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.
Claim(s) 108-121, 126-131 & 135 is/are rejected under 35 U.S.C. 103 as being unpatentable over Seguin et al. (US patent application publication 2005/0102872) (hereinafter Seguin) in view of Burgin (US patent application publication 2014/0360680) and McCarty et al. (US patent 9, 212,521) (hereinafter McCarty).
Regarding claim 108, Seguin discloses a gate for controlling oncoming traffic on a roadway, the gate being mountable to a traffic barrier (22) for the roadway, the gate comprising:- an arm (12 & 30) movable between an extended position (Fig. 7B) in which the arm extends into a given portion of the roadway to inform the oncoming traffic that the given portion of the roadway is closed and a retracted position (Fig. 7A) in which the arm does not extend into the given portion of the roadway, the arm comprising a beam (30) that extends along a longitudinal direction of the arm and a visible arrangement (12); and a control system (14) comprising an actuator (38) and configured to be disposed on top of the traffic barrier (Fig. 1), support the arm such that the arm is cantilevered at the control system in the extended position, and move the arm horizontally between the extended position and the retracted position ([0026]).
Seguin does not disclose a visible arrangement that extends below the beam and is less stiff than the beam.
Burgin teaches a visible arrangement (4) that extends below a beam (2) (Fig. 1). As such, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to modify Seguin wherein the visible arrangement extends below the beam in view of Burgin’s teaching, because this arrangement would have replaced one known configuration with another known configuration yielding a predictable result.
McCarty teaches a beam (216) that can be made from metal (Col. 10: 21-28). As such, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to modify Seguin wherein the beam is formed from metal, because this arrangement would have replaced one known material with another known material yielding a predictable result. Seguin, as modified, teaches an arm wherein the beam is made from metal and the visible arrangement is made from plastic ([0027]); thus, the visible arrangement is less stiff than the beam.
Regarding claim 109, Seguin, as modified, teaches a gate wherein the control system is dimensioned such that a footprint of the gate on the traffic barrier is contained within a width of the traffic barrier (Fig. 1).
Regarding claim 110, Seguin, as modified, teaches a gate wherein the control system is dimensioned such that a footprint of the gate on the traffic barrier is contained within a top surface of the traffic barrier (Fig. 1).
Regarding claims 111 & 112 Seguin, as modified, teaches a gate wherein a ratio of a dimension of the control system in a longitudinal direction of the arm in the extended position over a length of the arm in the extended position is no more than 15%; or wherein a ratio of a dimension of the control system in a longitudinal direction of the arm in the extended position over a length of the arm in the extended position is no more than 10% ([0028] & Figs. 9A-9D teach the arm can be varying lengths, thus it teaches the claimed ratio).
Regarding claim 113, Seguin, as modified, teaches a gate wherein the traffic barrier is a median barrier between opposite traffic directions for the roadway (this is an intended use limitation which the traffic barrier is capable of performing).
Regarding claim 114, Seguin, as modified, teaches a gate wherein the visible arrangement comprises a plurality of transversal visible members (60).
Regarding claim 115, Seguin, as modified, teaches a gate wherein the visible members are disposed to point towards where the oncoming traffic is to be directed when the arm is in the extended position (Fig. 7B).
Regarding claim 116, Seguin, as modified, teaches a gate wherein respective ones of the visible members intersect one another (they intersect at connectors 66, see Fig. 9A).
Regarding claim 117, Seguin, as modified, teaches a gate wherein each of the visible members is less stiff than the beam (the plastic visible members are less stiff than the metal beam).
Regarding claim 118, Seguin, as modified, teaches a gate wherein a modulus of elasticity of a material of the beam is greater than a modulus of elasticity of a material of each of the visible members (metal has a greater modulus of elasticity than plastic).
Regarding claim 119, Seguin, as modified, teaches the gate as claimed. Seguin, as modified, does not teach a gate wherein the beam includes the fiber- reinforced material. It would have been obvious to one having ordinary skill in the art at the time of the filing to modify Seguin, as previously modified, wherein the beam includes the fiber- reinforced material, since it has been held to be within the general skill of a worker in the art to select 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.
Regarding claim 120, Seguin, as modified, teaches the gate as claimed. Seguin, as modified, does not teach a gate wherein each of the visible members includes polymeric material different than the fiber-reinforced material. It would have been obvious to one having ordinary skill in the art at the time of the filing to modify Seguin, as previously modified, wherein each of the visible members includes polymeric material different than the fiber-reinforced material, since it has been held to be within the general skill of a worker in the art to select 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.
Regarding claim 121, Seguin, as modified, teaches a gate wherein the beam includes metallic material (McCarty) and each of the visible members includes polymeric material ([0027] teaches plastic which is polymeric).
Regarding claim 126, Seguin, as modified, teaches a gate wherein: the roadway includes a plurality of lanes; and the arm is configured to span the lanes ([0028]).
Regarding claim 127, Seguin, as modified, teaches a gate wherein a length of the arm is at least 20 ft ([0028]).
Regarding claim 128, Seguin, as modified, teaches a gate wherein: the arm comprises a longitudinal member (62) extending in the longitudinal direction of the arm and spaced from the beam in a widthwise direction of the arm; and the visible members extend between the beam and the longitudinal member (Fig. 9A).
Regarding claim 129, Seguin, as modified, teaches a gate wherein the longitudinal member is disposed in the widthwise direction of the arm where respective ones of the visible members intersect (Fig. 9A).
Regarding claim 130, Seguin, as modified, teaches the gate as claimed. Seguin, as modified, does not teach a gate wherein: the arm has a thickness- wise direction that is normal to the longitudinal direction of the arm and the widthwise direction of the arm; and the longitudinal member is offset from the beam in the thickness-wise direction of the arm. The examiner is taking OFFICIAL NOTICE that arms with a thickness- wise direction that is normal to the longitudinal direction of the arm and the widthwise direction of the arm; and the longitudinal member is offset from the beam in the thickness-wise direction of the arm are common and well known in the art. As such, it would have been obvious to one or ordinary skill in the art at the time of the effective filing date of the claimed invention to modify the arm wherein the arm has a thickness- wise direction that is normal to the longitudinal direction of the arm and the widthwise direction of the arm; and the longitudinal member is offset from the beam in the thickness-wise direction of the arm, because this arrangement would have replaced one known configuration with another known configuration yielding a predictable result.
Regarding claim 131, Seguin, as modified, teaches a gate wherein: the arm has a thickness- wise direction that is normal to the longitudinal direction of the arm and a widthwise direction of the arm (Fig. 9A). Seguin, as modified, does not teach a dimension of each of the visible members in the thickness- wise direction of the arm is less than a dimension of the beam in the thickness-wise direction of the arm. It would have been an obvious matter of design choice to modify a dimension of each of the visible members in the thickness- wise direction of the arm to be less than a dimension of the beam in the thickness-wise direction of the arm, since such a modification would have involved a mere change in the size of a component. A change is size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237, (CCPA 1955).
Regarding claim 135, Seguin, as modified, teaches a gate wherein the plurality of transversal visible members extend obliquely to the beam (Fig. 9A).
Claim(s) 122-125 & 134 is/are rejected under 35 U.S.C. 103 as being unpatentable over Seguin in view of Burgin, McCarty and Miracle (US patent application publication 2010/0098486).
Regarding claim 122, Seguin, as modified, teaches the gate as claimed. Seguin, as modified, does not teach a gate wherein the gate is MASH crash- tested. Miracle teaches wherein a gate is crash tested ([0111]). As such, it would have been obvious to one of ordinary skill in the art at the time of the filing to modify Seguin, as previously modified, wherein the gate is MASH crash- tested in view of Miracle’s teaching, because this arrangement would have allowed the gate to meet a safety standard.
Regarding claim 123, Seguin, as modified, teaches the gate as claimed. Seguin, as modified, does not teach a gate wherein the gate is compliant with at least one of (i) MASH evaluation criteria of Test Level 3 Support Structures test matrices and (ii) MASH evaluation criteria of Test Level 3 Work Zone Traffic Control Devices test matrices. Miracle teaches wherein a gate satisfies MASH criteria ([0111]). As such, it would have been obvious to one of ordinary skill in the art at the time of the filing to modify Seguin, as previously modified, wherein the gate is compliant with at least one of (i) MASH evaluation criteria of Test Level 3 Support Structures test matrices and (ii) MASH evaluation criteria of Test Level 3 Work Zone Traffic Control Devices test matrices in view of Miracle’s teaching, because this arrangement would have allowed the gate to meet a safety standard.
Regarding claim 124, Seguin, as modified, teaches the gate as claimed. Seguin, as modified, does not teach a gate wherein a height of the beam from a surface of the roadway when the arm is in the extended position is greater than a height of a passenger car complying with MASH crash-testing. Miracle teaches wherein a gate satisfies MASH criteria ([0111]). As such, it would have been obvious to one of ordinary skill in the art at the time of the filing to modify Seguin, as previously modified, wherein a height of the beam from a surface of the roadway when the arm is in the extended position is greater than a height of a passenger car complying with MASH crash-testing in view of Miracle’s teaching, because this arrangement would have allowed the gate to meet a safety standard.
Regarding claim 125, Seguin, as modified, teaches the gate as claimed. Seguin, as modified, does not teach a gate wherein a height of the beam from a surface of the roadway when the arm is in the extended position is no less than a height of a pickup truck complying with MASH crash-testing. Miracle teaches wherein a gate satisfies MASH criteria ([0111]). As such, it would have been obvious to one of ordinary skill in the art at the time of the filing to modify Seguin, as previously modified, wherein a height of the beam from a surface of the roadway when the arm is in the extended position is no less than a height of a pickup truck complying with MASH crash-testing in view of Miracle’s teaching, because this arrangement would have allowed the gate to meet a safety standard.
Regarding claim 134, Seguin discloses a gate for controlling oncoming traffic on a roadway, the gate being mountable to a traffic barrier for the roadway, and comprising:- an arm (22) movable between an extended position (Fig. 7B) in which the arm extends into a given portion of the roadway to inform the oncoming traffic that the given portion of the roadway is closed and a retracted position (Fig. 7A) in which the arm does not extend into the given portion of the roadway, the arm comprising a beam (30) that extends along a longitudinal direction of the arm and a visible arrangement (12); and- a control system (14) comprising an actuator (38) and configured to be disposed on top of the traffic barrier, support the arm such that the arm is cantilevered at the control system in the extended position, and move the arm horizontally between the extended position and the retracted position, the control system being dimensioned such that a footprint of the gate on the traffic barrier is contained within a width of the traffic barrier (Fig. 1).
Seguin does not disclose the gate being MASH crash-tested and the visible arrangement that extends below the beam and is less stiff than the beam.
Burgin teaches a visible arrangement (4) that extends below a beam (2) (Fig. 1). As such, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to modify Seguin wherein the visible arrangement extends below the beam in view of Burgin’s teaching, because this arrangement would have replaced one known configuration with another known configuration yielding a predictable result.
McCarty teaches a beam (216) that can be made from metal (Col. 10: 21-28). As such, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to modify Seguin wherein the beam is formed from metal, because this arrangement would have replaced one known material with another known material yielding a predictable result. Seguin, as modified, teaches an arm wherein the beam is made from metal and the visible arrangement is made from plastic ([0027]); thus, the visible arrangement is less stiff than the beam.
Miracle teaches wherein a gate is crash tested ([0111]). As such, it would have been obvious to one of ordinary skill in the art at the time of the filing to modify Seguin, as previously modified, wherein the gate is MASH crash- tested in view of Miracle’s teaching, because this arrangement would have allowed the gate to meet a safety standard.
Claim(s) 132 is/are rejected under 35 U.S.C. 103 as being unpatentable over Seguin in view of Burgin, McCarty and McCord et al. (US patent 6,370,821) (hereinafter McCord).
Regarding claim 132, Seguin, as modified, teaches the gate as claimed. Seguin, as modified, does not teach a gate wherein the beam comprises segments extending in a longitudinal direction of the arm and interconnected by connectors. McCord teaches a gate wherein a beam (100) comprises segments (110) extending in a longitudinal direction and interconnected by connectors (116). As such, it would have been obvious to one of ordinary skill in the art at the time of the filing to modify the gate wherein the beam comprises segments extending in a longitudinal direction of the arm and interconnected by connectors in view of McCord’s teaching, because this arrangement would have allowed the gate to flex as taught by McCord.
Claim(s) 133 is/are rejected under 35 U.S.C. 103 as being unpatentable over Seguin in view of McCarty.
Regarding claim 133, Seguin discloses a gate for controlling oncoming traffic on a roadway, the gate being mountable to a traffic barrier (22) for the roadway, the gate comprising:- an arm (12 & 30) movable between an extended position (Fig. 7B) in which the arm extends into a given portion of the roadway to inform the oncoming traffic that the given portion of the roadway is closed and a retracted position (Fig. 7A) in which the arm does not extend into the given portion of the roadway, the arm comprising a beam (30) extending along a longitudinal direction of the arm and a plurality of visible members (60) that extend obliquely to the beam; and- a control system (14) comprising an actuator (38) and configured to be disposed on top of the traffic barrier, support the arm such that the arm is cantilevered at the control system in the extended position, and move the arm horizontally between the extended position and the retracted position, the control system being dimensioned such that a footprint of the gate on the traffic barrier is contained within a width of the traffic barrier (Fig. 1).
Seguin does not disclose the visible members are less stiff than the beam. McCarty teaches a beam (216) that can be made from metal (Col. 10: 21-28). As such, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to modify Seguin wherein the beam is formed from metal, because this arrangement would have replaced one known material with another known material yielding a predictable result. Seguin, as modified, teaches an arm wherein the beam is made from metal and the visible arrangement is made from plastic ([0027]); thus, the visible arrangement is less stiff than the beam.
Response to Arguments
Applicant's arguments filed 6/25/2026 have been fully considered but they are not persuasive.
In response to applicant’s argument that Burgin struts pivot vertically and are not relevant to Seguin be it pivots horizontally, the examiner disagrees. Both Burgin and Seguin teach traffic control devices and one of ordinary skill in the art would not exclud a traffic barrier based on the direction it pivots when looking for modifications.
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).
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
In response to applicant's argument that Burgin is directed to a different field and a different problem and is nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, both are in the field of traffic control devices and are in the field of applicant’s endeavor.
In response to applicant’s argument that claim 133 is patentable because Seguin does not teach visible members that extend obliquely to the beam, the examiner disagrees. Element 30 is a beam and element 60 extends obliquely to the beam at 64. Additionally cross members 64 are visible members because they are visible.
ConclusionTHIS 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 DANIEL J ROHRHOFF whose telephone number is (571)270-7624. The examiner can normally be reached M-F 7:30-4:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Dan Troy can be reached at 571-270-3742. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DANIEL J ROHRHOFF/Primary Examiner, Art Unit 3637
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