DETAILED ACTION
This is a Final Office Action on the merits for U.S. App. 18/794,313. Receipt of the amendments and arguments filed on 06/18/2026 is acknowledged.
Claims 1-20 are pending.
Claims 1-20 are examined.
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.
Claim(s) 1, 2, 4, 5 and 9-13 are rejected under 35 U.S.C. 103 as being unpatentable over Scarfo (U.S. Patent 8,590,213) in view of Bialick et al. (U.S. Publication 2017/0089331) and Hammerer (DE 20308351).
Regarding claim 1, Scarfo discloses a method of waterproofing a cement floor, the method comprising:
trenching a bottom of the cement floor to provide a channel within a periphery of the cement floor (col. 4, ll. 11-23 disclose a portion of the floor #16 is removed in order to form a channel, where figure 10 depicts such a channel is formed within the periphery of the cement floor) having a first end positioned at an area susceptible to water accumulation within the periphery of the cement floor and a second end terminating at a drainage pit (col. 4, ll. 17-23 disclose the channel comprises a raised end near a foundation wall #12 which is susceptible to water accumulation and where the second end that leads to a drainage pit where the sump pump is located, where such a channel does not extend all the way to the outer most portion of the cement floor and thus is positioned within the periphery of the cement floor);
inserting a perforated conduit (#26) within the channel such that an end of the perforated conduit terminates at the drainage pit (see figures 2 and 10 and col. 4, ll. 17-23), wherein the perforated conduit is pitched downward at an angle towards the drainage pit (figure 7 as well as the disclosure of Scarfo depicts the conduit #26 is to be angled towards the sump pump area for proper drainage);
applying a layer of gravel (#18; see col. 4, ll. 17-23, where more gravel #18 is placed upon the conduit #26) within the channel to at least partially cover the perforated conduit (see figure 2 and col. 4, ll. 17-23); and
pouring a layer of cement to at least partially cover the channel, the gravel, and the perforated conduit (as depicted in figure 2, the floor is refinished above the conduit with cement in order to reform the cement floor).
Scarfo discloses the method for waterproofing can be used in any foundation wall that supports a house, but does not specifically disclose the method is used within an elevator pit having a cement floor and drainage pit as defined. It is highly well known in the art, as evidenced by Bialick et al., that elevator pits #400 are known to comprise of a concrete floor which comprises of a sump drainage pit #20 because elevators are typically located beneath a building and within the ground such that water may leak within the walls and into the elevator pit. If water is not removed from the elevator pit, the water may degrade the elevator components. See paragraph 4 of Bialick et al. Therefore, it would have been obvious before the effective filing date of the claimed invention to have used the waterproofing method of Scarfo within an elevator pit, such as one comprising of a sump pump as taught in Bialick et al., in order to better waterproof such foundation structures as well.
Furthermore, Scarfo does not specifically disclose use of waterproof material at least partially over the channel, gravel, and conduit. It is highly well known in the art, as evidenced by Hammerer, that basement floors #24 can be constructed from a waterproof concrete material that can be poured to form a waterproof floor assembly. See, for example, claim 1. Using waterproof concrete to cover a basement floor is known and used in the art and therefore it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to have used waterproof concrete to cover the trench of Scarfo, as taught in Hammerer, in order to finish the concrete floor with the same waterproofing concrete material as was previously used, to better waterproof the foundation area while still allowing for moving water towards the sump pump area, 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).
Regarding claim 2, Scarfo in view of Bialick et al. and Hammerer render obvious prior to said trenching step, removing at least a portion of a floor surface in the elevator pit to expose the ground surface thereunder (see figure 2 of Scarfo and col. 4, ll. 17-23, where the cement floor is to be removed all the way so that the gravel base #18 therebelow is exposed, where such a method would be provided within an elevator pit as taught in Scarfo in view of Bialick et al. as explained above).
Regarding claim 4, Scarfo in view of Bialick et al. and Hammerer render obvious the perforated conduit has perforations with an opening that are in a range of 3/8 to 5/8 inches (col. 5, ll. 50-54 of Scarfo disclose the perforations #58/60 of the conduit #26 can be ¼ to ½ inch in size, which overlaps the range as defined).
Regarding claim 5, Scarfo in view of Bialick et al. and Hammerer render obvious the perforated conduit has perforations in a range of 6 to 12 perforations per foot (col. 5, ll. 45-49 of Scarfo discloses the perforations can be provided every two to four inches within the pipe, where the every two inch option would provide the 6 perforations per foot as defined).
Regarding claim 9, Scarfo in view of Bialick et al. and Hammerer render obvious pumping out water accumulating in the drainage pit from the perforated channel (see paragraph 10 of Bialick et al., where sump pumps are configured to pump water out of the drainage pit when a certain water level is reached, where the sump pump of Scarfo would similarly function in order to properly drain water therefrom as commonly done in the art).
Regarding claim 10, Scarfo in view of Bialick et al. and Hammerer render obvious prior to the trenching of the bottom of the elevator pit, the method further comprises excavating the floor to expose a ground surface under the bottom of the elevator pit, wherein the trenching of the bottom includes providing the channel in the ground surface exposed by the excavating (see figure 2 and col. 4, ll. 17-29 of Scarfo, where the floor is excavated to the gravel #18 therebelow and the conduit #26 is provided within such a ground, gravel layer #18).
Regarding claim 11, Scarfo in view of Bialick et al. and Hammerer render obvious prior to the pouring of the layer of waterproof material, the method further comprises installing a gutter sleeve (Scarfo; #28) around at least a portion of the periphery of the elevator pit between a sidewall and the ground surface of the elevator pit (see figure 2 of Scarfo, where the sleeve #28 of Scarfo is provided around at least a portion of the periphery of the foundation).
Regarding claim 12, Scarfo in view of Bialick et al. and Hammerer render obvious the pouring the layer of waterproof material comprises pouring to a height that is less than a maximum vertical height of the gutter sleeve (see figure 2, of Scarfo, where the floor #16, after being repoured, does not extend and cover the entire vertical height of the sleeve #28).
Regarding claim 13, Scarfo in view of Bialick et al. and Hammerer render obvious the pouring the layer of waterproof material comprises leveling the floor formed by the layer of waterproof material (see figure 2 of Scarfo as well as common knowledge in the art, where such a cement floor is to be leveled in order to provide a flat surface that prevents the pooling of water as well as a flat surface for resting objects thereon).
Claim(s) 6 is rejected under 35 U.S.C. 103 as being unpatentable over Scarfo in view of Bialick et al., Hammerer, and Johnson (U.S. Publication 2014/0227035).
Regarding claim 6, Scarfo disclose the perforations in the conduit #26 are from ¼ to ½ inch in diameter and the gravel #18 should be larger than that in order to prevent clogging and entry of the gravel within the conduit (see col. 5, ll. 50-54), except for the gravel size is within the range of ½ to ¾ inches as defined. It is highly well known in the art, as evidenced by Johnson, that gravel #44 used to fill a channel that includes a perforated conduit #42 can be #67 washed gravel, which has a size between ½ and ¾ inches. See paragraph 21. Therefore, it would have been obvious before the effective filing date of the claimed invention to have constructed the assembly of Scarfo to comprise of ½ to ¾ inch gravel, as taught in Johnson, in order to provide proper drainage through the channel and into the conduit without clogging the perforations of the conduit or allowing the gravel to enter the conduit.
Claim(s) 7 is rejected under 35 U.S.C. 103 as being unpatentable over Scarfo in view of Bialick et al., Hammerer, and Wood, Jr. et al. (U.S. Patent 6,543,189).
Regarding claim 7, Scarfo discloses gravel, rock, or stone bed #18 is used for the aggregate around the perforated conduit and thus do not specifically disclose the use of at least one of pea gravel and bluestone chip for the gravel over the channel and conduit. However, it is highly well known in the art, as evidenced by Wood, Jr. et al., that pea gravel or other aggregate #74 is known gravel used over perforated pipes #44 within a channel for drainage purposes. See col. 3, ll. 43-61. Therefore, it would have been obvious before the effective filing date of the claimed invention to have used pea gravel within the channel of Scarfo, as taught in Wood, Jr. et al., in order to provide a certain drainage characteristic within the channel to allow a specific flowrate 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).
Claim(s) 8 is rejected under 35 U.S.C. 103 as being unpatentable over Scarfo in view of Bialick et al., Hammerer, and Jackman (U.S. Patent 5,794,388).
Regarding claim 8, Scarfo does not disclose the specific thickness for the waterproof material which is to be poured. Scarfo depicts that the cement floor should maintain a consistent thickness and thus the poured concrete that is to cover the excavated portion of the foundation floor should fill the same thickness as the floor which was previously used before the excavation. Jackman teaches that four inch thick floors are typical for such foundations, where the thickness may vary in some areas depending on variation in the footing. See col. 7, ll. 1-6. Therefore, it would have been obvious before the effective filing date of the claimed invention to have constructed the foundation floor of Scarfo in view of Hammerer so as to include a 4 inch thick waterproof concrete layer thereon in order to properly reform the four inch thick floor typically used in such situations, as taught in Jackman, and which was excavated to form the drain tile channels and also since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233 (CCPA 1955).
Claim(s) 14 is rejected under 35 U.S.C. 103 as being unpatentable over Scarfo in view of Bialick et al., Hammerer, and Jeffras et al. (U.S. Patent 4,311,052).
Regarding claim 14, Scarfo does not disclose the step of pouring the layer of waterproof cement comprises pitching the waterproof material towards the drainage pit. However, it is highly well known in the art, as evidenced by Jeffras et al., that foundations #14 can comprise of sloping floors #16 that slope any water into a sump #18. Therefore, it would have been obvious before the effective filing date of the claimed invention to have sloped the foundation floor of Scarfo, including the newly added waterproof cement layer of Scarfo in view of KR ‘636, towards the sump pump, as taught in Jeffras et al., in order to better move any water that happens to gather on the floor of the foundation.
Claim(s) 3 and 15-19 are rejected under 35 U.S.C. 103 as being unpatentable over Scarfo in view of Bialick et al., JPS6424704, and Hammerer.
Regarding claim 3, Scarfo in view of Bialick et al. and Hammerer render obvious the area susceptible to water accumulation is proximate a jack casing of the elevator assembly (the Examiner takes Official Notice, as evidenced by JP S6424704, that hydraulic elevators comprise of jack casings that drive the elevator upwards and which jack casing is provided within the ground, where it would have been obvious before the effective filing date of the claimed invention to have provided such a waterproofing method as taught in Scarfo to a hydraulic elevator so as to thus be proximal to a jack casing of such a hydraulic elevator assembly in order to better waterproof such foundation structures of a hydraulic elevator as well.).
Regarding claim 15, Scarfo discloses a floor comprising:
a drainage pit (the sump pump area provided within the floor #16 of figure 2, which is shown in figure 10 but similarly provided within figure 2) provided in the floor (#16);
a trench formed in a bottom of the floor and defining a channel within a periphery of the floor having a first end positioned at an area that is susceptible to water accumulation within the periphery of the floor and a second end terminating at the drainage pit (a trench is dug out to form a channel which receives conduit #26 and gravel #18, where such a conduit and channel angles towards sump pump along the wall of the foundation where water accumulation is susceptible and where such a channel is provided inward of the outermost edges of the floor as depicted in figure 10 so as to be considered within a periphery of the floor);
a perforated conduit (#26) extending within the channel, wherein an end of the perforated conduit terminates at the drainage pit (see col. 1, ll. 57-60), wherein the perforated conduit is pitched downward at an angle towards the drainage pit (figure 7 as well as the disclosure of Scarfo depicts the conduit #26 is to be angled towards the sump pump area for proper drainage);
gravel (#18) in the channel that at least partially covers the perforated conduit (see figure 2); and
a layer of concrete (#16) that at least partially covers the gravel, channel, and perforated conduit (see figure 2).
Scarfo discloses the method for waterproofing can be used in any foundation wall that supports a house, but does not specifically disclose the foundation is one for an elevator pit having a floor and drainage pit and an elevator assembly as defined. It is highly well known in the art, as evidenced by Bialick et al., that elevator pits #400 are known to comprise of a concrete floor which comprises of a sump drainage pit #20 because elevators are typically located beneath a building and within the ground such that water may leak within the walls and into the elevator pit. If water is not removed from the elevator pit, the water may degrade the elevator components. See paragraph 4 of Bialick et al. Furthermore, though the elevator mechanism is not depicted within the figures of Bialick et al., the Examiner takes Official Notice, as evidenced by JP S6424704, that the hydraulic cylinder used to lift and lower the elevator within the shaft can comprise of an end buried within the ground below the foundation #4 of the elevator pit. See figures 1 and 2. Therefore, it would have been obvious before the effective filing date to have used the method of Scarfo within an elevator pit, such as one comprising of a sump pump and a mechanical assemblies of the elevator which extend through the foundation of the elevator pit as taught in Bialick et al. and JP S6424704, in order to better waterproof such foundation structures as well.
Furthermore, Scarfo does not specifically disclose use of waterproof material at least partially over the channel, gravel, and conduit. It is highly well known in the art, as evidenced by Hammerer, that basement floors #24 can be constructed from a waterproof concrete material that can be poured to from a waterproof floor assembly. See for example claim 1. Using waterproof concrete to cover a basement floor is known and used in the art and therefore it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to have used waterproof concrete to cover the trench of Scarfo, as taught in Hammerer, in order to finish the concrete floor with the same waterproofing concrete material as was previously used, to better waterproof the foundation area while still allowing for moving water towards the sump pump area, 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).
Regarding claim 3, Scarfo in view of Bialick et al., JPS6424704, and Hammerer render obvious the area susceptible to water accumulation is proximate a jack casing of the elevator assembly (as evidenced by JP S6424704, hydraulic elevators comprise of jack casings that drive the elevator upwards and which jack casing is provided within the ground, where it would have been obvious before the effective filing date of the claimed invention to have provided such a waterproofing method as taught in Scarfo to a hydraulic elevator so as to thus be proximal to a jack casing of such a hydraulic elevator assembly in order to better waterproof such foundation structures of a hydraulic elevator as well.).
Regarding claim 17, Scarfo in view of Bialick et al., JPS6424704, and Hammerer render obvious a gutter sleeve (Scarfo; #28) installed around at least a portion of a periphery of the elevator pit between a sidewall and a ground surface of the elevator pit (see figure 2 of Scarfo, where the sleeve is provided around at least a portion of the periphery).
Regarding claim 18, Scarfo in view of Bialick et al., JPS6424704, and Hammerer render obvious a portion of the gutter sleeve extends above the cement floor (see figure 2 of Scarfo).
Regarding claim 19, Scarfo in view of Bialick et al., JPS6424704, and Hammerer render obvious the perforated conduit comprises PVC piping (see col. 4, ll. 24-28 of Scarfo).
Claim(s) 20 is rejected under 35 U.S.C. 103 as being unpatentable over Scarfo in view of Bialick et al., JPS 6424704, Hammerer, and Johnson.
Regarding claim 20, Scarfo disclose the perforations in the conduit #26 are from ¼ to ½ inch in diameter and the gravel #18 should be larger than that in order to prevent clogging and entry of the gravel within the conduit (see col. 5, ll. 50-54), except for the gravel size is within the range of ½ to ¾ inches as defined. It is highly well known in the art, as evidenced by Johnson, that gravel #44 used to fill a channel that includes a perforated conduit #42 can be #67 washed gravel, which has a size between ½ and ¾ inches. See paragraph 21. Therefore, it would have been obvious before the effective filing date of the claimed invention to have constructed the assembly of Scarfo to comprise of ½ to ¾ inch gravel, as taught in Johnson, in order to provide proper drainage through the channel and into the conduit without clogging the perforations of the conduit or allowing the gravel to enter the conduit.
Terminal Disclaimer
The terminal disclaimer filed on 06/18/2026 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of U.S. Patent 12,054,932 has been reviewed and is accepted. The terminal disclaimer has been recorded. Therefore, the double patenting rejections of the previous Office Action are withdrawn.
Response to Arguments
Applicant's arguments filed 06/18/2026 have been fully considered but they are not persuasive.
Regarding Applicant’s arguments that “Scarfo is directed to waterproofing a basement foundation wall, not an elevator pit,” the only difference between the basement foundation wall of the Scarfo and the elevator pit of the present application is what elements are provided within such a concrete floor assembly and how such a concrete floor assembly is used. As taught in Bialick et al., concrete floors used for elevator pits also suffer from the intrusion of water and the water must be drained properly in order to prevent damage to the structure and thus it would have been obvious before the effective filing date of the claimed invention to have applied such a waterproofing of Scarfo within an elevator pit in order to protect the concrete floor of such an elevator pit from the intrusion of water. The rejections are considered proper and are upheld.
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). Applicant argues the secondary references of Bialick et al. and Hammerer for what they fail to disclose within the claimed invention rather then for the teachings used and modifications within the primary reference of Scarfo as explained above.
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 the present case, Bialick et al. was used to show that drainage systems are required to be provided within elevator pits in order to prevent the accumulation of water and thus show the obviousness of putting waterproof assemblies within such an elevator pit, such as those as taught in Scarfo. Furthermore, Hammerer was used to show the obviousness of using water-impermeable concrete to cover a basement concrete floor and thus provide an appropriate substitute for the concrete material which Scarfo already discloses for use over the trenched channel. Such a claimed invention is considered to comprise of a known trenching method within a concrete floor, as taught in Scarfo, within known scenarios, as taught in Bialick et al., and known materials, as taught in Hammerer, to achieve a predictable waterproof concrete floor assembly that would not act in an unexpected manner. The rejections are considered proper and are upheld.
Regarding Applicant’s arguments that “the proposed modification of removing Scarfo’s essential wall-hole and drain board components to apply only the conduit-in-trench concept to an elevator pit floor would fundamentally change how Scarfo’s system operates,” such weeps holes within the wall of Scarfo are not removed nor does the presence of such weep holes within Scarfo prevent such a primary reference from meeting the claimed invention as presently defined. Such weep holes within the foundation walls are common practice when forming such interior French drains within a foundation and thus would be maintained with Scarfo, but where such an assembly of Scarfo would instead be applied to an elevator pit concrete foundation assembly to yield the same predictable result of waterproofing and draining as needed. The rejections are thus considered proper and are upheld.
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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