FINAL OFFICE ACTION
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 applicant's claim for domestic priority under 35 U.S.C. § 119(e).
Specification
The abstract is acceptable.
The amended title of the invention is approved.
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 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 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). "A claim is anticipated only if each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference." Verdegaal Bros. Inc. v. Union Oil Co. of California, 814 F.2d 628, 631 (Fed. Cir. 1987).
The express, implicit, and inherent disclosures of a prior art reference may be relied upon in the rejection of claims under 35 U.S.C. 102 or 103. "The inherent teaching of a prior art reference, a question of fact, arises both in the context of anticipation and obviousness." In re Napier, 55 F.3d 610, 613, 34 USPQ2d 1782, 1784 (Fed. Cir. 1995) (affirmed a 35 U.S.C. 103 rejection based in part on inherent disclosure in one of the references). See also In re Grasselli, 713 F.2d 731, 739, 218 USPQ 769, 775 (Fed. Cir. 1983). See MPEP 2112.
REMARKS: (i) Claims 1-5 and 7-15 are considered still drawn to a mixing assembly combination that does not include the container or external drive apparatus as positively recited elements as noted previously. Accordingly, any language related to the container in these claims is not germane to the patentability of said a mixing assembly combination; (ii) Claims 16-22 are considered drawn to the subcombination of just the paddle assembly that excludes the external drive apparatus, container, alignment shaft, and alignment dish as previously noted. Accordingly, any language related to the container, alignment shaft, and alignment dish in these claims is not germane to the patentability of said paddle assembly subcombination.
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 1-4, 9-10, 14, and 16-17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 6,280,077 B1 to Sullivan, Jr. (hereinafter "Sullivan").
Regarding claim 1, Sullivan teaches a mixing assembly for a container ("an assembly and method for mixing fluid components in a liner-equipped mixing container." col. 1, lines 9-10; container 60 having sidewalls 70 and bottom wall 66, Figure 11) comprising an alignment dish/disk 74 or an assembly of circular end wall 66 and disk 74 including a dish surface (circular disk portion 74, Fig 4-8, 7, 9, 11 or said assembly of circular end wall 66 with the circular disk 74 attached thereto); an alignment shaft 72 projecting from the dish surface (shaft protrusion 72, Fig 4-8; "the protrusion 72 is an integral extension of a disk 74" col. 5, Iines 17-19); and a paddle assembly coupled to the alignment shaft (the assembly comprising mixing blades 22 and shaft 20 coupled to alignment shaft 72, Fig 11), the paddle assembly including an elongate section for engaging with the alignment shaft (elongated section shaft 20 for engaging with alignment shaft 72, Fig 4-11; “The protrusion 72 and disk 74 forming the retaining member for mixing shaft 20" col. 5, Iines 66-67), the elongate section 20 having a length greater than an alignment shaft length of the alignment shaft (see Fig 11 wherein elongated section 20 has greater length than alignment shaft 72); and a plurality of blades projecting from the elongate section for mixing contents contained within the container (blades 22 extending from elongated section 20, Fig 11; “movement of the mixing blades 22 through the fluid in the liner.” col. 6, lines 32-33), the plurality of blades distributed about an annular direction on the elongate section (see blades 22 spaced about an annular direction on elongated section 20, Fig 11), wherein the paddle assembly is containable within the container and rotatable about the alignment shaft (paddle assembly comprising 20 and 22 containable within container 60, Fig 11; “through the protrusion 72, serves as a mount for rotatably supporting the mixing shaft 20 and attached components." col. 6, Iines 21-23), and wherein the alignment dish is dimensioned to interface with the base of the container to reduce annular motion about the alignment shaft during rotation of the paddle assembly about the alignment shaft (alignment dish 74 aligning with base 66 of container 60, Fig 11; "the protrusion 72 serves to retain the shaft 20 against lateral movement while also serving as a bearing to facilitate shaft rotation.” col. 6, lines 25-38); and the elongate section/shaft 20 having a coupling end at 32; wherein the alignment dish is configured to be positioned adjacent the base of the container (dish 74 placed at base 66 of container 60, Fig 4-11) and is concentric with the base of the container (see Fig 11), wherein the alignment dish is removably positioned adjacent the base of the container ("pins 80 (FIGS. 7 and 8) are used for securing the shaft-retaining member to the sleeve end wall 66. Pins 80 are adapted to fit in aligned liner holes 76 and holes 78 of disk 74." col. 5 In 25-43; see Fig 5-8).
Claim 2: The manner in which the paddle assembly is utilized after being used recites no further structure and as held in In re Casey, 370 F.2d 576, 152 USPQ 235 (CCPA 1967), "the manner or method in which such machine is to be utilized is not germane to the issue of patentability of the machine itself." See MPEP 2115. Nevertheless, the patent to Sullivan discloses all of the recited structure irrespective of the manner in which said structure is operated, stored, or subject to disposal.
APPARATUS CLAIMS MUST BE STRUCTURALLY DISTINGUISHABLE FROM THE PRIOR ART
PNG
media_image1.png
18
19
media_image1.png
Greyscale
While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997) (The absence of a disclosure in a prior art reference relating to function did not defeat the Board’s finding of anticipation of claimed apparatus because the limitations at issue were found to be inherent in the prior art reference); see also In re Swinehart, 439 F.2d 210, 212-13, 169 USPQ 226, 228-29 (CCPA 1971);In re Danly, 263 F.2d 844, 847, 120 USPQ 528, 531 (CCPA 1959). “[A]pparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original).
Regarding claim 3, Sullivan teaches wherein the alignment dish surface is configured to have a geometric shape substantially similar to a base of the container (circular shape of dish 74 similar to that of circular bade 66 of container 60, Fig 4-11).
Regarding claim 4, Sullivan teaches wherein the elongate section for engaging the alignment shaft is an elongate hollow section for receiving the alignment shaft therein (see Fig 11 having hollow tubular distal end for engaging shaft 72; “The assembly further includes a mixing shaft 20 to which there are fixed mixing elements, such as blades 22. Mixing shaft 20 is hollow, or else it has a cavity 24 at its bottom end so as to permit the mixing shaft to be rotatably mounted” col. 1 In 23-26).
Regarding claim 9, Sullivan teaches the alignment dish includes one or more projections coupled to the dish surface (ribs 96 projecting from dish surface, Fig 5-8; "reinforcing ribs 96 upstanding from the upper surface 88 of the disk 74" col. 5 In 56-58).
Regarding claim 10, Sullivan teaches wherein the one or more projections includes at least one of a slat, louver, or a triangular prism (see elongated projections 96, Fig 5-8; note: as seen in subject application Fig 8, projections 750 being of elongated “slat” shape).
Regarding claim 14, Sullivan teaches wherein the alignment shaft includes a tapered end positioned proximal to an opening of the container (see rounded tapered top end of alignment shaft 72, Fig 5, 11).
Regarding claim 16, Sullivan teaches the subject matter of claim 1 as noted above and further includes a paddle assembly for a container ("an assembly and method for mixing fluid components in a liner- equipped mixing container.” col. 1 In 9-10; container 60 having sidewalls 70 and bottom wall 66, Fig 11) comprising: an elongate section for engaging with an alignment shaft positioned within the container and projecting from an alignment dish positioned in a base of the container (elongated section 20 engaging with alignment shaft 72 projecting from an alignment dish 74, Fig 4- 11; "the protrusion 72 is an integral extension of a disk 74" col. 5, lines 17-19; "The protrusion 72 and disk 74 forming the retaining member for mixing shaft 20, col.. 5, Iines 66-67), the elongate section having a length greater than an alignment shaft length of the alignment shaft (see Fig 11 wherein elongated section 20 has greater length than alignment shaft 72); and a plurality of blades projecting from the elongate section for mixing contents contained within the container (blades 22 extending from elongated section 20, Fig 11; "movement of the mixing blades 22 through the fluid in the liner.” col. 6 In 32-33), the blades distributed about an annular direction on the elongate section (see blades 22 spaced about an annular direction on elongated section 20, Fig 11), and wherein the paddle assembly is containable within the container and rotatable about the alignment shaft (paddle assembly comprising 20 and 22 containable within container 60, Fig 11; "through the protrusion 72, serves as a mount for rotatably supporting the mixing shaft 20 and attached components.” col. 6 In 21-23), and wherein during rotation of the paddle assembly about the alignment shaft, the alignment dish is substantially stationary in an annular direction relative to the alignment shaft ("Pins 80 (FIGS. 7 and 8) are used for securing the shaft-retaining member to the sleeve end wall 66. Pins 80 are adapted to fit in aligned liner holes 76 and holes 78 of disk 74." col. 5 In 25-43; "the protrusion 72 serves to retain the shaft 20 against lateral movement while also serving as a bearing to facilitate shaft rotation.” col. 6 In 25-38); and the elongate section/shaft 20 having a coupling end at 32; wherein the alignment dish is configured to be positioned adjacent the base of the container (dish 74 placed at base 66 of container 60, Fig 4-11) and is concentric with the base of the container (see Fig 11), wherein the alignment dish is removably positioned adjacent the base of the container ("pins 80 (FIGS. 7 and 8) are used for securing the shaft-retaining member to the sleeve end wall 66. Pins 80 are adapted to fit in aligned liner holes 76 and holes 78 of disk 74." col. 5 In 25-43; see Fig 5-8).
Regarding claim 17, Sullivan wherein the elongate section for engaging with the alignment shaft is an elongate hollow section for receiving the alignment shaft therein (see Fig 11 having hollow tubular distal end for engaging shaft 72; “The assembly further includes a mixing shaft 20 to which there are fixed mixing elements, such as blades 22. Mixing shaft 20 is hollow, or else it has a cavity 24 at its bottom end so as to permit the mixing shaft to be rotatably mounted" col. 1 In 23-26).
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 5 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over US 6,280,077 B1 to Sullivan, Jr.
Sullivan does not disclose the elongate hollow section being a rectangular tube. A change in shape of an element is generally an obvious choice of design. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (The court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.).
Accordingly, to have formed the elongate hollow section to be rectangular or any other common geometrical shape in Sullivan would have been well within the realm of obviousness to one skilled in the art. It is noted that the particular shape of the elongate hollow section being rectangular is not critical or even significant, as evidenced by ¶ [0098] of the instant specification.
Claims 7-8 and 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over US 6,280,077 B1 to Sullivan, Jr. in view of HOEFKEN (US 2017/0065945).
Sullivan does not disclose the recited PTFE sleeve. HOEFKEN discloses a drive shaft elongate section 4; paddle assembly 5; a sleeve 14 positioned between a portion of the elongate section 4 and an alignment shaft 12. The sleeve can be formed of PTFE.
More specifically, FIGS. 2 to 4 show an exemplary embodiment of a safety bearing 7. It comprises a holding device 8, which is formed from a trapezoidal sheet metal. A raised portion 9 of the holding device 8 is supported against the tank base 2 (not shown here) via two limbs 10 extending from said portion. A recess 11 is provided in the raised portion 9, in which recess there is secured a bearing bush 12. The free end E of the drive shaft 4 (not shown here in greater detail) is rotatably held in the bearing bush 12. Reference sign 13 designates a sensor mounted on the bearing bush 12. A slide bush or slide sleeve 14 is provided at the free end E of the drive shaft 4 and can be produced from a plastic or metal. The material forming the slide sleeve 14 advantageously has a lower hardness than a further material forming the bearing bush 12. The bearing bush/ alignment shaft 12 is usually produced from metal, in particular steel. The slide sleeve 14 is secured by means of a screw 14 or the like mounted on the free end E of the drive shaft 4. A worn slide sleeve 14 can be removed by detaching the screw 15 from the free end E of the drive shaft 4 and can be replaced for a new slide sleeve 14. The slide sleeve 14 is preferably produced from an electrically non-conductive or a non-magnetic material, preferably from a plastic, such as PBT, PTFE, PA 6 G, PA 6, PA 66, PA 12 G, PET, PEEK, POM or the like.
It would have been obvious to one skilled in the art before the effective filing date of the invention to have provided the elongate section of Sullivan with a PTFE sleeve as taught by HOEFKEN for the purposes of reducing friction between the elongate section and the sleeve and to enable replacement of the sleeve when worn out as noted in [0030].
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over US 6,280,077 B1 to Sullivan, Jr. in view of BLAKLEY et al. (US 5568975).
Sullivan does not disclose the recited weld. BLAKLEY et al. discloses a mixing assembly (Figure 3) including an element for supporting an elongate shaft 12 having paddles 123 that employs an alignment shaft 68 that is affixed to an alignment dish 78 via a tack weld provided at 88.
It would have been obvious to one skilled in the art before the effective filing date of the invention to have affixed the alignment shaft to the alignment dish via a weld connection in SULLIVAN as disclosed by BLAKLEY et al. for the purpose of prevent loosening of the alignment shaft with respect to the alignment dish via the weld attachment (col. 5, lines 26-35).
Claims 12 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over US 6,280,077 B1 to Sullivan, Jr. in view of LENNON (US 3149888).
Sullivan does not disclose the recited washer. LENNON discloses a mixing assembly (Figure 1) including an element for supporting an elongate shaft 16, 34 having paddles 18 that employs an alignment shaft mechanism (Figures 3 and 4) that includes a washer 38 that is located between the elongate section potion 34 and the alignment dish 32, 36.
It would have been obvious to one skilled in the art before the effective filing date of the invention to have provided Sullivan with a washer as disclosed by LENNON for the purposes of providing a thrust seat surface between the elongate shaft and the alignment dish to allow removal of the bearing cover and permitting the removal or repair of that bearing and exposing the inner bearing part for removal or replacement wherein the cover may then be bolted on and the parts 24 and 26 of the rotary bearing brought into normal cooperating relationship, and the shaft 16 returned to the elevated position of FIG. 3, opening the shutoff valve (col. 1, line 55 - col. 2, line 26)
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over US 6,280,077 B1 to Sullivan, Jr.
Sullivan does not disclose the alignment shaft being formed of carbon steel. It would have been obvious to one having ordinary skill in the art, at the time applicant's invention was made, to have formed the alignment shaft or any of the other elements of Sullivan from carbon steel 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 carbon steel 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 mixing devices from a well-known construction material such as carbon steel. 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 mixing art such as carbon steel 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 can unquestionably be determined by a PHOSITA by innate common sense, the common knowledge generally, or the common knowledge in the relevant art.
Claims 15 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over US 6,280,077 B1 to Sullivan, Jr. in view of WINKLER (US 2245632).
Sullivan does not show the annular brush. WINKLER discloses a mixing assembly including a container 4; a mixing assembly with an elongate section drive shaft 3; an annular brush 1 mounted at one end 2 of the elongate section shaft 3.
It would have been obvious to one skilled in the art before the effective filing date of the invention to have provided the elongate section drive shaft of Sullivan with an annular brush at an end of the elongate section drive shaft as taught by WINKLER for the purposes of imparting a simultaneous mixing, cutting and rubbing action via the brush which greatly facilitates not only the mixing but the actual chemical reactions (col. 3, lines 31-47).
Allowable Subject Matter
Method of mixing claims 23-29 stand allowed.
Response to Amendment and Conclusion
The remarks filed 22 SEP 2025 with the amendment have been considered but are not persuasive.
The remarks highlight claim elements that are not positively recited in the respective claims as noted in section (10) above. For example, the emphatic emphasis on a comparison of the length of the elongate section to a height of the container, when the container is not positively recited in the apparatus claims, is thus not germane to the patentability of the mixing assembly combination of claim 1 and the paddle assembly subcombination of claim 16.
The cooperation of the elements positively recited in claims 1 and 16 with the container are tantamount to the intended use of such elements. "[A] statement of intended use.., does not qualify or distinguish the structural apparatus claimed over the reference." In re Sinex, 309 F.2d 488, 492 (CCPA 1962); In re Yanush, 477 F.2d 958, 959 (CCPA 1973) ("Appellant's use limitation does not impart a structural feature different from those of the prior art."); In re Casey, 370 F.2d 576, 580 (CCPA 1967) ("The claims in issue call for an apparatus or machine, viz. a tape dispensing machine. The manner or method in which such machine is to be utilized is not germane to the issue of patentability of the machine itself."); In re Hack, 245 F.2d 246, 248 (CCPA 1957) ("These cases are merely expressive of the principle that the grant of a patent on a composition or machine cannot be predicated on a new use of that machine or composition."). In summary, the use of the alignment dish, alignment shaft, and paddle assembly of claim 1 with a container of a certain height (i.e., longer/higher than a length of the elongate section), an external drive apparatus, and the dimensional interface with the base of the container are but intended uses of the elements including the alignment dish, alignment shaft, and paddle assembly. These elements are clearly disclosed in Sullivan, Jr. mandating the 102 rejections above.
Likewise, the use of the paddle assembly with the (i) alignment shaft and (ii) alignment dish of claim 16 [(i) and (ii) being non-positively recited elements], and with (iii) the container have not been afforded any patentable weight because it has been held that a recitation with respect to the manner in which a claimed apparatus [such as the paddle assembly subcombination] is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. Ex parte Masham, 2 USPQ2d 1647; In re Sebald, 122 USPQ 527; In re Lemin et al., 140 USPQ 273; In re Sinex, 135 USPQ 302; In re Pearson, 181 USPQ 641.
Since Sullivan, Jr. discloses all of the positively recited elements following “the mixing assembly comprising” in line 3 of claim 1 and following “the paddle assembly comprising” in line 3 of claim 16, the 102 rejections must be maintained.
In stark contrast, amended claim 23 recites method steps with positively recited inclusion and manipulation of elements such as the container, external drive apparatus, alignment shaft, alignment disk, and the steps related to the length of the elongate section as compared to the height of the container, the mixing assembly being entirely defined within the container for storage or disposal within the container, etc are steps not contemplated by the four corners of Sullivan, Jr. Accordingly, the method claims 23-29 stand allowed.
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 C.F.R. § 1.136(a).
Per Rule 1.116(b)(3): “An amendment touching the merits of the application or patent under reexamination may be admitted upon a showing of good and sufficient reasons why the amendment is necessary and was not earlier presented.” Thus, an amendment after final lacking such showing will be denied entry.
A SHORTENED STATUTORY PERIOD FOR RESPONSE TO THIS FINAL ACTION IS SET TO EXPIRE THREE MONTHS FROM THE DATE OF THIS ACTION. IN THE EVENT A FIRST RESPONSE IS FILED WITHIN TWO MONTHS OF THE MAILING DATE OF THIS FINAL ACTION AND THE ADVISORY ACTION IS NOT MAILED UNTIL AFTER THE END OF THE THREE-MONTH SHORTENED STATUTORY PERIOD, THEN THE SHORTENED STATUTORY PERIOD WILL EXPIRE ON THE DATE THE ADVISORY ACTION IS MAILED, AND ANY EXTENSION FEE PURSUANT TO 37 C.F.R. § 1.136(a) WILL BE CALCULATED FROM THE MAILING DATE OF THE ADVISORY ACTION. IN NO EVENT WILL THE STATUTORY PERIOD FOR RESPONSE EXPIRE LATER THAN SIX MONTHS FROM THE DATE OF THIS FINAL ACTION. ANY RESPONSE FILED AFTER THE MAILING DATE OF THIS FINAL REJECTION WILL BE SUBJECT TO THE PROVISIONS OF MPEP 714.12 AND 714.13.
NOTE: The examiner of record follows the interview after-final policy set forth in MPEP 713.09:
Normally, one interview after final rejection is permitted. However, prior to the interview, the intended purpose and content of the interview [agenda] should be presented briefly, preferably in writing. Such an interview may be granted if the examiner is convinced that disposal or clarification for appeal may be accomplished with only nominal further consideration. Interviews merely to restate arguments of record or to discuss new limitations which would require more than nominal reconsideration or new search should be denied. (emphasis added)
The agenda will be made of record per PTO policy.
New USPTO policy limits time for interviews to one per new application or RCE (utility), when during prosecution, the examiner conducts an interview. More than one interview and additional time will only be granted if it is ensured “that the interviews are being used to advance prosecution”.
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.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, CLAIRE 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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/CHARLES COOLEY/Examiner, Art Unit 1774
9 DEC 2025