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 .
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 18 and 19 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 18 sets forth the tillage shank assembly further comprising "a second non-soil cutting shin;" in lines 1-4, and claim 19 sets forth further limitations of the second non-soil cutting shin. However, the original disclosure fails to set forth a tillage shank assembly having first and second non-soil cutting shins. Rather, the specification sets forth the claimed features of "a second non-soil cutting shin" as being of a second side (e.g., 2300) of a single shin. See Specification, paras. 0094-0101 and 0138. As such, limitations of "a second non-soil cutting shin" are new matter. Therefore, claims 18 and 19 are rejected under 35 U.S.C. 112(a).
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 19, 21, and 26 are 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.
Claim 19 recites the limitation "The tillage shank assembly as claimed in claim 16," in line 1. There is insufficient antecedent basis for this limitation in the claim since claim 16 has been cancelled. Claim 19 is being examined as though it depends from claim 18.
Claim 21 recites "wherein said modified side plate extension portion being configured to cover, at all operating depths of the tillage shank, a first side tillage shank portion, the first side tillage shank portion being all portions of the first side of the tillage shank below the soil line at all operating depths of the tillage shank and a portion of the first side of the tillage shank above the soil line at all operating depths of the tillage shank." However, claim 20 (from which claim 21 depends) recites "said modified side plate extension portion being configured to cover, at all operating depths of the tillage shank, a first side tillage shank portion, the first side tillage shank portion being all portions of the first side of the tillage shank below the soil line and a portion of the first side of the tillage shank above the soil line." It is unclear how the additional recitations of "at all operating depths of the tillage shank" further limit the claimed side plate of claim 21 from that of claim 20 since claim 20 already recites that "said modified side plate extension portion being configured to cover, at all operating depths of the tillage shank..." Thus, the metes and bounds of the claimed side plate of claim 21 cannot be determined, particularly relative to that of claim 20. Therefore, claim 21 is indefinite and rejected under 35 U.S.C. 112(b).
Similar to claim 21, claim 26 sets forth the same limitations of side plate extension coverage as in claim 25 (from which claim 26 depends) with additional recitations of "at all operating depths of the tillage shank." It is unclear how the additional recitations of "at all operating depths of the tillage shank" further limit the claimed tillage shank assembly of claim 26 from that of claim 25 since claim 25 already recites that "said first modified side plate extension portion covering, at all operating depths of the tillage shank..." and "said second modified side plate extension portion covering, at all operating depths of the tillage shank..." Thus, the metes and bounds of the claimed tillage shank assembly of claim 26 cannot be determined, particularly relative to that of claim 25. Therefore, claim 26 is indefinite and rejected under 35 U.S.C. 112(b).
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 21 and 26 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claims 21 and 26 repeat subject matter set forth in the claims from which they depend (i.e., claims 20 and 25, respectively) with additional recitations of "at all operating depths of the tillage shank." However, each of claims 20 and 25 already includes a recitation of "at all operating depths of the tillage shank" such that the additional recitations in claims 21 and 26 do not appear to meaningfully further limit the claimed subject matter. Therefore, claims 21 and 26 are rejected under 35 U.S.C. 112(d). Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 20-30 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ankenman (US 7,866,270).
Regarding claims 20 and 21, Ankenman discloses a side plate (58) configured for a tillage shank (such as that including 24) and to dampen abrasive forces from soil flow, the tillage shank having a point (such as that including or of 44) on a forward edge (28) of the tillage shank, a first side (32), a second side (34), and a point base (such as 42) on a bottom edge of the tillage shank, the tillage shank having a multitude of operating depths (as defined by use; see annotated Fig. A, below), comprising:
a modified side plate extension portion (lower portion of 58, including that abutting 44) having a modified side plate extension portion front edge, said modified side plate extension portion being configured to dampen abrasive force from soil flow (as set forth in col. 3, lines 51-56 and col. 5, lines 3-8);
said modified side plate extension portion front edge (of 58) being configured to abut a rear edge of the point (including or of 44) on the forward edge (28) of the tillage shank (see Fig. 2); said modified side plate extension portion front edge being configured to abut, at all operating depths of the tillage shank, the rear edge from the point base on the bottom edge of the tillage shank to above a soil line (operating depths as defined by use, wherein the tillage shank is only operated at shallow depths such that said modified side plate extension portion front edge abuts, at all operating depths of the tillage shank, the rear edge from the point base on the bottom edge of the tillage shank to above the soil line; see annotated Fig. A, below);
an attachment portion (upper portion including that about opening for 72) having an attachment portion front edge, said attachment portion being configured such that said attachment portion front edge does not abut the rear edge of the point on the forward edge of the tillage shank above the soil line;
a projection (including 74 or 78) configured to engage the point base on the bottom edge of the tillage shank;
a slot (between 74 and 78) configured to engage the point base on the bottom edge of the tillage shank; and
an opening (for 72) configured to receive a transverse bolt when attaching the side plate to the tillage shank;
said modified side plate extension portion being configured to cover, at all operating depths of the tillage shank (as defined above and shown in annotated Fig. A, below), a first side tillage shank portion, the first side tillage shank portion being all portions of the first side (32) of the tillage shank (24) below the soil line at all operating depths of the tillage shank and a portion of the first side of the tillage shank above the soil line at all operating depths of the tillage shank (see annotated Fig. A, below).
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Figure A. Annotated section of Fig. 2 of Ankenman (US 7,866,270).
Regarding claim 22, Ankenman discloses said modified side plate extension portion front edge having a thickness equal to a distance corresponding to the point extending out from a side of the shank (see Fig. 3).
Regarding claim 23, Ankenman discloses a top surface of said modified side plate extension portion being co-planar with a side surface of the point (see Fig. 3).
Regarding claim 24, Ankenman further discloses a plurality of openings (including 70) configured to support fertilizer tubes.
Regarding claim 25 and 26, Ankenman discloses a tillage shank assembly comprising:
a tillage shank (24) having a first side (32) and a second side (34) and having a multitude of operating depths (as defined by use; see annotated Fig. A, above);
a point (including or of 40) abutting a forward edge (28) of said tillage shank and having a point base (including 42) to abut a bottom edge of said tillage shank;
a first side plate (including 58); and
a second side plate (including 60);
wherein each of the first and second side plates includes:
a modified side plate extension portion (lower portion of 58 or 60, including that abutting 44) having a modified side plate extension portion front edge, said modified side plate extension portion being configured to dampen abrasive forces from soil flow (as set forth in col. 3, lines 51-56 and col. 5, lines 3-8), said modified side plate extension portion front edge being configured to abut a rear edge (of 44) of said point,
said modified side plate extension portion front edge (of 58 or 60) being configured to abut, at all operating depths of the tillage shank, the rear edge (of 44) from said point base (including 42) to above a soil line (operating depths as defined by use, wherein the tillage shank is only operated at shallow depths such that said modified side plate extension portion front edge abuts, at all operating depths of the tillage shank, the rear edge from the point base on the bottom edge of the tillage shank to above the soil line; see annotated Fig. A, above),
said modified side plate extension portion covering, at all operating depths of the tillage shank (as defined above and shown in annotated Fig. A, above), a side tillage shank portion, the side tillage shank portion being all portions of a respective side (i.e., of the first side 32 or the second side 34) of the tillage shank (24) below the soil line at all operating depths of the tillage shank and a portion of the respective side of the tillage shank above the soil line at all operating depths of the tillage shank (see annotated Fig. A, above),
an attachment portion (upper portion including that about opening for 72) having an attachment portion front edge, said attachment portion being configured such that said attachment portion front edge does not abut the rear edge of said point above the soil line,
a projection (including 74 or 78) configured to engage said point base,
a slot (between 74 and 78) configured to engage said point base, and
an opening (for 72) configured to receive a transverse bolt.
Regarding claim 27, Ankenman discloses the modified side plate extension portion front edge of the first side plate having a thickness equal to a distance corresponding to said point extending out from a side of said shank (see Fig. 3); and
the modified side plate extension portion front edge of the second side plate having a thickness equal to a distance corresponding to said point extending out from a side of said shank (see Fig. 3).
Regarding claim 28, Ankenman discloses a top surface of the modified side plate extension portion of the first side plate being co-planar with a side surface of the point (see Fig. 3); and
a top surface of the modified side plate extension portion of the second side plate being co-planar with a side surface of the point (see Fig. 3).
Regarding claim 29, Ankenman further discloses fertilizer tubes (including 64, 66).
Regarding claim 30, Ankenman discloses said first side plate (including 58) including a plurality of first openings (including 70) configured to support said fertilizer tubes; and
said second side plate (including 60) including a plurality of second openings (including 70) configured to support said fertilizer tubes.
Allowable Subject Matter
Claims 10-1 are allowed.
Response to Arguments
Applicant's arguments filed 7/28 have been fully considered but they are not persuasive.
Applicant is advised that entries into the application file are in black and white, and the colors described to be shown in the remarks are not visible.
Applicant sets forth arguments for "independent claim 18" in the Remarks of 7/28/2025 (see labeled pp. 9-17). However, claim 18 is a dependent claim. Applicant's arguments with respect to claim 18 are being considered as though they apply to independent claim 20.
Applicant argues: "Thus, when operating at the various depths (soil lines), the side plate, as taught by Ankenman, IS NOT configured to cover, at all operating depths of the tillage shank, a first side tillage shank portion, the first side tillage shank portion being all portions of the first side of the tillage shank below the soil line and a portion of the first side of the tillage shank above the soil line, as claimed by independent claim [20]." (See Remarks of 7/28/2025, labeled p. 16, emphasis Applicant's.) The same argument is set forth with respect to claim 25. (See Remarks of 7/28/2025, labeled p. 25.)
Applicant's arguments are unpersuasive because the device of Ankenman is capable of operating at shallower depths in use which meet the claim limitations (as described and shown with annotated Fig. A, above), and the device of Ankenman is not constrained to "operating at the various depths (soil lines)," upon which Applicant's arguments are based. In use as shown in annotated Fig. A, the structure of Ankenman meets the structural limitations of the claims "at all operating depths of the tillage shank," wherein "all operating depths" are only the shallow depths at which said modified side plate extension portion front edge covers a side tillage shank portion, the side tillage shank portion being all portions of a side of the tillage shank below a soil line and a portion of the side of the tillage shank above the soil line. That Ankenman can operate at greater depths does not necessarily define those greater depths to be included in "all operating depths" of a particular use. Further, that the stated purpose or use of Ankenman is to operate at greater depths does not render the device incapable of operating only at shallower depths in a particular use. Applicant's arguments fail to explain why Ankenman would be incapable of other use only at shallower depths, but merely constrain Ankenman to its stated use. In the previous § 102 rejections and the rejection above, Ankenman is considered only when being used at shallow depths which meet the claim limitations. Applicant's arguments which constrain Ankenman to its stated use are rendered moot since these arguments only address Ankenman in use which is not being considered in the rejections.
If Applicant intends for the functioning "at all operating depths" as intended to involve a specific structural feature used in a manner not disclosed by Ankenman, such a recitation would be required. Examiner notes that a reading of the specification provides no evidence to indicate that a specific definition for said limitation must be importing into the claims to give meaning to the disputed terms. Constant v. Advanced Micro-Devices Inc., 7 USPQ2d 1064. As a result, to require a specific definition for the operational constraints of the operating depths would require improperly narrowing the scope of the claim. Examiners are not only allowed to apply broad interpretations, but are required to do so, as it reduces the possibility that the claims, once issued, will be interpreted more broadly than is justified. MPEP §2111.
Applicant argues that Ankenman does not teach a side plate abutting a rear edge of a point on a forward edge of a tillage shank from a point base on a bottom edge of the tillage shank below a soil line:
"As further illustrated above and supported in the concurrently filed Declarations of Jeffrey M. Reynolds under 37 C.F.R. 1.132 and Caleb Frey under 37 C.F.R. 1.132, the side plate 58 ONLY abuts the rear edge of the point on the forward edge of the tillage shank from the point base on the bottom edge of the tillage shank BELOW a soil line.
Thus, Ankenman teaches, at column 2, lines 20 – 45, that the side plate 58 ONLY abuts the rear edge of the point on the forward edge of the tillage shank from the point base on the bottom edge of the tillage shank BELOW a soil line, contrary to the explicit limitation of independent claim [20]." (See Remarks of 7/28/2025, labeled p. 16, emphasis Applicant's.)
The same argument is set forth with respect to claim 25. (See Remarks of 7/28/2025, labeled p. 25.)
Applicant's arguments are unpersuasive because the side plate 58 of Ankenman abuts the rear edge of the point on the forward edge of the tillage shank from the point base on the bottom edge of the tillage shank above soil lines as shown in annotated Fig. A, above. Further, Applicant's own annotated figures show the side plate 58 abutting the rear edge of the point on the forward edge of the tillage shank from the point base on the bottom edge of the tillage shank above indicated soil lines (see bottom two soil lines). (See Remarks of 7/28/2025, labeled pp. 13-15 and 22-24. Also, see Declaration of Jeffrey M. Reynolds, labeled pp. 5-7.) Additionally, Ankenman does not discuss side plate 58 or 60 in col. 2, lines 20-45.
Applicant argues that Ankenman does not teach a side plate covering a tillage shank portion that is above a soil line:
"Additionally, as further illustrated above and supported in the concurrently filed Declarations of Jeffrey M. Reynolds under 37 C.F.R. 1.132 and Caleb Frey under 37 C.F.R. 1.132, the side plate 58 fails to cover the tillage shank portion that is above the soil line because it only covers a portion of the tillage shank portion that is below the soil line.
Thus, Ankenman teaches the side plate 58 covers ONLY a portion of the tillage shank portion that is below the soil line, contrary to the explicit limitation of independent claim [20]." (See Remarks of 7/28/2025, labeled p. 16, emphasis Applicant's.)
The same argument is set forth with respect to claim 25. (See Remarks of 7/28/2025, labeled p. 25.)
Applicant's arguments are unpersuasive because the side plate 58 of Ankenman covers a tillage shank portion that is above soil lines as shown in annotated Fig. A, above. Further, Applicant's own annotated figures show the side plate 58 covering a tillage shank portion that is above indicated soil lines (see bottom two soil lines). (See Remarks of 7/28/2025, labeled pp. 13-15 and 22-24. Also, see Declaration of Jeffrey M. Reynolds, labeled pp. 5-7.)
Applicant argues:
"Since the tillage shank of Ankenman can operate at an operating depth such the side plate extension portion front edge is NOT configured to abut the rear edge from the point base on the bottom edge of the tillage shank to above a soil line, Ankenman fails to anticipate a modified side plate extension portion front edge configured to abut, at all operating depths of the tillage shank, the rear edge from the point base on the bottom edge of the tillage shank to above a soil line, as recited by independent claim [20].
Additionally, since the tillage shank of Ankenman can operate at an operating depth such the side plate extension portion front edge is NOT configured to abut the rear edge from the point base on the bottom edge of the tillage shank to above a soil line, Ankenman fails to anticipate a modified side plate extension portion is configured to cover, at all operating depths of the tillage shank, a first side tillage shank portion, the first side tillage shank portion being all portions of the first side of the tillage shank below the soil line and a portion of the first side of the tillage shank above the soil line, as recited by independent claim [20]." (See Remarks of 7/28/2025, labeled pp. 16-17, emphasis Applicant's.)
The same argument is set forth with respect to claim 25. (See Remarks of 7/28/2025, labeled pp. 25-26.)
Applicant's arguments are unpersuasive because the device of Ankenman can be considered when only operating at shallower depths in use(s) which meet the claim limitations (as described and shown with annotated Fig. A, above), and that Ankenman "can operate" at greater depths does not necessarily define those greater depths to be included in "all operating depths" of a particular use. In the context of a § 102 rejection, prior art is not required to satisfy its intended purpose when meeting a claim. Although a modification or combination (i.e., in a § 103 rejection) cannot change the principle of operation of the primary reference or render the reference inoperable for its intended purpose (see MPEP §2143.01, subsection VI), no such requirement exists for a § 102 rejection. In use as outlined above, the structure of Ankenman meets the structural limitations of the claims "at all operating depths of the tillage shank," wherein "all operating depths" are only the shallow depths at which said modified side plate extension portion front edge abuts the rear edge from the point base on the bottom edge of the tillage shank to above the soil line.
The declarations under 37 CFR 1.132 filed 7/28/2025 are insufficient to overcome the § 102 rejections based upon Ankenman as set forth in the Final Rejection of 12/3/2024 because the statements concerning long felt need and advantages of the described invention are not germane to the § 102 rejections at issue, and the statements which constrain Ankenman to a particular use (including particular depths) are moot since such particular use is neither being considered in the rejections nor required to be. The claim wording does not include the same level of detail so as to require side plates that are remarked upon in the declarations, and as such, the claims do not preclude consideration of Ankenman while operating only at shallow depths.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Joel F. Mitchell whose telephone number is (571)272-7689. The examiner can normally be reached 9:30-6:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Christopher Sebesta can be reached at (571)272-0547. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JFM/12/16/25
/CHRISTOPHER J SEBESTA/Supervisory Patent Examiner, Art Unit 3671