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 .
DETAILED CORRESPONDENCE
This communication is a first Office Action on the Merits. Claims 1-11, as originally filed 23 SEP. 2024, are pending and have been considered as follows:
Election/Restrictions
Applicant’s election without traverse of “Applicant elects SPECIES E, drawn to a panel having features depicted in Fig. 8. The election is made without traverse, but qualified as discussed below. Claims 1-11 are readable on SPECIES E” in the reply filed on 16 JUN. 26 is acknowledged.
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed in parent Application No. 17/427770, filed on 02 AUG. 21.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 23 SEP. 24 was filed and is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Due to the large submission, although the Examiner has identified the statement as having been considered and placed the statement in the file, Applicant is encouraged to identify any particularly relevant references and their relation to the instant invention for specific consideration.
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 §§ 706.02(l)(1) - 706.02(l)(3) 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claim 1-11 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-12 of U.S. Patent No. US 12134900 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because all of the limitations in the present case are contained within the claims of the issued patents.
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claim 1-11rejected under 35 U.S.C. 103 as being unpatentable over Lombaert et al. US 10392813 B2 (Lombaert) and Pervan US 9140010 B2 (Pervan).
As per claim 1 the primary reference of Lombaert teaches a floor panel ("panel" title) having a rectangular shape with a pair of long opposite edges extending in a length direction of said floor panel and a pair of short opposite edges extending transversely to said length direction (see FIG. 4), the floor panel comprising a core (top layer 1, substrate layer 2, FIG. 1) and a decorative layer which is applied thereon,
wherein material forming the core (top layer 1, substrate layer 2, FIG. 1) is a plastic composite comprising thermoplastic material (see “at least one of the said thermoplastic layers comprise polyvinyl chloride (PVC)” 4:18) and at least 40 weight percent of filler (“said fillers in said one or more thermoplastic layers are comprises in an amount of at least 40% by weight and preferably at least 50% by weight” 11:49),
wherein the material has a density of more than 1800 kg/m³ (“density of between 200 kg/m.sup.3 and 2500 kg/m.sup.3” 5:9);
wherein the thermoplastic material is polyvinyl chloride (see “at least one of the said thermoplastic layers comprise polyvinyl chloride (PVC)” 4:18), polypropylene, polyethylene or polyethylene terephthalate, and
wherein the floor panel is provided, on the pair of long opposite edges and on the pair of short opposite edges, with mechanical coupling parts arranged for coupling two of such floor panels to each other at respective sides (see opposite edges, FIG. 4),
an interlocking is arranged to be produced in a coupled state of two of such floor panels, at least in a direction at right angles to the respective sides and in a plane of the floor panels (see right angles, FIG. 4);
wherein the mechanical coupling parts at least on said pair of long opposite edges comprise a male coupling part and a female coupling part that cooperate with each other in said coupled state (see male and female, FIG. 3);
wherein the female coupling part is provided with a lip projecting beyond an associated top edge and wherein the lip is provided with a locking element in the form of an upright portion at a top side of the lip (see “projecting beyond” and “upright portion”, right side, FIG. 2) which can cooperate with a locking element on the bottom side of the male coupling part;
wherein in the coupled state at least horizontally active locking surfaces are produced on the locking elements (see angled mating surfaces, FIG. 3);
but fails to explicitly disclose:
said filler has a greater specific weight than the thermoplastic material
wherein the core forms a plurality of spaces on a bottom side thereof;
wherein said spaces extend in said length direction of the floor panel, wherein a first space of said plurality of spaces is proximate said male coupling part and distanced from a proximate edge of said bottom side by a first distance,
wherein a second space of said plurality of spaces is proximate said female coupling part and distanced from an edge of said bottom side opposite said proximate edge, by a second distance,
wherein said second distance is larger than the length of said lower lip and larger than said first distance.
It has been held that: “A person of ordinary skill in the art is also a person of ordinary creativity, not an automaton.” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 421, 82 USPQ2d 1385, 1395-97 (2007). “[I]n many cases a person of ordinary skill will be able to fit the teachings of multiple patents together like pieces of a puzzle.” Id. Office personnel may also take into account “the inferences and creative steps that a person of ordinary skill in the art would employ.” Id. at 418, 82, USPQ2d at 1396.
Therefore a person of ordinary skill in the art would teach said filler has a greater specific weight than the thermoplastic material, so it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the panel of Lombaert by choosing the filler to have a greater specific weight in order to enhance the mechanical properties of the floor panel, namely by increasing its strength and durability.
Pervan teaches a core of a floor panel having spaces as claimed, specifically:
wherein the core forms a plurality of spaces (“grooves spaced horizontally and inwardly from the locking system at one pair of opposite edge” Cl. 2; see also FIG. 6d) on a bottom side thereof;
wherein said spaces (“grooves spaced horizontally and inwardly from the locking system at one pair of opposite edge” Cl. 2; see also FIG. 6d) extend in said length direction of the floor panel, wherein a first space of said plurality of spaces (“grooves spaced horizontally and inwardly from the locking system at one pair of opposite edge” Cl. 2; see also FIG. 6d) is proximate said male coupling part and distanced from a proximate edge of said bottom side by a first distance,
wherein a second space of said plurality of spaces (“grooves spaced horizontally and inwardly from the locking system at one pair of opposite edge” Cl. 2; see also FIG. 6d) is proximate said female coupling part and distanced from an edge of said bottom side opposite said proximate edge, by a second distance,
wherein said second distance is larger than the length of said lower lip and larger than said first distance (see “a groove length GL which is smaller than the distance between the locking systems at opposite short edges” 7:49).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the assembly of Lombaert by including the grooves and cork covering layer as taught by Pervan in order to lighten the panel and reduce noise..
As per claim 2 Lombaert in view of Pervan teaches the limitations according to claim 1, and Pervan further discloses the plurality of spaces (FIG. 6d) have a depth such that they all remain at a level completely below the top side of the lower lip. It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the assembly of Lombaert in view of Pervan by including the shallow spaces as taught by Pervan in order to maintain the integrity of the panel, as deep grooves would unnecessarily stress the top layer.
As per claim 3 Lombaert in view of Pervan teaches the limitations according to claim 1, and Lombaert further discloses wherein the decorative layer comprises a printed thermoplastic film showing a pattern and a thermoplastic plastic layer situated on top of the pattern (see “decor or decor layer with print layer may consist of a printed plastic film with a thickness ranging between 0.1 mm and 1.0” 3:52 and “said wear layer is provided on said décor” 12:5).
As per claim 4 Lombaert in view of Pervan teaches the limitations according to claim 1, and Lombaert further discloses the thermoplastic material is polyvinylchloride having a plasticizer content of 5phr or less or even without plasticizer (see “plasticizers are comprised between 0 and 5% by weight” 11:34).
As per claim 5 Lombaert in view of Pervan teaches the limitations according to claim 1, and Pervan further discloses the spaces (“grooves spaced horizontally and inwardly from the locking system at one pair of opposite edge” Cl. 2; see also FIG. 6d) result in a weight reduction of the core of at least 15% (see “This may result in a material saving and weight reduction of about 15%” 7:59-65). It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the assembly of Lombaert in view of Pervan by including the shallow spaces as taught by Pervan in to reduce weight by the specifically claimed amount.
As per claim 6 Lombaert in view of Pervan teaches the limitations according to claim 1, and Pervan further discloses wherein a cork layer or a synthetic foam layer is provided on the bottom side of the core , bridging said plurality of spaces (“separate covering layer 23 for example a paper, a plastic foil, foam, cork or a wood veneer. This may be used to hide the [grooves]” 8:42) It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the assembly of Lombaert in view of Pervan by including the shallow spaces as taught by Pervan in to reduce weight by the specifically claimed amount.
As per claim 7 Lombaert in view of Pervan teaches the limitations according to claim 1, and Pervan further discloses the plurality of spaces (“grooves spaced horizontally and inwardly from the locking system at one pair of opposite edge” Cl. 2; see also FIG. 6d) extend in said length direction such that said mechanical coupling parts at said short opposite edges are at least partially retained (see coupling parts, FIG. 6d). It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the assembly of Lombaert in view of Pervan by including the shallow spaces as taught by Pervan in a way which doesn’t compromise the locking parts in order to reduce weight while maintaining the structural integrity.
As per claim 8 Lombaert in view of Pervan teaches the limitations according to claim 1, and Pervan further discloses wherein the mean depth of said plurality of spaces (“grooves spaced horizontally and inwardly from the locking system at one pair of opposite edge” Cl. 2; see also FIG. 6d) is less than about half the thickness of the core (see FIG. 6d). It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the assembly of Lombaert in view of Pervan by including the shallow spaces as taught by Pervan at a practical depth —namely a depth which doesn’t extend halfway into the panel— to reduce the weight of the panel without risking fracture of the panel.
As per claim 9-11 Lombaert in view of Pervan teaches the limitations according to claim 1, but fails to explicitly disclose:
(Cl. 9) wherein two adjacent spaces of said plurality of spaces are separated by a third distance, wherein said third distance is smaller than said first distance and smaller than said second distance;
(Cl. 10) said third distance is smaller than a thickness of said core; and
(Cl. 11) said second distance is larger than a thickness of said core.
Where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device. Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).
It would have been obvious to one of ordinary skill in the art at the time of filing to modify the assembly of Lombaert in view of Pervan by making the spacing between grooves be any ratio —including “separated by a third distance” which is “smaller than a thickness of said core” and a “second distance is larger than a thickness of said core”— in order to provide a specific reduction in weight and because changes in size/proportion do not constitute a patentable difference.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
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US 7678466 B2 to Nam teaches flooring of synthetic resin, polyvinyl chloride (PVC), polyethylene (PE), polypropylene (PP), polyethylene terephthalate (PET), glycol-modified polyethylene terephthalate (PETG), high-impact polystyrene (HIPS), acrylonitrile-butadiene-styrene (ABS), polyurethane (PU), styrene-butadiene-styrene (SBS) block copolymer, styrene-ethylene-butylene-styrene (SEBS) block copolymer, syndiotactic polystyrene (SPS), or styrene-ethylene-propylene-styrene (SEPS) block copolymer.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSEPH J SADLON whose telephone number is (571)270-5730. The examiner can normally be reached on M-F 8AM-5PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, BRIAN D MATTEI can be reached on (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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/JJS/
/ANNA M MOMPER/Supervisory Patent Examiner, Art Unit 3619
Prosecution Insights