DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claim 18 is rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101). Claim 18 recites “a human worker”, thus requiring a human which is prohibited under 35 U.S.C 101.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
The term “stops below the cow’s abdomen” in claim 1 is a relative term which renders the claim indefinite. The term “below the cow’s abdomen” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. This would render the limitation unclear to one of ordinary skill in the art as each cow would be a different size, and thus rendering the dimensions of the housing unclear.
The term “below the lowest part of the cow’s abdomen” in claim 4 is a relative term which renders the claim indefinite. The term “below the lowest part of the cow’s abdomen” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. This would render the limitation unclear to one of ordinary skill in the art as each cow would be a different size, and thus rendering the dimensions of the housing unclear.
The term “below the lowest part of the cow’s abdomen” in claim 5 is a relative term which renders the claim indefinite. The term “below the lowest part of the cow’s abdomen” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. This would render the limitation unclear to one of ordinary skill in the art as each cow would be a different size, and thus rendering the dimensions of the housing unclear.
The term “a height of 5 mm - 100 mm below the cows’ abdomen” in claim 30 is a relative term which renders the claim indefinite. The term “a height of 5 mm – 100 mm below the cow’s abdomen” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. This would render the limitation unclear to one of ordinary skill in the art as each cow would be a different size, and thus rendering the dimensions of the housing unclear.
Claims 6, 8-14, 18-19, 31, 34-35 are similarly rejected due to dependency on a rejected claim above.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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.
Claims 1,4-6, 8-9,11-12, 18-20, 30-37, are rejected under 35 U.S.C. 103 as being unpatentable over Birk (US 20130239897 A1) in view of Krone (US 20140060436 A1).
Regarding claim 1: Birk discloses a milking platform suitable for use in milking cows (Fig. 1); the platform comprising a deck divided into a series of bales (3), each bale having side and end barriers (2, 6 act as barriers) having only one cow therein, each bale (3) having a housing (14) which a) is associated with a set of teat cups (9) and one or more retractable platform (8), b) which stops below the cow’s abdomen, c) extends between the forelegs of the cow (Fig. 2); and d) starts in front of the forelegs and extends towards, but stops before, the udder and the hind legs of the cow such that there is sufficient space to fit the teat cups to teats of the cow (Fig. 2); and wherein for each housing (14) the one or more retractable platform (8) is adapted to extend from a stowed position where it is entirely within the housing to carry the set of teat cups (9) to a pre-engagement position beneath the udder of a respective one of the cows (right of Fig. 1) and, after that cow is milked, to retract the teat cups such that both the one or more platform and the teat cups are stowed in entirety within the housing (Left of Fig. 1, para 27).
Birk discloses the claimed invention except for wherein the housing extends upwards from a deck to a height of 300 mm – 500mm, and is 150-300 mm wide. It would have been an obvious matter of choice to change the sizing of the housing, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Further, in Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Such change in height and width would be conducted in order to be used for a broader range of cow sizes/age.
Birk fails to teach one or more retractable arm.
However, Krone teaches a housing (2) which is associated with a set of teat cups (3) and one or more retractable arm (9).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided the platform as disclosed by Birk with the retractable hoses as taught by Krone with a reasonable expectation of success because providing hoses would benefit the worker using the system as it would allow for easier manipulation of the teat cups, allowing for more freedom of movement and accommodating various sized animals.
Regarding claim 4: Modified Birk discloses the limitations of claim 1 as shown above, and further teaches wherein for each cow the housing (Birk 14) extends to a height of 5 mm -150 mm below the lowest part of the cow's abdomen (excluding the cow's teats) (Functional limitation which can be met due to age/size of cow).
Regarding claim 5: Modified Birk discloses the limitations of claim 1 as shown above, and further teaches wherein for each cow the housing (Birk 14) extends to a height below the lowest part of the cow's abdomen (excluding the cow's teats) by 5 mm-100 mm (Functional limitation which can be met due to age/size of cow).
Regarding claim 6: Modified Birk discloses the limitations of claim 1 as shown above, and further teaches wherein for each cow the housing extends to a height sufficient to prevent the cow from turning around when in the bale (Birk Fig. 2, housing would prevent animal from turning). ).
Regarding claim 8: Modified Birk discloses the limitations of claim 1 as shown above, Modified Birk discloses the claimed invention except for wherein the housing extends to a length of 500 mm – 1700 mm. It would have been an obvious matter of choice to change the length of the housing, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Further, in Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Such length would be chosen in order to the milking platform to accommodate for various sizes of cows
Regarding claim 9: Modified Birk discloses the limitations of claim 1 as shown above, Modified Birk discloses the claimed invention except for wherein the housing extends to a length of 600 mm – 1600 mm. It would have been an obvious matter of choice to change the length of the housing, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Further, in Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Such length would be chosen in order to the milking platform to accommodate for various sizes of cows
Regarding claim 11: Modified Birk discloses the limitations of claim 1 as shown above.
Modified Birk teaches the claimed invention except for wherein the housing tapers so that it is higher at one end than the other.
Krone further teaches wherein the housing (2) tapers so that it is higher at one end than the other (Fig. 3)
It would have been an obvious matter of design choice to taper the height of the housing since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Further, in Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Tapering the height of the housing would allow for the cow to easily enter the bale of the platform, but also have the lowest section of the cow contact the highest end of the housing so that the cow is not able to proceed further than desired.
Regarding claim 12: Modified Birk discloses the limitations of claim 1 as shown above.
Modified Birk discloses the claimed invention except for wherein the housing extends to a length of 700 mm – 1500 mm. It would have been an obvious matter of choice to change the length of the housing, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Further, in Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Such length would be chosen in order to the milking platform to accommodate for various sizes of cows
Regarding claim 13: Modified Birk teaches the limitations of claim 12 as shown above, and further teaches wherein in each case the stowed position is in front of the cow's udder (Birk, Fig. 1).
Regarding claim 14: Modified Birk teaches the limitations of claim 12 as shown above, and further teaches wherein in each case the pre- engagement position is above and spaced from the platform (Birk, Fig. 2).
Regarding claim 18: Modified Birk discloses the limitations of claim 1 as shown above, and further teaches wherein for each set of teat cups (Birk 9) the teat cups are adapted to draw milk from the cow, and a human worker is able to move moves the set of teat cups by hand to engage the cow's teats when the set of teat cups is in the pre-engagement position (manipulating teat cups onto the cow’s teats are well known in the art).
Regarding claim 19: Modified Birk discloses the limitations of claim 12 as shown above, and further teaches wherein in each case the set of teat cups (Krone 3) is connected to a milk run-off tube (Krone hoses 9 would act as a run-off tube) that plays out to enable said set of teat cups to reach the pre-engagement position and retracts when the set is in the stowed position (Krone Fig. 1).
Regarding claim 30: Birk discloses a milking platform suitable for use in milking cows (Fig. 1), the platform comprising a deck divided into a series of bales (3), each bale having side and end barriers (2, 6 act as barriers) and having only one cow therein, each bale having a housing (14) which: a) is associated with a set of teat cups (9) and one or more retractable platform (8) extends upwards from the deck to a height 5 mm - 100 mm below the cow's abdomen (excluding the cow's teats) (functional limitation which could be met due to both the age of the cow and size of cow; c) extends between the forelegs of the cow (Fig. 2); and d) starts in front of the forelegs and extends towards, but stops before, the udder and hind legs of the cow such that there is sufficient space to fit the teat cups to teats of the cow (Fig. 2); and wherein for each housing (14) the one or more retractable platform (8) is adapted to extend from a stowed positioned where it is entirely within the housing to carry the set of teat cups (9) to a pre-engagement position beneath the udder of a respective one of the cows (right of Fig. 1) and, after that cow is milked, to retract the teat cups such that both the one or more arm and the teat cups stowed in entirely within the housing (Left of Fig. 1, para 27).
Birk discloses the claimed invention except for wherein the housing extends upwards from a deck to a height of is 150-300 mm wide. It would have been an obvious matter of choice to change the sizing of the housing, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Further, in Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Such change in width would be conducted in order to be used for a broader range of cow sizes/age.
Birk fails to teach one or more retractable arm.
However, Krone teaches a housing (2) which is associated with a set of teat cups (3) and one or more retractable arm (9).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided the platform as disclosed by Birk with the hoses as taught by Krone with a reasonable expectation of success because providing hoses would benefit the worker using the system as it would allow for easier manipulation of the teat cups, allowing for more freedom of movement and accommodating various sized animals.
Regarding claim 31: Modified Birk discloses the limitations of claim 30 as shown above, Modified Birk discloses the claimed invention except for wherein the housing extends to a length of 600 mm – 1600 mm. It would have been an obvious matter of choice to change the length of the housing, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Further, in Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Such length would be chosen in order to the milking platform to accommodate for various sizes of cows
Regarding claim 32: Birk discloses a device (14) formed so as to be suitable for presenting milking teat cups (9) to cows, the device being adapted for installation on a milking platform (1), the device comprising a housing (14) which: a) houses a set of teat cups (9) and one or retractable platform (8); wherein the one or more retractable platform (8) is adapted to extend from a stowed positioned where it is entirely within the housing to carry the set of teat cups (9) to a pre-engagement position beneath the udder of a respective one of the cows (right of Fig. 1) and, after that cow is milked, to retract the teat cups such that both the one or more platform and the teat cups stowed in entirely within the housing (Left of Fig. 1, para 27).
Birk discloses the claimed invention except for wherein the housing is 300-500 mm high, is 150-300 mm wide, and 500-1700m long. It would have been an obvious matter of choice to change the sizing of the housing, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Further, in Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Such change in height, width, and length would be conducted in order to be used for a broader range of cow sizes/age, allowing for milking to occur for cows of all sizes while decreasing the likelihood that the animal is able to maneuver within the bale.
Birk fails to teach one or more retractable arm.
However, Krone teaches a housing (2) which is associated with a set of teat cups (3) and one or more retractable arm (9).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided the platform as disclosed by Birk with the hoses as taught by Krone with a reasonable expectation of success because providing hoses would benefit the worker using the system as it would allow for easier manipulation of the teat cups, allowing for more freedom of movement and accommodating various sized animals.
Regarding claim 33: Modified Birk discloses the limitations of claim 32 as shown above, and further teaches a method of milking cows comprising: a) causing a cow (4) to enter a milking platform bale (Fig. 2) in which a device according claim 32 is installed on a deck of the platform (platform 1, Fig. 2); b) causing the cow to straddle the housing so that:(i) each foreleg of the cow is on a different side of the housing and such that the housing prevents the cow from turning around in the bale (Figs. 1-2, show that the cow would be unable to turn); and(ii) the underside of the cow's abdomen is sufficiently close to the top of the housing to cause the cow to be unable to get its body low enough to maneuver its head to a position where the head can get stuck beneath a front barrier of the bail (as seen in Fig. 2, the abdomen of the cow would be close enough to the housing where movement is preventable); and c) milking the cow with the teat cups (9) fitted to it and while it is standing in the bail straddling the housing as per a) and b) of this claim.
Regarding claim 34: Modified Birk teaches the limitations of claim 1 as shown above, and further teaches wherein the one or more retractable arm (Krone 9) cantilevers from the housing (Krone 2) to hold the teat cups (Krone 3) in the pre-engagement position to support the teat cups above the deck (Krone Fig. 1).
Regarding claim 35: Modified Birk teaches the limitations of claim 30 as shown above, and further teaches wherein the one or more retractable arm (Krone 9) cantilevers from the housing (Krone 2) to hold the teat cups (Krone 3) in the pre-engagement position to support the teat cups above the deck (Krone Fig. 1).
Regarding claim 36: Modified Birk teaches the limitations of claim 32 as shown above, and further teaches wherein the one or more retractable arm (Krone 9) cantilevers from the housing (Krone 2) to hold the teat cups (Krone 3) in the pre-engagement position to support the teat cups above the deck (Krone Fig. 1).
Regarding claim 37: Birk discloses milking platform suitable for use in milking cows (Fig. 1), the platform comprising a deck divided into a series of bales (3), each bale having side and end barriers and having only one cow therein (2, 6 act as barriers), wherein for each cow there is a predetermined distance between a lowest point of the cow's abdomen (excluding the cow's teats) to the deck where the cow stands, each bail having: a) a housing (14) on the deck, b) each housing having a set of teat cups (9) for milking the cows; c) each housing having a retractable platform (8) having a holder (gripping member 13a, para 24) at its distal end for releasably retaining and supporting the respective set of teat cups (Fig. 2); wherein in each case said housing extends between the respective cow's forelegs and starts in front of the forelegs and extends towards, but stops before, the cow's udder and hind legs such that there is sufficient space to fit the teat cups to teats of the cow (Fig. 2); wherein in each case the retractable platform (8) and set of teat cups (9) are adapted to be entirely within the housing in a stowed position when not in use (Fig. 1); and wherein in each case said retractable platform (8) is adapted to extend from within said housing to outside said housing carrying the set of teat cups to a pre-engagement position beneath the udder of the respective one of the cows to be milked (Fig. 2).
Birk discloses the claimed invention except for wherein the housing extends upwards from a deck to a height of 300 mm – 500mm, and is 150-300 mm wide. It would have been an obvious matter of choice to change the sizing of the housing, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Further, in Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Such change in height and width would be conducted in order to be used for a broader range of cow sizes/age.
Birk fails to teach one or more retractable arm.
However, Krone teaches a housing (2) which is associated with a set of teat cups (3) and one or more retractable arm (9).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided the platform as disclosed by Birk with the retractable hose as taught by Krone with a reasonable expectation of success because providing hoses would benefit the worker using the system as it would allow for easier manipulation of the teat cups, allowing for more freedom of movement and accommodating various sized animals.
Claims 10 is rejected under 35 U.S.C. 103 as being unpatentable over Birk in view of Krone as applied to claim 1 above, and further in view of Notsuki (US 4010714 A).
Regarding claim 10: Modified Birk discloses the limitations of claim 1 as shown above.
Birk fails to teach wherein the housing tapers so that it is wider at one end than the other (Fig. 5, one end tapers in the manner of a semi-circle).
Notsuki teaches wherein the housing tapers so that it is wider at one end than the other (Fig. 5, one end tapers in the manner of a semi-circle).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided the housing as disclosed by modified Birk with the tapering as taught by Notsuki with a reasonable expectation of success because having the housing taper would allow for the animal to have an easier time of entering the system, decreasing the likelihood that the animal hurts its legs by stepping on the housing.
Response to Arguments
Applicant's arguments filed 05/04/2026 have been fully considered but they are not persuasive.
Applicant argues that a skilled person in the art would observe a cow in a bale and determine whether any features pertaining to the subject matter of “stopping below the cow’s abdomen” apply. The Office respectfully disagrees, because the issue is not whether one of ordinary skill in the art would be able to determine whether an art or invention approaches this limitation, the issue is that the scope of the claim is trying to limit an apparatus structure based on the size of the cow. The cow itself in the claim is not positively recited, because even though the milking platform is directed to be suitable for use in milking cows, it could be used for other animals such as goats. Applicant is attempting to narrow the scope of the apparatus invention to an animal that is not even required to be present in the bale.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant takes the stance that the prior art of Birk does not teach a retractable arm stowed completely within the housing. The Office respectfully disagrees, because the retractable platform (8) is showed on the left-side of Fig. 1 to be completed situated within the housing, as seen below. The reason why Krone is relied upon is not to teach this stowed limitation, but because there may be disagreement as to whether or not the platform (8) of Birk constituted an arm. Platform (8) of Birk works in the same intended format as Applicant’s retractable arm, the only difference being that it may not be considered a narrow object. For that purpose, Krone was relied upon to teach a narrow object which can retract and expand to attach to an animal’s teat. The Office therefore disagrees with Applicant’s argument that the modification of Birk to a narrow structure of Krone would go beyond obvious modification.
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Applicant argues that the hose (9) of Krone does not carry the teat cups. The Office respectfully disagrees because it would be impossible for the prior art of Krone to have holders (7) function as intended if it were not fastened and supported by the hose (9) as seen in Fig. 4.
Applicant argues that the case law analysis of Gardner supports the application and not the rejection, as the dimensions would limit the cow’s ability to move once in the bale. The Office respectfully disagrees, as the dimensions do not seem to have any criticality in this manner as they are described to be “optional” dimensions in the specifications. It stands to reason that since Birk teaches a housing between the forelegs of the animal, movement would naturally be inhibited once within the bale. Since the dimensions themselves are optional and not critical in light of the specification, the examiner recognizes that the change in dimensions are within the level of one of ordinary skill in the art.
Applicant argues that platform (8) of Birk would equate to the “holder” of claim 37. The Office respectfully disagrees, as Birk teaches gripping members (13a) at a distal end of the platform (8) which are configured to hold the teat cups as discussed in paragraph 24 of the prior art.
Applicant argues that the platform (8) could not be equative to the retractable arm since it does not move or retract by itself. This argument is not commensurate with the scope of the claims, as the arm is not required to move or retract itself. The limitations of claim 37 are therefore considered to be met as Birk’s platform (8) and gripping members (13a) are functional equivalent’s to Applicant’s retractable arm and holder as currently recited.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply 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 nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/E.R./Examiner, Art Unit 3642
/MAGDALENA TOPOLSKI/Primary Examiner, Art Unit 3642
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