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 § 112
Claim 15 is 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.
In claim 15, line 1 “a ratio of the key to the keyway” in clear because the key and keyways don’t have clearly defined numerical values. It appears that applicant is referring to lengths of the key and keyway along a common axis that corresponds to the lengthwise dimension of the weldment, but that is not clearly defined in the claim.
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-25 of U.S. Patent No. 11,254,359. Although the claims at issue are not identical, they are not patentably distinct from each other because all of the presently claimed features were recited in the earlier patented case.
Claim Rejections - 35 USC § 103
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 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, 9, 11, 12, and 15-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Colvard (PGPub 2003/0072613) in view of Zhang (USPN 10,710,631).
Regarding claims 1 and 17, Colvard teaches a paving machine (paving apparatus 10; Figure 1) comprising: a frame 12 including a slip-form (para [0002], lines 3-5) for moving in a first direction of travel for forming a material (concrete) into shape and having a leg assembly 14, 16, comprising: a guide tube 38 including a lower flange (the flange is shown at the lower end of guide tube 38, in Figure 4; the flange is fixed to the frame and collars 46, 48, are connected to the guide tube at the flange); a power drive (hydraulic cylinder 42) coupled to the lower flange (at least through frame 12); a steering ring 46 coupled to the power drive, the steering ring including square opening; a tube weldment 34 including: a square tubular cross section, wherein the square opening receives the square cross section, wherein the power drive is configured to rotate the tube weldment 34 relative to the guide tube 38 by rotating the steering ring 46 which translates such rotation to the tube weldment 24 by the square cross section and square opening; and a yoke 132, wherein the yoke is disposed outside the guide tube (Figure 2A); and a hydraulic actuator 44 (Figure 4; para [0021) including a first end and a second end, the first end of the hydraulic actuator coupled to the guide tube 38, the second end of the hydraulic actuator coupled to the tube weldment 34, wherein the hydraulic actuator is configured to actuate to linearly translate the tube weldment relative to the guide tube, wherein the square tube translated along the square opening when the tube weldment linearly translates relative to the guide tube.
Colvard teaches a linear guide between the weldment and the guide tube in the form of a square cross section rather than a key and keyway.
Zhang teaches a paving machine having a linearly movable weldment 20 having a keyway that translated within a guide tube 2 that has a key that interacts with the keyway to restrict the weldment and guide tube to linear relative movement without relative rotation.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to configure the weldment and guide tube of Colvard with a keyway and key rather than the square weldment in a square guide tube, in view of Zhang, with a reasonable expectation of success, in order to provide substantially the same result with a known equivalent structure.
Regarding claim 2, the tube weldment 20 taught by Zhang includes a cylindrical tube, wherein at least a portion of the cylindrical tube is within the guide tube 2 (Figure 5), wherein the keyway is disposed along a length of the cylindrical tube, wherein the yoke (yoke, shown in Figure 2 bracketing track 17) is coupled to a bottom of the cylindrical tube.
Regarding claim 9, Colvard teaches the power drive is a hydraulic steering cylinder 42, wherein the hydraulic steering cylinder includes a steering arm 12 (Figure 2A) and a hydraulic actuator 42, wherein the steering arm is coupled to the lower flange, wherein the hydraulic actuator is coupled between the steering arm and the steering ring 46, 48 (Figure 2A).
Regarding claim 11, the yoke 36 of Colvard defines a u-shaped channel by which the yoke is configured to couple with a crawler assembly 15 (Figure 2B).
Regarding claim 12, the steering ring of Colvard includes a cylindrical collar 46, 48, including a first surface defining an outside diameter and a second surface defining an inside diameter; wherein the cylindrical collar includes a square-shaped inset, equivalent to the key of Zhang, into the second surface; Zhang teaches the key 18 is coupled to the key-seat(Figure 5 of Zhang), wherein the key includes a first face and a second face opposite the first face, wherein the first face and the second face extend beyond the key-seat such that the key is configured to translate rotational movements of the cylindrical collar to the keyway in weldment 20.
Regarding claim 15, it is not entirely clear if a ratio of the length of key to the length of keyway is at least one to six, however, Zhang shows a keyway in Figure 2 that extends to the yoke and Figure 5 of Zhang shows the key 18 to be at least a sixth of the length of the keyway. Therefore, that feature is not believed to be a patentable distinction.
Regarding claim 16, the keyway of the combination is configured to translate through an inner diameter of the power drive (at the collar) when the tube weldment linearly translates relative to the guide tube.
Regarding claim 18, a crawler assembly (both driven references teach crawlers) coupled to the yoke, the crawler assembly including a track drive for propelling the frame in the first direction.
Regarding claim 19, Colvard lacks a pivot arm. However, Zhang teaches a pivot arm 8 pivotably connecting the leg assembly to the frame 1 (Figures 1 and 2), wherein the guide tube 2 further includes at least one mounting flange, wherein the guide tube is coupled with the pivot arm by the at least one mounting flange (Figure 2).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the leg assemblies of Colvard with pivot arms, in view of Zhang, with a reasonable expectation of success, in order to move the track laterally relative to the vehicle frame, thereby adjusting the wheelbase of the vehicle as needed.
Regarding claim 20, both references teach a power supply connected to at least the hydraulic actuator and the power drive for supplying power to the hydraulic actuator and the power drive.
Claim(s) 13 is is/are rejected under 35 U.S.C. 103 as being unpatentable over Colvard and Zhang as applied to claims 1-2, 9, 11, 12, and 15-20 above, and further in view of Detwiler (USPN 3,250,553).
The combination lacks the steering ring including a wear pad interfacing between the first face of the key and the keyway; and a retainer configured to detachably attach to the cylindrical collar, wherein the retainer is configured to retain the wear pad when the retainer is attached to the cylindrical collar.
However, it is old and well known to provide a bushing, bearing or wear pad between relatively sliding members to reduce friction and provide a replaceable part when wear does occur. Detwiler teaches a wear pad 25 positioned to interface between a key and keyway of telescoping members that is held in place by the retainer that secures the key in place on outer tube 13.
It would have been obvious to one of ordinary skill in the art to provide a wear pad to interface
between the key and keyway, as taught by Detwiler, in order to reduce friction between the key and
keyway and to provide a replaceable part when wear occurs.
Allowable Subject Matter
Claims 3-8, 10, and 14 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
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Wulf is applicant’s earlier patented case.
Barnes teaches an extendable and rotational leg assembly.
Pedersen teaches a support leg roatable using a slew ring.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Anne Marie M. Boehler whose telephone number is (571)272-6641. The examiner can normally be reached Monday-Friday, 8-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Valentin Neacsu can be reached at 571-272-6265. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANNE MARIE M BOEHLER/Primary Examiner, Art Unit 3611
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