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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 1/19/26 has been entered.
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 1-22 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.
Claims 1,19,22 as amended recite “a planar surface including a top side and a bottom side”, it is unclear how a surface has both a top and bottom side, a top side is a surface and a bottom side is a surface, but they are not the same surface. Additionally it is unclear how the planar surface is planar and includes a recessed area formed of the planar surface, thus rendering it not planar. Additionally, the claim recites the recessed area includes a protrusion, the recessed area is part of the planar surface, it is unclear how the planar surface can be both ‘a planar surface” and include a recessed area and a protrusion. Accordingly the scope of the claimed invention is unclear, the claim will be examined as best understood.
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 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.
Claim(s) 1,3-7,9-12,17-18,20,21 is/are rejected under 35 U.S.C. 102a1 as being anticipated by Stratton (3698144).
Claim 1. Stratton discloses a marker device for marking an open construction hole, comprising:
a planar surface (the top surface of 6) including a top side (the top side of 6) and a bottom side (the bottom side of 6), the planar surface including a recessed area (as noted in the annotated figure) formed with a continuous portion of the planar surface (as seen in figure 1, where the recessed area is formed as a continuous portion of planar surface 6) and formed in a minority of the planar surface (where the recessed area is formed below the planar surface 6 and thus considered to be formed in a minority of the planar surface), the recessed area including a protrusion (any one of 7,8,4 32, 35 including 40, or 37);
a post (3) disposed on the bottom side of the planar surface, wherein the post is configured to be placed in the open construction hole to stabilize the marker device when the marker device is marking the open construction hole and when the planar surface rests on a ground that surrounds an entirety of the open construction hole, wherein at least a portion of the post does not make contact with an internal portion of the open construction hole (where it is capable of the claimed intended use); and
a marker (12) configured to be removably coupled on the top side of the planar surface opposite the post via the protrusion7, wherein the marker comprises an elongate body that extends in a direction away from the planar surface when the marker is coupled to the top side of the planar surface (as seen in the figures), whereby the marker indicates a location of the open construction hole when the post is placed in the open construction hole.
Claim 3. The marker device of Claim 1, wherein the marker further comprises an aperture (where 13 passes through the marker) passing through the elongate body of the marker, wherein the aperture is configured for receiving a pin for securing the marker to the protrusion (where it is capable of receiving a pin such as 13).
Claim 4. The marker device of Claim 3, wherein the marker is removably received on the protrusion (it is received on 7/9 or 37/34), the pin is received through the aperture of the marker and through an aperture of the protrusion (as seen in the figures), thereby securing the marker to the top side of the planar body.
Claim 5. The marker device of Claim 1, wherein the protrusion, is removably received within an adapter hole (when the protrusion is 32 or 4, the hole formed in the recessed area; when the protrusion is 8,7,37 or 35 including 40, the hole formed in the top side of the planar surface formed by the recessed area, as seen in the cross section of figure 1) disposed on the top side of the planar surface.
Claim 6. The marker device of Claim 5, wherein the protrusion further comprises a lip (when the protrusion is 8, there is a lip at the end of 8 as seen in the figures; when the protrusion is 7 or 37 there is a lip at 8 or 35, respectively) which cooperates with a flange (32 or 4) of the adapter hole to secure the protrusion within the adapter hole (as seen in the figures).
Claim 7. The marker device of Claim 6, wherein the protrusion is snap fit into the adapter hole (as noted in the figures and disclosure, where 8 is snap fit; where 40 is snap fit).
Claim 9. The marker device of Claim 8, wherein the post is configured to fit within a recessed area of another marker device (where it is capable of fitting within another device), thereby forming a stacked configuration between the marker device and the another marker device.
Claim 10. The marker device of Claim 9, wherein the post is configured to fit within the recessed area of the another marker device and mate with the protrusion of the another marker device, thereby forming the stacked configuration between the marker device and the another marker device (where it is capable of the claimed intended use).
Claim 11. The marker device of Claim 10, wherein the post tapers inwardly from a top of the post near the bottom side of the planar surface of the marker device to a bottom of the post away from the bottom side of the planar surface of the marker device (as seen in the figures, where it is tapered).
Claim 12. The marker device of Claim 11, wherein the post includes a chamfered section (at 4a) for removably receiving the protrusion of the another marker device in the stacked configuration (where it is capable of the claimed intended use).
Claim 17. The marker device of Claim 1, wherein the planar surface of the marker device further comprises a handle (7 or 37 when any one of 8,4 32, 35 including 40 are the protrusion).
Claim 18. The marker device of Claim 1, wherein the post is configured to be entirely surrounded by the open construction and spaced apart from the open construction hole (where it is capable of the claimed intended use).
Claim 20. Stratton discloses a method of marking an open construction hole, comprising: marking the open construction hole using a marker device according to Claim 1 by placing the post of the marker device in the open construction hole, wherein the marker of the marker device is coupled to the top side of the planar surface opposite the post (as seen in the figures and noted in the disclosure).
Claim 21. The marker device of Claim 1, wherein the recess portion has an angled sidewall (the wall at 6 forming the recessed portion, where it appears approximately 90 degrees angled).
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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) 8,22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Stratton (3698144) in view of Callies (5456441).
Claim 8. Stratton discloses the marker device of Claim 2, but does not expressly disclose wherein the post comprises a hollow interior.
Callies discloses a marker device having a planar surface (18) including a top and bottom side and a recessed area (at 26) formed with a continuous portion of the planar surface and in a minority of the planar surface and a post (12) disposed on the bottom side of the planar surface where the post comprises a hollow interior.
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 post of Stratton to be hollow to reduce weight and material costs.
Claim 22. Stratton discloses a marker device for marking an open construction hole, comprising:
a planar surface (the top surface of 6) including a top side (the top side of 6) and a bottom side (the bottom side of 6), the planar surface including a recessed area (as noted in the annotated figure) formed with a continuous portion of the planar surface (as seen in figure 1, where the recessed area is formed as a continuous portion of planar surface 6) and formed in a minority of the planar surface (where the recessed area is formed below the planar surface 6 and thus considered to be formed in a minority of the planar surface), the recessed area including a protrusion (any one of 7,8,4 32, 35 including 40, or 37);
a post (3) disposed on the bottom side of the planar surface, and being cylindrical in shape (as seen in the figures) wherein the post is configured to be placed in the open construction hole to stabilize the marker device when the marker device is marking the open construction hole and when the planar surface rests on a ground that surrounds an entirety of the open construction hole, wherein at least a portion of the post does not make contact with an internal portion of the open construction hole (where it is capable of the claimed intended use); and
a marker (12) configured to be removably coupled on the top side of the planar surface opposite the post via the protrusion, wherein the marker comprises an elongate body that extends in a direction away from the planar surface when the marker is coupled to the top side of the planar surface (as seen in the figures), whereby the marker indicates a location of the open construction hole when the post is placed in the open construction hole, the marker further including an aperture (where 13 passes through the marker) passing through the elongate body of the marker, wherein the aperture is configured for receiving a pin for securing the marker to the protrusion (where it is capable of receiving a pin such as 13),
wherein the marker is removably received on the protrusion (it is received on 7/9 or 37/34), the pin is received through the aperture of the marker and through an aperture of the protrusion (as seen in the figures), thereby securing the marker to the top side of the planar surface,
wherein the protrusion, is removably received within an adapter hole (when the protrusion is 32 or 4, the hole formed in the recessed area; when the protrusion is 8,7,37 or 35 including 40, the hole formed in the top side of the planar surface formed by the recessed area, as seen in the cross section of figure 1) disposed on the top side of the planar surface, and
wherein the protrusion further comprises a lip (when the protrusion is 8, there is a lip at the end of 8 as seen in the figures; when the protrusion is 7 or 37 there is a lip at 8 or 35, respectively) which cooperates with a flange (32 or 4) of the adapter hole to secure the protrusion within the adapter hole (as seen in the figures).
Stratton does not expressly disclose wherein the post comprises a hollow interior.
Callies discloses a marker device having a planar surface (18) including a top and bottom side and a recessed area (at 26) formed with a continuous portion of the planar surface and in a minority of the planar surface and a post (12) disposed on the bottom side of the planar surface where the post comprises a hollow interior.
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 post of Stratton to be hollow to reduce weight and material costs.
Claim(s) 14-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Stratton (3698144) in view of Alexander (4803812) and Reynolds et al (8727659).
Claims 14-16. Stratton discloses the marker device of Claim 1, but does not disclose wherein the planar surface of the marker device includes a fastener hole configured to receive a fastener for securing the marker device over the open hole and further wherein the fastener hole comprises four fastener holes and each of the fastener holes is disposed near an edge of the planar surface of the marker device and further comprising a fastener configured to cooperate the fastener hole to secure the marker device to a surface, the fastener including a member selected from a group consisting of a stake, a pin, a bolt, a screw, and combinations thereof.
Alexander discloses that it is known in the art to have four fasteners (19) disposed near an edge of the planar surface of the marker device for securing the marker device over the open hole.
Reynolds discloses that it is known to have four fastener holes disposed near an edge of the planar surface for securing the device over an open hole and further discloses that it is known for the fastener to be four holes and a fastener from the group consisting of a stake, a pin, a bolt, a screw and combinations thereof disposed in the holes.
Accordingly, it would have been obvious to one of ordinary skill in the art to pursue known design options and modify the device of Stratton to have four fastener holes disposed near an edge with four fasteners disposed in the holes for securing the device over a hole as claimed to achieve the predictable result of a securely install and stabilized hole cover that resists unwanted removal or displacement to protect the hole from damage or undesired filling.
Claim(s) 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Stratton (3698144) in view of Alexander (4803812) and Reynolds et al (8727659) Callies (5456441)
Claim 19. Stratton discloses a marker device for marking an open construction hole comprising:
a planar surface (the top surface of 6) including a top side (the top of 6) and a bottom side (the bottom of 6), the planar surface having a square shape (as seen in the figures), the planar surface including a recessed area formed with a continuous portion of the planar surface and formed in a minority of the planar surface (as noted in claim 1 above), the recessed area including a protrusion (any one of 7,8,4 32, 35 including 40, or 37),
a cylindrically shaped post (3) disposed on the bottom side of the planar surface, wherein the post is configured to be placed in the open construction hole to stabilize the marker device when the marker device is marking the open hole and when the planar surface rests on a ground that surrounds an entirety of the open construction hole, wherein at least a portion of the post does not make contact with an internal portion of the open construction hole (where it is capable of the claimed intended use); and
a marker (12) removably disposed on the top side of the planar surface opposite the post, via the protrusion, wherein the marker comprises a vertically disposed elongate body extending in a direction away from the planar surface, and wherein the marker is configured to indicate a location of the open construction hole (as noted in the figures and disclosure).
Stratton does not expressly disclose wherein the post comprises a hollow interior.
Callies discloses a marker device having a planar surface (18) including a top and bottom side and a recessed area (at 26) formed with a continuous portion of the planar surface and in a minority of the planar surface and a post (12) disposed on the bottom side of the planar surface where the post comprises a hollow interior.
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 post of Stratton to be hollow to reduce weight and material costs.
Further Stratton does not disclose four through holes, each through hole disposed at a corner of the square shaped planar surface, wherein each through hole is configured to accept a fastener for securing the planar surface of the marker device to a surface adjacent the open construction hole.
Alexander discloses that it is known in the art to have four fasteners (19) disposed at a corner of the square shaped planar surface of the marker device for securing the marker device over the open hole.
Reynolds discloses that it is known to have four fastener holes disposed near an edge of the planar surface for securing the device over an open hole and further discloses that it is known for the fastener to be four holes and a fastener from the group consisting of a stake, a pin, a bolt, a screw and combinations thereof disposed in the holes.
Accordingly, it would have been obvious to one of ordinary skill in the art to pursue known design options and modify the device of Stratton to have four fastener holes disposed near an edge with four fasteners disposed in the holes for securing the device over a hole as claimed to achieve the predictable result of a securely install and stabilized hole cover that resists unwanted removal or displacement to protect the hole from damage or undesired filling.
Response to Arguments
Applicant's arguments filed 1/19/26 have been fully considered but they are not persuasive. Applicant’s arguments are drawn to the newly amended limitations which have not been previously considered. It is noted that as best understood, in light of the indefiniteness of the amended claim limitations, Stratton does disclose the claimed invention, as noted in the rejection above. Additionally, in response to applicant's argument, at page 9, that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., recessed portion centrally disposed; a continuous surface having a recessed portion; continuously formed recessed portion disposed on a minority of the plate for housing the protrusion and facilitating further stacking of the marker device) are not recited in the rejected claim(s). 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). Accordingly, applicants arguments are not persuasive to overcome the rejection as presented above.
Conclusion
The prior art made of record is considered pertinent to applicant's disclosure. US Patent 5456441 which discloses a marker device having a planar surface (18) including a top and bottom side and a recessed area (at 26) centrally disposed and formed with a continuous portion of the planar surface and in a minority of the planar surface and a post (12) disposed on the bottom side of the planar surface where the post comprises a hollow interior.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JESSICA LAUX whose telephone number is (571)272-8228. The examiner can normally be reached M-F 7:30-3:30.
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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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JESSICA L. LAUX
Examiner
Art Unit 3635
/JESSICA L LAUX/Primary Examiner, Art Unit 3635