DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Drawings
The drawings are objected to under 37 CFR 1.83(a) because they fail to show details of the modular tip as described in the specification (Figure 2b missing). Any structural detail that is essential for a proper understanding of the disclosed invention should be shown in the drawing. MPEP § 608.02(d). Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-6 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5 of U.S. Patent No. 11,533,902. Although the claims at issue are not identical, they are not patentably distinct from each other because the both the current claims and the patented claims disclose an application stem with a modular hollow shaft, modular tip receiver and modular tip however the current claims are broader than the patented claims.
Claim Rejections - 35 USC § 103
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.
Claim(s) 1-5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Powell (6,308,454) in view of Schuster (8,677,680).
Regarding claim 1, Powell discloses an application stem for a system for exterminating ants (column 2 line 66 through column 3 line 2), the application stem comprising:
A modular hollow shaft (12) comprising a first end and a second end and defining one or more perforations (16) adjacent the second end and modular tip receiver opening (open end that receives 26 – Figure 3) formed at the second end
A modular tip receiver (threads that mate with threads 23 – not shown) positioned within the modular tip receiver opening
A modular tip (24) removably coupled to the modular tip receiver, wherein fluid exits the application stem through the one or more perforations via an outlet line
While Powell discloses the invention as described above including a fluid line for providing fluid to the perforations, it fails to disclose a heat exchanger for providing heated fluid to the hollow shaft via an outlet line. Like Powell, Schuster also discloses an application system for exterminating ants including a hollow shaft with a fluid line for delivering fluid to the ground. Unlike Powell, Schuster discloses that the outlet line can be connected to a heat exchanger for providing heated fluid to the ground to exterminate ants. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to connect the shaft and fluid lines of Powell to a heat exchanger to provide heated fluid to the ground as taught by Schuster as it would be combining prior art devices according to known methods to obtain predictable results (KSR International Co. v. Teleflex Inc., 550 USPQ2d 1385 (2007)).
Regarding claims 2-3, the combination discloses that the application stem comprises a t-handle extension grip (18).
Regarding claim 4, the combination discloses a redirection pipe (31) to which the modular shaft is removably coupled at the first end of the shaft, wherein the redirection pipe (30) is couplable to the fluid outlet line (30), and the fluid is redirected as it flows through the redirection pipe from a first direction to a second direction substantially perpendicular (Figure 2) to the first direction and a grip (18) comprising a t-handle extension mounted to the redirection pipe at a transition between the first and second direction.
Regarding claim 5, the combination discloses that the line is rated to hold water at temperatures between 190 degrees F to 200 degrees F (Schuster discloses steam at higher temperatures which is water in a gaseous fluid form, therefore it would also be rated for lower temperatures).
Claim(s) 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Powell (6,308,454) in view of Schuster (8,677,680) as applied to claim 1 above and further in view of Barber (2,224,010).
Regarding claim 6, the combination discloses that a modular tip received by a modular tip receiver (threads) in the tip receiver opening. The combination fails to disclose that the modular tip receiver and the modular tip comprise a sloping external profile. Like the combination, Barber also discloses a tip (30) and a receiver (12) for a wand/stem mounted nozzle with a penetrating tip similar to the combination. Unlike the combination, Barber discloses that the modular tip can be mounted to an adapter type element (12) (modular tip receiver) and that both the tip and the receiver can have sloping external profiles. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the tip and receiver arrangement of Barber in place of the arrangement in the combination as a simple substitution of one known element for another to obtain predictable results (KSR International Co. v. Teleflex Inc., 550 USPQ2d 1385 (2007)).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Ryan (9,949,449) also discloses a ground injecting liquid device.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jamie L McGowan whose telephone number is (571)272-5064. The examiner can normally be reached Monday through Friday 9:00-5:00 CST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Chris Sebesta can be reached at 571-272-0547. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JAMIE L MCGOWAN/Primary Examiner, Art Unit 3671