barrier system (spaced bars in DE ‘439) with another known barrier system (cutout sheet metal), within the same field of endeavor and analogous art (barriers) would have been obvious to one having ordinary skill in the art before the effective filing date of the present invention.
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 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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Amber Anderson can be reached at (571)270-5281. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JONATHAN P MASINICK/ Primary Examiner, Art Unit 3678
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