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/Restrictions
Applicant’s election without traverse of Group II, claims 14-21 in the reply filed on 11/17/2025 is acknowledged. Claims 1-13 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 11/17/2025.
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 14-21 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 claim 14, the term “similar” in claim 14 is a relative term which renders the claim indefinite. The term “similar” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Examiner suggests removing the term “similar” from the claim as to overcome this rejection.
Claims 15-21 are likewise rejected, since they depend from and include all of the limitations of claim 14.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 14-21 are rejected under 35 U.S.C. 103 as being unpatentable over Pervan (US 2015/0343739), hereinafter Pervan or Pervan (‘739), in view of Pervan (US 2014/0020325), hereinafter Pervan (‘325).
Regarding claims 14 and 17, Pervan discloses a building panel (1) comprising: a multi-layered substrate comprising: (a) a back side layer (lower balancing layer 6 – Fig. 3d) comprising lignocellulosic particles and a binder (par. 0147 – “lower balancing layer comprising wood particles and thermosetting resins”; par. 0180);
(b) an intermediate layer (core 5) comprising lignocellulosic particles and a binder, arranged on the back side layer (as shown in Fig. 3d, the core 5 is on top of the lower balancing layer 6; par. 0072 – “wood particles . . . and thermoplastic particles”);
(c) a front side layer (surface layer 3, 4) comprising lignocellulosic particle and a binder (par. 0147 – “upper surface layer . . . comprising lignocellulosic particles and thermosetting resins”); wherein the back side layer was formed from a first mixture (X), the intermediate layer was formed from a second mixture (Y), and the front side layer was formed from a third mixture (Z, this mixture can be the same as the first mixture, as these are not defined), wherein an average particle size in the second mixture is greater than an average particle size in the first/third mixtures (par. 0161 – “the average size of the fibers or wood particles 20a in the core 5 is preferably larger than the average size of the fibers in the decorative surface layer”; Fig. 1b shows larger particles in the core than the outer layers).
Pervan further discloses that the building panel further comprises: (d) a mechanical locking device (par. 0181 - locking system) arranged along at least one edge portion (edge 1a, 1b) (Figs. 4a-4b; par. 0181) of the building panel, wherein the device is configured for locking panels in an assembled position (as shown in, for example, Fig. 4b), the mechanical locking device comprising an upper surface (upper surface of tongue 10 – Fig. 4a), arranged in a front side area of the at least one edge portion (edge 1a, 1b) and which extends in an essentially parallel direction to a top surface of the building panel (the top surface of tongue 10 is parallel with the top surface of the panel as shown in Fig. 4a), along at least one edge portion and displaced from the top surface.
Pervan does not explicitly disclose that the upper surface is further arranged in the front side layer of the building panel, instead it appears to be located within the top portion of the core.
However, Pervan (‘325) discloses a similar locking mechanism to that of Pervan (‘739) above. See Pervan (‘325) at for example, Figs. 6a-6b and 7, where the locking mechanism is shown in detail, with an “upper surface” located at the upper joint edge portions (par. 0066, 0068-0069). See also the Instant Specification at Figs. 13A-13B (elements 40a, 60a) and compare with Pervan (‘325) at the interface between upper joint edge portions 18, 19.
Fig. 6a of Pervan (‘325) shows the upper joint edge portion (having an upper surface) within the top layer as is required in the claim, demonstrating that such a configuration is known in the art, and substitutable with the configuration as shown in Pervan (‘739) above since both relate to the locking of similar types of floor panels. One of ordinary skill in the art would have also recognized that each locking mechanism performs similarly in either case, and would expect an analogous result from using either mechanism configuration, with a reasonable expectation of success, whether the locking mechanism works within the top or the core layer of the panel.
Accordingly, one of ordinary skill in the art, before the effective filing date of the claimed invention, would have found it obvious to have substituted the locking configuration of Pervan (‘325) for the locking configuration of Pervan (‘739), as is required in the claim as to result in an upper surface that is also within the top layer of the panel.
Regarding claims 15-16, Pervan/Pervan(‘325) discloses the subject matter of claim 14, and further discloses that the mechanical locking device comprises a locking strip and a locking element (7, 8) (Pervan ‘739, Fig. 4d) arranged at the back side layer of the panel.
Regarding claims 18-19, Pervan/Pervan(‘325) discloses the subject matter of claim 14, and further discloses that there is a decorative surface layer (3) which is a front side element (Pervan, par. 0160, 0164) and could be a wood veneer (Pervan, ‘739, par. 0057 or Pervan, ‘325, par. 0058).
Regarding claim 20, Pervan/Pervan(‘325) discloses the subject matter of claim 18, and further discloses that the back side or front side element is an impregnated paper sheet (Pervan ‘739, par. 0013, 0164).
Regarding claim 21, Pervan/Pervan(‘325) discloses the subject matter of claim 14, wherein lignocellulosic particles from the second mixture and third mixture are mixed in a border area between the core and front layers (Pervan ‘739, Figs. 1b-1c show this mixing of particles in the border area).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW D GRAHAM whose telephone number is (469)295-9232. The examiner can normally be reached Monday - Friday 7:30AM-4:00PM (CST).
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/ANDREW D GRAHAM/Primary Examiner, Art Unit 1742