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 1-22 are pending.
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) 1-9, 13-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Erwin (US 6,363,680) in view of Basey (US 4,403,767).
Re claim 1, Erwin discloses a baluster (10) comprising:
a first portion (16 down to the top of 27) having a first length (length of 16) as measured along a longitudinal axis (length of 16) wherein the first portion (16) has a constant cross-sectional size (Fig. 1-2) as measured in a plane perpendicular (Fig. 1-2) to the longitudinal axis (length of 16) along the entire first length (Fig. 1-2, up to the top of 27);
a second portion (17 up to the bottom of 26) having a second length (length of 17) as measured along the longitudinal axis (length of 17), wherein the second portion (17) has a constant cross-sectional size (until the bottom of 26) as measured in a plane perpendicular to (Fig. 1-2) the longitudinal axis (length of 17) along the entire (Fig. 1-2) second length (length of 17); and
an intermediate portion (18) disposed between (Fig. 1-2) the first portion (16) and the second portion (17), the intermediate portion (18) having an intermediate length (length of 18) as measured along the longitudinal axis (longitudinal axis of 18), wherein the intermediate portion (18) has a varied cross-sectional size (Fig. 1-2) as measured in a plane perpendicular to (Fig. 1-2) the longitudinal axis (longitudinal axis of 18) along the intermediate length (length of 18),
wherein the first portion (16), the intermediate portion (18), and the second portion (17) are integrally formed (where “integral” is defined as “essential to completeness” per Merriam-Webster) as a unitary body (Fig. 1-2, where “unitary” is defined as “of or relating to a unit”) (it is noted that although it may appear Applicant is intended to claim a one-piece/monolithic construction, such a construction does not appear support as originally filed. Thus, the claims are being interpreted with their plain meaning per Merriam-Webster as defined above),
but fails to disclose wherein an end of one of the first portion opposite the intermediate portion or the second portion opposite the intermediate portion defines a dowel opening.
However, Basey discloses wherein an end (end of the top section of 18 per Fig. 1) of one of the first portion (top portion of 18) opposite the intermediate portion (middle portion of 18) or the second portion (bottom portion of 18) opposite the intermediate portion (middle portion of 18) defines a dowel opening (which receives 30).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the baluster of Erwin wherein an end of one of the first portion opposite the intermediate portion or the second portion opposite the intermediate portion defines a dowel opening as disclosed by Basey in order to facilitate alignment and securement to a rail or base during assembly, especially with pre-drilled holes.
Re claim 2, Erwin as modified discloses the baluster of claim 1, but fails to disclose wherein the second length or first length of an other of the second portion opposite the intermediate portion or the first portion opposite the intermediate portion, respectively, is 4 inches or more.
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 baluster of Erwin wherein the second length or first length of an other of the second portion opposite the intermediate portion or the first portion opposite the intermediate portion, respectively, is 4 inches or more in order to provide a desired aesthetic by increasing the size of the first/second portion and/or decreasing the size of the intermediate portion. In addition, 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 3, Erwin as modified discloses the baluster of claim 2, but fails to disclose wherein the second length or first length of the other of the second portion opposite the intermediate portion or the first portion opposite the intermediate portion, respectively, is 8 inches or more.
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 baluster of Erwin wherein the second length or first length of the other of the second portion opposite the intermediate portion or the first portion opposite the intermediate portion, respectively, is 8 inches or more in order to provide a desired aesthetic by increasing the size of the first/second portion and/or decreasing the size of the intermediate portion. In addition, 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 4, Erwin as modified discloses the baluster of claim 3, but fails to disclose wherein the first length or the second length of the one of the first portion opposite the intermediate portion or the second portion opposite the intermediate portion, respectively, is 4 inches or more.
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 baluster of Erwin wherein the first length or the second length of the one of the first portion opposite the intermediate portion or the second portion opposite the intermediate portion, respectively, is 4 inches or more in order to provide a desired aesthetic by increasing the size of the first/second portion and/or decreasing the size of the intermediate portion. In addition, 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 5, Erwin as modified discloses the baluster of claim 4, but fails to disclose, wherein the first length or the second length of the one of the first portion opposite the intermediate portion or the second portion opposite the intermediate portion, respectively, is 6 inches or more.
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 baluster of Erwin wherein the first length or the second length of the one of the first portion opposite the intermediate portion or the second portion opposite the intermediate portion, respectively, is 6 inches or more in order to provide a desired aesthetic by increasing the size of the first/second portion and/or decreasing the size of the intermediate portion. In addition, 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 6, Erwin as modified discloses the baluster of claim 1, but fails to disclose wherein the first length or the second length of the one of the first portion opposite the intermediate portion or the second portion opposite the intermediate portion, respectively, is 4 inches or more.
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 baluster of Erwin wherein the first length or the second length of the one of the first portion opposite the intermediate portion or the second portion opposite the intermediate portion, respectively, is 4 inches or more in order to provide a desired aesthetic by increasing the size of the first/second portion and/or decreasing the size of the intermediate portion. In addition, 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 7, Erwin as modified discloses the baluster of claim 6, but fails to disclose wherein the first length or the second length of the one of the first portion opposite the intermediate portion or the second portion opposite the intermediate portion, respectively, is 6 inches or more.
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 baluster of Erwin wherein the first length or the second length of the one of the first portion opposite the intermediate portion or the second portion opposite the intermediate portion, respectively, is 6 inches or more in order to provide a desired aesthetic by increasing the size of the first/second portion and/or decreasing the size of the intermediate portion. In addition, 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, Erwin as modified discloses the baluster of claim 1, Basey discloses wherein the dowel opening (which receives 30) has a depth (Fig. 2) as measured along the longitudinal axis (Fig. 2), but fails to disclose wherein the depth is 1.25 inches or more.
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 baluster of Erwin wherein the depth is 1.25 inches or more in order to ensure the features inserted therein are sufficiently maintained so as not to separate or fracture. In addition, 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 9, Erwin as modified discloses the baluster of claim 8, but fails to disclose wherein the depth is 2 inches or more.
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 baluster of Erwin wherein the depth is 2 inches or more in order to ensure the features inserted therein are sufficiently maintained so as not to separate or fracture. In addition, 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 claims 13-14, Erwin as modified discloses the baluster of claim 1 [and claim 13], but fails to disclose wherein the cross-section of the first portion has a circular shape [claim 13], and wherein the cross-section of the second portion has a circular shape.
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 baluster of Erwin wherein the cross-section of the first portion has a circular shape [claim 13], and wherein the cross-section of the second portion has a circular shape in order to provide a desired aesthetic. 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
Re claims 15, Erwin as modified discloses the baluster of claim 13, wherein the cross-section (of 17) of the second portion (17) has a square shape (Fig. 1).
Re claims 16, Erwin as modified discloses the baluster of claim 11, wherein the cross-section of the second portion has a circular shape.
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 baluster of Erwin wherein the cross-section of the second portion has a circular shape in order to provide a desired aesthetic. 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
Re claims 17, Erwin as modified discloses the baluster of claim 11, wherein the cross-section (17) of the second portion (17) has a square shape (Fig. 1).
Re claims 18, Erwin as modified discloses the baluster of claim 1, but fails to disclose wherein the baluster has a total length as measured along the longitudinal axis, the total length including a sum of the first length, the intermediate length, and the second length, wherein the total length is 36 inches or more.
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 baluster of Erwin wherein the baluster has a total length as measured along the longitudinal axis, the total length including a sum of the first length, the intermediate length, and the second length, wherein the total length is 36 inches or more in order to increase the height of the baluster, and thus, the handrail, for situations requiring a higher handrail. In addition, 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 claims 19, Erwin as modified discloses the baluster of claim 18, but fails to disclose wherein the total length is 40 inches or more.
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 baluster of Erwin wherein the total length is 40 inches or more in order to increase the height of the baluster, and thus, the handrail, for situations requiring a higher handrail. In addition, 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 claims 20, Erwin as modified discloses the baluster of claim 19, but fails to disclose wherein the total length is 42 inches or more.
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 baluster of Erwin wherein the total length is 42 inches or more in order to increase the height of the baluster, and thus, the handrail, for situations requiring a higher handrail. In addition, 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 claims 21, Erwin as modified discloses the baluster of claim 1, wherein the intermediate portion (18) and an other of the second portion (17) opposite the intermediate portion (18) or the first portion (16) opposite the intermediate portion (18) are solid (Col 3 line 15; portion 12).
Re claims 22, Erwin as modified discloses the baluster of claim 1, Basey discloses wherein the dowel opening (which receives 30) extends parallel (Fig. 2) to the longitudinal axis (Fig. 2).
Claim(s) 10-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Erwin (US 6,363,680) in view of Basey (US 4,403,767)and Guerra et al (“Guerra”) (US 6,431,526).
Re claim 10, Erwin as modified discloses the baluster of claim 1, but fails to disclose wherein the cross-sectional size of the first portion is different than the cross-sectional size of the second portion.
However, Guerra discloses wherein the cross-sectional size (of 36) of the first portion (36) is different than (Fig. 2) the cross-sectional size (of 34) of the second portion (34).
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 baluster of Erwin wherein the cross-sectional size of the first portion is different than the cross-sectional size of the second portion as disclosed by Guerra in order to provide a desired aesthetic by increasing/decreasing the size of the first/second portion. In addition, 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). Similarly, 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.
Re claim 11, Erwin as modified discloses the baluster of claim 10, Guerra discloses wherein the cross-sectional size (of 36) of the first portion (36) is smaller than (Fig. 2) the cross-sectional size (of 34) of the second portion (34).
Re claim 12, Erwin as modified discloses the baluster of claim 11, Basey discloses wherein the end (bottom portion of 18) of the second portion (bottom portion of 18) opposite the intermediate portion (middle portion of 18) defines the dowel opening (which receives 30).
Response to Arguments
Claim Rejections 35 USC 103: Applicant’s arguments with respect to all claims have been considered but are moot as they do not apply to any of the references relied upon in the above.
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 KYLE WALRAED-SULLIVAN whose telephone number is (571)272-8838. The examiner can normally be reached Monday - Friday 8:30am - 5:00pm.
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KYLE WALRAED-SULLIVAN
Primary Examiner
Art Unit 3635
/KYLE J. WALRAED-SULLIVAN/Primary Examiner, Art Unit 3635
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