DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. 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 § 103
2. 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.
3. 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.
4. This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
5. Claims 1-8 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Kirchhoff (US 20030075943 A1) in view of Straschewski (US 6279980 B1) and in further view of Hlavach et al. (US 20030110705 A1).
Regarding claim 1, Kirchhoff discloses “A vehicle comprising: a frame (Annotated Fig. 1);a plurality of ground-engaging members connected to the frame (Annotated Fig. 1); a motor supported by the frame (Annotated Fig. 1), the motor being operatively connected to at least one of the ground-engaging members (although Kirchhoff does not explicitly disclose this limitation, the prior art discloses in the background that the invention can be used on a “conventional pick-up,” which is known in the art the be propelled by a motor connected to ground-engaging members); a cargo bed (22 Annotated Fig. 1) connected to the frame, the cargo bed comprising a front wall, a left side wall and a right side wall defining in part an internal space of the cargo bed (Annotated Fig. 1),the cargo bed comprising a tailgate (26 Annotated Fig. 1) that is movable between an open position and a closed position, the tailgate comprising an outer side (28 Annotated Fig. 1) and an inner side (30 Annotated Fig. 1) opposite the outer side, in the closed position of the tailgate, the inner side defining the internal space of the cargo bed together with the front wall, the left side wall and the right side wall, the tailgate comprising: an inner flat surface disposed on the inner side; and an outer flat surface disposed on the outer side (Annotated Fig. 1)…, in the open position of the tailgate, the inner and outer flat surfaces extending generally horizontally and the outer flat surface being disposed below the inner flat surface in order to define a clamping zone (42 in Kirchhoff Fig. 3) along the tailgate to which an item can be clamped (Kirchhoff Fig. 3).”
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Kirchhoff fails to disclose that the inner and outer flat surfaces are parallel or more rigid than the remainder of the tailgate.
However, in Fig. 4, Straschewski discloses an edge guard (24 in Straschewski Fig. 4) formed to the tailgate. It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to have combined the teachings of Straschewski with those of Kirchhoff to create and form fitting clamping attachment area. In Straschewski, the distal end of the tailgate (18 in Straschewski Fig. 4) in which the edge guard (24 in Straschewski Fig. 4) is form fit to, is rounded, so the inner and outer flat surfaces are not parallel. However, should this same method be applied to the squared, distal end (34 in Kirchhoff annotated Fig. 1) of the tailgate (26 in Kirchhoff annotated Fig. 1), the inner and outer flat surfaces would be parallel. This modification would allow for a more secure and aerodynamic design.
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Furthermore, in the abstract, Hlavach et al. discloses a plastic tailgate. This modification allows for a lighter and equally as durable tailgate, leading to better gas mileage. Additionally, Kirchhoff’s sheet metal workspace, is made of a more rigid material than that of the plastic tailgate.
With respect to claim 2, Kirchhoff in view of Straschewski and in further view of Hlavach et al. teaches “The vehicle of claim 1, wherein: the tailgate has an upper end (34 Annotated Fig. 1) and a lower end (As represented by the hinges 32 in annotated Fig. 1), the upper end being disposed vertically higher than the lower end in the closed position of the tailgate; and the inner flat surface and the outer flat surface extend from the upper end of the tailgate (Annotated Fig. 1).”
Regarding claim 3, Kirchhoff in view of Straschewski and in further view of Hlavach et al. discloses “The vehicle of claim 1, wherein: each of the inner flat surface and the outer flat surface has a first end and a second end that are longitudinally spaced apart in the open position of the tailgate (Annotated Fig. 1) and vertically spaced apart in the closed position of the tailgate (Annotated Fig. 1)...”
Kirchhoff, as modified by Straschewski and Hlavach et al. does not explicitly disclose the distance of four centimeters between the first and second ends.
However, section 2144.04 IV. A. of the MPEP sets forth the Federal Circuit case of In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), which held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.
Therefore, it 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 to construct a clamping feature that has a distance, from first end to second end, of four centimeters with a reasonable expectation of success since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984). In this instance, the clamping feature would not operate differently with the first end to second end distance spanning four centimeters.
With respect to claim 4, Kirchhoff in view of Straschewski and in further view of Hlavach et al. teaches “The vehicle of claim 1, wherein: each of the inner flat surface and the outer flat surface has a first lateral end and a second lateral end, a width of each of the inner flat surface and the outer flat surface being measured between the respective first and second lateral ends thereof (Kirchhoff Annotated Fig. 2);each of the inner flat surface and the outer flat surface is continuous from the first lateral end to the second lateral end thereof; (Kirchhoff Annotated Fig. 2)…”
Kirchhoff, as modified by Straschewski and Hlavach et al. does not explicitly disclose the width of each flat surface as being greater than forty centimeters.
However, section 2144.04 IV. A. of the MPEP sets forth the Federal Circuit case of In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), which held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.
Therefore, it 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 to construct a clamping feature that has an inner and outer flat surface of a specified width of at least forty centimeters with a reasonable expectation of success since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984). In this instance, the clamping feature would not operate differently with the inner and outer flat surfaces spanning a width of at least forty centimeters.
Regarding claim 5, Kirchhoff in view of Straschewski and in further view of Hlavach et al. discloses “The vehicle of claim 1, wherein:the inner flat surface and the outer flat surface extend along a majority of a width of the tailgate (Kirchhoff Annotated Fig. 2).”
With respect to claim 6, Kirchhoff in view of Straschewski and in further view of Hlavach et al. teaches “The vehicle of claim 1, wherein: the tailgate further comprises a clamping attachment that is removably inserted over a body of the tailgate (Kirchhoff abstract states the attachment has to be mounted on the tailgate); and the clamping attachment (40 Kirchhoff Annotated Fig. 2) defines the inner flat surface and the outer flat surface (Kirchhoff Annotated Fig. 2).”
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Regarding claim 7, Kirchhoff in view of Straschewski and in further view of Hlavach et al. teaches “The vehicle of claim 6, wherein the clamping attachment (40 in Kirchhoff Annotated Fig. 2) is elongated in a lateral direction of the vehicle (Kirchhoff Annotated Fig. 2).”
With respect to claim 8, Kirchhoff in view of Straschewski and in further view of Hlavach et al. teaches “The vehicle of claim 6, wherein the clamping attachment is a channel (42 in Kirchhoff Fig. 3).”
Regarding claim 10, Kirchhoff in view of Straschewski and in further view of Hlavach et al. teaches “The vehicle of claim 1, wherein the inner and outer flat surfaces are generally centered with respect to a longitudinal centerplane of the vehicle (Kirchhoff Annotated Fig. 2).”
6. Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Kirchhoff in view of Straschewski and in further view of Hlavach et al. as applied to claims 1-8 and 10 above, and further in view of Arnold (US-5240301-A).
Regarding claim 9, Kirchhoff, as modified by Straschewski and Hlavach et al., discloses “The vehicle of claim 1, including a first clamping attachment (42; Kirchhoff Fig. 3) comprising the inner and outer flat, parallel surfaces of the tailgate, where the first clamping attachment supports a truck bed extending structure (52; Kirchhoff Fig. 3).”
However, Kirchhoff, as modified by Straschewski and Hlavach et al., does not disclose a second clamping attachment also defining the inner and outer flat, parallel surfaces of the tailgate and where the inner flat surface defines two parallel notches extending vertically in the closed position of the tailgate for connecting a removable wall of the cargo bed to the tailgate.
However, Straschewski US 6,279,980 discloses a truck bed extender with a first clamping attachment (22; Straschewski Fig. 4) for supporting a truck bed extending structure (12; Straschewski Fig. 4) as well as a second clamping attachment (24; Straschewski Fig. 4) for protecting the upper edge of the tailgate (18; Straschewski Fig. 4) when the truck bed extender is not being used.
Additionally, Arnold US 5,240,301 discloses a tailgate (24; Arnold Fig. 1) having an inner surface with two parallel grooves at a center region of the tailgate (as pointed out in annotated Arnold Fig. 1 below) extending vertically, downwardly from adjacent a top edge of the tailgate (24; Arnold Fig. 1) along the entire inside surface of the tailgate in the closed position of the tailgate for connecting a removable wall (longitudinal oriented retaining member 46’) of the cargo bed to the tailgate (as disclosed in col. 4, lines 37-41)
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Therefore, it 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 to provide the vehicle of Kirchhoff, as modified by Straschewski and Hlavach et al. with a second clamping attachment also defining the inner and outer flat, parallel surfaces of the tailgate as taught by Straschewski with a reasonable expectation of success in order to selectively protect the upper edge of the tailgate when the tailgate extending structure including the first clamping attachment is not being used.
Also, it 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 to provide the entire inside surface, including that of the inner flat surface, of the tailgate of Kirchhoff, as modified twice by Straschewski and Hlavach et al., with two parallel grooves, where the two grooves on the inner flat surface are considered to be two parallel notches, as broadly as recited, with a reasonable expectation of success in order to support a removable wall. Motivation provided by Arnold in col. 4, lines 37-41.
Conclusion
7. Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIEL ROBERT DIGIOVANNANTONIO whose telephone number is (571)272-4526. The examiner can normally be reached Monday-Friday 7 a.m. to 5 p.m..
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Amy Weisberg can be reached at 5712705500. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/D.R.D./Examiner, Art Unit 3612
/AMY R WEISBERG/Supervisory Patent Examiner, Art Unit 3612