July 10, 2003 

Refer to: HSA-10/B-113 

Mr. Peter J. Connors 

President 

REMCON Plastics Incorporated 

208 Chestnut Street 

Reading, Pennsylvania 19602-1809 

Dear Mr. Connors: 

In your February 13 letter to Mr. Richard Powers of my staff, you requested formal Federal 

Highway Administration (FHWA) acceptance of a water-filled plastic barrier called the 

Guardsafe. You noted that this barrier and its external “coupling kit” were very similar to other 

products that have been accepted for use on the National Highway System (NHS). You further 

stated that the primary difference in your product was the design of the internal baffles, intended 

to reduce barrier deformation when the individual segments are filled with water. You also 

advised that although a similar coupling had been tested by others and was patented, the 

modified coupling that you are proposing to use was neither tested nor patented. The Guardsafe 

units are molded from low-density polyethylene and have a minimum wall thickness of 

0.25 inch. The general dimensions of the Guardsafe and its coupling kit are shown in the 

enclosures to this letter. 

In subsequent meetings with members of my staff, you were advised of their concern with your 

request: there remains the question of whether or not the Guardsafe itself or its pipe coupling kit 

infringes on existing patents. On this issue, you were advised that FHWA acceptance letters 

address only the crashworthiness of a proposed device and we are neither prepared nor required 

to become involved in issues concerning patent law. The parties to the dispute must resolve any 

such issues when they arise. This concern is leading to the development of a policy that will, in 

the future, likely require physical testing for any new product for which the manufacturer claims 

“equivalency” with a device that was originally accepted based on successful testing funded by 

others. 

Because your request was made prior to adoption of the new policy, I will consider the 

Guardsafe with the pipe couplers described above and shown in the enclosures, to be acceptable 

for use on the NHS as a TL-2 temporary traffic barrier as you requested, when this use is 

approved by the 
2

contracting authority. If you wish to have the Guardsafe listed as a TL-3 barrier, you must test it 

as such and submit the results of that testing to my office for formal acceptance. Please note that 

this acceptance is only for the use of the Guardsafe as a barrier with the coupling kit installed 

and does not imply that it is acceptable for use as a barricade without the kit, either installed in a 

continuous line or used as stand-alone, unconnected units. Its use as a barricade will require 

testing to verify its crashworthiness. Please be aware also that if at a future date you are found in 

violation of existing patents with the Guardsafe, this acceptance letter may be withdrawn. 

Please note the following standard provisions that apply to FHWA letters of acceptance:

• Our acceptance is limited to the crashworthiness characteristics of the devices and does 

not cover their structural features, nor conformity with the Manual on Uniform Traffic 

Control Devices.

• Any changes that may adversely influence the crashworthiness of the device will require 

a new acceptance letter.

• Should the FHWA discover that in-service performance reveals unacceptable safety 

problems, or that the device being marketed is significantly different from the version 

that was accepted, it reserves the right to modify or revoke its acceptance.

• You will be expected to supply potential users with sufficient information on design and 

installation requirements to ensure proper performance.

• You will be expected to certify to potential users that the hardware furnished has 

essentially the same chemistry, mechanical properties, and geometry as that submitted for 

acceptance.

• To prevent misunderstanding by others, this letter of acceptance, designated as number 

B-113 shall not be reproduced except in full. This letter, and the information upon which 

this letter is based, is public information. All such letters and documentation may be 

reviewed at our office upon request. 

• The Guardsafe may include patented components and if so is considered "proprietary." 

The use of proprietary work zone traffic control devices in Federal-aid projects is 

generally of a temporary nature. They are selected by the contractor for use as needed 

and removed upon completion of the project. Under such conditions they can be 

presumed to meet requirement "a" given below for the use of proprietary products on 

Federal-aid projects. On the other hand, if proprietary devices are specified for use on 

Federal-aid projects, except exempt, non-NHS projects, they: (a) must be supplied 

through competitive bidding with equally suitable unpatented items; (b) the highway 

agency must 

certify that they are essential for synchronization with existing highway facilities or that 

no equally suitable alternative exists or; (c) they must be used for research or for a 

distinctive type of construction on relatively short sections of road for experimental 
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purposes. Our regulations concerning proprietary products are contained in Title 23, 

Code of Federal Regulations, Section 635.411, a copy of which is enclosed. 

Sincerely yours, 

 (original signed by Michael S. Griffith) 

 

Michael S. Griffith 

 Acting Director, Office of Safety Design 

 Office of Safety 

2 Enclosures