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 .
Election/Restriction
Restriction to one of the following inventions is required under 35 U.S.C. 121:
I. Claims 1-16, drawn to a device to plumb and level construction materials, classified in E04C 3/18.
II. Claims 17-20, drawn to a method to plumb and level a stud, classified in E04B 21/185.
The inventions are independent or distinct, each from the other because:
Inventions I and II are related as product and process of use. The inventions can be shown to be distinct if either or both of the following can be shown: (1) the process for using the product as claimed can be practiced with another materially different product or (2) the product as claimed can be used in a materially different process of using that product. See MPEP § 806.05(h). In the instant case, the device can be used as an edge reinforcement or can be used as a standalone structural member.
Restriction for examination purposes as indicated is proper because all the inventions listed in this action are independent or distinct for the reasons given above and there would be a serious search and/or examination burden if restriction were not required because one or more of the following reasons apply:
the inventions require a different field of search (e.g., searching different classes /subclasses or electronic resources, or employing different search strategies or search queries).
Applicant is advised that the reply to this requirement to be complete must include (i) an election of an invention to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected invention.
The election of an invention may be made with or without traverse. To reserve a right to petition, the election must be made with traverse. If the reply does not distinctly and specifically point out supposed errors in the restriction requirement, the election shall be treated as an election without traverse. Traversal must be presented at the time of election in order to be considered timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are added after the election, applicant must indicate which of these claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
During a telephone conversation with Williams Isaacs on 10/02/2025 a provisional election was made without traverse to prosecute the invention of a device to plumb and level, claims 1-16. Affirmation of this election must be made by applicant in replying to this Office action. Claims 17-20 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
The examiner has required restriction between product or apparatus claims and process claims. Where applicant elects claims directed to the product/apparatus, and all product/apparatus claims are subsequently found allowable, withdrawn process claims that include all the limitations of the allowable product/apparatus claims should be considered for rejoinder. All claims directed to a nonelected process invention must include all the limitations of an allowable product/apparatus claim for that process invention to be rejoined.
In the event of rejoinder, the requirement for restriction between the product/apparatus claims and the rejoined process claims will be withdrawn, and the rejoined process claims will be fully examined for patentability in accordance with 37 CFR 1.104. Thus, to be allowable, the rejoined claims must meet all criteria for patentability including the requirements of 35 U.S.C. 101, 102, 103 and 112. Until all claims to the elected product/apparatus are found allowable, an otherwise proper restriction requirement between product/apparatus claims and process claims may be maintained. Withdrawn process claims that are not commensurate in scope with an allowable product/apparatus claim will not be rejoined. See MPEP § 821.04. Additionally, in order for rejoinder to occur, applicant is advised that the process claims should be amended during prosecution to require the limitations of the product/apparatus claims. Failure to do so may result in no rejoinder. Further, note that the prohibition against double patenting rejections of 35 U.S.C. 121 does not apply where the restriction requirement is withdrawn by the examiner before the patent issues. See MPEP § 804.01.
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 14 and 15 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.
Regarding claims 14 and 15, the claims are directed to the device to plumb and level construction materials, and therefore the device cannot be further limited by a stud which is not positively recited. The device is capable of being used with a stud but the stud is not required, and therefore the device is not limited by the stud.
Claim Rejections - 35 USC § 102
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 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) 1-16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 6,250,042 B1 to Rudd.
Regarding claim 1, Rudd discloses a device (Fig.1A/1B or 3A/3B) to plumb and level construction materials, comprising: a body (100/300) comprising a U-shaped profile (100/300) comprising an elongated front face (126/326) having a first edge (left edge) and a second edge (right edge), a first side face (122/322), and a second side face (128/328), the first side face being disposed along the first edge of the front face, and the second side face being disposed along the second edge of the front face (Fig.1B/3B).
Regarding claim 2, the first side face being disposed orthogonally to the front face along the first edge of the front face (Fig.1B), and the second side face being disposed orthogonally to the front face along the second edge of the front face (Fig.1B).
Regarding claim 3, the body further comprising: a first flange face (324) comprising a first edge and a second edge; and a second flange face (327) comprising a first edge and a second edge, wherein the first side face is disposed along the first edge of the front face by the first edge of the first flange face being disposed along and extending angled from an edge of the first side face and the second edge of the first flange face being disposed along and extending angled from the first edge of the front face (Fig.3B), and wherein the second side face is disposed along the second edge of the front face by the first edge of the second flange face being disposed along and extending angled from an edge of the second side face and the second edge of the second flange face being disposed along and extending angled from the second edge of the front face (Fig.3B).
Regarding claim 4, wherein a width of the front face (C2) is wider than a distance between an outside of the first side face and an outside of the second side face (Fig.3B).
Regarding claim 5, wherein a distance between the first side face and the second side face corresponds to a thickness of a stud to which the device is configured to attach (Fig.1B and 3B show what can be deemed as a stud; the device of the claim is capable of being used with a stud, the dimensions of the stud will be suitable for whatever construction material used within).
Regarding claim 6, wherein a depth of each of the first side face and the second side face extending away from the front face corresponds to a width of a stud to which the device is configured to attach (the device is capable of use with a stud; the depth of the side faces capable of being sized dependent on the stud; the faces can be made of different sizes or used with studs having different sizes).
Regarding claim 7, wherein a depth of each of the first side face and the second side face extending away from the front face is less than one-half of a width of a stud to which the device is configured to attach (the device is capable of use with a stud; the depth of the side faces capable of being sized dependent on the stud; the faces can be made of different sizes or used with studs having different sizes).
Regarding claim 8, wherein each of the first side face and the second side face comprise a plurality of holes (openings formed by cutout portions 329) therein that are each sized to accommodate a fastener to attach the device to a stud (capable of receiving a fastener).
Regarding claim 9, Rudd discloses a device (100/300/500) to plumb and level construction materials, comprising: a body (100/300/500) comprising: an elongated front face (126/326/522) having a first edge and a second edge (left and right edges); and a first side face (122/322/524) disposed along the first edge of the front face.
Regarding claim 10, wherein the device comprises an L-shaped profile (Fig.5A).
Regarding claim 11, the first side face being disposed orthogonally to the front face along the first edge of the front face (Fig.1A/3A/5A).
Regarding claim 12, the body further comprising: a first flange face (324) comprising a first edge and a second edge; and wherein the first side face is disposed along the first edge of the front face by the first edge of the first flange face being disposed along and extending angled from an edge of the first side face and the second edge of the first flange face being disposed along and extending angled from the first edge of the front face (Fig.3B).
Regarding claim 13, further comprising a second side face (128/328) disposed orthogonally to the front face and along the second edge of the front face, wherein the device comprises a U-shaped profile (Fig.1A/3A).
Regarding claim 14, wherein a width of the front face is less than a thickness of a stud to which the device is configured to attach (the device is capable of use with a stud; the lengths of the faces capable of being sized dependent on the stud; the faces can be made of different sizes or used with studs having different sizes)
Regarding claim 15, wherein a depth of the first side face extending away from the front face corresponds to a width of a stud to which the device is configured to attach (the device is capable of use with a stud; the lengths of the faces capable of being sized dependent on the stud; the faces can be made of different sizes or used with studs having different sizes).
Regarding claim 16, wherein the first side face comprises a plurality of holes (openings formed by cutout portions 125, 329, 525) therein, each of the plurality of holes being sized to accommodate a fastener to attach the device to a stud (capable of receiving a fastener).
Claim(s) 1, 2, 5-9, 11, and 13-16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 5,452,556 to Taylor.
Regarding claim 1, Taylor discloses a device (10) to plumb and level construction materials, comprising: a body (10) comprising a U-shaped profile (Fig.4) comprising an elongated front face (14) having a first edge (left edge of 14) and a second edge (right edge of 14), a first side face (15 on left), and a second side face (15 on right), the first side face being disposed along the first edge of the front face, and the second side face being disposed along the second edge of the front face (Fig.4).
Regarding claim 2, the first side face being disposed orthogonally to the front face along the first edge of the front face, and the second side face being disposed orthogonally to the front face along the second edge of the front face (Fig.4).
Regarding claim 5, wherein a distance between the first side face and the second side face corresponds to a thickness of a stud to which the device is configured to attach (Fig.4; the device is capable of use with a stud; the lengths of the faces capable of being sized dependent on the stud).
Regarding claim 6, wherein a depth of each of the first side face and the second side face extending away from the front face corresponds to a width of a stud to which the device is configured to attach (Fig.4; the device is capable of use with a stud; the lengths of the faces capable of being sized dependent on the stud or used with different size studs).
Regarding claim 7, wherein a depth of each of the first side face and the second side face extending away from the front face is less than one-half of a width of a stud to which the device is configured to attach (Fig.4; the device is capable of use with a stud; the lengths of the faces capable of being sized dependent on the stud or used with different seized studs).
Regarding claim 8, wherein each of the first side face and the second side face comprise a plurality of holes therein that are each sized to accommodate a fastener to attach the device to a stud (holes formed by punch tabs 18; holes accommodate tabs 18, and are also capable of receiving additional fasteners if needed).
Regarding claim 9, Taylor discloses a device (10) to plumb and level construction materials, comprising: a body (10) comprising: an elongated front face (14) having a first edge (left edge of 14) and a second edge (right edge of 14); and a first side face (left 25, Fig.4) disposed along the first edge of the front face.
Regarding claim 11, the first side face being disposed orthogonally to the front face along the first edge of the front face (Fig.4).
Regarding claim 13, further comprising a second side face (14, right edge, Fig.4) disposed orthogonally to the front face and along the second edge of the front face (Fig.4), wherein the device comprises a U-shaped profile (Fig.4).
Regarding claim 14, wherein a width of the front face is less than a thickness of a stud to which the device is configured to attach (the device is capable of use with a stud; the lengths of the faces capable of being sized dependent on the stud or used with different sized studs).
Regarding claim 15, wherein a depth of the first side face extending away from the front face corresponds to a width of a stud to which the device is configured to attach (the device is capable of use with a stud; the lengths of the faces capable of being sized dependent on the stud or used with different sized studs).
Regarding claim 16, wherein the first side face comprises a plurality of holes therein, each of the plurality of holes being sized to accommodate a fastener to attach the device to a stud (holes formed by punch tabs 18; holes accommodate tabs 18, and are also capable of receiving additional fasteners if needed).
Claim(s) 9-11 and 14-16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 4,866,798 to Harris.
Regarding claim 9, Harris discloses a device (28) to plumb and level construction materials, comprising: a body (28) comprising: an elongated front face (30) having a first edge (bottom edge, Fig.4) and a second edge (top edge, Fig.4); and a first side face (32) disposed along the first edge of the front face.
Regarding claim 10, wherein the device comprises an L-shaped profile (Fig.4).
Regarding claim 11, the first side face being disposed orthogonally to the front face along the first edge of the front face (Fig.4).
Regarding claim 14, wherein a width of the front face is less than a thickness of a stud to which the device is configured to attach (Fig.4; the lengths of the faces capable of being sized dependent on the stud or used with different sized studs).
Regarding claim 15, wherein a depth of the first side face extending away from the front face corresponds to a width of a stud to which the device is configured to attach (Fig.4; the lengths of the faces capable of being sized dependent on the stud or used with different sized studs).
Regarding claim 16, wherein the first side face comprises a plurality of holes (34) therein, each of the plurality of holes being sized to accommodate a fastener (36, 38; also capable of holding additional fasteners) to attach the device to a stud.
Claim(s) 1, 2, 5, 6, 8-11, and 13-16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 4,466,225 to Hovind.
Regarding claim 1, Hovind discloses a device (60) to plumb and level construction materials, comprising: a body (60) comprising a U-shaped profile comprising an elongated front face (64) having a first edge (left side of 64) and a second edge (right side of 64), a first side face (62), and a second side face (62), the first side face being disposed along the first edge of the front face, and the second side face being disposed along the second edge of the front face (Fig.3).
Regarding claim 2, the first side face being disposed orthogonally to the front face along the first edge of the front face, and the second side face being disposed orthogonally to the front face along the second edge of the front face (Fig.3).
Regarding claim 5, wherein a distance between the first side face and the second side face corresponds to a thickness of a stud to which the device is configured to attach (Fig.3; the lengths of the faces capable of being sized dependent on the stud).
Regarding claim 6, wherein a depth of each of the first side face and the second side face extending away from the front face corresponds to a width of a stud to which the device is configured to attach (the lengths of the faces capable of being sized dependent on the stud or used with different sized studs).
Regarding claim 8, wherein each of the first side face and the second side face comprise a plurality of holes (holes which accept 66) therein that are each sized to accommodate a fastener (66) to attach the device to a stud.
Regarding claim 9, Hovind discloses a device (20, 60) to plumb and level construction materials, comprising: a body (20, 60) comprising: an elongated front face (26, 64) having a first edge (right edge of 26; right edge of 64) and a second edge (left edge of 26; left edge of 64); and a first side face (22; 62) disposed along the first edge of the front face.
Regarding claim 10, wherein the device comprises an L-shaped profile (20).
Regarding claim 11, the first side face being disposed orthogonally to the front face along the first edge of the front face (Fig.1 and 3).
Regarding claim 13, further comprising a second side face (other 62, Fig.3) disposed orthogonally to the front face and along the second edge of the front face, wherein the device comprises a U-shaped profile (Fig.3).
Regarding claim 14, wherein a width of the front face is less than a thickness of a stud to which the device is configured to attach (the lengths of the faces capable of being sized dependent on the stud or used with different sized studs).
Regarding claim 15, wherein a depth of the first side face extending away from the front face corresponds to a width of a stud to which the device is configured to attach (the lengths of the faces capable of being sized dependent on the stud or used with different sized studs).
Regarding claim 16, wherein the first side face comprises a plurality of holes (holes into which 28 and 66 are inserted) therein, each of the plurality of holes being sized to accommodate a fastener (28/66) to attach the device to a stud.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RYAN D KWIECINSKI whose telephone number is (571)272-5160. The examiner can normally be reached Monday - Thursday from 8:30 am to 4:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brian Mattei can be reached at (571) 272-3238. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RYAN D KWIECINSKI/Primary Examiner, Art Unit 3635 RDK