NON-FINAL OFFICE ACTION after RCE
This application has been assigned or remains assigned to Technology Center 1700, Art Unit 1774 and the following will apply for this application:
Please direct all written correspondence with the correct application serial number for this application to Art Unit 1774.
Telephone inquiries regarding this application should be directed to the Electronic Business Center (EBC) at http://www.uspto.gov/ebc/index.html or 1-866-217-9197 or to the Examiner at (571) 272-1139. All official facsimiles should be transmitted to the centralized fax receiving number (571)-273-8300.
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 .
Priority
Acknowledgment is made of a claim for foreign priority under 35 U.S.C. § 119(a)-(d). All of the CERTIFIED copies of the priority documents have been received in this national stage application from the International Bureau (PCT Rule 17.2(a)).
Specification
The substitute specification filed 15 APR 2025 is approved for entry.
The amended Abstract of the Disclosure is approved.
The title is acceptable.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 26 MAR 2026 has been entered.
Claim Rejections - 35 USC § 103
The terms used in this respect are given their broadest reasonable interpretation in their ordinary usage in context as they would be understood by one of ordinary skill in the art, in light of the written description in the specification, including the drawings, without reading into the claim any disclosed limitation or particular embodiment. See, e.g., In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004); In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000); In re Morris, 127 F.3d 1048, 1054-55 (Fed. Cir. 1997); In re Zletz, 893 F.2d 319, 321-22 (Fed. Cir. 1989). The Examiner interprets claims as broadly as reasonable in view of the specification, but does not read limitations from the specification into a claim. Elekta Instr. S.A.v.O.U.R. Sci. Int'l, Inc., 214 F.3d 1302, 1307 (Fed. Cir. 2000).
To determine whether subject matter would have been obvious, "the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved .... Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented." Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17-18 (1966).
The Supreme Court has noted:
Often, it will be necessary for a court to look to interrelated teachings of multiple patents; the effects of demands known to the design community or present in the marketplace; and the background knowledge possessed by a person having ordinary skill in the art, all in order to determine whether there was an apparent reason to combine the known elements in the fashion claimed by the patent at issue.
KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 1740-41 (2007). "Under the correct analysis, any need or problem known in the field of endeavor at the time of invention and addressed by the patent can provide a reason for combining the elements in the manner claimed." (Id. at 1742).
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 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.
The instant office action conforms to the policies articulated in the Federal Register notice titled “Updated Guidance for Making a Proper Determination of Obviousness” at 89 Fed. Reg. 14449, February 27, 2024, wherein the Supreme Court’s directive to employ a flexible approach to understanding the scope of prior art is reflected in the frequently quoted sentence, ‘‘A person of ordinary skill is also a person of ordinary creativity, not an automaton.’’ Id. at 421, 127 S. Ct. at 1742. In this section of the KSR decision, the Supreme Court instructed the Federal Circuit that persons having ordinary skill in the art (PHOSITAs) also have common sense, which may be used to glean suggestions from the prior art that go beyond the primary purpose for which that prior art was produced. Id. at 421–22, 127 S. Ct. at 1742. Thus, the Supreme Court taught that a proper understanding of the prior art extends to all that the art reasonably suggests, and is not limited to its articulated teachings regarding how to solve the particular technological problem with which the art was primarily concerned. Id. at 418, 127 S. Ct. at 1741 (‘‘As our precedents make clear, however, the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.’’). ‘‘The obviousness analysis cannot be confined . . . by overemphasis on the importance of published articles and the explicit content of issued patents.’’ Id. at 419, 127 S. Ct. at 1741. Federal Circuit case law since KSR follows the mandate of the Supreme Court to understand the prior art— including combinations of the prior art—in a flexible manner that credits the common sense and common knowledge of a PHOSITA. The Federal Circuit has made it clear that a narrow or rigid reading of prior art that does not recognize reasonable inferences that a PHOSITA would have drawn is inappropriate. An argument that the prior art lacks a specific teaching will not be sufficient to overcome an obviousness rejection when the allegedly missing teaching would have been understood by a PHOSITA—by way of common sense, common knowledge generally, or common knowledge in the relevant art. For example, in Randall Mfg. v. Rea, 733 F.3d 1355 (Fed. Cir. 2013), the Federal Circuit vacated a determination of nonobviousness by the Patent Trial and Appeal Board (PTAB or Board) because it had not properly considered a PHOSITA’s perspective on the prior art. Id. at 1364. The Randall court recalled KSR’s criticism of an overly rigid approach to obviousness that has ‘‘little recourse to the knowledge, creativity, and common sense that an ordinarily skilled artisan would have brought to bear when considering combinations or modifications.’’ Id. at 1362, citing KSR, 550 U.S. at 415–22, 127 S. Ct. at 1727. In reaching its decision to vacate, the Federal Circuit stated that by ignoring evidence showing ‘‘the knowledge and perspective of one of ordinary skill in the art, the Board failed to account for critical background information that could easily explain why an ordinarily skilled artisan would have been motivated to combine or modify the cited references to arrive at the claimed inventions.’’ Id.
From Norgren Inc. v. Int’l Trade Comm’n, 699 F.3d 1317, 1322 (Fed. Cir. 2012) (‘‘A flexible teaching, suggestion, or motivation test can be useful to prevent hindsight when determining whether a combination of elements known in the art would have been obvious.’’); Outdry Techs. Corp. v. Geox S.p.A., 859 F.3d 1364, 1370–71 (Fed. Cir. 2017) (‘‘Any motivation to combine references, whether articulated in the references themselves or supported by evidence of the knowledge of a skilled artisan, is sufficient to combine those references to arrive at the claimed process.’’). In keeping with this flexible approach to providing a rationale for obviousness, the Federal Circuit has echoed KSR in identifying numerous possible sources that may, either implicitly or explicitly, provide reasons to combine or modify the prior art to determine that a claimed invention would have been obvious. These include ‘‘market forces; design incentives; the ‘interrelated teachings of multiple patents’; ‘any need or problem known in the field of endeavor at the time of invention and addressed by the patent’; and the background knowledge, creativity, and common sense of the person of ordinary skill.’’ Plantronics, Inc. v. Aliph, Inc., 724 F.3d 1343, 1354 (Fed. Cir. 2013), quoting KSR, 550 U.S. at 418–21, 127 S. Ct. at 1741–42.
The Federal Circuit has also clarified that a proposed reason to combine the teachings of prior art disclosures may be proper, even when the problem addressed by the combination might have been more advantageously addressed in another way. PAR Pharm., Inc. v. TWI Pharms., Inc., 773 F.3d 1186, 1197–98 (Fed. Cir. 2014) (‘‘Our precedent, however, does not require that the motivation be the best option, only that it be a suitable option from which the prior art did not teach away.’’) (emphasis in original). One aspect of the flexible approach to explaining a reason to modify the prior art is demonstrated in the Federal Circuit’s decision in Intel Corp. v. Qualcomm Inc., 21 F.4th 784, 796 (Fed. Cir. 2021), which confirms that a proposed reason is not insufficient simply because it has broad applicability. Patent challenger Intel had argued in an inter partes review before the Board that some of Qualcomm’s claims were unpatentable because a PHOSITA would have been able to modify the prior art, with a reasonable expectation of success, for the purpose of increasing energy efficiency. Id. at 796–97. The Federal Circuit explained that ‘‘[s]uch a rationale is not inherently suspect merely because it’s generic in the sense of having broad applicability or appeal.’’ Id. The Federal Circuit further pointed out its pre-KSR holding ‘‘that because such improvements are ‘technology independent,’ ‘universal,’ and ‘even common-sensical,’ ‘there exists in these situations a motivation to combine prior art references even absent any hint of suggestion in the references themselves.’ ’’ Id., quoting DyStar Textilfarben GmbH v. C.H. Patrick Co., 464 F.3d 1356, 1368 (Fed. Cir. 2006) (emphasis added by the Federal Circuit in Intel). When formulating an obviousness rejection, the PTO may use any clearly articulated line of reasoning that would have allowed a PHOSITA to draw the conclusion that a claimed invention would have been obvious in view of the facts. MPEP 2143, subsection I, and MPEP 2144. Acknowledging that, in view of KSR, there are ‘‘many potential rationales that could make a modification or combination of prior art references obvious to a skilled artisan,’’ the Federal Circuit has also pointed to MPEP 2143, which provides several examples of rationales gleaned from KSR. Unwired Planet, 841 F.3d at 1003.
Claims 2-6, 8-9, and 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over HOFFMAN (US 2017/0016557 A1) in view of DE 202016103284 U1 (GUNTHER), GB 573972 (BISHOP), or DE 2004002588 U1 (HELMUT).
HOFFMAN discloses a protection device intended to cover a pipe that “may protect pipes” or “may be used for many different purposes” ¶ [0002] comprising an upper part (e.g., the top half portion of mirror-imaged half-shell 102 or half-shell 104 seen in Figure 1); a lower part (e.g., the bottom half portion of mirror-imaged half-shell 102 or half-shell 104 seen in Figure 1); two mirror-image half-shell parts 102 and 104 [0024] which are fastened to each other by manually releasable magnetic closures 108, 110, 114, 116 that are present at least at the upper part of the protection device [0028]; wherein one of the manually releasable magnetic closures 108 or 110 is present on a first half-shell part 102 and one of the manually releasable magnetic closures 114 or 116 is present on a second half-shell part 104 as seen in Figure 1; wherein the upper part and the lower part of the protection device form a tube with open ends by fastening the two or more shell parts to each other by the manually releasable magnetic closures (Figure 1); wherein the protection device consists of two or more shell parts 102 and 104 with each comprising an upper part and a lower part as defined above, which are fastened to each other by the manually releasable magnetic closures 108, 110, 114, 116; wherein the upper part and the lower part of the protection device form a tube with open ends by fastening the two or more shell parts 102, 104 to each other by the manually releasable magnetic closures 108, 110, 114, 116; wherein the two or more shell parts 102, 104 3, 3 are two half- shell parts (Figure 1); the protection device is formed of plastic material [0014]; the magnetic closures 108, 110, 114, 116 being embedded into or attached to the plastic material forming the shell parts 102, 104 [0027]; and the magnetic closures include neodymium type magnets [0013].
The claim language “wherein the protection device protects operating personnel from getting into contact with a rotating agitator shaft” recites no further structure and constitutes an inherent feature of the HOFFMAN protection device since the device, in use, would be located between the rotating agitator shaft and the protection device thus intrinsically providing protection for an operator by precluding contact between the operator and rotating shaft.
HOFFMAN thus discloses the recited protection device that is intended to cover another element or certainly capable of covering another element but does not disclose that such element is an agitator head and shaft. As noted above HOFFMAN explicitly discloses a protection device intended to cover a pipe that “may protect pipes” or “may be used for many different purposes” per ¶ [0002].
DE 202016103284 U1 (GUNTHER) discloses a protection device including an upper shell half part 12 and lower shell half part 13 that together form a tube as seen in Figure 2; releasable push button closures 14 (push to rotate to secure and release the closures) for connecting the shell parts to each other (Figures 1-2); the device formed of plastic (¶ [0009], [0022] of the translation); collars (about 10 and about the lower end of 12); an agitator shaft 11 driving an agitator tool [0020] that covered by the protection device; and a stationary agitator head/coupling protector 10.
GB 573972 (BISHOP) discloses a protection device including shell half parts g that together form a tube; the tube (parts g, g collectively) having a semi-cylindrical upper portion and a semi-conical lower portion (per Applicant’s remarks on page 8 referencing BISHOP at page 2, lines 82-84) as seen in Figure 1-2; releasable push button closure j, h (push together to engage and secure the closure and push apart to release the closure) for thereby connecting and disconnecting the shell parts g to and from each other (Figures 1-2); said closure disposed on the semi-cylindrical upper portion of the device 3 as seen in the Figures; collars (the collar proximate b or collar d); a shaft k capable of being used as an agitator that is covered by the protection device; and a stationary head/coupling protector c.
DE 2004002588 U1 (HELMUT) that discloses a protection device including upper shell half part 4 and lower half shell part 10 that together form a tube as seen in Figure 2; releasable magnetic closure 7, 8 for connecting the shell parts to each other (Figures 2 and 4); collar 5; a shaft 1, 2 capable of being used as an agitator that is covered by the protection device; and a stationary head/coupling protector 3.
It would have been obvious to one skilled in the art before the effective filing date of the invention to have employed the protection device of HOFFMAN as a protection device for an agitator head and coupling protector as suggested and disclosed by DE 202016103284 U1 (GUNTHER), GB 573972 (BISHOP), or DE 2004002588 U1 (HELMUT) to thereby protect an operator from contact with the agitator head and moving shaft and/or to minimize splashing effects of the substances being agitated.
Claims 2-4, 7, 9, and 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over KR 10-1824704 in view of DE 202016103284 U1 (GUNTHER), GB 573972 (BISHOP), or DE 2004002588 U1 (HELMUT).
KR 10-1824704 discloses a protection device intended to cover an element 100 comprising an upper part (portion 3 of the topmost element seen in Figure 1A); a lower part (portion 11 Figure 1A of said topmost element); two mirror-image half-shell parts 3, 3 (i.e., the topmost and the bottommost element in Figure 1A) which are fastened to each other by manually releasable push-button closures 2 that are present at least at the upper part of the protection device, wherein one manually releasable closure 2 is present on a first shell part and one manually releasable closure 2 is present on a second shell part as seen in Figures 1A, 2; wherein the upper part and the lower part of the protection device form a tube with open ends by fastening the two or more shell parts to each other by the manually releasable closures 2 (Figure 2); wherein the protection device has an inward facing collar at 7 located at an upper edge thereof; wherein the protection device consists of two or more shell parts 3, 5 with each comprising an upper part and a lower part as defined above, which are fastened to each other by the manually releasable closures 2; wherein the upper part and the lower part of the protection device form a tube with open ends by fastening the two or more shell parts 3, 3 to each other by the manually releasable closures 2, and wherein the two or more shell parts 3, 3 are two half- shell parts (Figures 1A, 2).
The claim language “wherein the protection device protects operating personnel from getting into contact with a rotating agitator shaft” recites no further structure and constitutes an inherent feature of the KR 10-1824704 protection device since the device, in use, would be located between the rotating agitator shaft and the protection device thus intrinsically providing protection for an operator by precluding contact between the operator and rotating shaft.
KR 10-1824704 thus discloses the recited protection device that is intended to cover another element or certainly capable of covering another element but does not disclose that such element is an agitator head and shaft.
DE 202016103284 U1 (GUNTHER) discloses a protection device including an upper shell half part 12 and lower shell half part 13 that together form a tube as seen in Figure 2; releasable push button closures 14 (push to rotate to secure and release the closures) for connecting the shell parts to each other (Figures 1-2); the device formed of plastic (¶ [0009], [0022] of the translation); collars (about 10 and about the lower end of 12); an agitator shaft 11 driving an agitator tool [0020] that covered by the protection device; and a stationary agitator head/coupling protector 10.
GB 573972 (BISHOP) discloses a protection device including shell half parts g that together form a tube; the tube (parts g, g collectively) having a semi-cylindrical upper portion and a semi-conical lower portion (per Applicant’s remarks on page 8 referencing BISHOP at page 2, lines 82-84) as seen in Figure 1-2; releasable push button closure j, h (push together to engage and secure the closure and push apart to release the closure) for thereby connecting and disconnecting the shell parts g to and from each other (Figures 1-2); said closure disposed on the semi-cylindrical upper portion of the device 3 as seen in the Figures; collars (the collar proximate b or collar d); a shaft k capable of being used as an agitator that is covered by the protection device; and a stationary head/coupling protector c.
DE 2004002588 U1 (HELMUT) that discloses a protection device including upper shell half part 4 and lower half shell part 10 that together form a tube as seen in Figure 2; releasable magnetic closure 7, 8 for connecting the shell parts to each other (Figures 2 and 4); collar 5; a shaft 1, 2 capable of being used as an agitator that is covered by the protection device; and a stationary head/coupling protector 3.
It would have been obvious to one skilled in the art before the effective filing date of the invention to have employed the protection device of KR 10-1824704 as a protection device for an agitator head and coupling protector as suggested and disclosed by DE 202016103284 U1 (GUNTHER), GB 573972 (BISHOP), or DE 2004002588 U1 (HELMUT) to thereby protect an operator from contact with the agitator head and moving shaft and/or to minimize splashing effects of the substances being agitated.
Claims 2-5, 7, 9, and 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over SAADI et al. (US 2007/0099782 A1) in view of DE 202016103284 U1 (GUNTHER), GB 573972 (BISHOP), or DE 2004002588 U1 (HELMUT).
SAADI et al. discloses a protection device capable of covering an element placed within interior at 116 comprising an upper part (e.g., one to three of the segments 101 along the length L at an upper portion of the device as seen in Figure 1); a lower part (e.g., one to three of the segments 101 along the length L at a lower portion of the device as seen in Figure 1); two half-shell parts 112 and 114 which are fastened to each other by manually releasable push-button closures 118, 120 that are present at least at the upper part of the protection device (Figure 2); wherein one of the manually releasable closures 118 is present on a first shell part 112 and one manually releasable cooperating closure 120 is present on a second shell part 114 as seen in Figures 1-3; wherein the upper part and the lower part of the protection device form a tube with open ends by fastening the two or more shell parts to each other by the manually releasable closures 118, 120 (Figure 1); wherein the protection device has an inward facing collar at 132 located at an upper edge thereof; wherein the protection device consists of two or more shell parts 112, 114 with each comprising an upper part and a lower part as defined above, which are fastened to each other by the manually releasable closures 118, 120; wherein the upper part and the lower part of the protection device form a tube with open ends by fastening the two or more shell parts 112, 114 to each other by the manually releasable closures 118, 120; wherein the two or more shell parts 112, 114 are two half- shell parts (Figures 1-3) and formed of plastic [0032].
The claim language “wherein the protection device protects operating personnel from getting into contact with a rotating agitator shaft” recites no further structure and constitutes an inherent feature of the SADDI et al. protection device since the device, in use, would be located between the rotating agitator shaft and the protection device thus intrinsically providing protection for an operator by precluding contact between the operator and rotating shaft.
SAADI et al. thus discloses the recited protection device that is intended to cover another element or certainly capable of covering another element but does not disclose that such element is an agitator head and shaft.
DE 202016103284 U1 (GUNTHER) discloses a protection device including an upper shell half part 12 and lower shell half part 13 that together form a tube as seen in Figure 2; releasable push button closures 14 (push to rotate to secure and release the closures) for connecting the shell parts to each other (Figures 1-2); the device formed of plastic (¶ [0009], [0022] of the translation); collars (about 10 and about the lower end of 12); an agitator shaft 11 driving an agitator tool [0020] that covered by the protection device; and a stationary agitator head/coupling protector 10.
GB 573972 (BISHOP) discloses a protection device including shell half parts g that together form a tube; the tube (parts g, g collectively) having a semi-cylindrical upper portion and a semi-conical lower portion (per Applicant’s remarks on page 8 referencing BISHOP at page 2, lines 82-84) as seen in Figure 1-2; releasable push button closure j, h (push together to engage and secure the closure and push apart to release the closure) for thereby connecting and disconnecting the shell parts g to and from each other (Figures 1-2); said closure disposed on the semi-cylindrical upper portion of the device 3 as seen in the Figures; collars (the collar proximate b or collar d); a shaft k capable of being used as an agitator that is covered by the protection device; and a stationary head/coupling protector c.
DE 2004002588 U1 (HELMUT) that discloses a protection device including upper shell half part 4 and lower half shell part 10 that together form a tube as seen in Figure 2; releasable magnetic closure 7, 8 for connecting the shell parts to each other (Figures 2 and 4); collar 5; a shaft 1, 2 capable of being used as an agitator that is covered by the protection device; and a stationary head/coupling protector 3.
It would have been obvious to one skilled in the art before the effective filing date of the invention to have employed the protection device of SAADI et al. as a protection device for an agitator head and coupling protector as suggested and disclosed by DE 202016103284 U1 (GUNTHER), GB 573972 (BISHOP), or DE 2004002588 U1 (HELMUT) to thereby protect an operator from contact with the agitator head and moving shaft and/or to minimize splashing effects of the substances being agitated.
Claims 2, 4, 7, 9, and 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over LEE et al. (US 2016/0109046 A1) in view of DE 202016103284 U1 (GUNTHER), GB 573972 (BISHOP), or DE 2004002588 U1 (HELMUT).
LEE et al. discloses a protection device capable of covering an element placed within interior at 150 comprising upper 120 and lower 110 parts 100; two mirror image half-shell parts 100, 100 which are fastened to each other by manually releasable closures 130, 131 that are present at least at the upper part of the protection device (Figures 1A-1C and [0027]); wherein one of the manually releasable closures 130, 131 is present on a first shell part 100 and one manually releasable cooperating closure 130, 131 is present on a second shell part 100 as seen in Figure 5; wherein the upper part and the lower part of the protection device form a tube with open ends by fastening the two or more shell parts 100 to each other by the manually releasable closures (Figure 5); wherein the protection device has an inward facing collar located at an upper edge thereof at 120 in Figure 1D; wherein the protection device consists of two or more mirror-image half shell parts 100 with each comprising an upper part and a lower part as defined above, which are fastened to each other by the manually releasable closures 130, 131; wherein the upper part and the lower part of the protection device form a tube with open ends by fastening the two or more shell parts 100 to each other by the manually releasable closures 130, 131; and wherein the two or more shell parts 100 are two mirror-image half- shell parts (Figures 1A-1C and 5).
The claim language “wherein the protection device protects operating personnel from getting into contact with a rotating agitator shaft” recites no further structure and constitutes an inherent feature of the LEE et al protection device since the device, in use, would be located between the rotating agitator shaft and the protection device thus intrinsically providing protection for an operator by precluding contact between the operator and rotating shaft.
LEE et al. thus discloses the recited protection device that is intended to cover another element or certainly capable of covering another element but does not disclose that such element is an agitator head and shaft.
DE 202016103284 U1 (GUNTHER) discloses a protection device including an upper shell half part 12 and lower shell half part 13 that together form a tube as seen in Figure 2; releasable push button closures 14 (push to rotate to secure and release the closures) for connecting the shell parts to each other (Figures 1-2); the device formed of plastic (¶ [0009], [0022] of the translation); collars (about 10 and about the lower end of 12); an agitator shaft 11 driving an agitator tool [0020] that covered by the protection device; and a stationary agitator head/coupling protector 10.
GB 573972 (BISHOP) discloses a protection device including shell half parts g that together form a tube; the tube (parts g, g collectively) having a semi-cylindrical upper portion and a semi-conical lower portion (per Applicant’s remarks on page 8 referencing BISHOP at page 2, lines 82-84) as seen in Figure 1-2; releasable push button closure j, h (push together to engage and secure the closure and push apart to release the closure) for thereby connecting and disconnecting the shell parts g to and from each other (Figures 1-2); said closure disposed on the semi-cylindrical upper portion of the device 3 as seen in the Figures; collars (the collar proximate b or collar d); a shaft k capable of being used as an agitator that is covered by the protection device; and a stationary head/coupling protector c.
DE 2004002588 U1 (HELMUT) that discloses a protection device including upper shell half part 4 and lower half shell part 10 that together form a tube as seen in Figure 2; releasable magnetic closure 7, 8 for connecting the shell parts to each other (Figures 2 and 4); collar 5; a shaft 1, 2 capable of being used as an agitator that is covered by the protection device; and a stationary head/coupling protector 3.
It would have been obvious to one skilled in the art before the effective filing date of the invention to have employed the protection device of LEE et al. as a protection device for an agitator head and coupling protector as suggested and disclosed by DE 202016103284 U1 (GUNTHER), GB 573972 (BISHOP), or DE 2004002588 U1 (HELMUT) to thereby protect an operator from contact with the agitator head and moving shaft and/or to minimize splashing effects of the substances being agitated.
Claims 2-6, 8-9, and 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over DE 202016103284 U1 (GUNTHER), GB 573972 (BISHOP), or DE 2004002588 U1 (HELMUT) in view of HOFFMAN (US 2017/0016557 A1).
DE 202016103284 U1 (GUNTHER) discloses a protection device including an upper shell half part 12 and lower shell half part 13 that together form a tube as seen in Figure 2; releasable push button closures 14 (push to rotate to secure and release the closures) for connecting the shell parts to each other (Figures 1-2); the device formed of plastic (¶ [0009], [0022] of the translation); collars (about 10 and about the lower end of 12); an agitator shaft 11 driving an agitator tool [0020] that covered by the protection device; and a stationary agitator head/coupling protector 10.
GB 573972 (BISHOP) discloses a protection device including shell half parts g that together form a tube; the tube (parts g, g collectively) having a semi-cylindrical upper portion and a semi-conical lower portion (per Applicant’s remarks on page 8 referencing BISHOP at page 2, lines 82-84) as seen in Figure 1-2; releasable push button closure j, h (push together to engage and secure the closure and push apart to release the closure) for thereby connecting and disconnecting the shell parts g to and from each other (Figures 1-2); said closure disposed on the semi-cylindrical upper portion of the device 3 as seen in the Figures; collars (the collar proximate b or collar d); a shaft k capable of being used as an agitator that is covered by the protection device; and a stationary head/coupling protector c.
DE 2004002588 U1 (HELMUT) that discloses a protection device including upper shell half part 4 and lower half shell part 10 that together form a tube as seen in Figure 2; releasable magnetic closure 7, 8 for connecting the shell parts to each other (Figures 2 and 4); collar 5; a shaft 1, 2 capable of being used as an agitator that is covered by the protection device; and a stationary head/coupling protector 3.
The claim language “wherein the protection device protects operating personnel from getting into contact with a rotating agitator shaft” recites no further structure and constitutes an inherent feature of the protection devices since the device, in use, would be located between the rotating agitator shaft and the protection device thus intrinsically providing protection for an operator by precluding contact between the operator and rotating shaft.
DE 202016103284 U1 (GUNTHER), GB 573972 (BISHOP), or DE 2004002588 U1 (HELMUT) do not disclose the recited details of the protection device such as the particular closures, collar, and/or magnets.
HOFFMAN discloses a protection device intended to cover a pipe that “may protect pipes” or “may be used for many different purposes” ¶ [0002] comprising an upper part (e.g., the top half portion of mirror-imaged half-shell 102 or half-shell 104 seen in Figure 1); a lower part (e.g., the bottom half portion of mirror-imaged half-shell 102 or half-shell 104 seen in Figure 1); two mirror-image half-shell parts 102 and 104 [0024] which are fastened to each other by manually releasable magnetic closures 108, 110, 114, 116 that are present at least at the upper part of the protection device [0028]; wherein one of the manually releasable magnetic closures 108 or 110 is present on a first half-shell part 102 and one of the manually releasable magnetic closures 114 or 116 is present on a second half-shell part 104 as seen in Figure 1; wherein the upper part and the lower part of the protection device form a tube with open ends by fastening the two or more shell parts to each other by the manually releasable magnetic closures (Figure 1); wherein the protection device consists of two or more shell parts 102 and 104 with each comprising an upper part and a lower part as defined above, which are fastened to each other by the manually releasable magnetic closures 108, 110, 114, 116; wherein the upper part and the lower part of the protection device form a tube with open ends by fastening the two or more shell parts 102, 104 to each other by the manually releasable magnetic closures 108, 110, 114, 116; wherein the two or more shell parts 102, 104 3, 3 are two half- shell parts (Figure 1); the protection device is formed of plastic material [0014]; the magnetic closures 108, 110, 114, 116 being embedded into or attached to the plastic material forming the shell parts 102, 104 [0027]; and the magnetic closures include neodymium type magnets [0013].
HOFFMAN thus discloses the recited protection device that is intended to cover another element or certainly capable of covering another element. As noted above HOFFMAN explicitly discloses a protection device intended to cover a pipe that “may protect pipes” or “may be used for many different purposes” per ¶ [0002].
Accordingly. it would have been obvious to one skilled in the art before the effective filing date of the invention to have substituted the protection device of DE 202016103284 U1 (GUNTHER), GB 573972 (BISHOP), or DE 2004002588 U1 (HELMUT) with the HOFFMAN device as a protection device for an agitator head and coupling protector to thereby protect an operator from contact with the agitator head and moving shaft and/or to minimize splashing effects of the substances being agitated with an easily attachable and detachable protection device via the closures.
Furthermore, one of ordinary skill in the art could have readily substituted one known protection device chosen from a finite list of protection devices and the results of the substitution would have been wholly predictable and obvious since the substitution of one known protection device arrangement from the finite list of protection devices for another would have yielded predictable results to one of ordinary skill in the art at the time of the invention, i.e., the predictable result of providing a protection device for an agitator head and coupling protector to thereby protect an operator from contact with the agitator head and dangerous moving shaft and/or to minimize splashing effects of the substances being agitated with an easily attachable and detachable protection device that is selected from said finite list (see KSR, supra and MPEP 2143(B)).
Moreover, “[e]xpress suggestion to substitute one equivalent for another need
not be present to render such substitution obvious." In re Fout, 675 F.2d 297, 213
USPQ 532 (CCPA 1982).
Claims 2-4, 7, 9, and 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over DE 202016103284 U1 (GUNTHER), GB 573972 (BISHOP), or DE 2004002588 U1 (HELMUT) in view KR 10-1824704
DE 202016103284 U1 (GUNTHER) discloses a protection device including an upper shell half part 12 and lower shell half part 13 that together form a tube as seen in Figure 2; releasable push button closures 14 (push to rotate to secure and release the closures) for connecting the shell parts to each other (Figures 1-2); the device formed of plastic (¶ [0009], [0022] of the translation); collars (about 10 and about the lower end of 12); an agitator shaft 11 driving an agitator tool [0020] that covered by the protection device; and a stationary agitator head/coupling protector 10.
GB 573972 (BISHOP) discloses a protection device including shell half parts g that together form a tube; the tube (parts g, g collectively) having a semi-cylindrical upper portion and a semi-conical lower portion (per Applicant’s remarks on page 8 referencing BISHOP at page 2, lines 82-84) as seen in Figure 1-2; releasable push button closure j, h (push together to engage and secure the closure and push apart to release the closure) for thereby connecting and disconnecting the shell parts g to and from each other (Figures 1-2); said closure disposed on the semi-cylindrical upper portion of the device 3 as seen in the Figures; collars (the collar proximate b or collar d); a shaft k capable of being used as an agitator that is covered by the protection device; and a stationary head/coupling protector c.
DE 2004002588 U1 (HELMUT) that discloses a protection device including upper shell half part 4 and lower half shell part 10 that together form a tube as seen in Figure 2; releasable magnetic closure 7, 8 for connecting the shell parts to each other (Figures 2 and 4); collar 5; a shaft 1, 2 capable of being used as an agitator that is covered by the protection device; and a stationary head/coupling protector 3.
The claim language “wherein the protection device protects operating personnel from getting into contact with a rotating agitator shaft” recites no further structure and constitutes an inherent feature of the protection devices since the device, in use, would be located between the rotating agitator shaft and the protection device thus intrinsically providing protection for an operator by precluding contact between the operator and rotating shaft.
DE 202016103284 U1 (GUNTHER), GB 573972 (BISHOP), or DE 2004002588 U1 (HELMUT) do not disclose the recited details of the protection device such as the particular closures, collar, and/or magnets.
KR 10-1824704 discloses a protection device intended to cover an element 100 comprising an upper part (portion 3 of the topmost element seen in Figure 1A); a lower part (portion 11 Figure 1A of said topmost element); two mirror-image half-shell parts 3, 3 (i.e., the topmost and the bottommost element in Figure 1A) which are fastened to each other by manually releasable push-button closures 2 that are present at least at the upper part of the protection device, wherein one manually releasable closure 2 is present on a first shell part and one manually releasable closure 2 is present on a second shell part as seen in Figures 1A, 2; wherein the upper part and the lower part of the protection device form a tube with open ends by fastening the two or more shell parts to each other by the manually releasable closures 2 (Figure 2); wherein the protection device has an inward facing collar at 7 located at an upper edge thereof; wherein the protection device consists of two or more shell parts 3, 5 with each comprising an upper part and a lower part as defined above, which are fastened to each other by the manually releasable closures 2; wherein the upper part and the lower part of the protection device form a tube with open ends by fastening the two or more shell parts 3, 3 to each other by the manually releasable closures 2, and wherein the two or more shell parts 3, 3 are two half- shell parts (Figures 1A, 2).
KR 10-1824704 thus discloses the recited protection device that is intended to cover another element or certainly capable of covering another element but does not disclose that such element is an agitator head and shaft.
KR 10-1824704 thus discloses the recited protection device that is intended to cover another element or certainly capable of covering another element. Accordingly. it would have been obvious to one skilled in the art before the effective filing date of the invention to have substituted the protection device of DE 202016103284 U1 (GUNTHER), GB 573972 (BISHOP), or DE 2004002588 U1 (HELMUT) with the KR 10-1824704 device as a protection device for an agitator head and coupling protector to thereby protect an operator from contact with the agitator head and moving shaft and/or to minimize splashing effects of the substances being agitated with an easily attachable and detachable protection device via the closures.
Furthermore, one of ordinary skill in the art could have readily substituted one known protection device chosen from a finite list of protection devices and the results of the substitution would have been wholly predictable and obvious since the substitution of one known protection device arrangement from the finite list of protection devices for another would have yielded predictable results to one of ordinary skill in the art at the time of the invention, i.e., the predictable result of providing a protection device for an agitator head and coupling protector to thereby protect an operator from contact with the agitator head and dangerous moving shaft and/or to minimize splashing effects of the substances being agitated with an easily attachable and detachable protection device that is selected from said finite list (see KSR, supra and MPEP 2143(B)).
Claims 2-5, 7, 9, and 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over DE 202016103284 U1 (GUNTHER), GB 573972 (BISHOP), or DE 2004002588 U1 (HELMUT) in view SAADI et al. (US 2007/0099782 A1).
DE 202016103284 U1 (GUNTHER) discloses a protection device including an upper shell half part 12 and lower shell half part 13 that together form a tube as seen in Figure 2; releasable push button closures 14 (push to rotate to secure and release the closures) for connecting the shell parts to each other (Figures 1-2); the device formed of plastic (¶ [0009], [0022] of the translation); collars (about 10 and about the lower end of 12); an agitator shaft 11 driving an agitator tool [0020] that covered by the protection device; and a stationary agitator head/coupling protector 10.
GB 573972 (BISHOP) discloses a protection device including shell half parts g that together form a tube; the tube (parts g, g collectively) having a semi-cylindrical upper portion and a semi-conical lower portion (per Applicant’s remarks on page 8 referencing BISHOP at page 2, lines 82-84) as seen in Figure 1-2; releasable push button closure j, h (push together to engage and secure the closure and push apart to release the closure) for thereby connecting and disconnecting the shell parts g to and from each other (Figures 1-2); said closure disposed on the semi-cylindrical upper portion of the device 3 as seen in the Figures; collars (the collar proximate b or collar d); a shaft k capable of being used as an agitator that is covered by the protection device; and a stationary head/coupling protector c.
DE 2004002588 U1 (HELMUT) that discloses a protection device including upper shell half part 4 and lower half shell part 10 that together form a tube as seen in Figure 2; releasable magnetic closure 7, 8 for connecting the shell parts to each other (Figures 2 and 4); collar 5; a shaft 1, 2 capable of being used as an agitator that is covered by the protection device; and a stationary head/coupling protector 3.
The claim language “wherein the protection device protects operating personnel from getting into contact with a rotating agitator shaft” recites no further structure and constitutes an inherent feature of the protection devices since the device, in use, would be located between the rotating agitator shaft and the protection device thus intrinsically providing protection for an operator by precluding contact between the operator and rotating shaft.
DE 202016103284 U1 (GUNTHER), GB 573972 (BISHOP), or DE 2004002588 U1 (HELMUT) do not disclose the recited details of the protection device such as the particular closures, collar, and/or magnets.
SAADI et al. discloses a protection device capable of covering an element placed within interior at 116 comprising an upper part (e.g., one to three of the segments 101 along the length L at an upper portion of the device as seen in Figure 1); a lower part (e.g., one to three of the segments 101 along the length L at a lower portion of the device as seen in Figure 1); two half-shell parts 112 and 114 which are fastened to each other by manually releasable push-button closures 118, 120 that are present at least at the upper part of the protection device (Figure 2); wherein one of the manually releasable closures 118 is present on a first shell part 112 and one manually releasable cooperating closure 120 is present on a second shell part 114 as seen in Figures 1-3; wherein the upper part and the lower part of the protection device form a tube with open ends by fastening the two or more shell parts to each other by the manually releasable closures 118, 120 (Figure 1); wherein the protection device has an inward facing collar at 132 located at an upper edge thereof; wherein the protection device consists of two or more shell parts 112, 114 with each comprising an upper part and a lower part as defined above, which are fastened to each other by the manually releasable closures 118, 120; wherein the upper part and the lower part of the protection device form a tube with open ends by fastening the two or more shell parts 112, 114 to each other by the manually releasable closures 118, 120; wherein the two or more shell parts 112, 114 are two half- shell parts (Figures 1-3) and formed of plastic [0032].
SAADI et al. thus discloses the recited protection device that is intended to cover another element or certainly capable of covering another element but does not disclose that such element is an agitator head and shaft.
Accordingly. it would have been obvious to one skilled in the art before the effective filing date of the invention to have substituted the protection device of DE 202016103284 U1 (GUNTHER), GB 573972 (BISHOP), or DE 2004002588 U1 (HELMUT) with the SAADI et al. device as a protection device for an agitator head and coupling protector to thereby protect an operator from contact with the agitator head and moving shaft and/or to minimize splashing effects of the substances being agitated with an easily attachable and detachable protection device via the closures.
Furthermore, one of ordinary skill in the art could have readily substituted one known protection device chosen from a finite list of protection devices and the results of the substitution would have been wholly predictable and obvious since the substitution of one known protection device arrangement from the finite list of protection devices for another would have yielded predictable results to one of ordinary skill in the art at the time of the invention, i.e., the predictable result of providing a protection device for an agitator head and coupling protector to thereby protect an operator from contact with the agitator head and dangerous moving shaft and/or to minimize splashing effects of the substances being agitated with an easily attachable and detachable protection device that is selected from said finite list (see KSR, supra and MPEP 2143(B)).
Claims 2, 4, 7, 9, and 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over DE 202016103284 U1 (GUNTHER), GB 573972 (BISHOP), or DE 2004002588 U1 (HELMUT) in view over LEE et al. (US 2016/0109046 A1).
DE 202016103284 U1 (GUNTHER) discloses a protection device including an upper shell half part 12 and lower shell half part 13 that together form a tube as seen in Figure 2; releasable push button closures 14 (push to rotate to secure and release the closures) for connecting the shell parts to each other (Figures 1-2); the device formed of plastic (¶ [0009], [0022] of the translation); collars (about 10 and about the lower end of 12); an agitator shaft 11 driving an agitator tool [0020] that covered by the protection device; and a stationary agitator head/coupling protector 10.
GB 573972 (BISHOP) discloses a protection device including shell half parts g that together form a tube; the tube (parts g, g collectively) having a semi-cylindrical upper portion and a semi-conical lower portion (per Applicant’s remarks on page 8 referencing BISHOP at page 2, lines 82-84) as seen in Figure 1-2; releasable push button closure j, h (push together to engage and secure the closure and push apart to release the closure) for thereby connecting and disconnecting the shell parts g to and from each other (Figures 1-2); said closure disposed on the semi-cylindrical upper portion of the device 3 as seen in the Figures; collars (the collar proximate b or collar d); a shaft k capable of being used as an agitator that is covered by the protection device; and a stationary head/coupling protector c.
DE 2004002588 U1 (HELMUT) that discloses a protection device including upper shell half part 4 and lower half shell part 10 that together form a tube as seen in Figure 2; releasable magnetic closure 7, 8 for connecting the shell parts to each other (Figures 2 and 4); collar 5; a shaft 1, 2 capable of being used as an agitator that is covered by the protection device; and a stationary head/coupling protector 3.
The claim language “wherein the protection device protects operating personnel from getting into contact with a rotating agitator shaft” recites no further structure and constitutes an inherent feature of the protection devices since the device, in use, would be located between the rotating agitator shaft and the protection device thus intrinsically providing protection for an operator by precluding contact between the operator and rotating shaft.
DE 202016103284 U1 (GUNTHER), GB 573972 (BISHOP), or DE 2004002588 U1 (HELMUT) do not disclose the recited details of the protection device such as the particular closures, collar, and/or magnets.
LEE et al. discloses a protection device capable of covering an element placed within interior at 150 comprising upper 120 and lower 110 parts 100; two mirror image half-shell parts 100, 100 which are fastened to each other by manually releasable closures 130, 131 that are present at least at the upper part of the protection device (Figures 1A-1C and [0027]); wherein one of the manually releasable closures 130, 131 is present on a first shell part 100 and one manually releasable cooperating closure 130, 131 is present on a second shell part 100 as seen in Figure 5; wherein the upper part and the lower part of the protection device form a tube with open ends by fastening the two or more shell parts 100 to each other by the manually releasable closures (Figure 5); wherein the protection device has an inward facing collar located at an upper edge thereof at 120 in Figure 1D; wherein the protection device consists of two or more mirror-image half shell parts 100 with each comprising an upper part and a lower part as defined above, which are fastened to each other by the manually releasable closures 130, 131; wherein the upper part and the lower part of the protection device form a tube with open ends by fastening the two or more shell parts 100 to each other by the manually releasable closures 130, 131; and wherein the two or more shell parts 100 are two mirror-image half- shell parts (Figures 1A-1C and 5).
The claim language “wherein the protection device protects operating personnel from getting into contact with a rotating agitator shaft” is an inherent feature of the KR 10-1824704 protection device since the device, in use, would be located between the rotating agitator shaft and the protection device thus intrinsically providing protection for an operator by precluding contact between the operator and rotating shaft.
LEE et al. thus discloses the recited protection device that is intended to cover another element or certainly capable of covering another element but does not disclose that such element is an agitator head and shaft. Accordingly. it would have been obvious to one skilled in the art before the effective filing date of the invention to have substituted the protection device of DE 202016103284 U1 (GUNTHER), GB 573972 (BISHOP), or DE 2004002588 U1 (HELMUT) with the LEE et al. device as a protection device for an agitator head and coupling protector to thereby protect an operator from contact with the agitator head and moving shaft and/or to minimize splashing effects of the substances being agitated with an easily attachable and detachable protection device via the closures.
Furthermore, one of ordinary skill in the art could have readily substituted one known protection device chosen from a finite list of protection devices and the results of the substitution would have been wholly predictable and obvious since the substitution of one known protection device arrangement from the finite list of protection devices for another would have yielded predictable results to one of ordinary skill in the art at the time of the invention, i.e., the predictable result of providing a protection device for an agitator head and coupling protector to thereby protect an operator from contact with the agitator head and dangerous moving shaft and/or to minimize splashing effects of the substances being agitated with an easily attachable and detachable protection device that is selected from said finite list (see KSR, supra and MPEP 2143(B)).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over:
(KR 10-1824704 or LEE et al.) in view of (DE 202016103284 U1 (GUNTHER), GB 573972 (BISHOP), or DE 2004002588 U1 (HELMUT) in view over LEE et al. (US 2016/0109046 A1))
or (DE 202016103284 U1 (GUNTHER), GB 573972 (BISHOP), or DE 2004002588 U1 (HELMUT)) in view of (KR 10-1824704 or LEE et al.).
KR 10-1824704 or LEE et al. do not disclose the protection device formed of a plastic material. However, it would have been obvious before the effective filing date of the invention to have formed the protection device of KR ‘704 or LEE et al. of a plastic material since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416; Sinclair & Carroll Co., Inc. v. Interchemical Corp., 65 USPQ 297 (1945).
Furthermore, in view of the fact that the use of plastic vis-`a-vis any other common construction material solves no stated problem insofar as the record is concerned and the conclusion of obviousness can be made from the common knowledge and common sense of one of ordinary skill in the art (In re Bozek, 416 F.2d 1385, 163 USPQ 545 (CCPA 1969)), it would have been obvious to one of ordinary skill in the art to have formed any of the components of the prior art protection devices from a well-known construction material such as plastic. In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975).
It is observed that artisans must be presumed to know something about the art apart from what the references disclose (see In re Jacoby, 309 F.2d 513, 135 USPQ 317 (CCPA 1962)). Moreover, skill is presumed on the part of those practicing in the art. See In re Sovish, 769 F.2d 738, 226 USPQ 771 (Fed. Cir. 1985). Therefore, it is concluded that the selection of a well-known material in the art such as plastic would have been obvious to one of ordinary skill in this art, if for no other reason than to achieve the advantage of using a more modern material or a lower cost or more easily fabricated material.
This exemplifies the Supreme Court's analysis in KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 [82 USPQ2d 1385] (2007). “When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. If a person of ordinary skill can implement a predictable variation, §103 likely bars its patentability. For the same reason, if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill.” Id. at 417. As further emphasis on the substitution of one material for another, there is the venerable case of Hotchkiss v. Greenwood, 52 U.S. (11 How.) 248 (1851), cited approvingly in KSR Int'l Co. v. Teleflex Inc., supra, 550 U.S. at 406, 415, which denied patentability to an invention consisting of the substitution of a clay or porcelain knob for a metallic or wood knob in a doorknob (the doorknob itself, as distinct from the knob on the end of it, being an assemblage of knob, shank, and spindle). Other substitution cases in which patentability was denied on grounds of obviousness include Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1535–38 [218 USPQ 871] (Fed. Cir. 1983); Brunswick Corp. v. Champion Spark Plug Co., 689 F.2d 740, 749-50 [216 USPQ 1] (7th Cir. 1982), and Lyle/Carlstrom Associates, Inc. v. Manhattan Store Interiors, Inc., 635 F.Supp. 1371, 1381-83 [230 USPQ 278] (E.D.N.Y. 1986), aff'd, 824 F.2d 977 (Fed. Cir. 1987).
Among the inventions that the law deems obvious are those modest, routine, everyday, incremental improvements of an existing product or process that confer commercial value (otherwise they would not be undertaken) but do not involve sufficient inventiveness to merit patent protection. This class of inventions is well illustrated by efforts at routine experimentation with different standard grades of a material used in a product—standard in the sense that their properties, composition, and method of creation are well known, making successful results of the experimentation predictable. Ritchie v. Vast Resources Inc., 90 USPQ2d 1668 (Fed. Cir. 2009). Accordingly, it is well settled that a predictable substitution of one material for another is well within the grasp of 35 U.S.C 103(a) and common sense. A rejection to overcome an obviousness rejection will not be withdrawn when the allegedly missing teaching of the rejection would have been understood by a PHOSITA—by way of common sense, common knowledge generally, or common knowledge in the relevant art. Randall Mfg. v. Rea, supra. Choosing an appropriate material for a specific application or structural member such as plastic can unquestionably be determined by a PHOSITA by innate common sense, the common knowledge generally, or the common knowledge in the relevant art.
Allowable Subject Matter
No claims stand allowed.
Response to Amendment and Conclusion
Applicant's arguments filed with the RCE with regard to the pending claims have been fully considered but are not persuasive.
The examiner agrees that the claims are now drawn to the combination of the agitator with the protection device. The rejections have thus been revised to reflect this combination.
Applicant again concludes that the prior art protection devices to HOFFMAN, KR ‘704, SAADI et al., and LEE et al. do not cover and are unable to cover the parts of an agitator device due to “reengineering the mounting interface, geometry, and operating clearances” - none of these aspects are present in the pending claims and would likely involve new matter if added to the claims. Such arguments are thus of no patentable consequence because it is well settled that features not claimed may not be relied upon in support of patentability. In re Self, 671 F.2d 1344, 213 USPQ 1 (CCPA 1982). Although a claim should be interpreted in light of the specification disclosure, it is generally considered improper to read limitations contained in the specification into the claims. See In re Prater, 415 F.2d 1393, 162 USPQ 541 (CCPA 1969) and In re Winkhaus, 527 F.2d 637, 188 USPQ 129 (CCPA 1975), which discuss the premise that one cannot rely on the specification to impart limitations to the claim that are not recited in the claim.
Moreover, Applicant’s position on this “reengineering” point is considered to be speculative attorney's argument unsupported by objective technical evidence on the issue. Arguments of counsel cannot take the place of evidence in the record. In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965); In re Pearson, 494 F.2d 1399, 1405, 181 USPQ 641, 646 (CCPA 1974). Applicant does not provide any evidence that the protection device of KR ‘704, for example as seen in Figure 3a, cannot cover some generic agitator head and shaft; that the protection device of HOFFMAN, for example as seen in Figure 1, cannot cover some generic agitator head and shaft; or that the protection device of SAADI et al., for example as seen in Figure 1, cannot cover some generic agitator head and shaft. Contrary to the remarks, the protection device of SAADI et al. is indeed “open-ended” as seen in Figures 1, 2, and 16. Likewise, with regard to LEE et al., no evidence is offered that the protection device of LEE et al., for example as seen in Figures 1A and 1B, cannot cover some generic agitator head and shaft. Applicant has mentioned a “[c]onverting” argument [reengineering] that argues that the prior art protection devices cannot be employed as “an easily removable, head-mounted laboratory agitator guard”. Since all of the recited elements of the protection device are known in the prior art references, this conclusion is tantamount to more speculation. Moreover, the examiner notes that the claims do not recite any particular agitator device, just a categorically generic agitator lacking any particularity whatsoever.
Note that HOFFMAN teaches a protection device that can cover a pipe or that “may be used for many different purposes.” Nevertheless, all said prior art protection devices are intended to cover some mechanical element to protect the covered element or to protect an external presence [operator] from the mechanical element, which may present a threat to safety of the presence. Thus, it still appears Applicant believes the USPTO should allow a protection cover device that includes elements known in the art, simply as a function of what element is being covered/protected, especially when the covered element is an agitator known in the art and recited with no specifics whatsoever. The recited several parts and closures included in the instant protection device are known from the applied prior art.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHARLES COOLEY whose telephone number is (571)272-1139. The examiner can normally be reached M-F 9:30 AM - 6:00 PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, CLAIRE X. WANG can be reached at 571-272-1700. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHARLES COOLEY/Examiner, Art Unit 1774
8 APRIL 2026