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 .
Response to Arguments
Applicant’s arguments filed 9/22/20266 have been fully considered but are moot because the new ground of rejection does not rely on Dale as the primary reference applied in the prior art rejection of record for any teaching or matter specifically challenged in the argument.
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.
The factual inquiries 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.
Claims 1-9, 16-17, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Publication NO. 20190186158 issued to Melic.
Regarding claim 1,
Melic discloses a crash fence assembly (Melic: FIG. 1 (10)) including: first and second uprights locatable spaced from each other upstanding from the ground (Melic: FIGS. 1, 4A, 7 (44) extending from (52)) and a first fence panel extendible between the first and second uprights (Melic: FIGS. 7-7C (21) hung between (44) on hooks (42)) the first fence panel comprising one or more barrier elements configured to define a barrier between the first and second uprights (Melic: FIGS. 2-3 mesh panel (24)) a first cross-panel member configured to span between the first and second uprights (Melic: FIGS. 2, 2A (28) extending horizontally along the panel between posts) a first upstanding brace configured to be secured to the first cross-panel member at least a first span distance from the first upright to distribute impact load; and a second upstanding brace configured to be secured to the first cross-panel member at least a second span distance from the first upright to distribute impact load (Melic: FIGS. 2-3, (22) and [0080] “spaced from each other along the length of the panel assembly,” engaged with the top rail (28) and welded to the bottom rail (30) at welded to the bottom rail (30) at welding beads (38); the rods “add stability” and make the panel “stronger to withstand greater loads”) wherein the first upstanding brace has a greater stiffness than the one or more barrier elements (Melic: (22) is stiffer relative to the mesh (24)) wherein the first upstanding brace is secured to the first cross-panel member behind a rear of the barrier to brace the first cross-panel member (Melic: FIGS. 1-3 (24) sandwiched between (22) and (26)) and “the ordering of the layers may be reversed” placing (22) on the rear face of the mesh; [0080]) wherein the first span distance is such that the first upstanding brace is located between the first and second uprights (Melic: FIG. 3 (22) disposed along the panel between the posts) and wherein the crash fence assembly is configured to locate the second upstanding brace adjacent the first upstanding brace in-use, separated from the first upstanding brace(Melic: FIG. 3 (22) spaced from one another)
Melic does not appear to disclose the second span distance is at least 0.3 meters greater than the first span distance.
However, Melic teaches that the vertical rods are spaced from each other along the length of the panel and that the rods “provide the fence with the necessary strength and integrity,” (Melic: [0080]) such that the spacing of the rods is a variable recognized in the art as affecting the strength of the panel, i.e., a result-effective variable. Applicant’s own specification confirms that brace spacing is selected to achieve such a result in [0084]-[0090]. A PHOSITA sizing the panel of Melic for a given span and load selects the number and lateral spacing of the vertical rods so to limit deflection and buckling of the rails between rods. Since Melic directs that the panel be made as alight and economical as the required strength permits, a PHOSITA would have been motivated to use the fewest rods, spaced as widely as the load allows, rather than closely spaced rods, and in doing so would have arrived at rod separations on the order of the claimed open-ended range of “at least 0.3 meters” as a matter of routine optimization.
Regarding claim 2,
Melic discloses the fence assembly of claim 1, wherein the barrier is a mesh panel, and wherein the one or more barrier elements are mesh wires or expanded mesh elements (Melic: FIGS. 2-3 see [0079] (24) of chicken wire or other mesh wire)
Regarding claim 3,
Melic discloses the fence assembly of claim 1, configured to locate the first upstanding brace to extend vertically (Melic: FIG. 3 and [0080] “generally vertically extending rods (22)”)
Regarding claim 4,
Melic discloses the crash fence assembly of claim 1, comprising a second cross-panel member configured to span between the first and second uprights, and locatable at a different vertical height than the first cross-panel member. (Melic: FIGS. 2, 3D the rods (22) extend between (28) and (30))
Regarding claim 5,
Melic discloses the crash fence assembly of claim 4, wherein the first upstanding brace is configured to secure the first cross-panel member and the second cross-panel member to each other, to transfer impact load between the first and second cross-panel members. (Melic: FIGS. 2, 3D (22))
Regarding claim 6,
Melic discloses the crash fence assembly of claim 5, wherein the first upstanding brace is configured to be suspended above the ground by the first and second cross-panel members. (Melic: FIGS. 7-7C (22) carried by rails (28, 30) of panel (21) hung on posts (44) via hooks (42))
Regarding claim 7,
Melic discloses the crash fence assembly of claim 4 wherein the second upstanding brace has a greater stiffness than the or each barrier element. (Melic: FIG. 3 (22) is stiffer than (24))
Regarding claim 8,
Melic discloses the crash fence assembly of claim 7, wherein the second upstanding brace is configured to secure the first cross-panel member and the second cross-panel member to each other, to transfer impact load between the first and second cross-panel members. (Melic: FIGS 2, 3D (22) secured to (28, 30))
Regarding claim 9,
Melic discloses the crash fence assembly of claim 7 configured to locate the first and second upstanding braces to extend substantially parallel to each other in-use. (Melic: FIG. 3 (22) extend parallel to one another)
Regarding claim 16,
Melic discloses the crash fence assembly of claim 4 comprising a third cross-panel member configured to span between the first and second uprights, locatable at a different vertical height than the first and second cross-panel members. (Melic: FIGS. 2-3 (26) see [0080] “spaced from each other along the height of the panel assembly”)
Regarding claim 17,
Melic discloses the crash fence assembly of claim 16, configured to locate the first, second, and third cross-panel members to extend substantially parallel to each other in-use. (Melic: FIG. 3 (28, 30) and (26) extending horizontally and parallel to one another)
Regarding claim 20,
Melic discloses the crash fence assembly of claim 16 wherein the first upstanding brace is configured to secure the first, second, and third cross-panel members to each other, to transfer impact load between the first, second, and third cross-panel members. (Melic: FIGS. 2-3 (22, 24, 26) welded together into a panel thereby allowing impact load transfer)
Claims 13 and 14 are rejected under 35 U.S.C> 103 as being unpatentable over Melic in view of WIPO Publication No. 2010084304 issued to Dale.
Regarding claim 13,
Melic discloses the crash fence assembly of claim 4.
Melic does not appear to disclose wherein the first and second cross-panel members and the first and second uprights together are connectable via a plug-socket system configured to support the first and second cross-panel members.
However, Dale discloses wherein the first and second cross-panel members and the first and second uprights together are connectable via a plug-socket system configured to support the first and second cross-panel members. (Dale: FIGS. 3 6 see also page 5, cross bars (16) are located in L-shaped openings (30) in posts (12) and lowered, slot (32) engaging the opening to prevent lateral withdrawal)
It would have been obvious for a PHOSITA before the effective filing date of the claimed invention to connect the cross-panel members of Melic to its posts via the drop-in opening-and-slot engagement of Dale, in order to retain the cross members against lateral withdrawal and to permit the modular fence to be erected on uneven ground.
Regarding claim 14,
Melic in view of Dale discloses the crash fence assembly of claim 13, wherein the plug-socket system is configured to permit sloping of the first and second cross-panel members relative to the first and second uprights, to follow sloping ground. (Dale: see page 5 “It is to be realized that the assembly 10 can follow the ground profile, such that the cross bars 16A, B, C will not necessarily extend horizontally and may rather follow the ground profile”)
Claim 19 and 24 are rejected under 35 U.S. C. 103 as being unpatentable over Melic in view of WIPO Publication No. 2013021189 issued to Sharp.
Regarding claim 19,
Melic discloses the fence assembly of claim 16.
Melic does not appear to disclose wherein a vertical separation between the first and second cross-panel members is less than a vertical separation between the second and third cross-panel members.
However, Sharp discloses wherein a vertical separation between the first and second cross-panel members is less than a vertical separation between the second and third cross-panel members. (Sharp: page 6 “The ropes 24 may be disposed at a height of between 300 mm and 2 meters above the ground. The height position of at least some of the ropes is selected to be such that the engine of an impacting vehicle will impact them. Ropes 24 may be provided at varying heights above the ground, for absorbing energy from a range of vehicles of varying sizes.”
It would have been obvious for a PHOSITA before the effective filing date of the claimed invention to space the lower two cross-panel members of Melic closer together near vehicle bumper height, with the upper cross-panel member spaced further to capture taller vehicles, in order to improve Melic’s security fence against breach by vehicle impact.
Regarding claim 24,
Melic discloses the crash fence assembly of claim 1.
Melic does not appear to disclose wherein openings are provided in the first and second uprights, and wherein adjacent fence panels are configured to be structurally interconnected, with a load path between the adjacent fence panels extending through the openings.
However, Sharp discloses wherein openings in first/second uprights (FIG. 5B apertures in post for hooks; slot 26 at post top; tab apertures 31a in end post) and wherein adjacent fence panels are configured to be structurally interconnected (Sloan: FIG. 5B pre-tensioned ropes 24 extend through/support on successive posts and tie adjacent bays/runs together) with a load path between the adjacent fence panels extending through the openings. (Sharp: the impact load is transmitted along ropes through the post apertures/slots/tabs to adjacent portions/end terminals)
It would have been obvious for a PHOSITA before the effective filing date of the claimed invention to provide apertures in the posts of Melic and to structurally interconnect its adjacent fence panels by a continuous load-path extending through those apertures, in order to spread vehicle-impact load along the fence between adjacent panels and thereby improve the security fence of Melic against breach by ramming as taught by Sharp.
Claims 21-23 are rejected under 35 U.S.C. 103 as being unpatentable over Melic in view of U.S. Publication No. 20080308780 issued to Sloan.
Regarding claim 21,
Melic discloses the fence assembly of claim 1, wherein the barrier is in the form of a barrier panel (Melic: FIGS. 2-3 (24))
Melic does not appear to disclose wherein the first upright comprises a barrier support to attach a first side of the barrier panel to the first upright, and wherein the barrier support extends over more than 50% of an above-ground height of the first upright.
However, Sloan discloses wherein the first upright (Sloan: FIGS. 5-6 (12)) comprises a barrier support (Sloan: FIGS. 5-6 (24) welded to the post (12)) to attach a first side of the barrier panel to the first upright, (Sloan: FIGS. 5-6 (24) attaches (12) to mesh (14)) and wherein the barrier support extends over more than 50% of an above-ground height of the first upright. (Sloan: FIGS. 5-6 (14) extends more than 50% of (12))
It would have been obvious for a PHOSITA before the effective filing date of the claimed invention to mount the mesh barrier of Dale to its posts via such a continuous barrier support to resist prying or tearing of the panel away from the posts under attack or vehicle impact (Sloan: abstract, see also [0036])
Regarding claim 22,
Melic in view of Sloan discloses the crash fence assembly of claim 21, wherein the first upright comprises a further barrier support to attach a second side of a barrier panel of an adjacent fence panel to the first upright. (Sloan: FIGS. 5-6 angle (24) may be interpreted as a further barrier support since (24) has two sides that extend perpendicularly from the post (I-beam configuration) which attaches a second side of a barrier panel to an adjacent fence panel i.e. other side of post (12))
Regarding claim 23,
Melic in view of Sloan discloses the crash fence assembly of claim 21 wherein the first upright comprises a further barrier support to attach a second side of a barrier panel of an adjacent fence panel to the first upright. (Sloan: FIGS. 5-6, other side of angle (24) attaches to a second side of a barrier panel of an adjacent fence panel to the first upright)
Claims 25 is rejected under 35 U.S.C. 103 as being unpatentable over Melic in view of Great Brittan Publication No. 2450352 issued to Darlington.
Regarding claim 25,
Melic discloses the crash fence assembly of claim 1.
Melic does not appear to disclose wherein the crash fence assembly comprises a first energy absorbing member engageable against the first upright if the first cross-panel member moves from a rest position.
However, Darlington discloses wherein the crash fence assembly comprises a first energy absorbing member (Darlington: FIG. 7 (126)) engageable against the first upright if the first cross-panel member moves from a rest position. (Darlington: FIG. 7 (126) is positioned at the end column terminal interface and absorbs load transmitted into the column)
It would have been obvious for a PHOISTA before the effective filing date of the claimed invention to provide the assembly of Melic with such a resilient energy absorbing member positioned to be engaged against the post by the cross-panel member upon impact movement as taught by Darlington in order to absorb vehicle-impact energy and reduce the force transmitted into the post and foundation, thereby improving Dale’s security fence against breach and damage by vehicle impact.
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 ADAM C ORTIZ whose telephone number is (303)297-4378. The examiner can normally be reached Monday - Friday 7:30 am-3:30 pm.
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, Justin C. Mikowski can be reached at 571-272-8525. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ADAM C ORTIZ/Primary Examiner, Art Unit 3673
