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 Objections
Claims 1, 6, 9, 14, 18 and 20 are objected to because of the following informalities:
In claim 1, line 2 and line 3, “A” should be changed to “a”.
In claim 6, line 2, “and” should be changed to “to”.
In claim 9, line 2, “and” should be changed to “to”.
In claim 14, line 2, “the method” should be inserted after the comma.
In claim 14, line 3, “Providing” should be changed to “providing”.
In claim 14, line 3, “wooded” should be changed to “wooden”.
In claim 14, line 4, “wooded” should be changed to “wooden”.
In claim 14, line 6, “Driving” should be changed to “driving”.
In claim 14, line 6, “wooded” should be changed to “wooden”.
In claim 14, line 8, “Staking” should be changed to “staking”.
In claim 18, line 3, the first instance of “and” should be changed to “to”.
In claim 20, line 3, the first instance of “and” should be changed to “to”.
Appropriate correction is required.
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 14 and 15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 11-13 of copending Application No. 18/899,476 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claims 11-13 of the reference application include all of the limitations of claims 14 and 15 of the instant application except that the geotextile is nonwoven. Nonwoven geotextiles are notoriously well known in the art. It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to use a nonwoven geotextile because 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.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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.
Claims 14 and 15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Singleton (US 2023/0035252).
Regarding claim 14, Singleton discloses a trenchless method of installing a silt fence for erosion, sediment and pollution control, comprising the steps of: providing a silt fence bundle (e.g. 100, paragraph 0048) comprising a plurality of spaced wooded or metal stakes (e.g. 111, paragraph 0042) and a nonwoven geotextile silt fence fabric (e.g. 110, paragraph 0069) coupled to the spaced wooded or metal stakes (e.g. paragraph 0042) and including an integral ground engaging apron (e.g. 114 or 116, paragraphs 0040 and 0048, Fig.’s 3 and 4); driving the plurality of spaced wooded or metal stakes into the ground until the integral ground engaging apron is flush with the ground (e.g. paragraph 0053, Fig. 4); and staking the ground engaging apron to the ground with staking elements (e.g. 142, paragraphs 0053 and 0064, Fig. 4).
Regarding claim 15, Singleton further discloses that the staking elements include staples (e.g. paragraph 0064) and wherein the staples include a row of staples at a leading end of the apron located at a distal end of the fabric (e.g. Fig.’s 4 and 6).
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.
Claims 1-5 and 10-13 are rejected under 35 U.S.C. 103 as being unpatentable over Baer et al (US 2014/0066872) in view of Schaaf (US 2019/0352867).
Regarding claim 1, Baer discloses a silt fence comprising: a nonwoven needle punched geotextile (e.g. claims 1, 14 and 20, and paragraph 0015) including a combination of a synthetic fiber blend (e.g. thermoplastic fibers, claim 16, and paragraph 0031) and natural fibers (e.g. bast fibers, claim 3, and paragraph 0028), wherein the synthetic fiber blend includes a blend of polypropylene fibers and polyester fibers (e.g. paragraph 0014). Baer does not explicitly disclose that the polyester fibers are high tenacity polyester fibers. It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to use high tenacity polyester fibers for the polyester fibers of Baer because 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, and the high tenacity polyester fibers would provide the expected benefit of increased strength and durability. Baer also does not disclose a plurality of spaced stakes. Schaaf teaches a silt fence (e.g. 100, Fig. 1A, claim 1) comprising: a plurality of spaced stakes (e.g. 140, Fig. 1, claim 1); and a nonwoven geotextile (e.g. paragraphs 0021-0022). It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to add stakes as taught by Schaaf to the geotextile of Baer for the expected benefit of supporting the geotextile and enabling the geotextile to be used as a silt fence.
Regarding claim 2, the combination of Baer and Schaaf further discloses that the natural fibers of the geotextile include at least one of kenaf, jute, hemp, lyocell, cotton, sisal, abaca, coir, flax and ramie (e.g. Baer, claim 3 and paragraph 0028).
Regarding claim 3, the combination of Baer and Schaaf further discloses that the natural fibers of the geotextile are in a natural fiber blend that includes at least two of kenaf, jute, hemp, lyocell, cotton, sisal, abaca, coir, flax and ramie (e.g. Baer, claim 3 and paragraph 0028).
Regarding claim 4, the combination of Baer and Schaaf further discloses that the natural fiber blend of the geotextile includes at least kenaf and jute (e.g. Baer, claim 3 and paragraph 0028).
Regarding claim 5, the combination of Baer and Schaaf does not explicitly disclose about a 1 to 1 ratio of kenaf to jute by weight. It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to contrive any number of desirable ranges for the ratio limitation disclosed by Applicant, 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. Further, Applicant has not disclosed that this ratio provides an advantage, is used for a particular purpose, or solves a stated problem. Finally, a 1 to 1 ratio would provide the expected benefit of equally maximizing the advantages from each material.
Regarding claim 10, the combination of Baer and Schaaf further discloses that the natural fibers forms at least 40% of the geotextile by volume (e.g. Baer, claim 1 and paragraph 0026 wherein the natural fibers are the majority of fibers and must therefore be greater than 50% by volume). The combination of Baer and Schaaf does not explicitly disclose that the synthetic fiber blend forms at least 40% of the geotextile by volume. It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to contrive any number of desirable ranges for the percentage limitation disclosed by Applicant, 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. Further, Applicant has not disclosed that this percentage provides an advantage, is used for a particular purpose, or solves a stated problem.
Regarding claim 11, the combination of Baer and Schaaf further discloses that the geotextile exhibits a dynamic apparent opening size under load (e.g. a nonwoven geotextile must have openings and therefore a dynamic apparent opening size under load).
Regarding claim 12, the combination of Baer and Schaaf further discloses that the nonwoven needle punched geotextile is compressible within slit trench installations wherein the compression limits vertical water transmissivity by at least 50% (e.g. a geotextile must be compressible and will limit vertical water transmissivity by at least 50% at some magnitude of compression based on the openings of the geotextile being limited).
Regarding claim 13, Baer does not explicitly disclose a reinforcing belt or a tensioning drawstring. Schaaf further teaches a reinforcing belt at a top of the geotextile (e.g. 115, Fig. 2A, paragraph 0024) and a tensioning drawstring within the reinforcing belt at a top of the geotextile (e.g. 116, Fig. 2A, paragraph 0024). It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to add a tensioning drawstring within a reinforcing belt as taught by Schaaf to the top of the geotextile of Baer for the expected benefit of supporting the geotextile between stakes, thereby strengthening and stabilizing the silt fence.
Claims 16 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Baer et al (US 2016/0201239), hereinafter referred to as Baer ‘239, alone.
Regarding claim 16, Baer ‘239 discloses a nonwoven needle punched geotextile (e.g. claim 1) comprising at least 40% by volume of a synthetic fiber blend including a blend of polypropylene fibers and polyester fibers (e.g. 40-60%, claim 2, paragraph 0034); and at least 40% by volume of a natural fiber blend that includes at least two of kenaf, jute, hemp, lyocell, cotton, sisal, abaca, coir, flax and ramie (e.g. 40-60%, claim 8, paragraphs 0021-0022). Baer ‘239 does not explicitly disclose that the polyester fibers are high tenacity polyester fibers. It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to use high tenacity polyester fibers for the polyester fibers of Baer ‘239 because 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, and the high tenacity polyester fibers would provide the expected benefit of increased strength and durability. Examiner notes that the recitation “needle punched” has not been given patentable weight because the recitation occurs in the preamble. A preamble is generally not accorded any patentable weight where it merely recites the purpose of a process or the intended use of a structure, and where the body of the claim does not depend on the preamble for completeness but, instead, the process steps or structural limitations are able to stand alone. Further, “needle punched” is considered a product-by-process limitation. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. Therefore the needle punched geotextile is not considered patentable over the entangled geotextile of Baer ‘239 because the end product is the same.
Regarding claim 17, Baer ‘239 further discloses that the natural fiber blend of the geotextile includes at least kenaf and jute (e.g. claim 8, paragraph 0021), but does not explicitly disclose about a 1 to 1 ratio of kenaf to jute by weight. It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to contrive any number of desirable ranges for the ratio limitation disclosed by Applicant, 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. Further, Applicant has not disclosed that this ratio provides an advantage, is used for a particular purpose, or solves a stated problem. Finally, a 1 to 1 ratio would provide the expected benefit of equally maximizing the advantages from each material.
Allowable Subject Matter
Claims 6-9 and 18-20 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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STACY N LAWSON whose telephone number is (571)270-7515. The examiner can normally be reached Mon-Fri 9am-3pm.
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/S.N.L./Examiner, Art Unit 3678
/AMBER R ANDERSON/Supervisory Patent Examiner, Art Unit 3678