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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 4/19/24 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Objections
Claim 1 is objected to because of the following informalities: the claim terms are inconsistent within the claim. Line 4 recites “a substantially central first polygonal chamber”. The claim then goes on to recite “the chamber” in lines 5 and 8 and “the polygonal chamber” in line 7. It is clear that these recitations of chamber are referring back to “a substantially central first polygonal chamber”. However, line 9 introduces “a secondary polygonal chamber”. Recitations of “the chamber” and “the polygonal chamber” within claim 1 should specify “the first polygonal chamber” for consistency and clarity.
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, 3, 7, 9, 11 and 18-19 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.
Claim 2 recites “the central chamber” lacking antecedent basis. It is unclear which structure is being referenced.
Claim 3 recites “wherein chamber”. It is unclear if the claim is introducing a new chamber or referencing one of the previously introduced “first polygonal chamber” or “secondary polygonal chamber”. Claim terms should be clearly differentiated or antecedence clearly reflected.
Claim 7 recites “the polygon” lacking antecedent basis. Is applicant referencing one of the polygonal chambers?
Claim 9 recites “a hexagonal chamber”. However, parent claim 8 recites that “the first polygonal chamber is substantially hexagonal in cross-section”. It is unclear if “a hexagonal chamber” is referring to a different chamber or the previously introduced first polygonal chamber.
Claim 11 recites “the length of central chamber”. It is unclear if the claim is introducing a new chamber or referencing one of the previously introduced “first polygonal chamber” or “secondary polygonal chamber”. Claim terms should be clearly differentiated or antecedence clearly reflected. What is the central chamber? Is it the combination of the first and secondary chambers?
Claim 18 recites “the chamber” It is unclear if the first chamber of the secondary chamber is being referenced, or something else entirely.
Claim Rejections - 35 USC § 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.
Claims 1, 3, 5, 8-9, 12-13 and 18-22 are rejected under 35 U.S.C. 103 as being unpatentable over Kubicek, US 8,141,309 in view of Pomey, US 11,898,352.
Regarding claims 1 and 5:
Kubicek discloses a construction-related rod free end cover (12) comprising a main body (14) formed of a deformable thermoplastic elastomer (col. 2, ll. 16-19), the main body comprising:
at a first end (26) an outer wall (52);
at a second end (24) an opening (28) to a substantially central first chamber (32), wherein at least part of the first chamber is configured to deform (it is plastic and includes flexible fins 42) to releasably attach the cover to a free end of a construction-related rod;
wherein the first chamber comprises a plurality of deformable members (elongate fins 42) arranged around its periphery and extending from an inner wall of the first chamber towards its center (refer to Figs. 2 and 4);
wherein the cover comprises a second chamber (34) within the first chamber (refer to Fig. 4).
Kubicek discloses wherein the chambers are cylindrical rather than polygonal.
Pomey discloses a construction-related rod free end cover (10) wherein the sleeve/chamber is shown as cylindrical. Pomey discloses wherein the sleeve/chamber may instead be polygonal (col. 4, ll. 44-47).
Before the effective filing date of the invention, it would have been obvious to a person of ordinary skill to substitute a polygonal shape for the cylindrical sleeve/chamber of Kubicek as suggested by Pomey; Pomey suggesting that the change of shape from cylindrical to hexagonal is obvious to a person having ordinary skill in the art, the change in shape yielding no extraordinary or unexpected results.
Regarding claim 3:
Kubicek discloses wherein the chambers are configured to elastically deform to provide an interference fit with a free end of a rod (col. 2, ll. 16-19 in conjunction with the flexible fins).
Regarding claims 8 and 12:
Kubicek in view of Pomey discloses the claimed invention except for the first and secondary polygonal chambers being substantially hexagonal. It would have been obvious to one having ordinary skill in the art at the time the invention as made to change the shape from circular or polygonal to specifically hexagonal, a change in the shape of a prior art device is a design consideration within the skill of the art. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). There would be no unexpected or unpredictable result obtained from constructing the polygonal shape to be specifically hexagonal.
Regarding claims 9 and 19:
Kubicek in view of Pomey discloses the claimed invention except for the length of each side of a hexagonal chamber. It would have been an obvious matter of design choice to construct the length of each of the chamber as specified, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level or ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). There would be no unexpected or unpredictable result obtained from varying the length of the chamber sides. There is no evidence that the claimed dimensions not specifically taught by Kubicek in view of Pomey provide a criticality that would be unachievable and unexpected with a reasonable amount of experimentation. Length may be altered to accommodate various sizes of reinforcing members.
Regarding claim 13:
Kubicek modified in view of Pomey discloses wherein walls of the secondary polygonal chamber intersect the deformable members (refer to Fig. 4 of Kubicek showing the secondary chamber intersecting the fins).
Regarding claim 18:
Modifying the sleeve of Kubicek to be hexagonal as suggested by Pomey (and set forth in the rejection of claim 8 above) would result in an inner chamber and an outer wall that both form a hexagonal shape. As such, Kubicek modified in view of Pomey reasonably suggests wherein the cover comprises a hexagonal wall structure (interior wall) positioned between the chamber (the opening) and an outer wall of the cover.
Regarding claim 20:
Kubicek does not expressly disclose the specific thermoplastic elastomer or the hardness of the thermoplastic elastomer.
It would have been obvious to one having ordinary skill in the art at the time of the invention was made to change the thermoplastic elastomer material to a material that falls within the claimed range of hardness, 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. It is also common knowledge to choose a material that has sufficient strength, durability, flexibility, hardness, etc. for the application and intended use of that material. There would be no unexpected or unpredictable result obtained from varying the thermoplastic material to obtain the specific hardness. One of ordinary skill in the art would be motivated to do so to provide sufficient support in conjunction with flexibility.
Regarding claim 21:
Kubicek discloses wherein the rod is rebar (Summary of the Invention).
Regarding claim 22:
Kubicek discloses wherein the rod may be a bolt. Parent claim 1 functionally recites the rod. The cover of Kubicek is capable of functioning with a bolt.
Claims 23 and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Kubicek, US 8,141,309 in view of Pomey, US 11,898,352 as applied to claim 1, further in view of Kennon, US 5,600,927.
Regarding claims 23 and 24:
Kubicek does not expressly disclose wherein the outer wall at the first end is substantially hemispherical (hemispherical is curved).
Kennon discloses a cover that has an outer wall at the first end is substantially hemispherical.
Before the effective filing date of the invention, it would have been obvious to a person having ordinary skill to substitute the end shape of Kennon for that of Kubicek in order to provide a low impact protective surface. Further, Kubicek refers to the dome/hemispherical shape as conventional suggesting that it is well known in the prior art.
Allowable Subject Matter
Claims 2, 7 and 11 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 2, the prior art reasonably suggests a cover having a polygonal chamber. However, the prior art does not disclose nor reasonably suggest wherein the main body comprises a plurality of conjoined walls extending partway between first and second ends of the cover, the wall being reticulated in cross-section and arranged around the central chamber. Modifying the prior art to have this specific structure, would require improper, impermissible hindsight reasoning and reconstruction.
Regarding claim 7, the prior art reasonably suggests polygonal chambers. However, the prior art does not disclose nor reasonably suggest wherein the deformable members extend inwardly from corners of the polygonal chambers. Modifying the prior art to have this specific structure would require improper, impermissible hindsight reasoning and reconstruction.
Regarding claim 11, the prior art is silent as to the relationship between the secondary polygonal chamber and the first chamber. Modifying the prior art to have this specific structural relationship would require improper, impermissible hindsight reasoning and reconstruction.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
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/BRENT W HERRING/Primary Examiner, Art Unit 3633