DETAILED ACTION
This is a final Office Action on the merits for U.S. App. 18/662,540. Receipt of the amendments and arguments filed on 06/30/2026 is acknowledged.
Claims 1-12, 14-18, 20, and 21 are pending.
Claims 13 and 19 is cancelled.
Claims 11 and 16 are withdrawn from consideration.
Claims 1-10, 12, 14, 15, 17, 18, 20, and 21 are examined.
Claim Rejections - 35 USC § 112
Applicant’s amendments to the claims overcome the 35 U.S.C. 112(b) rejection of the previous Office Action. Therefore, the 35 U.S.C. 112(b) rejection of the previous Office Action is withdrawn.
Claim Rejections - 35 USC § 102
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) 1-3, 6, 8-10, 12, 14, 15, 17, 18, and 21 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Brochu (CA 3136440).
Regarding claim 1, Brochu discloses a gutter guard (#100) configured for installation on a gutter system comprising a gutter and a plurality of gutter hangers hanging the gutter from a fascia board of a roof (see figure 1, where such a gutter and hangers are not positively defined and where the gutter guard is configured to be attach to the a gutter with hangers as defined), the gutter guard comprising:
a front profile (#200) configured to couple to a front edge of a gutter (see figure 1);
a screen portion (#400) rearward of the front profile (see figure 1) for covering a top portion of the gutter (see figure 1), the screen portion having openings (#502) configured to permit infiltration of water through the screen portion into the gutter and inhibit infiltration of debris (see page 13); and
a rear profile (#300) rearward of the screen portion (see figure 1), the rear profile configured to engage the gutter system to support the gutter guard on the gutter system (such a gutter system with hanger is not positively defined, where the guard of Brochu is configured to engage the hanger and gutter of a gutter system as defined) so that at least a rear section (the rear section of the screen as depicted at #102 in figure 6) of the screen portion is spaced apart above a central section of the gutter hanger (see figure 1, where the screen portion can be spaced above the gutter hanger as defined, where such a hanger is not positively defined), the rear profile comprising an up leg (#354) extending upward in relation to the rear section of the screen portion, the up leg comprises a flange (see figure 6 from Brochu below, which depicts the flange), an upper kicker (see figure 6 from Brochu below, which depicts the upper kicker) connected to the flange by a backward kicker bend (see figure 6 from Brochu below, which depicts the backward kicker bend), and a crease (#304) at a top edge of the up leg above the upper kicker (see figure 6), and wherein the rear profile comprises a down leg (the vertical down leg as depicted in figure 6 from Brochu below) extending downward in relation to the rear section of the screen portion to a bottom edge configured for engaging the gutter hangers such that the down leg supports the rear profile on the gutter hangers (see figure 1, where such a hem and bent portion at the bottom of the down leg is configured to engage a gutter hanger, where such a hanger is not positively defined).
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Figure 6 from Brochu
Regarding claim 2, Brochu discloses the bottom edge is configured for engaging back corners of the gutter hangers (see figure 1, where such a positioning is not positively defined and where the bottom edge of Brochu is configured to engage and be supported upon a gutter hanger as defined).
Regarding claim 3, Brochu discloses at least a portion of the down leg extends downward at an oblique angle in relation to a top plane of the gutter (as depicted in figure 6 from Brochu above, the down leg oblique portion extends downwardly from the crease #160 at an oblique angle relative to a horizontal top plane of the gutter).
Regarding claim 6, Brochu discloses the top edge is spaced apart rearward of the bottom edge by an offset distance (see figure 6 from Brochu above, where the top edge and bottom edge are offset relative to one another so that the top edge extends further in the x-axis direction than the bottom edge).
Regarding claim 8, Brochu discloses the rear profile comprises a crease (#160) between the down leg and the up leg (see figure 6).
Regarding claim 9, Brochu discloses the rear profile comprises a rear facing section (the rear right surface of figure 6 which comprises of the rear surface of one of the rear leg sections above the crease #160) extending from the crease (see figure 6), one of the up leg and the down leg having a back side and the rear facing section having a front side facing toward the back side (the back side of the vertical left down leg portion can be considered the back side which facings the left, front side of the rear facing portion, see figure 6 from Brochu above).
Regarding claim 10, Brochu discloses the front side of the rear facing section is in face-to-face contact with the back side (see figure 6 from Brochu above).
Regarding claim 12, Brochu discloses the rear profile further comprises a kickback bend between the rear facing section and the other of the up leg and the down leg (see figure 6, where a kickback bend/hem #160/356 is provided between the rear facing section and either the up leg flange and the down leg).
Regarding claim 14, Brochu discloses the up leg further comprises one of an upturned lip and a hem connected to the upper kicker (the hem formed downwardly from the crease #304 as depicted from figure 6 from Brochu above).
Regarding claim 15, Brochu discloses the down leg comprises a main portion (the main vertical portion of the down leg of figure 6), a lower backward kicker (the lower oblique segment of the down leg that extends backward as depicted in figure 6), and a lower backward kicker bend (the backward bend between the vertical portion and the oblique portion) between the main portion and the lower backward kicker (see figure 6).
Regarding claim 17, Brochu discloses the rear profile and the screen portion are integrally formed from a single piece of monolithic sheet metal (see figure 1 and pg. 27, ll. 13-23).
Regarding claim 18, Brochu discloses the up leg and the down leg are configured to define a substantially enclosed pocket along the fascia board for containing back flanges and hanger screw heads of the gutter hangers (see figure 1, where screw heads directly attaching the hangers to the gutter and fascia board can be covered by the up and down legs of the guard, where such a positioning and covering is not positively defined.).
Regarding claim 21, Brochu discloses a gutter guard (#100) configured for installation on a gutter system comprising a gutter and a plurality of gutter hangers hanging the gutter from a fascia board of a roof (see figure 1, where such a gutter and hangers are not positively defined), the gutter guard comprising:
a front profile (#200) configured to couple to a front edge of a gutter (see figure 1);
a screen portion (#400) rearward of the front profile (see figure 1) for covering a top portion of the gutter (see figure 1), the screen portion having openings (#502) configured to permit infiltration of water through the screen portion into the gutter and inhibit infiltration of debris (see page 13); and
a rear profile (#300) rearward of the screen portion (see figure 1), the rear profile configured to engage the gutter system to support the gutter guard on the gutter system, the rear profile comprising a down leg extending downward from the screen portion (see figure 6 from Brochu below, which depicts the vertical, down leg), the down leg comprising a first portion (the vertical leg portion of the down leg of figure 6), a kicker portion (the oblique kicker portion as depicted in figure 6 from Brochu below), a backward kicker bend connecting the first portion to the kicker portion (the rounded bend between the first portion and the kicker portion as depicted in figure 6), and an upturned bend at a bottom edge of the down leg (the upturned bend #160 at the bottom edge of the down leg formed by the kicker portion and which leads to a rearward portion, as broadly defined).
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Figure 6 from Brochu
Claim Rejections - 35 USC § 102/103
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) 5 is rejected under 35 U.S.C. 102(a)(1) as anticipated by Brochu or, in the alternative, under 35 U.S.C. 103 as obvious over Brochu in view of Brochu ‘921 (U.S. Patent 10,538,921).
Regarding claim 5, Brochu discloses the bottom edge is configured to be spaced apart below a top plane of the gutter by a height in an inclusive range of from 1/16 to 1 inch (such a gutter is not positively defined, where the gutter cover of Brochu is configured to be used with a gutter which comprises of a gutter top plane, whether it be formed at a front edge or back edge thereof, which is 1/16” to 1” above the bottom edge of the of the down leg as defined and thus anticipates such limitations as broadly defined).
However, if the Examiner is considered to over broadly interpret the claim limitations and Brochu meeting such limitations, it is highly well known in the art, as evidenced by Brochu ‘921, that such gutter guards #10 can instead engage the gutter #12 such that the front profile #30 of the gutter guard is connected underneath the gutter front portion and a bottom edge #50/44 of the rear portion extends below such a top plane of the front of the gutter, where the top #32 of the rear portion of the gutter guard can also extend above a top edge of the back wall #18 of the gutter. See figures 3 and 4. One of ordinary skill in the art can change the angle of the screen portion and/or dimensions of such a gutter guard in order to properly fit gutters of a specific size and shape. The court of In Gardner v. TEC Systems, Inc. has also held that where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device. 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984). Therefore, it would have been obvious before the effective filing date of the claimed invention to have constructed the gutter guard bottom edge of Brochu to extend below a plane of the gutter in the range as defined, such as by connecting the gutter guard to the gutter in a different manner as taught in Brochu ‘921, in order to allow the gutter guard to be attached to specific sized or shaped gutter and also since where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device. In Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).
Claim Rejections - 35 USC § 103
Claim(s) 4 is rejected under 35 U.S.C. 103 as being unpatentable over Brochu in view of McCann (U.S. Publication 2008/0098661).
Regarding claim 4, Brochu discloses the claimed invention except for the bottom edge is spaced apart below the screen portion by a height in an inclusive range of from 1/16 to 1 inch. However, it is highly well known in the art, as evidenced by McCann, that a height H of a down leg #30 of a gutter cover #10 can be between ½ and 7/8 inches in order to provide an appropriate slope to the cover as well as cover a screw of a gutter hanger #40 which the gutter cover is to extend over. See figure 3 and paragraph 23. The court of In Gardner v. TEC Systems, Inc. also held that when the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device. 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984). Therefore, it would have been obvious before the effective filing date of the claimed invention to have constructed the height of the down leg of Brochu to fall within the range as defined, as taught in McCann, in order to properly space and connect the lower sheet #104 to the upper sheet #102 and also since where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device. In Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).
Claim(s) 7 is rejected under 35 U.S.C. 103 as being unpatentable over Brochu in view of Brochu ‘936 (U.S. Patent 10,604,936).
Regarding claim 7, Brochu discloses mechanical fasteners can attached the rear profile #300 to the rear gutter wall #56 (see top paragraph of page 25), except for the up leg comprises a screw. It is highly well known in the art, as evidenced by Brochu ‘936, that a screw #106 can be used to attach an up leg #28 of a rear profile of a gutter guard #1’to a supporting structure, such as a wall, to secure such elements to one another. See figure 6 and col. 9, ll. 39-42. Therefore, it would have been obvious before the effective filing date of the claimed invention to have constructed the up leg of the rear profile of Brochu to comprise of a screw, as taught in Brochu ‘936, in order to better attach such a guard to a supporting structure and strengthen the assembly.
Claim(s) 20 is rejected under 35 U.S.C. 103 as being unpatentable over Brochu in view of Brochu et al. (U.S. Publication 2019/0071874).
Regarding claim 20, Brochu discloses a gutter guard (#100) configured for installation on a gutter system comprising a gutter and a plurality of gutter hangers hanging the gutter from a fascia board of a roof (see figure 1, where such a gutter and hangers are not positively defined), the gutter guard comprising:
a front profile (#200) configured to couple to a front edge of a gutter (see figure 1);
a screen portion (#400) rearward of the front profile (see figure 1) for covering a top portion of the gutter (see figure 1), the screen portion having openings (#502) configured to permit infiltration of water through the screen portion into the gutter and inhibit infiltration of debris (see page 13); and
a rear profile (#300) rearward of the screen portion (see figure 1), the rear profile configured to engage the gutter system to support the gutter guard on the gutter system, the rear profile configured to engage the gutter system at an upper contact point with the fascia board above back flanges of the hangers (see figure 1, where the upper contact point is formed at the top hem #304 portion) and a lower contact point with the hangers (see figure 1, where bottom rounded portion with hem #160 can be considered a lower contact which is configured to engage a gutter hanger, where such a hanger is not positively defined), the rear profile configured to define a substantially enclosed pocket (the pocket between the rear surfaces of the legs between hems #160 and #304 of figure 6) along the fascia board for containing back flanges and hanger screw heads of the gutter hangers (see figure 1, where screw heads directly attaching the hangers to the gutter and fascia board can be covered by the up and down legs of the guard, where such elements, positioning, and covering is not positively defined),
wherein the gutter guard includes a bend between the screen portion and the rear profile (figure 6 from Brochu below depicts the bend);
wherein the bend is at a first level (see figure 6 from Brochu below);
wherein the rear profile is formed from a single piece of sheet material (see figure 6 and the top of page 26); and includes a front section and a rear section (see figure 6 from Brochu below);
wherein the gutter guard defines a crease (#160) between the front section and the rear section (see figure 6 from Brochu below);
wherein the crease is at a second level vertically spaced apart from the first level in a first direction (see figure 6 from Brochu below);
wherein the front section extends from the bend to the crease (see figure 6 from Brochu below);
wherein the rear section includes a first part and a second part (see figure 6 from Brochu below);
wherein the first part is in opposing face-to-face relation with the front section from the crease to the first level (see figure 6 from Brochu below);
wherein the second part extends from adjacent the first level to a third level vertically spaced apart from the first level in a second direction opposite the first direction (see figure 6 from Brochu below); and
wherein the single piece of sheet material defines the upper contact point and the lower contact point (see figure 6 from Brochu below).
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Figure 6 from Brochu
However, Brochu discloses the rear profile can comprise of plastic rather than a sheet metal material as defined. It is highly well known in the art, as evidenced by Brochu et al., that when a gutter cover is formed from two sheets #154 and #156, both of such sheets can be constructed from metal, such as aluminum or any other material a skilled person would find suitable. See paragraph 78. Therefore, it would have been obvious before the effective filing date of the claimed invention to have constructed the rear profile of Brochu out of sheet metal, as taught in Brochu et al., in order to form a strong yet lightweight cover as needed and also 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 (CCPA 1960).
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-10, 12, 14, 15, 17, 18, 20, and 21 have been considered but are moot because Applicant’s amendments to the claims required the use of a different primary reference and different rejections than previously used.
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 THEODORE V ADAMOS whose telephone number is (571)270-1166. The examiner can normally be reached Monday - Friday 9-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brian D Mattei can be reached at (571) 270-3238. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/THEODORE V ADAMOS/Primary Examiner, Art Unit 3635
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