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 .
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 1-9 and 11-12 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 is indefinite because it fails to positively recite a step of cleaning a railhead, the claim is directed to applying a slurry.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1-3, 5-6 and 19-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jacobs (US2020/0087876A1).
Re claims 1 and 19, Jacobs et al. teach applying a pressurized liquid stream comprising an abrasive particulate and water (slurry) to the dirty railway rails (paragraphs 5, 10, 18). Re claim 1, in reference to cleaning a railhead, the limitations are met since the claim positively recites a step of applying a slurry. Specifically, the examiner takes the position that cleaning a railhead is a result of applying the slurry, and therefore, the limitations are inherently met. Additionally, applicant is directed to paragraph 12 ;which teaches using the pressurized liquid during a rail cleaning operation.
Re claim 1 and 19, applicant recites applying slurry at a pressure of at least 350 bar and an upper limit equal to or less than 1000 bar. Jacobs et al. do not specifically teach the claimed range. In some embodiments, (paragraph 12) Jacobs et al. teach at least 20000 PSI (equivalent to 1379 bar). However, other embodiments include a slurry of less than about 20000 psi (paragraph 17). The teachings of less than 20000psi would encompass applicant’s claimed range. Additionally, applicant’s own specification (paragraphs 62-67) teaches a lack of criticality as the slurry is applied at pressures up to 1500 bar (21755psi). The examiner notes that pressures of up to 1500 bar encompasses the teachings of Jacobs et al. It would have been obvious to a person of ordinary skill in the art to have adjusted the pressure of the abrasive slurry to pressures which within the claimed range since a) applicant’s specification fails to teach criticality and/or a showing of unexpected results using the claimed pressures and b) Jacob’s teachings of less than 20000psi, reads on applicant’s claimed range.
Re claims 2 and 20, refer to paragraph 41 which teaches garnet. Re claim 3, Jacobs fails to teach the species alluvial garnet. However, Jacobs teaches the genus garnet. Absent of a showing of criticality and/or unexpected results, it would have been obvious and well within the level of the skilled artisan before the effective filing date of the claimed invention to include the species alluvial garnet since Jacobs teaches the genus garnet. Re claim 5, refer to paragraph 19 which recycled water. Re claim 6, refer to paragraph 48, which teaches 2 or more nozzles.
8. Claim(s) 4, 8-9, and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jacobs (US2020/0087876A1) in view of Yam et al. (5827114).
Jacobs teaches the invention substantially as claimed with the exception of the particle size, the flow rate and the concentration in kg/L. Yam teaches a slurry blasting process comprising an abrasive to enhance cleaning efficiency (abstract). Yam et al. teach average abrasive particles within the range of 50-500 microns (col. 5, lines 1-40) which falls within applicant’s claimed mesh range. Col. 7, lines 59-62 teaches 30 lbs/13 gallons, which equates to 0.28 kg of abrasive particulate per 1L of water, at a flow rate of 0.5 GPM (gallons per minute) which is equivalent to 1.9L/min. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Jacobs to include adjusting processing parameters, such as the abrasive particle size, flow rate and concentration, for purposes of effectively wet blasting the substrate surface in order to achieve the desire result.
9. Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jacobs (US2020/0087876A1) in view of Yie (4666083).
Jacobs teaches the invention substantially as claimed with the exception of the surface area at which the slurry is applied. Absent of a showing of criticality and/or unexpected results, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have adjusted processing parameters, such as the surface area, depending on such factors as the concentration of the slurry, the number of nozzles, and the size of the nozzle head in order to effectively clean the entire surface area. Alternatively, Yie teaches a process and apparatus for generating particulate containing fluid jets suitable for cutting and cleaning operations comprising cleaning a 6 inch diameter of a substrate surface (col. 11, lines 25-30). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to have modified the method of Jacobs to include cleaning an area of at least 3 cm diameter, as taught by Yie, for purposes of achieving the desired level of cleanliness.
10. Claim(s) 11-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jacobs (US2020/0087876A1) in view of Hashish et al. (EP3089849B1).
Re claims 11-12, Jacobs fails to teach storing the abrasives in a first container, water in a second container, and a slurry mixing unit and further fails to teach passing the water from the second container to at least one nozzle along a conduit and bypassing a portion of the water, wherein the bypassed water is passed to the slurry mixing unit to mix with the abrasives to form a slurry. Hashish et al. teach abrasive slurry delivery systems comprising a first container for the abrasives (element 56, Fig. 2A), a water storage container 58 and a slurry mixing unit 60 and further teaches a primary conduits 76, 62 and a bypass conduit (76c). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to have modified the method of Jacobs to include separate containers and a mixing unit, as taught by Hashish et al., for purposes of producing water jet abrasive systems for effectively cutting and processing a wide variety of substrates.
Response to Arguments
11. The rejection of the claims, under 112, second paragraph is maintained for the reasons set forth above.
12. The rejection of the claims, as being anticipated by Jacobs et al. is withdrawn in view of the newly amended claims.
13. The rejections of the claims, as being unpatentable over Jacobs et al. and/or in view of the secondary references are maintained for the reasons set forth above. Applicant argues that Jacobs et al. fail to teach a pressure of at least 350 bar and an upper limit of 1000 bar. Applicant’s arguments are unpersuasive as Jacobs et al. teach various embodiments in which the pressures are above and below 20000psi (equivalent to 1379 bar). In some embodiments, (paragraph 12) Jacobs et al. teach at least 20000 PSI (equivalent to 1379 bar). However, other embodiments include a slurry of less than about 20000 psi (paragraph 17). The teachings of less than 20000psi would encompass applicant’s claimed range. Additionally, applicant’s own specification (paragraphs 62-67) teaches a lack of criticality as the slurry is applied at pressures up to 1500 bar (21755psi). The examiner notes that pressures of up to 1500 bar encompasses the teachings of Jacobs et al. It would have been obvious to a person of ordinary skill in the art to have adjusted the pressure of the abrasive slurry to pressures which within the claimed range since a) applicant’s specification fails to teach criticality and/or a showing of unexpected results using the claimed pressures and b) Jacob’s teachings of less than 20000psi, reads on applicant’s claimed range.
14. Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
15. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Sharidan Carrillo whose telephone number is (571)272-1297. The examiner can normally be reached M-F, 7:00am-4:00pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Barr can be reached at 571-272-1414. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Sharidan Carrillo
Primary Examiner
Art Unit 1711
/Sharidan Carrillo/Primary Examiner, Art Unit 1711 bsc