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 § 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.
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.
Claims 1, 4-10, and 13-20 are rejected under 35 U.S.C. 103 as being unpatentable over Zimmerman et al (US 2021/0299833), hereinafter Zimmerman, in view of Carati (US 2017/0182644).
Regarding claim 1, Zimmerman discloses a driving tool (Fig. 1, item 10) comprising:
a tool body (Fig. 2, item 38, 58) defining a driving channel (Fig. 2, item 74);
a magazine (Fig. 2, item 14) attached to the tool body (Fig. 2) configured to store a plurality of driven members (Fig. 2, item 120);
a pusher (Fig. 9) configured to bias the plurality of driven members inside the magazine toward the driving channel (Para. 0051-0056);
a driver (Fig. 2, item 26) configured to strike one of the plurality of driven members (Para. 0036-0037) being fed into the driving channel (Para. 0036-0037);
a blank drive preventing mechanism (Fig. 8, item 230) configured to restrict a driving operation of the driver (Para. 0049-0056) when a number of the plurality of driven members (Para. 0049-0056) in the magazine is less than or equal to a predetermined number (Para. 0049-0056), and
a resistance-applying member (Fig. 9, item 130, 134, 138, 238) configured to, upon actuation of the blank drive preventing mechanism (Para. 0051-0056) (Para. 0041), directly engage a lateral side (Fig. 9, resistance-applying member contacts a side of a driven member) of, and apply resistance (Para. 0041) to, driven members remaining within the magazine (Para. 0041, resistance applying member 130 applies resistance directly to driven members 120), thereby maintaining a proper orientation of the driven members remaining in the magazine (Para. 0051-0056) (Para. 0041), wherein
the resistance-applying member is provided at a location (Para. 0051-0056) corresponding to a shortest available driven member (Para. 0051-0056) in the magazine, ensuring effective engagement across varying fastener lengths (Para. 0051-0056, magazine can accommodate fasteners of various lengths), the resistance-applying member having an elastic member (Fig. 7, item 142, 146) (Para. 0051-0056).
Zimmerman is silent about the resistance-applying member held in the magazine separately from the pusher; the elastic member configured to directly contact one of the driven members remaining in the magazine to bias the driven members remaining in the magazine via elastic force.
However, Carati teaches a resistance-applying member (Carati, Fig. 16, item 37, 45, 41) held in the magazine separately from the pusher (Fig. 16, item 31); an elastic member (Carati, Fig. 15, item 37) (Carati, Para. 0039) configured to directly contact one of the remaining driven members (Carati, Fig. 15, item S, E) (Carati, Para. 0039) to bias the remaining driven members via elastic force (Carati, Para. 0039).
It would have been obvious to a person of ordinary skill in the art at the effective filing date of the invention having the teachings of Zimmerman and Carati to modify the driving tool of Zimmerman to include the separate resistance-applying member and the direct contact by the elastic member, as taught by Carati. A person of ordinary skill in the art would have been motivated to make such change in order to minimize the risk of jamming the nails during the firing process (Carati, Para. 0010).
Additionally, it would have been obvious to one having ordinary skill in the art at the effective filing date of the invention to form the pusher and resistance-applying member separately, since it has been held that constructing a formerly integral structure in various elements involves only routine skill in the art. Nerwin v. Erlichman, 168 USPQ 177, 179.
Regarding claim 4, Zimmerman discloses the driving tool according to claim 1, wherein the resistance-applying member has a contacting part (Fig. 9, item 134) to contact at least one of the plurality of driven members (Para. 0051-0056), and wherein the contacting part includes a loading-side curved surface (Para. 0051-0056) in a loading direction of the plurality of driven members into the magazine (Para. 0051-0056).
Regarding claim 5, Zimmerman discloses the driving tool according to claim 4, wherein the contacting part includes a feed-side curved surface (Fig. 9) (Para. 0051-0056) in a biasing direction of the pusher (Para. 0051-0056).
Regarding claim 6, Zimmerman discloses the driving tool according to claim 4, wherein the contacting part further includes an unloading-side curved surface (Fig. 9) (Para. 0051-0056) in an unloading direction of the plurality of the driven members from the magazine (Para. 0051-0056).
Regarding claim 7, Zimmerman discloses the driving tool according to claim 1, wherein the resistance-applying member has a contacting part (Fig. 9, item 134) to contact the plurality of the driven members (Para. 0051-0056), and wherein the contacting part includes a flat contacting surface (Fig. 9, first portion has a flat surface) to contact a side of the plurality of driven members (Para. 0051-0056) in a surface contact manner (Para. 0051-0056).
Regarding claim 8, Zimmerman discloses the driving tool according to claim 1, wherein the magazine has an opening (Para. 0038-0040) through which the plurality of driven members are loaded (Para. 0038-0040) from downstream to upstream in a driving direction of the plurality of driven members (Para. 0038-0040).
Regarding claim 9, Zimmerman discloses the driving tool according to claim 1, wherein the blank drive preventing mechanism includes a detection member (Fig. 8, item 234, 246) that is biased toward the pusher (Para. 0050) and removed from the pusher (Para. 0050-0056) when a number of the plurality of driven members (Para. 0051-0056) in the magazine is about less than or equal to the predetermined number (Para. 0051-0056), and
wherein the resistance-applying member is configured to bias the plurality of driven members (Para. 0051-0056) in a direction parallel to a biasing direction (Fig. 8, pusher 130 biases driven members into first end 86 which contains window 126 blocked by blocking member 234) (Para. 0051-0056) of the detection member.
Regarding claim 10, Zimmerman discloses the driving tool according to claim 1, wherein the blank drive preventing mechanism includes a detection member (Fig. 8, item 234, 246) that is biased toward the pusher (Para. 0050) and removed from the pusher (Para. 0050-0056) when a number of the plurality of driven members (Para. 0051-0056) in the magazine is about less than or equal to the predetermined number (Para. 0051-0056), and
wherein the detection member and the resistance-applying member are positioned on the same side within the magazine (Fig. 8, pusher 130 and blocking member 234 are both at the front of the magazine) (Para. 0051-0056).
Regarding claim 13, Zimmerman discloses the driving tool according to claim 1, wherein the resistance-applying member includes a holding part (Fig. 7, item 88) (Para. 0050-0056) being held in the magazine (Para. 0050-0056), a deflection portion (Fig. 7, item 142, 146) being elastically deformable (Para. 0050-0056) and extending from the holding part (Para. 0050-0056), and a contacting part (Fig. 7, item 130) protruding from the deflection portion (Para. 0050-0056) and contacting the plurality of driven members (Para. 0050-0056), and
wherein the magazine has a supporting portion (Fig. 7) (Para. 0050-0056) configured to support the deflection portion with an end of the deflection portion contacting (Para. 0050-0056) and the deflection portion being bent (Para. 0050-0056).
Regarding claim 14, Zimmerman discloses the driving tool according to claim 1, wherein the plurality of driven members is a staple type (Para. 0033) having a base (Para. 0033) that is struck by the driver (Para. 0033) and a pair of legs (Para. 0033) that extends substantially parallel from both ends of the base (Para. 0033).
Regarding claim 15, Zimmerman discloses a driving tool (Fig. 1, item 10) comprising:
a tool body (Fig. 2, item 38, 58) having a driving nose (Fig. 3, item 190, 198) arranged at a lower part of the tool body (Fig. 3), wherein the driving nose has a driving channel (Fig. 2, item 74);
a magazine (Fig. 2, item 14) coupled to the driving nose and attached to the tool body, wherein the magazine has a groove-shaped driving member housing (Fig. 6-7) section for housing a plurality of driven members (Para. 0036-0037);
a pusher (Fig.7-9, item 130) having a right-left flat plates extending in an up-down direction (Fig. 9) and a front-rear direction (Fig. 9), wherein the pusher is configured to bias the plurality of driven members (Para. 0036-0037) in the magazine toward the driving channel (Para. 0036-0037);
a driver (Fig. 2, item 26) that is a front rear two-stated structure having a striking portion (Fig. 2, item 26), wherein a lower part of the striking portion (Para. 0036-0037) is configured to drive one of the plurality of driven members into the driving channel (Para. 0036-0037);
a blank drive preventing mechanism (Fig. 8, item 230) configured to restrict a driving operation (Para. 0049-0056) of the driver (Para. 0049-0056) when a number of the plurality of driven members in the magazine (Para. 0049-0056) is less than or equal to a predetermined number (Para. 0049-0056), and
a resistance-applying member (Fig. 9, item 130, 134, 138, 238) configured to, upon actuation of the blank drive preventing mechanism (Para. 0051-0056) (Para. 0041), directly engage a lateral side of (Fig. 9, resistance-applying member contacts a side of a driven member), and apply resistance (Para. 0041) to, driven members remaining within the magazine (Para. 0041, resistance applying member 130 applies resistance directly to driven members 120), thereby maintaining a proper orientation of the driven members remaining in the magazine (Para. 0051-0056) (Para. 0041), wherein
the resistance-applying member is provided at a location (Para. 0051-0056) corresponding to a shortest available driven member (Para. 0051-0056) in the magazine, ensuring effective engagement across varying fastener lengths (Para. 0051-0056, magazine can accommodate fasteners of various lengths), the resistance-applying member having an elastic member (Fig. 7, item 142, 146) (Para. 0051-0056).
Zimmerman is silent about the resistance-applying member held in the magazine separately from the pusher; the elastic member configured to directly contact one of the driven members remaining in the magazine to bias the driven members remaining in the magazine via elastic force.
However, Carati teaches a resistance-applying member (Carati, Fig. 16, item 37, 45, 41) held in the magazine separately from the pusher (Fig. 16, item 31); an elastic member (Carati, Fig. 15, item 37) (Carati, Para. 0039) configured to directly contact one of the remaining driven members (Carati, Fig. 15, item S, E) (Carati, Para. 0039) to bias the remaining driven members via elastic force (Carati, Para. 0039).
It would have been obvious to a person of ordinary skill in the art at the effective filing date of the invention having the teachings of Zimmerman and Carati to modify the driving tool of Zimmerman to include the separate resistance-applying member and the direct contact by the elastic member, as taught by Carati. A person of ordinary skill in the art would have been motivated to make such change in order to minimize the risk of jamming the nails during the firing process (Carati, Para. 0010).
Additionally, it would have been obvious to one having ordinary skill in the art at the effective filing date of the invention to form the pusher and resistance-applying member separately, since it has been held that constructing a formerly integral structure in various elements involves only routine skill in the art. Nerwin v. Erlichman, 168 USPQ 177, 179.
Regarding claim 16, Zimmerman discloses the driving tool according to claim 15, wherein the driving nose has a contact arm (Fig. 3, item 190, 198) that is slidable in the up-down direction (Para. 0044-0045), and wherein the contact arm is configured to bias toward a lower off position (Para. 0044-0045).
Regarding claim 17, Zimmerman discloses the driving tool according to claim 15 further has a wheel (Fig. 3, item 78) configured to rotate and to lift the driver (Para. 0036-0037).
Regarding claim 18, Zimmerman discloses the driving tool according to claim 16, wherein the blank drive preventing mechanism has a stopper (Fig. 8, item 234, 246, 242) configured to restrict the contact arm from moving upward (Para. 0049-0056), and wherein the stopper is rotatable around a rotary shaft (Para. 0049-0056) in a left-right direction (Para. 0049-0056).
Regarding claim 19, Zimmerman discloses the driving tool according to claim 18, wherein the stopper further has an engaging portion (Fig. 8, item 246) positioned at a front end of the stopper (Fig. 8) for restricting the contact arm from moving upward to an on position (Para. 0049-0056), and
a contacting part (Fig. 8, item 242) protruding to a right behind the rotary shaft (Para. 0049-0056) for entering into the driving member housing section (Para. 0049-0056).
Regarding claim 20, Zimmerman discloses the driving according to claim 19 further has a compression spring (Para. 0050) arranged behind the rotary shaft (Para. 0049-0056) and on a left side of the contacting part (Para. 0049-0056), wherein the compression spring is configured to bias the stopper to rotate in a clockwise direction (Para. 0049-0056).
Claims 3 and 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over Zimmerman in view of Carati.
Regarding claim 3, Zimmerman in view of Carati is silent about the driving tool according to claim 1, wherein the elastic member is made of rubber.
However, it would have been obvious to one having ordinary skill in the art at the time the invention was made to form the elastic member with rubber, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416. See also Ballas Liquidating Co. v. Allied industries of Kansas, Inc. (DC Kans) 205 USPQ 331.
Regarding claim 11, Zimmerman discloses the driving tool according to claim 1, wherein the resistance-applying member further includes a holding part (Fig. 7, item 138) being held in the magazine (Para. 0050-0056) and a contacting part (Fig. 7, item 134) protruding from the holding part (Para. 0050-0056), wherein the contacting part is configured to engage a surface of each of the plurality of driven members (Para. 0050-0056) within the magazine and impart resistance to maintain an orientation (Para. 0050-0056) of the remaining driven members (Para. 0050-0056).
Zimmerman in view of Carati does not expressly disclose the holding part is held in the magazine separately from the pusher. However, it would have been obvious to one having ordinary skill in the art at the time the invention was made to form the holding part separately from the pusher, since it has been held that constructing a formerly integral structure in various elements involves only routine skill in the art. Nerwin v. Erlichman, 168 USPQ 177, 179.
Regarding claim 12, Zimmerman discloses the driving tool according to claim 11, wherein the contacting part is configured to protrude from the holding part (Fig. 7) (Para. 0050-0056) and contact the plurality of driving members (Para. 0050-0056).
Response to Arguments
Applicant's arguments filed 03/05/2026 have been fully considered but they are not persuasive for the following reason:
Regarding Applicant’s argument that Carati’s elastic member contacts the carrier strip rather than the driven members, Examiner notes that the carrier strip S of Carati is part of the remaining driven members. Because the elastic member of Carati contacts the carrier strip, the claimed limitation is taught by the above rejection. Therefore the rejection is maintained.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, a person of ordinary skill in the art would have been motivated to combine Zimmerman and Carati in order to minimize the risk of jamming the nails during the firing process. Carati is relied upon to teach a resistance applying member separate from the pusher, the resistance applying member having an elastic member and Carati is modifying the resistance applying member of Zimmerman. Therefore the rejection is maintained.
Conclusion
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VERONICA MARTIN whose telephone number is (571)272-3541. The examiner can normally be reached Monday-Thursday 8:00-6:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anna Kinsaul can be reached at (571)270-1926. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/VERONICA MARTIN/Primary Examiner, Art Unit 3731
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