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 .
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 3/25/2026 has been entered. Claims 1-9, 11-20, and 23-30 are pending in the application.
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.
Claims 9, 11-15, and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Richardson et al. (US 2010/0230861).
Re Clms 9 and 26: Richardson et al. disclose a sustainable traffic barrier (paragraph 002; barriers known to be made of crumb rubber) comprising: a waste material comprising rubber crumb (as disclosed in paragraph 0029); and a binder (as disclosed in paragraph 0029) mixed with the waste material and configured to bind the waste material into the sustainable traffic barrier.
Richardson et al. fail to explicitly disclose wherein the sustainable traffic barrier comprises at least 96% by weight of the crumb rubber (or at least 98% per claim 26). Richardson et al., however, does note one embodiment as having approximately 95% crumb rubber to 5% binder based on weight, and that other embodiments “may include different ratios of rubber and binder” (paragraph 0029). Examiner notes that it would have been obvious to one having ordinary skill in the art before the effective filing date of the present invention to have modified the rubber crumb percentage by weight to be at least 96% (or per clm 26, at least 98%), since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 167 F.2d 272, 205 USPQ 215 (CCPA 1980).
Re Clm 12: Richardson et al. as modified above fail to disclose a mass of approximately 400 kilograms. It is known that routine experimentation and design choices could have been used to adjust the size and shape of the barrier according to a user's needs. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955). Accordingly, it would have been obvious to one having ordinary skill in the art before the effective filing date of the present invention to have provided a barrier having a mass of approximately 400 kilograms in order to provide a barrier massive enough to effectively absorb an impact from a vehicle.
Re Clm 13: Richardson et al. as modified above fail to disclose a length of approximately 1.83 meters. It is known that routine experimentation and design choices could have been used to adjust the size and shape of the barrier according to a user's needs. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955). Accordingly, it would have been obvious to one having ordinary skill in the art before the effective filing date of the present invention to have provided a barrier having a length of approximately 1.83 meters in order to provide a barrier large enough to effectively absorb an impact from a vehicle.
Re Clm 14: Richardson et al. as modified above fail to disclose a sustainable barrier height of 810 millimeters. It is known that routine experimentation and design choices could have been used to adjust the size and shape of the barrier according to a user's needs. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955). Accordingly, it would have been obvious to one having ordinary skill in the art before the effective filing date of the present invention to have provided a barrier having a height of 810 millimeters in order to provide a barrier large enough to effectively absorb an impact from a vehicle.
Re Clm 15: Richardson et al. as modified above fail to disclose a bottom width of 610 millimeters. It is known that routine experimentation and design choices could have been used to adjust the size and shape of the barrier according to a user's needs. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955). Accordingly, it would have been obvious to one having ordinary skill in the art before the effective filing date of the present invention to have provided a barrier having a width of 610 millimeters in order to provide a barrier large enough to effectively absorb an impact from a vehicle.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Richardson et al. (US 2010/0230861), as applied to claims 9, 12-15, and 26 above, and further in view of CA 2179145, hereafter ‘145.
Re Clm 11: Richardson et al. fail to disclose wherein the binder comprises a polyurethane binder.
‘145 teaches the use of a sustainable barrier made up of a waste material of crumb rubber and a binder, wherein the binder is a polyurethane binder (Page 7, In 5-7: 'The low viscosity binder preferably comprises a two part liquid polymer, comprising a polyurethane prepolymer and a liquid cross-linking agent.’). This is taught for the purpose of providing a binder to permit the material to be pumped after mixing and compressed in molds, and be cured at atmospheric pressure, low cost and ready availability (see page 7).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the present invention to have provided the binder of Richardson et al. to be a polyurethane binder, as taught by ‘145 with a reasonable expectation of success, for the purpose of providing a binder to permit the material to be pumped after mixing and compressed in molds, and be cured at atmospheric pressure, low cost and ready availability.
Allowable Subject Matter
Claims 1-8, 16-20, 23-25, and 27-30 allowed. The following is an examiner’s statement of reasons for allowance:
The prior art does not anticipate all the limitations of independent claims 1, 16, and 27.
The prior art does not provide any teaching, suggestion or motivation (TSM) to modify the prior art as such other than Applicant's own disclosure.
Examiner notes that Applicant’s arguments pertaining to these claims are found persuasive.
There is no cogent reasoning that is unequivocally independent of hindsight that would have led one of ordinary skill in the art at the time the invention was made to modify the prior art to obtain the applicant’s invention.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Response to Arguments
Re independent claim 9: Applicant's arguments filed 3/25/2026 have been fully considered but they are not persuasive. Applicant continues to argue that acoustic barriers and speed bumps (as disclosed by Richardson et al.) are not considered traffic barriers. Examiner disagrees and notes that sound barriers are commonly found along roadways to provide a traffic barrier. Applicant further notes that Richardson et al. only provide for approximately 95% crumb rubber by weight. Examiner notes that it would have been obvious to one having ordinary skill in the art to increase the 95% crumb rubber by one percent to read on the claim requirement of at least 96%.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JONATHAN PETER MASINICK whose telephone number is (571)270-3060. The examiner can normally be reached Monday-Friday 8a-5p EST.
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/JONATHAN P MASINICK/ Primary Examiner, Art Unit 3678
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