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
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).
Response to Arguments
Applicant's arguments filed 4/15/2026 have been fully considered but they are not persuasive. Applicant’s arguments will be addressed below.
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, one of ordinary skill in the art would clearly have recognized the analogous nature of both of the panels described in both Pervan references as they are structurally very similar to one another and designed to lock together in similar ways using similar locking features at the edges of each of the individual panels. In both Pervan references, the panels are similarly designed to lock together at the edges, but have a small difference in how this locking mechanism is configured.
Additionally, Applicant argues that the Pervan ‘325 reference does not show the material layer placement as is required in the claim. However, this is not persuasive, in view of Fig. 6a of Pervan ‘325. This drawing clearly shows the locking mechanism in the top layer of the structure having multiple layers. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Furthermore, the substitution does not require a relocation of the features within the core – as the claim can include additional, unrecited elements due to the use of the transitional phrase “comprising.” Thus, the claim does not preclude that there are locking elements also within the core (see Figs. 13-15 of the Instant Specification, which show further locking elements within the core, meaning that this would clearly seem to be within the scope of the claimed invention). The Pervan ‘325 reference itself demonstrates that the features can be included in the top layer as well as the core layer (see Fig. 6a). Also, there is nothing in the claim about “a multilayer board designed to manage stresses between thermosetting and thermoplastic regions.” Once the thermosetting and thermoplastic regions are cured/set appropriately as to solidify the resin material, one of ordinary skill in the art would have recognized that the produced object would function as one unified panel. Accordingly, the rejections are maintained as outlined above.
Conclusion
THIS ACTION IS MADE FINAL. 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 ANDREW D GRAHAM whose telephone number is (469)295-9232. The examiner can normally be reached Monday - Friday 7:30AM-4:00PM (CST).
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Christina Johnson can be reached at (571) 272-1176. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ANDREW D GRAHAM/Primary Examiner, Art Unit 1742
Prosecution Insights