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 § 102
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 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.
Claims 1-3, 7-10, 12 and 13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Austin (US 2014/0252668):
Regarding claim 1, discloses a method for producing a structure from a construction material using a moving device (1) having a mixer (35 and optionally 13) arranged thereon, the moving device configured to move the mixer of the moving device, the mixer comprising a drum (35) having at least one inlet (from 111 and 112 and optionally from 3,6) and at least one outlet (at the lower end of 35 as depicted in Fig. 4), the method comprising the steps of: feeding a first component that is a pumpable building material (either “cartilage material” or “cementitious material”) to the at least one inlet of the drum (see [0064]); feeding a second component (“accelerating agent”) that includes at least one of an accelerating admixture and a hardening accelerator to the at least one inlet of the drum (see [0064]); mixing the first component and the second component in the mixer to produce the construction material (see Fig. 4); conveying the construction material toward and through the at least one outlet of the drum (see Fig. 4), and moving the mixer with the moving device independently in three dimensions to apply the construction material and construct a structure from the construction material (see [0060] and [0063]).
Regarding claim 2, the first component is fed to the at least one inlet by pumping (see [0066]) the first component from a first container (29 or 102) that includes the first component.
Regarding claim 3, the second component is fed to the at least one inlet by pumping (see [0066]) the second component from a second container (30) that includes the second component.
Regarding claim 7, during the applying of the construction material with the moving device, the construction material is applied in a plurality of at least partially superposed layers (see [0001]).
Regarding claim 8, during the applying, an existing layer is only superposed with a new layer of the construction material when the existing layer is sufficiently solid, in order to retain its original shape (see [0001]).
Regarding claim 9, the moving device is a 3D printer (see [0003]).
Regarding claim 10, the moving device is configured to move the mixer within a build space for forming the structure constructed from the construction material (see [0032] and [0050]).
Regarding claim 12, the at least one inlet of the drum includes a first inlet (from 111 or form 6) and a second inlet (from 112), where the first component is fed to the first inlet and the second component is fed to the second inlet.
Regarding claim 13, the pumpable building material is pumpable concrete (see [0021], [0055]).
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.
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 4-6 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Austin (US 2014/0252668). The method of Austin was discussed above:
Regarding claim 4, Austin does not explicitly disclose a stirring shaft in the mixer. However, the statement in [0022] about stirring to reduce friction at delivery, and the listing of stirring as an alternative to vibration (which is shown in Fig. 8) would have suggested a stirring shaft to one of ordinary skill in the art before the effective filing date.
Regarding claim 5, the discussion of controlling a stirrer speed in [0071] would have rendered discovery of an optimal or workable range for a stirrer speed obvious to one of ordinary skill in the art before the effective filing date.
Regarding claim 6, Austin does not quantify the residence time of material in the drum. However, the small size of the drum as depicted in Fig. 4 would have suggested a very short residence time. Furthermore, the discussion of controlling the flow rate through drum 35 in [0088] would have rendered the discovery of an optimal or workable range of residence time obvious to one of ordinary skill in the art before the effective filing date.
Regarding claim 11, the discussion of stirring and mixing in [0022] would have suggested homogenously mixing to one of ordinary skill in the art before the effective filing date.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No. US 12,605,862. Although the claims at issue are not identical, they are not patentably distinct from each other because all the limitations of the instant claims are recited or suggested by the issued claims.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID L SORKIN whose telephone number is (571)272-1148. The examiner can normally be reached 7am-3:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Claire X Wang can be reached at (571) 270-1051. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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DAVID L. SORKIN
Examiner
Art Unit 1774
/DAVID L SORKIN/Primary Examiner, Art Unit 1774
