DETAILED ACTION
This is a first Office action on the merits responsive to applicant’s original disclosure filed on 2/8/2024. Currently, claims 1-8 are pending and are under consideration.
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 .
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the following must be shown or the feature(s) canceled from the claim(s):
“wherein said plurality of support members are fastened to the wall framing being superposed said backing panel…wherein said opposing base segments are adjacent said backing panel” (claim 1; note that the plurality of support members are not shown to be fastened to the wall framing or backing panel, and the opposing base segments are not shown to be adjacent the backing panel, as an assembly of the wall is not shown);
“wherein trim members are secured proximate an upper edge and a lower edge of the backing panel” (claim 1; note that trim members are not shown to be secured on the wall, as an assembly of the wall is not shown);
“said portions extending outward at a distance equivalent to said riser members of said support members” (claim 3; note that the portions extending outward relative to the riser members is not shown because an assembly of the wall is not shown);
“wherein said portions of said corner member extend outward from said wall portions at a distance equivalent to said riser segments of said plurality of support members” (claim 5; note that such distance is not shown because an assembly of the wall is not shown);
“wherein said second portion of said trim member extends outward from said first portion at a distance equivalent to said riser segment of said support member” (claim 7; note that such distance is not shown because an assembly of the wall is not shown).
No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claim 1 is objected to because of the following informalities:
Claim 1, “the steps of” is objected to because the limitation lacks antecedent basis. The claim is a method claim and it is already assumed that the claim comprises steps. This objection can be overcome by deleting “the steps of”.
Appropriate correction is required.
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 1-8 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.
Claim 1, “the method of the present invention” (lines 1-2) is indefinite because “the present invention” lacks antecedent basis. Further, the language is unnecessary. This rejection can be overcome by deleting “of the present invention”.
Claim 1, “said plurality of support members are fastened to the wall framing being superposed said backing panel” is indefinite because it is unclear what the claim requires. Does applicant intend for the plurality of support members to be situated over the backing panel under the plain meaning of “superpose”? This objection can be overcome by reciting “said plurality of support members are fastened to the wall framing such that the plurality of support members superpose See also claim 3.
Claim 1, “securing trim members, wherein trim members are secured proximate an upper edge and a lower edge of the backing panel” is indefinite because the limitation recites two trim members and thus appears to be a double inclusion. Does applicant intend for the second recited trim members to refer to the first recited trim members or different/additional trim members?
Claim 1, “spraying at least one layer of wall material, wherein the backing panel is covered in a sprayable wall material” is indefinite because the limitation recites “at least one layer of wall material” and “a sprayable wall material” that appear to be intended as the same material. However, as recite the limitation is a double inclusion. Does applicant intend for the “at least one layer of wall material” and “a sprayable wall material” to be the same or different materials?
Claim 1, “curing the at least one layer of wall material, wherein the at least one layer of wall material is allowed to cure and dry for a required time period” the claim recites “curing” and “allowed to cure”. Does applicant intend for the claim to require curing or more broadly being allowed/configured to cure? Note that “allowed to” is indefinite as the metes and bounds of the term are not clearly defined and it is ambiguous at best as to whether applicant intends to require the at least one wall material to be designated to accomplish the specified objective of curing entirely or to be able of performing a function of curing including partial curing. If applicant intends to continue reciting the limitation as an intended use, applicant is requested to utilize conventional functional language such as “’configured to’ cure” or equivalent.
Claim 1, “sanding the at least one layer of wall material, wherein the at least one layer of wall material is sanded” is indefinite because the limitation appears to recite the same limitation twice using different wording and thus the limitation appears to be drawn to a double inclusion. Does applicant intend for sanding the at least one layer of wall material to have different requirements than wherein the at least one layer of wall material is sanded?
Claim 1, “applying a coating to the at least one layer of wall material, wherein a coating is applied to an outer surface of the at least one wall material” is indefinite because the limitation appears to recite the same limitation twice using different wording and thus the limitation appears to be drawn to a double inclusion. Does applicant intend for applying a coating to the at least one layer of wall material to have different requirements than wherein a coating is applied to an outer surface of the at least one wall material?
Claim 3, “the wall frame is perpendicular” is indefinite because it is unclear what the wall frame is perpendicular relative to in the claim, as “perpendicular” lacks a point of reference. What does applicant intend for the wall frame to be perpendicular relative to in the claim?
Clam 3, “wall frame sections” and “wall portions” are indefinite because it is unclear whether the limitations are intended to refer to sections/portions of the previously recited wall frame or a different/additional wall frame. Are the wall frame sections/portions intended to be sections/portions of the previously recited wall frame?
Claim 3, “a distance equivalent to said riser members of said support members” is indefinite because the claimed comparison lacks a point of reference. Does applicant intend to compare a distance the wall portions extend from the wall relative to a distance the riser members extend from the wall?
Claim 4, “formed and oriented at a perpendicular angle” is indefinite because it is unclear which elements are required to be perpendicular relative to each other, as “perpendicular” lacks a point of reference. What does applicant intend to be perpendicular in the claim?
The remainder of the claims are dependent upon directly or indirectly a rejected base claim.
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) 1-2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lewis (US 20170241131) in view of Graulich (US 5522194) and further in view of Nankin et al. (WO 0047836 A1) (‘Nankin’).
Claim 1, Lewis teaches a method of applying a wall material to a wall frame wherein the method of the present invention comprises the steps of:
providing a backing panel 110, wherein the backing panel includes a plurality of support members (under the broadest reasonable interpretation, the backing panel comprises OSB, which comprises wood strands that can be considered support members, as exceedingly broadly claimed; alternatively the backing panel can comprise plywood, brick, CMU or landscape fabric, with the backing panel being “affixed” or attached to the framing via supports that support the backing panel on the framing, as exceedingly broadly claimed; [0035]) and is formed in a sheet ([0035]; Fig. 3A);
securing said backing panel, wherein said backing panel is secured to wall framing that is desired to be covered ([0053]; Figs. 2-3);
fastening a plurality of support members 116, wherein said plurality of support members are fastened to the wall framing being superposed said backing panel (Fig. 5)
spraying at least one layer of wall material 104, wherein the backing panel is covered in a sprayable wall material (Figs. 5-8);
troweling the at least one layer of wall material, wherein the at least one layer of wall material is leveled subsequent the spraying thereof (“shaping” and “contouring” the at least one layer of wall material 104 [0037]; [0063]; note that “leveling” was treated under the plain meaning in light of the specification to mean provide a desired thickness; [0063]; [0075]; Figs. 5-8);
curing the at least one layer of wall material, wherein the at least one layer of wall material is allowed to cure and dry for a required time period [0054];
sanding the at least one layer of wall material, wherein the at least one layer of wall material is sanded ([0038]; [0068]);
applying a coating to the at least one layer of wall material, wherein a coating is applied to an outer surface of the at least one wall material [0072].
Lewis does not teach said plurality of support members including opposing base segments wherein said opposing base segments are adjacent said backing panel, said opposing base segments being contiguously formed with opposing riser segments, said opposing riser segments extending upward at an angular orientation towards each other; and securing trim members, wherein trim members are secured proximate an upper edge and a lower edge of the backing panel.
However, Graulich teaches a plurality of support members 5 including opposing base segments (opposing base segments on each side of 5; Fig. 1) wherein said opposing base segments are adjacent a backing panel 2, said opposing base segments being contiguously formed with opposing riser segments (riser segments of 5 extending from the opposing base segments; Fig. 1), said opposing riser segments extending upward at an angular orientation towards each other (Fig. 1). It would have been obvious to one of ordinary skill in the art, before the effective filing date of the invention, to try using support members that include opposing base segments wherein said opposing base segments are adjacent said backing panel, said opposing base segments being contiguously formed with opposing riser segments, said opposing riser segments extending upward at an angular orientation towards each other, with the reasonable expectation of success of using a known type of support members to support the wall material applied to the wall to create a desired thickness.
Further, Nankin teaches a method of applying a wall material to a wall frame, comprising securing trim members (162, 59), wherein trim members are secured proximate an upper edge and a lower edge of the backing panel (162 is secured proximate an upper edge Fig. 7; 59 is secured proximate a lower edge of the backing panel; Fig. 3A). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the invention, to try securing trim members, wherein trim members are secured proximate an upper edge and a lower edge of the backing panel, with the reasonable expectation of success of using known elements to further retain the wall material that is applied to the wall.
Claim 2, Lewis further teaches a step of applying a cover sheet 1200 to the at least one layer of wall material, wherein the cover sheet is applied subsequent spraying of the at least one layer of wall material ([0071]; Fig. 12).
Claim(s) 3-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lewis (US 20170241131) in view of Graulich (US 5522194) and Nankin et al. (WO 0047836 A1) (‘Nankin’) and further in view of Dickson (US 1294064).
Claim 3, as modified above, the combination of Lewis, Graulich and Nankin teaches all the limitations of claim 2, and further teaches a step of securing a corner member 196, said corner member secured to the wall frame (Fig. 8) wherein the wall frame is perpendicular (the wall frame comprises two elements that are perpendicular to each other; Fig. 8), said corner member having opposing wall portions (opposing wall portions of 192; Fig. 8) superposed perpendicular located wall frame sections (Fig. 8), said portions extending outward at a distance equivalent to said riser members of said support members (Nankin; it is understood that the portions extend outwardly to support the wall material having a consistent thickness, as shown in Fig. 8).
With regard to the shape of the corner member, Lewis, Graulich and Nankin do not show the corner member being shaped such that wall portions have portions extending outward therefrom being perpendicular thereto. However, Dickson teaches a corner member being shaped to have wall portions have portions extending outward therefrom being perpendicular thereto (Dickson corner member 1; portions of 2 attached to 3; Fig. 3). It would have been obvious to one of ordinary skill in the art, before the effective filing date, to try modifying the shape of the corner member such that wall portions have portions extending outward therefrom being perpendicular thereto, with the reasonable expectation of success of utilizing a known corner member shape to reduce chipping at the corners (Dickson specification), since it has been held that a change in shape is generally recognized as being within the level of ordinary skill in the art. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (The court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.).
Claim 4, as modified above, the combination of Lewis, Graulich, Nankin and Dickson teaches all the limitations of claim 3, and further teaches wherein the corner member includes corner portions that are contiguously formed and oriented at a perpendicular angle (Dickson outer portions of 2; Fig. 3).
Claim 5, as modified above, the combination of Lewis, Graulich, Nankin and Dickson teaches all the limitations of claim 4, and further teaches wherein said portions of said corner member extend outward from said wall portions at a distance equivalent to said riser segments of said plurality of support members (in Lewis, the goal is to create an even thickness of material on the wall). All the claimed elements were known in the prior art as evidenced above, and it would have been obvious to one of ordinary skill in the art, before the effective filing date of the invention, to have combined the elements as claimed such that the portions of said corner member extend outward from said wall portions at a distance equivalent to said riser segments of said plurality of support members, using known methods with no change in their respective functions, with the reasonable expectation of forming an even thickness of wall material. Such a combination would have yielded predictable results to one of ordinary skill in the art at the time the invention was made, since the elements perform as expected and thus the results would be expected.
Claims 6-8, as modified above, the combination of Lewis, Graulich, Nankin and Dickson teaches all the limitations of claim 5, and further teaches [claim 6] wherein the trim members include a first portion (Nankin first portion of each of 162, 59), said first portion being adjacent the backing panel (Nankin it is understood that the first portion of each of 162 and 59 extends from a backing panel and thus is adjacent the backing panel; Figs. 3A and 7), said first portion having a second portion contiguously formed therewith (Nankin second portion of first portion of each of 162, 59, as exceedingly broadly claimed), said second portion being perpendicular with said first portion extending outward therefrom (Nankin Figs. 3A and 7), [claim 7] wherein said second portion of said trim member extends outward from said first portion (Nankin Figs. 3A and 7), [claim 8] wherein said trim member further includes a third portion (Nankin third portion of each of 162, 59), said third portion being contiguously formed with said second portion (Nankin Figs. 3A and 7) and being perpendicular thereto (Nankin, each of the trim members comprise a generally C-shaped cross section; Figs. 3A and 7), said third portion being distal to and parallel with said first portion of said trim member (Nankin Figs. 3A and 7).
Regarding the second portion of said trim member extending outward from said first portion at a distance equivalent to said riser segment of said support member, all the claimed elements were known in the prior art as evidenced above, and it would have been obvious to one of ordinary skill in the art, before the effective filing date of the invention, to have combined the elements as claimed such that the second portion of said trim member extends outward from said first portion at a distance equivalent to said riser segment of said support member, using known methods with no change in their respective functions, with the reasonable expectation of forming an even thickness of wall material. Such a combination would have yielded predictable results to one of ordinary skill in the art at the time the invention was made, since the elements perform as expected and thus the results would be expected.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO-892.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES M FERENCE whose telephone number is (571)270-7861. The examiner can normally be reached M-F 7-4pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brian Mattei can be reached at 571-270-3238. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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JAMES M. FERENCE
Primary Examiner
Art Unit 3635
/JAMES M FERENCE/Primary Examiner, Art Unit 3635