Final Rejection
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 .
Response to Arguments
Applicant’s arguments, see Applicant’s Arguments/Remarks Made in an Amendment, filed 06/25/2026, with respect to the rejection(s) of claim(s) 1 under 35 USC 102(a)(2) have been fully considered and are not persuasive. In light of the amended language, a modified grounds of rejection under 35 USC 102(a)(2) as anticipated by Theurer et al as part of AT 505911 B1, hereinafter referred to as Theurer 505 is presented herein to address said amendments. In the interest of compact prosecution, examiner wishes to respond to specific arguments presented by applicant.
Applicant states the conveyor device 26 and the excavating chain 6 of the instant application are not identical, and the conveyor device is an additional device which is arranged above the excavating chain, as supported by the specification. Applicant argues that no cited documents, especially Theurer 505 show a comparable or second additional device for conveying ballast, and there is no hint to arrange an additional conveyor as claimed in the amended claim 1. Examiner does not find this argument persuasive, as Theurer 505 explicitly states there are two conveying elements that are separate elements from one another, namely excavating chain 9 and auxiliary chain 22. While examiner recognizes that such an interpretation is different from what is disclosed in the specification of the instant application, the claims do not include this same level of detail. As such, taking auxiliary chain 22 to be analogous to excavating chain 6 and excavating chain 9 to be analogous to conveyor device 26, this places at least a portion of excavating chain 9 adjacent to the top edge of the channel in which auxiliary chain 22 is disposed, and places excavating chain 9 at least partially laterally above said top edge, as is shown in Fig. 5 and 6 of Theurer 505, which does broadly read on the claimed language of the invention being “an additional conveyor device for transporting ballast in the direction of the transport channel and which is arranged along and above a top edge of the transverse channel”. To interpret the claims to require the same level of detail regarding the additional conveying device as the specification of the instant application would be to improperly impart limitations from the specification into the claims.
Specification
The title of the invention contains a typographical error, “Machine With A Ballast Receiviing device”. Appropriate correction is required.
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 2 and 4-7 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 2: Claim 2 recites the limitation, “The conveyor device”. There is a lack of antecedent basis for this limitation in the claim. Examiner will interpret “the conveyor device” to be the same “an additional conveyor device” defined in claim 1.
Regarding Claim 4: Claim 4 recites the limitation, “The conveyor device”. There is a lack of antecedent basis for this limitation in the claim. Examiner will interpret “the conveyor device” to be the same “an additional conveyor device” defined in claim 1.
Regarding Claim 5: Claim 5 recites the limitation, “The conveyor device”. There is a lack of antecedent basis for this limitation in the claim. Examiner will interpret “the conveyor device” to be the same “an additional conveyor device” defined in claim 1.
Regarding Claim 6: Claim 6 recites the limitation, “The conveyor device”. There is a lack of antecedent basis for this limitation in the claim. Examiner will interpret “the conveyor device” to be the same “an additional conveyor device” defined in claim 1.
Regarding Claim 7: Claim 7 recites the limitation, “The conveyor device”. There is a lack of antecedent basis for this limitation in the claim. Examiner will interpret “the conveyor device” to be the same “an additional conveyor device” defined in claim 1.
Claim 1-3 and 6 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Theurer et al as part of AT 505911 B1, hereinafter referred to as Theurer 505.
Regarding Claim 1: Theurer 505 teaches of a machine comprising:
a ballast receiving device for receiving ballast located under a track (Fig. 1, excavating device 7 receives ballast 2 from beneath track 3),
an endless excavating chain guided in a chain channel (Fig. 5-6, chain 22 is an endless chain suitable for carrying out work in railroad tracks within a chain channel shown),
with the chain channel being composed of a transverse channel which can be positioned under the track, an empty channel, and a transport channel provided for ballast transport (Fig. 1-2, excavating device 7 comprises transverse chain center 11 two longitudinal channels 10, one to transport ballast towards drive 8 and one to return the chain towards transverse channel 11, where the chain 22 is endlessly guided in a circle through the excavating device 7 to deposit ballast 2 into sieve 24),
an additional conveyor device for transporting ballast in the direction of the transport channel and which is arranged along and above a top edge of the transverse channel (Fig. 5-6, excavating chain 9 is additional to chain 22 and is arranged along the top edge and at least partially laterally above the top edge of the channel in which chain 22 is disposed).
Regarding Claim 2: Theurer 505 teaches of the apparatus described in claim 1.
Theurer 505 further teaches wherein a transport direction of the conveyor device runs parallel to a direction of rotation of the excavating chain in the transverse channel (Fig. 2, the direction of movement of excavating chain 9 is parallel to the tangent of the direction of rotation of chain 22 as it enters the longitudinal channel 10).
Regarding Claim 3: Theurer 505 teaches of the apparatus described in claim 1.
Theurer 505 further teaches wherein a ballast guide blade that can be slewed about a slewing axis is arranged at the outer edge of a bottom opening of the transport channel (Fig. 2, at the lower end 12 of each longitudinal channel 10, there is a panel pivotally attached to the channel).
Regarding Claim 6: Theurer 505 teaches of the apparatus described in claim 1.
Theurer 505 further teaches wherein the conveyor device comprises a conveyor belt or a conveyor chain (Page 3, line 43-44, chain 22 is described to be an endless chain which performs work below railroad track 21).
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.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Theurer 505 in view of Theurer et al as part of US 4432284 A, hereinafter referred to as Theurer 443.
Regarding Claim 4: Theurer 505 teaches of the apparatus described in claim 1.
Theurer 505 teaches wherein the conveyor device comprises a drive unit (Theurer 505: Fig. 2, drive 8 operates conveyor chain 9, and therefore chain 22), though does not specify the specific type of motor utilized as part of said drive unit.
Theurer 443 teaches of a railway ballast cleaning machine, comprising a conveyor device (Theurer 443: Fig. 1, endless ballast excavating chain 15), wherein the conveyor device comprises a hydraulic motor as a drive unit (Theurer 443: Col. 4, line 20-23, The endless ballast excavating chain 16 is driven by hydraulic motor 18).
It would have been obvious to one of ordinary skill in the art at the time the invention was properly filed to substitute the generic drive unit taught by Theurer 505 with the specified hydraulic motor as taught by Theurer 443. Such a substitution would not fundamentally alter the individual elements of the inventions, to the predictable result of driving the conveyor device during operation by means of a drive unit (MPEP 2143, Subsection I, B).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Theurer 505 in view of Herzog et al as part of US 20160121909 A1, hereinafter referred to as Herzog.
Regarding Claim 5: Theurer 505 teaches of the apparatus described in claim 4.
Theurer 505 makes no mention of sensors as part of the disclosure.
Herzog teaches of a ballast transport and treatment vehicle (Herzog: Paragraph 38, the invention relates to the delivery of ballast to a location along a rail system), comprising a conveyor device operable by a drive unit (Herzog: Paragraph 49, conveyor 135 is driven by motor 136 via roller 137), wherein a sensor for detecting piled-up and is coupled with the drive unit of the conveyor device (Herzog: Paragraph 88: sensors 182 measure amperage draw and regulate the speed of motor 136 in response to excess ballast being placed on a conveyor 135).
While Herzog does not specify the location of sensors 182, positioning the sensor at any point in proximity to the conveyor device does not change the operative function of the sensor measuring the amperage draw of the motor in response to ballast build up.
Further It would have been obvious to one of ordinary skill in the art at the time the invention was properly filed to modify the conveyance apparatus taught by Theurer 505 with the sensor system taught by Herzog to create an apparatus that does not damage the drive unit of the conveyor device when the conveyor is overloaded (Herzog: Paragraph 83: overloading of the belt 135 may cause the drive motor to slip or continue to turn while the belt is stationary or broken). Such a modification would not fundamentally alter the individual elements of the inventions, to the predictable result of reducing damage to the conveyor drive unit when overloaded.
Claims 7-9 are rejected under 35 U.S.C. 103 as being unpatentable over Theurer 505 in view of Huelsewiesche as part of US 6820358 B1, hereinafter referred to as Huelsewiesche.
Regarding Claim 7: Theurer 505 teaches of the apparatus described above in claim 1.
Theurer 505 does not teaches wherein the conveyor device is a screw conveyor with an axis of rotation that runs, in particular, parallel to the transverse channel.
Huelsewiesche teaches of a transverse channel and conveyor device for transporting material in the direction of a transport channel (Huelsewiesche: Fig. 1, the pick-up front-end 30 sits in a transverse channel defined by the space between shields 37 and 39 and transports material transversely towards conveyor 20), wherein the conveyor device is a screw conveyor with an axis of rotation that runs, in particular, parallel to the transverse channel (Huelsewiesche: Fig. 1, pick-up front-end 30 is a screw type conveyor with an axis of rotation that is parallel to the transverse channel).
It would have been obvious to one of ordinary skill in the art at the time the invention was properly filed to substitute the chain conveyor device taught by Theurer 505 with the transversely oriented auger structure taught by Huelsewiesche to more effectively break up and carry material towards the transport channel of the apparatus (Huelsewiesche: Col. 3, line 7-10, in the process of transporting material, it is broken apart, disintegrated, and/or stirred by the helical members as it is transited laterally). Such a substitution would not fundamentally alter the individual elements of the inventions, to the predictable result of utilizing a screw type conveyor device that runs parallel to the transverse channel of the apparatus (MPEP 2143, Subsection I, B).
Regarding Claim 8: Theurer 505 in view of Huelsewiesche teaches of the apparatus described above in claim 7.
In light of the modifications described above in claim 7, Huelsewiesche further teaches wherein the screw conveyor is arranged along a subsection of the transverse channel adjoining the transport channel (Huelsewiesche: Fig. 1, pick-up front-end 30 is arranged along right and left subsections of the transverse channel that adjoins flow-through conveyor 20).
Regarding Claim 9: Theurer 505 in view of Huelsewiesche teaches of the apparatus described above in claim 7.
In light of the modifications described above in claim 7, Huelsewiesche further teaches wherein the screw conveyor is arranged along the entire transverse channel (Huelsewiesche: fig. 1, the pick-up front-end 30 is arranges across the entire length transverse channel).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Theurer 505 in view of Huelsewiesche, further in view of Theurer et al as part of US 4614238 A, hereinafter referred to as Theurer 461.
Theurer 505 in view of Huelsewiesche teaches of the apparatus described above in claim 9.
Theurer 505 in view of Huelsewiesche does not teach wherein the transverse channel comprises two transverse channel sections that are connected with a joint and that the screw conveyor comprises two conveying screws that are connected in the area of the joint by means of a coupling.
Theurer 461 teaches of a railway ballast cleaning device, comprising a transverse channel which can be positioned under a rail track and a conveyor device (Theurer 461: Fig. 1-2, ballast cleaning machine 1 comprises transverse guide chain section 12 and chain 16, which are positioned beneath track 2), wherein the transverse channel comprises two transverse channel sections that are connected with a joint (Theurer 461: Fig. 9-10; Col. 6, Line 30-35; the transverse guide chain section 12 comprises two parts connected by center pivot 60).
While Theurer 461 does not explicitly teach of the conveyor device is similarly separable and connectable in the vicinity of the pivot 60, It would have been obvious to one of ordinary skill in the art at the time the invention was properly filed to modify the auger structure of Theurer 505 in view of Huelsewiesche to separate and connect about a central pivot, such as taught by Theurer 461, to allow the separation of the two sections of the transverse channel and create a device with a variable operating width (Theurer 461: Col. 6, line 30-40, the two interconnected sections of the transverse guide chain section 12 allow for the adjustment of the operating width of the excavating arrangement in response to track bed dimensions). Such a modification would not fundamentally alter the individual elements of the inventions, to the predictable result of allowing for variable adjustment of the operational width of the track bed cleaner (MPEP 2143, Subsection I, A).
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 EVAN ANTHONY BREGEL whose telephone number is (571)272-0922. The examiner can normally be reached 8:30-5:30 Eastern, M-F.
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, Christopher J Sebesta can be reached at (571)272-0547. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/EVAN A BREGEL/Examiner, Art Unit 3671
/CHRISTOPHER J SEBESTA/Supervisory Patent Examiner, Art Unit 3671
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