DETAILED ACTION
This is a first Office action on the merits responsive to applicant’s original disclosure filed on 7/26/2024. Claims 1-20 are pending and are under consideration.
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 IDS filed on 7/26/2024 is being considered.
Drawings
The drawings filed on 7/26/2024 are acceptable for examination.
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 6 and 16 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.
Claims 6 and 16, “measured from horizontal” is indefinite because “horizontal” lacks antecedent basis. Note that the term lacks a point of reference with respect to any other claim element or direction. Claims 1 and 13 each recite, “a vertical orientation”. This rejection can be overcome by reciting, “measured from a horizontal plane” or equivalent.
Claim Rejections - 35 USC § 102
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.
Claim(s) 13 and 15 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Oliver et al. (US 8919060) (‘Oliver’).
Claim 13, Oliver provides an angle-adjustable post assembly (Fig. 1) for supporting a rail panel (note that the rail panel is not positively recited and thus not required, but that under the broadest reasonable interpretation, Oliver’s angle-adjustable post assembly is suitable to support a rail panel, as exceedingly broadly claimed), comprising:
a post portion 12 being a generally hollow rectangular tube (Fig. 2);
a pivot rod 48 extending laterally from the post portion (Figs. 1 and 4), the pivot rod being cylindrical (Figs. 1-2 and 4) to allow pivoting adjustment to position the post portion in a vertical orientation for multiple incline angles (under the broadest reasonable interpretation, the post portion is suitable to be pivotably adjusted to a vertical orientation for multiple incline angles; further note that “vertical orientation” was treated broadly as meaning generally upright, as the post portion is shown in Fig. 1 as extending in a generally upright direction, as applicant’s limitation does not specify a point of reference with respect to any other orientation or direction, as exceedingly broadly claimed; Fig. 1);
a base portion 16 defining a plurality of first through holes (holes in 16 that correspond with holes 35; col. 8, lines 1-5; Fig. 1), each configured to receive a first fastener (col. 8, lines 1-5; Fig. 1); and
a top bracket 30 having an arcuate portion (under the broadest reasonable interpretation of “arcuate portion” under the plain meaning and in light of applicant’s specification to mean curved, the round openings 36 comprise a curved portion and were treated as arcuate portions, as exceedingly broadly claimed; Fig. 2) sized and shaped to correspond to a circumference of the pivot rod (under the broadest reasonable interpretation of “correspond to”, the round holes 36 correspond to the round circumference of the pivot rod; Figs. 1-2 and 4), the top bracket defining a pair of second through holes 35, each configured to receive a second fastener (through holes 36 are each suitable to receive fastener 54; col. 2, lines 20-25; Fig. 2).
Claim 15, Oliver further provides wherein the post portion has a square-shape in cross section (“box tube” col. 5, line 7; Fig. 2).
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.
Claim(s) 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Oliver et al. (US 8919060) (‘Oliver’).
Claim 16, Oliver teaches all the limitations of claim 13 as above. Although Oliver teaches the multiple incline angles being adjustable to obtain various orientations, including being rotated 90 degrees (col. 7, lines 10-15), Oliver does not specifically recite the multiple incline angles including a range of 30-50 degrees measured from horizontal. However, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the invention, to modify the angle-adjustable post assembly such that the multiple incline angles include a range of 30-50 degrees measured from horizontal, with the reasonable expectation of success of orienting the post portion within a reasonable range for installation to resist longitudinal loading, 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.
Allowable Subject Matter
Claims 1-5, 7-12 and 18-20 are allowed.
Claims 6 and 16 would be allowable if rewritten or amended 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.
Claims 14 and 17 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including 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: the prior art of record does not teach or disclose, alone or in combination, all the elements and features of the claimed invention.
Regarding claim 1, Gutierrez (20110272659) teaches an adjustable stair system, comprising:
a stringer 50 comprising a lateral wall 52 and an upper wall 56, the stringer being configured to support a plurality of stair treads 46;
a rail panel (84, 86) configured to be supported by an adjustable post assembly 12, the adjustable post assembly being configured to be supported by the stringer (Fig. 4) and, comprising:
a post portion being a generally hollow rectangular tube (Figs. 4-5);
a pivot rod 40 extending laterally from the post portion (Fig. 5), the pivot rod configured to be supported by the upper wall of the stringer (Fig. 5);
a base portion (portion of 12 at 42, 43; Fig. 5) being configured to couple to the lateral wall of the stringer (under the broadest reasonable interpretation of “to couple”, the base portion is secured to the stringer and thus is coupled to the lateral wall of the stringer, as exceedingly broadly claimed; Fig. 5) and defining a plurality of first through holes (30, 31), each configured to receive a first fastener (under the broadest reasonable interpretation, each of the first through holes are suitable to receive a first threaded fastener 28, as exceedingly broadly claimed; Fig. 5); and
a top bracket 60 having an arcuate portion (under the broadest reasonable interpretation, the hole in 60 is round and thus comprises an arcuate portion, as exceedingly broadly claimed) sized and shaped to correspond to a circumference of the pivot rod (the hole in 60 is sized and shaped to correspond to a circumference of the pivot rod 40; Fig. 5).
Although Gutierrez teaches the pivot rod being a generally cylindrical bolt, Gutierrez does not teach the pivot rod being cylindrical to allow pivoting adjustment to position the post portion in a vertical orientation for multiple incline angles of the stringer, and the top bracket defining a pair of second through holes, each configured to receive a second fastener. The examiner takes the position that it would have been within the level of ordinary skill to modify the top bracket 60 by duplicating the hole in 60 thereby forming a plurality of holes in 60, such holes being suitable to receive a second fastener, further modifying Gutierrez to have a cylindrical pivot rod that allows pivoting adjustment to position the post portion in a vertical orientation for multiple incline angles of the stringer would teach away from aligning the post portion with 28 to secure the post portion in fixed relation and thus would have been beyond the level of ordinary skill. Note that claims 13 and 18 recite similar features, and the same reasoning applies with respect to Gutierrez, which is not repeated for brevity.
Oliver (US 8919060) (‘Oliver’) does not teach a stringer comprising a lateral wall and an upper wall, the stringer being configured to support a plurality of stair treads, and a rail panel configured to be supported by an adjustable post assembly, the adjustable post assembly being configured to be supported by the stringer. It would have been beyond the level of ordinary skill to modify Oliver to arrive at the claimed invention.
Claims 2-12 depend, directly or indirectly from claim 1.
Regarding claim 14, Oliver teaches all the limitations of claim 13, and further teaches a spacer 42 that is located above the top bracket 30 and comprises one through hole to receive the second fastener. However, Oliver does not teach the spacer being configured to abut the base portion, the spacer comprising a front wall defining a plurality of third through holes configured to receive the first fasteners. It would have been beyond the level of ordinary skill to modify Oliver to arrive at the claimed invention.
Regarding claim 17, Oliver teaches all the limitations of claim 13, and further teaches a nut that receives the second fastener (Fig. 2). However, Oliver does not teach wherein the pivot rod includes a threaded bore and further comprising a washer configured to be disposed between a head of a third fastener received in the threaded bore and the top bracket. It would have been beyond the level of ordinary skill to modify Oliver to arrive at the claimed invention.
Regarding claim 18, Oliver provides an angle-adjustable post assembly (Fig. 1) for supporting a rail panel (note that the rail panel is not positively recited and thus not required, but that under the broadest reasonable interpretation, Oliver’s angle-adjustable post assembly is suitable to support a rail panel, as exceedingly broadly claimed), comprising:
a post portion 12 being a generally hollow rectangular tube (Fig. 2) having a face wall (selected from among one of the four walls of 12; Fig. 2);
a pivot rod 48 extending laterally from the face wall (Fig. 2), the pivot rod being cylindrical (Fig. 2) to allow pivoting adjustment to position the post portion in a vertical orientation for multiple incline angles (under the broadest reasonable interpretation, the post portion is suitable to be pivotably adjusted to a vertical orientation for multiple incline angles; further note that “vertical orientation” was treated broadly as meaning generally upright, as the post portion is shown in Fig. 1 as extending in a generally upright direction, as applicant’s limitation does not specify a point of reference with respect to any other orientation or direction, as exceedingly broadly claimed; Fig. 1);
a base portion 16 defining a plurality of first through holes (holes in 16 that correspond with holes 35; col. 8, lines 1-5; Fig. 1), each configured to receive a first fastener (col. 8, lines 1-5; Fig. 1);
a top bracket 30 having an arcuate portion (under the broadest reasonable interpretation of “arcuate portion” under the plain meaning and in light of applicant’s specification to mean curved, the round openings 36 comprise a curved portion and were treated as arcuate portions, as exceedingly broadly claimed; Fig. 2) sized and shaped to correspond to a circumference of the pivot rod (under the broadest reasonable interpretation of “correspond to”, the round holes 36 correspond to the round circumference of the pivot rod; Figs. 1-2 and 4), the top bracket defining a pair of second through holes 35, each configured to receive a second fastener (through holes 36 are each suitable to receive fastener 54; col. 2, lines 20-25; Fig. 2).
Oliver does not teach the pivot rod 48 welded to the post portion, and a pair of reinforcing bars welded to the base portion and received by the post portion. Modifying Oliver by welding the pivot rod to the post would prevent the post portion from being adjustable, which would destroy Oliver’s intended function. It would have been beyond the level of ordinary skill to modify Oliver to arrive at the claimed invention. Each of claims 19-20 depends from claim 18.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO-892.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES M FERENCE whose telephone number is (571)270-7861. The examiner can normally be reached M-F 7-4pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brian 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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JAMES M. FERENCE
Primary Examiner
Art Unit 3635
/JAMES M FERENCE/Primary Examiner, Art Unit 3635