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 .
Continued Examination Under 37 CFR 1.114
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 15 July 2025 has been entered.
Election/Restrictions
Claims 4, 14, 16, and 17 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 16 May 2022. Species 3b directed to figure 5 does not disclose an eyelet on a lateral edge of the container lid configured to detect or prevent the sensor from being removed from the opening of the container lid as recited in claim 4, a sealing arrangement between the container lid and the opening of the container lid as recited in claim 14, a container arrangement comprising a container including a base or a height of an upper protruding portion of the housing not exceeding an edge height of the container as recited in claim 17, or a multi-container arrangement comprising a first container including a first container lid and a first base and a second container including a second container lid and a second base or the second container being stacked on top of the first container such that an upper surface of the housing contacts a bottom surface of the second base of the second container as recited in claim 18.
Newly submitted claims 17 and 18 are directed to inventions that are independent or distinct from the invention originally claimed for the following reasons: the original presented invention and the inventions of claims 17 and 18 are related as combination and subcombination. Inventions in this relationship are distinct if it can be shown that (1) the combination as claimed does not require the particulars of the subcombination as claimed for patentability, and (2) that the subcombination has utility by itself or in other combinations (MPEP § 806.05(c)). In the instant case, the combination as claimed does not require the particulars of the subcombination as claimed for patentability because the subcombination has previously been examined and found to be unpatentable and additionally the subcombination is not found to be patentable in its current state. The subcombination has separate utility such as a paper weight for preventing sheets of paper from being displaced.
The examiner has required restriction between combination and subcombination inventions. Where applicant elects a subcombination, and claims thereto are subsequently found allowable, any claim(s) depending from or otherwise requiring all the limitations of the allowable subcombination will be examined for patentability in accordance with 37 CFR 1.104. See MPEP § 821.04(a). Applicant is advised that if any claim presented in a divisional application is anticipated by, or includes all the limitations of, a claim that is allowable in the present application, such claim may be subject to provisional statutory and/or nonstatutory double patenting rejections over the claims of the instant application.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 17 and 18 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Drawings
The drawings were received on 15 July 2025. These drawings are unacceptable. Figures 7A, 7B, and 7C are not entered because they contain new matter. The original disclosure does not provide support for at least the particular shape of the containers, the particular stacking arrangement of the containers, the upper surface of the housing contacting a bottom surface of a stacked container, the extent of which the housing extends into the container.
Specification
The amendments filed 22 January 2025, 5 June 2025, and 15 July 2025 are objected to under 35 U.S.C. 132(a) because they introduce new matter into the disclosure. 35 U.S.C. 132(a) states that no amendment shall introduce new matter into the disclosure of the invention. The added material which is not supported by the original disclosure is as follows: The added specification relating to figures 7A, 7B, and 7C introduce new matter. Figures 7A, 7B, and 7C are not seventh, eighth, and ninth examples of second containers stacked on top a container lid of a first container, as examples 1-6 do not exist. An upper surface of a housing of a sensor contacting a bottom surface of a base of a second container stacked on top of a first container finds no support in the original disclosure. Additionally, it is unclear if multiple identical paragraphs have been added between the amendments dated 22 January 2025, 5 June 2025, and 15 July 2025.
Applicant is required to cancel the new matter in the reply to this Office Action.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: securing device in claim 1.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-2, 9-10 and 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fehrenbach (US 7075480) further in view of Rowlands (WO 9221573) and Foley (US 20180194522).
Claim 1: Fehrenbach discloses a tamper-proof sensor arrangement, comprising: a radar filling level measuring device 1 (electronics unit) including: a sensor configured to be mounted on or in an opening of a cover 7 (container lid), the sensor being configured to detect a filling level (process variable); and a housing pot 2 & housing cover 3 (housing) configured to house the sensor; an internal thread 15 (fastening arrangement) extending only from an underside of the cover 7 (container lid), the internal thread 15 (fastening arrangement) configured to receive a portion of the housing pot 2 & housing cover 3 (housing) therein, wherein an upper portion of the housing pot 2 & housing cover 3 (housing) includes an angular outside contour 14, preferably in the form of a hexagon, configured to receive some tool to screw the housing pot 2 & housing cover 3 (housing) through the opening of the cover 7 (container lid) (see annotated fig. 4 below and C. 4 L. 27-31 and C. 7 L. 39-46).
Fehrenbach does not disclose a securing device configured to detect or prevent the sensor from being removed from the opening of the container lid or the upper portion of the housing including a recess configured to receive a tool therein to screw the housing through the opening of the container lid.
Rowlands teaches a top face 3 having an aperture 4, 5 with a bung 8 threaded therein and a tamper evident cap 9 (securing device in the form of a safety cover cap) contacting the upper side of the bung 8 above the aperture 4, 5 and configured to break visibly when removed, wherein the tamper evident cap 9 (securing device in the form of a safety cover cap) further provides a seal for dust, dirt and the like and restrained by a flange of aperture 4, 5 which the bung 8 is threaded into (see annotated fig. 3 below).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have provided the tamper-proof sensor arrangement of Fehrenbach to include a tamper evident cap 9 (securing device in the form of a safety cover cap) contacting the upper side of the radar filling level measuring device 1 (electronics unit) and restrained by flange 9 of a vessel nozzle 8, as taught by Rowlands, in order to provide a further seal from dust and dirt and in order to provide tamper evidence such that a user can determine if a sensor has been accessed.
Fehrenbach discloses a prior art tamper-proof sensor arrangement which differs from the claimed device in that the upper portion of the housing pot 2 & housing cover 3 (housing) includes an angular outside contour 14, preferably in the form of a hexagon, configured to receive some tool instead of a recess configured to receive a tool therein to screw the housing pot 2 & housing cover 3 (housing) through the orifice of the cover 7 (container lid). Foley discloses prior art caps 41 and 42 having respective surface feature 44 in the form of a hexagonal head and surface feature 46 in the form of a hexagonal opening (recess) extending below the top surface of the cap 42, the surface features 44 and 46 configured to engage tools to screw or unscrew the caps 41 & 42 (see fig. 3 and P. 0027). The substitution of one known element (surface feature 46 in the form of a hexagonal opening (recess) as shown in Foley) for another (angular outside contour 14 as shown in Fehrenbach) would have been obvious to one or ordinary skill in the art at the time of the invention since the substitution of the surface feature 46 in the form of a hexagonal opening (recess) in Foley would have yielded predictable results, namely, an engagement surface for a tool in Fehrenbach to facilitate screwing.
Additionally, it would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the tamper-proof sensor arrangement to replace the angular outside contour 14 with a surface feature 46 in the form of a hexagonal opening (recess) in the top surface of the housing pot 2 & housing cover 3 (housing), as taught by Foley, in order to reduce the overall size of the tamper-proof sensor arrangement.
The securing device for detecting or preventing the sensor from being removed from the opening of the container lid is/are interpreted under 35 U.S.C. 112(f) as a device on the structure with the second inner thread which is designed to prevent the housing from being unscrewed or to break visibly when the housing is unscrewed, a safety cover cap, a grub screw/clamping screw, and equivalents thereof.
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Claim 2: The combination discloses wherein the radar filling level measuring device 1 (electronics unit) further includes: a power supply unit providing electrical power supply to the radar filling level measuring device 1 (electronics unit); a RF module (communication unit); and an antenna, wherein the power supply unit, the RF module (communication unit), and the antenna are housed in the housing pot 2 & housing cover 3 (housing) (see C. 4 L. 8-12).
Claim 9: The combination discloses wherein the housing pot 2 & housing cover 3 (housing) includes a housing cover 3 (structure) extending radially outward from an upper side of the housing pot 2 & housing cover 3 (housing), the surface feature 46 in the form of a hexagonal opening (recess) being located in the housing cover 3 (structure) such that the housing cover 3 (structure) is capable of receiving the tool to screw the housing pot 2 & housing cover 3 (housing) through the orifice of the cover 7 (container lid) into the vessel nozzle (fastening arrangement) (see fig. 4).
Claim 10: The combination discloses wherein the internal thread 15 (fastening arrangement) includes an internal thread 15 (second inner thread) (see fig. 4 and C. 4 L. 27-31 and C. 7 L. 39-46).
Claim 16: The combination discloses wherein the sensor is a level sensor (see title).
Response to Arguments
The specification objections in paragraph 6 of office action dated 21 April 2025 are withdrawn in light of the amended disclosure filed 15 July 2025.
The 35 U.S.C. § 112 rejections in paragraphs 10-16 of office action dated 21 April 2025 are withdrawn in light of the amended claims filed 15 July 2025.
Applicant's arguments filed 15 July 2025 have been fully considered but they are not persuasive.
In response to applicant’s argument that support for figures 7A-7C can be found on page 10 lines 6-9 of the originally field Specification which recites “Due to the fact that the sensor can be screwed completely or almost completely into the container lid due to its shape, or does not or only slightly protrudes at the top, or is even completely integrated into the container lid, it is possible that several containers can be stacked on top of each other, for example”, such that figures 7A-7C do not add new matter but rather clarify the above sentence with specific examples, the Examiner responds that the original disclosure does not provide support for the more narrow specific examples, leading to new matter including at least the particular shape of the containers, the particular stacking arrangement of the containers, the upper surface of the housing contacting a bottom surface of a stacked container, and the extent of which the housing extends into the container.
In response to applicant’s argument that figures 7A-7C do not disclose a particular shape of the containers or a particular stacking arrangement of the containers but rather only show the possibility of the containers being stacked, the Examiner replies that the applicant themselves argue that figures 7A-7C “clarify … with specific examples”. How can the figure both not disclose a particular shape or particular stacking arrangement while also providing specific examples? The original disclosure does not provide support for the more narrow specific examples depicted in figures 7A-7C, leading to new matter including at least the particular shape of the containers, the particular stacking arrangement of the containers, the upper surface of the housing contacting a bottom surface of a stacked container, and the extent of which the housing extends into the container.
In response to applicant’s argument that the specification amendments related to figures 7A-7C do not add new matter but rather clarify the above sentence with specific examples, the Examiner responds that no support for these specific examples can be found anywhere in the original disclosure.
In response to applicant’s argument that Fehrenbach does not disclose a fastening arrangement extending only from an underside of the container lid, the fastening arrangement configured to receive a portion of the housing therein, the Examiner responds that Fehrenbach discloses an internal thread 15 (fastening arrangement) extending only from an underside of the cover 7 (container lid), the internal thread 15 (fastening arrangement) configured to receive a portion of the housing pot 2 & housing cover 3 (housing) therein (see fig. 4).
In response to applicant's argument that Rowlands does not teach or suggest the bung 8 being screwed into the top face 3, let alone the bung 8 having an upper portion thereof configured to receive a tool therein, the Examiner responds that these arguments are piecemeal as Rowlands is not relied upon for teaching an upper portion configured to receive a tool. Further, the bung 8 is threaded to internally threaded apertures 4, 5 located in the top face 3. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
In response to applicant's argument that the bung 8 and the tamper evidence cap 9 are not "a securing device" as recited in claim 1, which is specifically designed for a sensor housing, not a generic cap or bung, and must function in conjunction with the sensor and electronics unit, the Examiner responds that the securing device for detaching or preventing the sensor from being removed from the opening of the container lid is/are interpreted under 35 U.S.C. 112(f) as a device on the structure with the second inner thread which is designed to prevent the housing from being unscrewed or to break visibly when the housing is unscrewed, a safety cover cap, a grub screw/clamping screw, and equivalents thereof. The tamper evident cap 9 is a securing device in the form of a safety cover cap and therefore meets the limitation of a securing device. Additionally, the presented argument is piecemeal. The combination includes the tamper evidence cap 9 covering the tamper-proof sensor arrangement of Fehrenbach. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
In response to applicant’s argument that the bung 8 of Rowlands cannot simply be replaced with a sensor as implied by the Examiner when comparing the arrangement in Fig. 3 of Rowlands with the arrangement in Fig. 4 of Fehrenbach and even if a person skilled in the art were to replace the bung 8 of Rowlands with a device like the sensor in Fehrenbach it would not be obvious to apply the cap 9 of Rowlands with a device like the sensor in Fehrenbach, the Examiner replies that these arguments are not commensurate in scope with the rejection at hand which does not modify Rowlands in view of Fehrenbach.
In response to applicant’s argument that the sensor in Fehrenbach extends well beyond the container opening and has dimensions and a shape that could not be easily covered by a cap similar to the cap 9 of Rowlands and that the diameter of the housing portion 3 of Fehrenbach is much larger than the diameter of the receptacle nozzle 8 of Fehrenbach so that a cap placed over the sensor of Fehrenbach from above would either break if the cap was too small or would not fit over the sensor if the cap was too large, such that the cap would have to be a very special construction that could no longer be called a “cap” and would instead be called a housing, the Examiner responds that a person of ordinary skill in the art, in light of the teaching of Rowlands, would understand how to and find it obvious to include a tamper evident cap 9 (securing device in the form of a safety cover cap) contacting the upper side of the radar filling level measuring device 1 (electronics unit) and restrained by flange 9 of the vessel nozzle 8. It is proper to take account of the "inferences and creative steps that a person of ordinary skill in the art would employ." See KSR Int'l Co. v. Teleflex Inc., 550 U.S. 1727, 1731, 82 USPQ2d 1385, 1396 (2007). See also id. at 1742, 82 USPQ2d at 1397 ("A person of ordinary skill is also a person of ordinary creativity, not an automaton."). One of ordinary skill in the art is presumed to have skills apart from what the prior art references expressly disclose. In re Sovish, 769 F.2d 738, 743 (Fed. Cir. 1985).
In response to applicant’s argument that the securing device as recited in claim 1 is specifically designed for a sensor housing, not a generic cap or bung, and must function in conjunction with the sensor and electronics unit, the Examiner replies that this argument is piecemeal. The combination includes the tamper evidence cap 9 covering the tamper-proof sensor arrangement of Fehrenbach and therefore functions in conjunction with the radar filling level measuring device 1 (electronics unit). In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
In response to applicant's argument directed to Syrialahti, the Examiner responds that these are moot because the new ground of rejection does not rely on Syrialahti.
In response to applicant’s argument that in Rowlands the adapter with the thread has an angular C-shape so that the cap can engage, therefore the thread must extend from the top outside the container and that in Fehrenbach the thread must extend to the top above/outside the container in order to attach a cap, the Examiner replies that the claim requires “a fastening arrangement extending only from an underside of the container”. The claim does not require that this fastening arrangement extend only downwardly from the underside of the container.
In response to applicant’s argument that Foley does not teach or suggest the container caps 41, 42 being used with a sensor housing, nor does Foley address the unique requirements of a tamper-proof sensor arrangement as recited in claim 1, that the purpose in Foley is not to accommodate a sensor or electronics or to provide tamper resistance or process variable detection, and that recess 46 is not configured for screwing a sensor housing into a cap or for holding a tool for that purpose, rather, the recess 46 is configured for leverage, the Examiner responds that it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, Foley is reasonably pertinent to the problem of screwing/unscrewing a structure via reception of a tool. Further, the recess 46 is fully capable of holding a tool for screwing cap 42.
In response to applicant's argument that cap 41 is not part of a tamper proof security device and the cap 41 is not configured to accommodate electronics or a securing device, or to interface with an opening in a container lid in a tamper-proof manner, the Examiner responds that this argument is piecemeal as Foley is not relied upon for teaching a tamper proof security device, accommodating electronics or a securing device, or interfacing with an opening in a container lid. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
In response to applicant’s argument that the bung 8 of Rowlands would have to be provided with a structure to accommodate a tool, whereby the bung 8 could be a level sensor with a housing and the safety cap can also be adapted to the dimensions and design of the sensor, the Examiner responds that this argument is not commensurate in scope with the rejection at hand. The bung 8 of Rowlands is not part of the combination and as such would not need to be provided with a structure to accommodate a tool or be a level sensor.
In response to applicant’s argument that even if the structure for holding a tool is applied to the sensor housing the fastening arrangement must extend from the top of the container and as such neither Fehrenbach nor Rowlands can be used for the combination of features such that Foley does not cure the deficiencies of Fehrenbach and Rowlands, the Examiner replies that under a new interpretation the internal thread 15 of Fehrenbach is relied upon for meeting the claimed fastening arrangement, where the internal thread 15 begins at the underside of the cover 7 (container lid) and therefore extends only from the underside of the cover 7 (container lid) (see fig. 4).
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
In response to applicant's argument that there is no teaching, suggestion, or motivation in the prior art to combine these features in the manner claimed, the Examiner replies that “[T]he rationale to modify or combine the prior art does not have to be expressly stated in the prior art; the rationale may be expressly or impliedly contained in the prior art or it can be reasoned from knowledge generally available to one of ordinary skill in the art, established scientific principles, or legal precedent established by prior case law”. MPEP 2144 I. Additionally, regarding Foley, the Examiner responds that the combination is based on the art recognized equivalency of structures in the references and as such does not require express motivation to combine or is required to have some benefit to do so. An express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious. In reFout, 675 F.2d 297, 213 USPQ 532 (CCPA 1982).Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). Additionally, KSR has established that simple substitution of one known element for another to obtain predictable results can be used as rational. The rationale to support a conclusion that the claim would have been obvious is that the substitution of one known element for another yields predictable results to one of ordinary skill in the art. If any of these findings cannot be made, then this rationale cannot be used to support a conclusion that the claim would have been obvious to one of ordinary skill in the art. See MPEP 2143 I B.
In response to applicant's argument that there is no indication that such a combination would yield the tamper-proof sensor arrangement as recited in claim 1 and that it is respectfully submitted that taken alone or in combination, neither Fehrenbach, Rowlands, Syrjalahti, nor Foley teaches "an upper portion of the housing includ[ing] a recess configured to receive a tool therein to screw the housing through the opening of the container lid" as recited in claim 1, the Examiner replies that Foley discloses prior art caps 41 and 42 having respective surface feature 44 in the form of a hexagonal head and surface feature 46 in the form of a hexagonal opening (recess) extending below the top surface of the cap 42, the surface features 44 and 46 configured to engage tools to screw or unscrew the caps 41 & 42 (see fig. 3 and P. 0027). The substitution of one known element (surface feature 46 in the form of a hexagonal opening (recess) as shown in Foley) for another (angular outside contour 14 as shown in Fehrenbach) would have been obvious to one or ordinary skill in the art at the time of the invention since the substitution of the surface feature 46 in the form of a hexagonal opening (recess) in Foley would have yielded predictable results, namely, an engagement surface for a tool in Fehrenbach to facilitate screwing. Additionally, it would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the tamper-proof sensor arrangement to replace the angular outside contour 14 with a surface feature 46 in the form of a hexagonal opening (recess) in the top surface of the housing pot 2 & housing cover 3 (housing), as taught by Foley, in order to reduce the overall size of the tamper-proof sensor arrangement.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALLAN D STEVENS whose telephone number is (571)270-7798. The examiner can normally be reached Monday-Friday 12-8 ET.
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/ALLAN D STEVENS/Primary Examiner, Art Unit 3736