DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of Claims
Claims 1-25 are pending.
Election/Restrictions
Applicant's election with traverse of Species B in the reply filed on 1/30/26 is acknowledged. The traversal is on the ground(s) that there would not be a burden searching the various embodiments. It is noted that the rational provided by Applicant, such as identifying CPC subclasses, is not required. Significant burden may be demonstrated many ways other than that of classification. However, upon further review, the Examiner believes that there would be sufficient overlap of searching strategies for each identified species such that they may be examined together. Therefore, the 10/30/25 Requirement for Restriction is withdrawn, and all pending claims are examined on the merits herein.
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 interlocking mechanisms and/or means of claim 14 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
The drawings are objected to because are further objected to because they include shading and/or photographs. Photographs, including photocopies of photographs, are not ordinarily permitted in utility and design patent applications unless the photographs are the only practicable medium for illustrating the claimed invention. The use of shading may be used if it aids in understanding the invention and if it does not reduce legibility. Such shading is preferred in the case of parts shown in perspective, but NOT for cross sections. See MPEP § 608.02. In the instant case, legibility is reduced.
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 Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “Interlocking mechanisms and/or means” in claim 11.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. The specification does not identify any corresponding structure which would mee the claimed function of the interlocking mechanisms and/or means.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 1-25 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.
At the outset, it is noted that numerous phrases are rejected below as lacking antecedent basis. Although in many instances, these are interpreted as “a” or “an,” if on amendment the feature has been properly previously introduced, these recitations should remain as “the” or “said.”
Re claim 1, claim 1 recites, “the T shaped piece of section” in line 4, “the middle” in line 5, “the width” in line 5, “the side” in line 5 and “the process” in line 7. There is insufficient antecedent basis for these limitations in the claim. It appears this language is intended to recite, “the T shaped piece or section,” “a middle,” “a width,” “the one flat side,” and “a process” and will be interpreted as such.
Re claim 2, claim 2 recites, “a hole” in line 2 and “a frame” in line 2. “A hole” and “a frame” are previously introduced in claim 1, from which claim 2 depends. It is unclear if this hole and frame is the same or different than that of claim 1. It appears this language is intended to recite, “the hole” and “the frame” and will be interpreted as such.
In addition, claim 2 recites, “a repair to the hole or other damage” in line 3. “Other damage” is relative. What constitutes “damage” to one of ordinary skill may not to another and thus, the scope of the claim is unclear. It appears this language is intended to recite, “a repair to the hole” and will be interpreted as such.
Re claim 3, claim 3 recites, “the T shape portion or strip” in line 2, “the hole size” in line 2, “the strip” in line 2, “the T shaped strip” in line 4 and “the T shaped strip” in line 5. There is insufficient antecedent basis for these limitations in the claim. It appears this language is intended to recite, “the T shaped portion or section,” “a hole size,” “the T shaped portion or section,” “the T shaped portion or section” and “the T shaped portion or section” and will be interpreted as such.
Re claim 4, claim 4 recites, “the leg” in line 2, “the T” in line 2, “the T shaped strip” in line 2, “the drywall pieces” in line 2, “the wall” in line 3 and “the new piece of drywall” in line 3. There is insufficient antecedent basis for these limitations in the claim. It appears this language is intended to recite, “a leg,” “a T,” “the T shaped portion or section,” “drywall pieces,” “a wall,” and “a replacement section or drywall piece” and will be interpreted as such.
In addition, claim 4 recites, “a ridge” in line 2. “A protrusion/ridge” is previously introduced in claim 1, from which claim 4 depends. It is unclear if this ridge is the same or different than that of claim 1. It appears this language is intended to recite, “the protrusion/ridge” and will be interpreted as such.
Re claim 5, claim 5 recites, “the middle” in line 2. There is insufficient antecedent basis for these limitations in the claim. It appears this language is intended to recite, “a middle” and will be interpreted as such.
Re claim 6, claim 6 recites, “the drywall opening” in line 4. There is insufficient antecedent basis for these limitations in the claim. It appears this language is intended to recite, “the hole” and will be interpreted as such.
Re claim 9, claim 9 recites, “the T shape premade pieces” in line 2. There is insufficient antecedent basis for these limitations in the claim. It appears this language is intended to recite, “the two separate 90° pieces” and will be interpreted as such.
Re claim 10, claim 10 recites, “the T shape molded” in line 2. There is insufficient antecedent basis for these limitations in the claim. It appears this language is intended to recite, “the T shaped portion or section” and will be interpreted as such.
In addition, claim 10 recites, “a premade square piece” in line 2. “A premade square piece” is previously introduced in claim 7, from which claim 10 depends. It is unclear if this ridge is the same or different than that of claim 7. It appears this language is intended to recite, “the premade square piece” and will be interpreted as such.
Re claim 11, claim 11 recites, “the T shape molded” in line 2. There is insufficient antecedent basis for these limitations in the claim. It appears this language is intended to recite, “the T shaped portion or section” and will be interpreted as such.
In addition, claim 11 recites, “a premade circle piece” in line 2. “A premade circle premade piece” is previously introduced in claim 8, from which claim 11 depends. It is unclear if this ridge is the same or different than that of claim 8. It appears this language is intended to recite, “the premade circle premade piece” and will be interpreted as such.
Re claim 12, claim 12 recites, “the diameter” in line 2, “the circle” in line 2, “the semi-circle” in line 2-3, “the middle” in line 3, and “the new piece of drywall” in line 3. There is insufficient antecedent basis for these limitations in the claim. It appears this language is intended to recite, “a diameter,” “a circle,” “a semi-circle,” “a middle” and “the replacement section or drywall piece” and will be interpreted as such.
Re claim 13, claim 13 recites, “the T shape molded” in line 1, “the diagonal” in line 2-3, and “the corners” in line 3. There is insufficient antecedent basis for these limitations in the claim. It appears this language is intended to recite, “the T shaped portion or section,” “a diagonal” and “corners” and will be interpreted as such.
In addition, claim 13 recites, “a premade square piece” in line 2. “A premade square piece” is previously introduced in claim 7, from which claim 13 depends. It is unclear if this ridge is the same or different than that of claim 7. It appears this language is intended to recite, “the premade square piece” and will be interpreted as such.
Re claim 14, claim 14 recites, “the preformed cut pieces” in line 2, “the diagonal sides” in line 2-3, “the two” in line 3. There is insufficient antecedent basis for these limitations in the claim. It appears this language is intended to recite, “preformed cur pieces,” “diagonal sides” and the preformed cut pieces” and will be interpreted as such.
In addition, claim 14 recites, “a wall hole” in line 3-4. “A hole” is previously introduced in claim 1, from which claim 14 ultimately depends. It is unclear if this ridge is the same or different than that of claim 1. It appears this language is intended to recite, “the hole” and will be interpreted as such.
In addition, claim 14 recites, “them” in line 3. Numerous elements are previously introduced and thus, it is unclear as to which this language refers. It appears this language is intended to recite, “the preformed cut pieces” and will be interpreted as such.
In addition, claim 14 recites, “interlocking mechanisms and/or means” in line 2. As stated above, this language invokes 35 USC 112f. However, the specification makes no mention of any structure or feature corresponding to the interlocking mechanisms and/or means. Thus, it is unclear as to what the interlocking mechanisms and/or means are. For the purposes of this examination, any connection mechanism will be considered sufficient.
Re claim 15, claim 15 recites, “the T shaped piece of section” in line 3, “the middle” in line 4, “the width” in line 4, “the side” in line 4 and “the process” in line 6. There is insufficient antecedent basis for these limitations in the claim. It appears this language is intended to recite, “the T shaped piece or section,” “a middle,” “a width,” “the one flat side,” and “a process” and will be interpreted as such.
In addition, claim 15 recites, “brand new drywall installation” in line 1. “brand new” is relative. What constitutes “brand new” to one of ordinary skill may not to another and thus, the scope of the claim is unclear. It appears this language is intended to recite, “a drywall installation” and will be interpreted as such.
Re claim 16, claim 16 recites, “the opposing ribs” in line 5, “the thickness” in line 7, “the drywall thickness” in line 7-8, and “the wall” in line 9. There is insufficient antecedent basis for these limitations in the claim. It appears this language is intended to recite, “opposing ribs,” “a thickness,” “a drywall thickness,” and “a wall” and will be interpreted as such.
In addition, claim 16 recites,” the opposing ribs…are of the same thickness or different thicknesses” in line 5-6. IN addition, claim 16 recites, “the inner rib…is thicker than the other rib” in the last clause. It is unclear how the ribs can have the same thickness, yet one be thicker than the other. For the purposes of this examination, this language will be interpreted as requiring ribs of differing thickness.
Re claim 17, claim 17 recites, “the opposing ribs” in line 2. There is insufficient antecedent basis for these limitations in the claim. It appears this language is intended to recite, “opposing ribs” and will be interpreted as such.
Re claim 18, claim 18 recites, “its” in line 2. Numerous elements are previously introduced and thus, it is unclear as to which this language refers. It appears this language is intended to recite, “the molded square body” and will be interpreted as such.
Re claim 19, claim 19 recites, “the opening” in line 2, “the rib” in line 2 and “the molded body” in line 2-3. There is insufficient antecedent basis for these limitations in the claim. It appears this language is intended to recite, “an opening,” “the inner or outer rib” and “the molded square body” and will be interpreted as such.
Re claim 21, claim 21 recites, “the opposing ribs” in line 5, “the same thickness” in line 7, “the drywall thickness” in line 7-8, and “the wall” in line 9. There is insufficient antecedent basis for these limitations in the claim. It appears this language is intended to recite, “opposing ribs,” “a thickness,” “a drywall thickness,” and “a wall” and will be interpreted as such.
In addition, claim 21 recites,” the opposing ribs…are of the same thickness or different thicknesses” in line 5-6. In addition, claim 20 recites, “the inner rib…is thicker than the other rib” in the last clause. It is unclear how the ribs can have the same thickness, yet one be thicker than the other. For the purposes of this examination, this language will be interpreted as requiring ribs of differing thickness.
Re claim 22, claim 22 recites, “the opposing ribs” in line 2. There is insufficient antecedent basis for these limitations in the claim. It appears this language is intended to recite, “opposing ribs” and will be interpreted as such.
Re claim 23, claim 23 recites, “its” in line 2. Numerous elements are previously introduced and thus, it is unclear as to which this language refers. It appears this language is intended to recite, “the molded square body” and will be interpreted as such.
Re claim 24, claim 24 recites, “the opening” in line 2, “the rib” in line 2 and “the molded body” in line 2-3. There is insufficient antecedent basis for these limitations in the claim. It appears this language is intended to recite, “an opening,” “the inner or outer rib” and “the molded square body” and will be interpreted as such.
Claims 7-8, 20 and 25 are rejected as being dependent on a rejected claim.
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) 1-4, 6-7, 9-10, 15 is/are rejected under 35 U.S.C. 102a1 as being anticipated by Parkin (US 4,464,869).
Re claim 1, Parkin discloses an apparatus (10) for patching or repairing drywall (Col 1 lines 4-8) using a preformed frame or pieces (10) for creating for a frame (of elements 10, see Col 3 line 33 – Col 4 line 16) to secure a replacement section or drywall piece (50) for repair (Col 1 lines 4-8), comprising
a T shaped piece or section (10) cut (Col 3 line 33 – Col 4 line 16) to match a length (Col 3 line 33 – Col 4 line 16) of a hole (48);
the T shaped piece of section (10) having one flat side (12) and an opposing side (22) with a protrusion/ridge (22) rising from the middle (middle of 12) of the width (Fig. 1) of the side (12) and running the length (Fig. 1), so that when viewed from a side plane (Fig. 3A), a T shape is created (Fig. 1); and
the process repeated (Col 3 line 33 – Col 4 line 16) for all sides (of 48) of the hole (48) until a frame has been built (of elements 10).
Re claim 2, Parkin discloses the apparatus of claim 1, wherein a plurality of T shaped pieces (10, Col 3 line 33 – Col 4 line 16) create a frame (of 10) around a hole (48) in drywall (54) to secure a new piece of drywall (50) to provide a repair (Col 3 line 33 – Col 4 line 16) to the hole (48) or other damage.
Re claim 3, Parkin discloses the apparatus of claim 1, wherein the T shape portion or strip (10) is cut to match (Col 3 line 33 – Col 4 line 16) the hole size (of 48), so the length (of 10) of the strip (10) matches one side (of 48) of a square hole (48, Col 3 line 33 – Col 4 line 16 disclosing a square hole); adhesive (32) is applied to one side (of 22) of the T shaped strip (10), and the T shaped strip (10) is attached behind (Fig. 3B) the drywall (54) around the hole (48).
Re claim 4, Parkin discloses the apparatus of claim 1, wherein a ridge (22) created by the leg (22) of the T (Fig. 1) on the T shaped strip (10) fits between the drywall pieces (54) around the hole (48) on the wall (54) and the new piece of drywall (50) is then attached (Fig. 3A-3B).
Re claim 6, Parkin discloses the apparatus of claim 1, wherein the T shape (Fig. 1) is created from two separate 90° pieces (24, 26) that each have two sides (each side thereof) to a rectangle (Fig. 1) and would allow one to cut each side down to the length (Col 3 line 33 – Col 4 line 16) needed to shape up (Col 3 line 33 – Col 4 line 16) the drywall opening (48).
Re claim 7, Parkin discloses the apparatus of claim 1, wherein the T shape (of 10) is molded (as this language is product by process) to create a premade square piece (Col 3 line 33 – Col 4 line 16 disclosing a square).
It should further be noted that the language “molded” is considered product-by-process; therefore, determination of patentability is based on the product itself. See M.P.E.P. §2113. The patentability of the product does not depend on its method of production. If the product-by-process claim is the same as or obvious from a product of the same prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 777 F.2d 695 (Fed. Cir. 1985).
Re claim 9, Parkin discloses the apparatus of claim 6, wherein the T shaped premade pieces (10) are made from a flexible material (Fig. 3A-3B showing bending).
Re claim 10, Parkin discloses the apparatus of claim 7, wherein the T shape molded (10) to create a premade square piece (Col 3 line 33 – Col 4 line 16 disclosing a square) is cut ()Col 3 line 33 – Col 4 line 16) into two pieces (Col 3 line 33 – Col 4 line 16 discloses cutting for each edge, thus having at least two cut pieces) perpendicular to an external surface/edge (of 48) creating two halves (comprised of 2 elements 10 on 2 edges, each) having a matching rectangular shapes (being cut from the same material 10, all shaped of each edge using 10 match).
Re claim 15, Parkin discloses an apparatus (10) to finish entire walls or rooms for brand new drywall installation (Col 1 lines 4-8, 10 being capable of use as such), comprising
a T shaped piece or section (10) cut (Col 3 line 33 – Col 4 line 16) to match a length (Col 3 line 33 – Col 4 line 16) of a sheet of drywall (54);
the T shaped piece of section (10) having one flat side (12) and an opposing side (22) with a protrusion/ridge (22) rising from the middle (middle of 12) of the width (Fig. 1) of the side (12) and running the length (Fig. 1), so that when viewed from a side plane (Fig. 3A), a T shape is created (Fig. 1); and
the process repeated (Col 3 line 33 – Col 4 line 16) for all adjacent sides (of 48) of the two or more sheets of drywall (54, 50) until a frame has been built (of elements 10) for connecting a first sheet of drywall (50) to a second sheet of drywall (54).
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) 5, 8, 11, 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Parkin (US 4,464,869).
Re claim 5, Parkin discloses the apparatus of claim 1, but fails to disclose wherein the protrusion/ridge extends one inch towards the middle from each side of the hole.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of Parkin wherein the protrusion/ridge extends one inch towards the middle from each side of the hole in order to allow sufficient sizing and/or spacing for secure attachment to both the wall and the repair drywall piece. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
Re claim 8, Parkin discloses the apparatus of claim 1, but fails to disclose wherein the T shape is molded to create a premade circle premade piece.
However, it would have been obvious as a matter of choice to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of Parkin wherein the T shape is molded to create a premade circle premade piece in shape in order to patch a circular hole. In addition, use of a circular hole would allow one of ordinary skill to make a matching hole easily using a hole saw. In addition, it has been held that a mere change in shape of a component is within the level of ordinary skill in the art absent persuasive evidence that a particular configuration of the claimed shape is significant. In re Dailey, 357 F.2d 669, 149.
It should further be noted that the language “molded” is considered product-by-process; therefore, determination of patentability is based on the product itself. See M.P.E.P. §2113. The patentability of the product does not depend on its method of production. If the product-by-process claim is the same as or obvious from a product of the same prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 777 F.2d 695 (Fed. Cir. 1985).
Re claim 11, Parkin as modified discloses the apparatus of claim 8, wherein the T shape molded (10) to create a premade circle piece (as modified above) is cut (Col 3 line 33 – Col 4 line 16) into two pieces (Col 3 line 33 – Col 4 line 16 discloses cutting for each edge, thus having at least two cut pieces) perpendicular to an external surface/edge (of 48) creating semi-circles or two halves (comprised of 2 elements 10 on 2 edges, each) having a matching rectangular shapes (being cut from the same material 10, all shaped of each edge using 10 match).
Re claim 13, Parkin discloses the apparatus of claim 7, but fails to disclose wherein the T shape molded to create a premade square piece is cut into two pieces along the diagonal form the corners of an external surface/edge creating two halves having a matching triangular shapes.
However, it would have been obvious as a matter of choice to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of Parkin wherein the T shape molded to create a premade square piece is cut into two pieces along the diagonal form the corners of an external surface/edge creating two halves having a matching triangular shapes in order to allow for smaller, flat shipping and transportation. In addition, it has been held that a mere change in shape of a component is within the level of ordinary skill in the art absent persuasive evidence that a particular configuration of the claimed shape is significant. In re Dailey, 357 F.2d 669, 149.
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Parkin (US 4,464,869) in view of Forzano (US 5,018,331).
Re claim 12, Parkin as modified discloses the apparatus of claim 8, but fails to disclose wherein an 0.5 inch strip extending across the diameter of the circle on each side of the semi-circle now provides structural support down the middle of the hole that the new piece of drywall will fit into.
However, Forzano discloses wherein a strip (15) extending across the diameter (Fig. 2) of the circle (10) on each side of the semi-circle (Fig. 2) now provides structural support down the middle (at 12) of the hole (20) that the new piece of drywall (10) will fit into (Fig. 2).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of Parkin with strip extending across the diameter of the circle on each side of the semi-circle now provides structural support down the middle of the hole that the new piece of drywall will fit into as disclosed by Forzano in order to aid in maintaining shape, position and/or add rigidity.
In addition, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of Parkin as modified such that the strip is 0.5 inches in order to allow sufficient sizing to aid in maintaining shape, position and/or add rigidity. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Parkin (US 4,464,869) in view of Reyes (US 2020/0141139).
Re claim 14, Parkin as modified discloses the apparatus of claim 7, but fails to disclose wherein the preformed cut pieces include interlocking mechanisms and/or means for securing the diagonal sides to each other, to lock the two together to keep them flush when installed into a wall hole.
However, Reyes discloses wherein the preformed cut pieces (7) include interlocking mechanisms and/or means (6) for securing the diagonal sides to each other (Fig. 1), to lock the two together (via screws 6) to keep them flush when installed into a wall hole (Fig. 6).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of Parkin wherein the preformed cut pieces include interlocking mechanisms and/or means for securing the diagonal sides to each other, to lock the two together to keep them flush when installed into a wall hole as disclosed by Reyes in order to aid in maintaining shape, strength, position and/or add rigidity.
Claim(s) 16-18 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Matsumoto (US 2013/0118108).
Re claim 16, Matsumoto discloses an apparatus (Fig. 1) for patching or repairing drywall (Fig. 1 is capable of patching or repairing drywall, as this is a statement of intended use) using a preformed frame or pieces (1) for creating for a frame (1) to secure a replacement section or drywall piece for repair (1 is capable of use with a replacement section of drywall as this is a statement of intended use), comprising
a molded (as molded is product by process) body (1);
the molded square body (1) having a rib (2) on both sides (Fig. 1);
the opposing ribs (2), an inner rib (left 2) and an outer rib (right 2), are of the same thickness (Fig. 2) or different thicknesses allowing for one mold to cover two different drywall thicknesses (1 is capable of use with drywall of different thicknesses, as this is a statement of intended use);
the inner rib (left 2) is elevated by the thickness necessary to (Fig. 2) cover the drywall thicknesses (thickness of 9),
but fails to disclose the body as a square body, and the inner rib where a new piece of drywall gets placed is thicker than the outer rib that attaches to the wall.
However, it would have been obvious as a matter of choice to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of Matsumoto with the body as a square body in order to reinforce structures of square shape. In addition, it has been held that a mere change in shape of a component is within the level of ordinary skill in the art absent persuasive evidence that a particular configuration of the claimed shape is significant. In re Dailey, 357 F.2d 669, 149.
In addition, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of Matsumoto with the inner rib where a new piece of drywall gets placed is thicker than the outer rib that attaches to the wall in order to increase strength and rigidity of the inner rib. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
It should further be noted that the language “molded” is considered product-by-process; therefore, determination of patentability is based on the product itself. See M.P.E.P. §2113. The patentability of the product does not depend on its method of production. If the product-by-process claim is the same as or obvious from a product of the same prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 777 F.2d 695 (Fed. Cir. 1985).
Re claim 17, Matsumoto as modified discloses the apparatus of claim 16, but fails to disclose wherein the opposing ribs have thickness of 1/2 inch and 5/8 inch allowing for one mold to cover two different drywall thicknesses.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of Matsumoto wherein the opposing ribs have thickness of 1/2 inch and 5/8 inch allowing for one mold to cover two different drywall thicknesses in order to optimize strength and rigidity of the inner and outer ribs without sacrificing material. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
Re claim 18, Matsumoto as modified discloses the apparatus of claim 16, but fails to disclose wherein the molded square body is split into two equal parts down its diagonal creating two triangular bodies that are combined to create a single square body.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of Matsumoto wherein the molded square body is split into two equal parts down its diagonal creating two triangular bodies that are combined to create a single square body in order to make the product smaller/breakdown for easier shipping and transportation. It has been held that making seperable is within the level of ordinary skill. In re Dulberg, 289 F.2d 522.
Re claim 20, Matsumoto as modified discloses the apparatus of claim 16, but fails to disclose wherein the molded square body is 8 inches by 8 inches in size.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of Matsumoto wherein the molded square body is 8 inches by 8 inches in size in order to reinforce structures of 8x8 size. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
Claim(s) 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Matsumoto (US 2013/0118108) in view of Ojeda (US 2012/0047823).
Re claim 19, Matsumoto as modified discloses the apparatus of claim 16, but fails to disclose in combination with a new 1/2 inch drywall cutout for a repair that would fit the opening inside the rib of the molded body.
However, Ojeda discloses in combination with a new 1/2 inch drywall cutout (130; [0029]) for a repair that would fit the opening (within 150) inside the rib (per the above) of the molded body (150).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of Matsumoto to be in combination with a new 1/2 inch drywall cutout for a repair that would fit the opening inside the rib of the molded body in order to close the opening if not in use, as 2 inch drywall cutouts are extremely well-known and common in the art.
Claim(s) 21-25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Rodriguez et al (“Rodriguez”) (US 2010/0146897).
Re claim 21, Rodriguez discloses an apparatus (10) for patching or repairing drywall (10 is capable of patching or repairing drywall, as this is a statement of intended use) using a preformed frame or pieces (10) for creating for a frame (10) to secure a replacement section or drywall piece for repair (10 is capable of use with a replacement section of drywall as this is a statement of intended use), comprising
a molded (as molded is product by process) circular body (12);
the molded square body (12) having a rib (14, 16) on both sides (Fig. 1);
the opposing ribs (Fig. 1), an inner rib (14) and an outer rib (16), are of the same thickness (Fig. 1) or different thicknesses allowing for one mold to cover two different drywall thicknesses (10 is capable of use with drywall of different thicknesses, as this is a statement of intended use);
the inner rib (14) is elevated by the thickness necessary to (Fig. 6) cover the drywall thicknesses (thickness of 30),
but fails to disclose the inner rib where a new piece of drywall gets placed is thicker than the outer rib that attaches to the wall.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of Rodriguez with the inner rib where a new piece of drywall gets placed is thicker than the outer rib that attaches to the wall in order to increase strength and rigidity of the inner rib. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
It should further be noted that the language “molded” is considered product-by-process; therefore, determination of patentability is based on the product itself. See M.P.E.P. §2113. The patentability of the product does not depend on its method of production. If the product-by-process claim is the same as or obvious from a product of the same prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 777 F.2d 695 (Fed. Cir. 1985).
Re claim 22, Rodriguez as modified discloses the apparatus of claim 1621 but fails to disclose wherein the opposing ribs have thickness of 1/2 inch and 5/8 inch allowing for one mold to cover two different drywall thicknesses.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of Rodriguez wherein the opposing ribs have thickness of 1/2 inch and 5/8 inch allowing for one mold to cover two different drywall thicknesses in order to optimize strength and rigidity of the inner and outer ribs without sacrificing material. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
Re claim 23, Rodriguez as modified discloses the apparatus of claim 21, but fails to disclose wherein the molded circular body is split into two equal parts down its diagonal creating two triangular bodies that are combined to create a single square body.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of Rodriguez wherein the molded circular body is split into two equal parts down its diagonal creating two triangular bodies that are combined to create a single square body in order to make the product smaller/breakdown for easier shipping and transportation. It has been held that making seperable is within the level of ordinary skill. In re Dulberg, 289 F.2d 522.
Re claim 24, Rodriguez as modified discloses the apparatus of claim 21, in combination with a new 1/2 inch drywall cutout (38) for a repair (Fig. 6) that would fit the opening inside the rib (14/ 16) of the molded body (10), but fails to disclose the drywall as ½ inch.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of Rodriguez with ½ inch drywall in order to use a size that is commonly available in hardware stores, as ½ drywall is extremely well-known and common in the art.
Re claim 25, Rodriguez as modified discloses the apparatus of claim 16, but fails to disclose wherein the molded circular body is 8 inches in diameter in size.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of Rodriguez wherein the molded circular body is 8 inches in diameter in size in order to reinforce structures of 8” size or to patch an 8” diameter hole. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO 892.
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KYLE WALRAED-SULLIVAN
Primary Examiner
Art Unit 3635
/KYLE J. WALRAED-SULLIVAN/Primary Examiner, Art Unit 3635