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 .
Specification
The abstract of the disclosure is objected to because it currently uses legal phraseology and language that can be implied. The abstract begins: “Said device comprises….” Also recommend that the abstract use multiple sentences in a narrative format instead of using the phraseology of a claim. Several sample abstracts are provided in MPEP 608.01.b.I.e. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
The amendment filed 31 January 2023 is objected to under 35 U.S.C. 132(a) because it introduces new matter into the disclosure. 35 U.S.C. 132(a) states that no amendment shall introduce new matter into the disclosure of the invention. The added material which is not supported by the original disclosure is as follows:
The incorporation by reference in the international patent application PCT/EP2021/071318 and of the French patent application FR2008214 is ineffective as it was added on the day of entry into the national phase, which is after the filing date of the Instant Application. The filing date of this national stage application is the filing date of associated PCT, in this case 29 July 2021, see MPEP 1893.03(b). Therefore, the specification amendment of 31 January 2023 to include the incorporation by reference is new matter, per MPEP 608.01(p).
Applicant is required to cancel the new matter in the reply to this Office Action.
Drawings
The drawings are objected to because of the following reasons:
The drawings do not have durable, black, sufficiently dense and dark, uniformly thick and well-defined lines (PCT Rule 11.13.a, MPEP 1825). Instead, the drawings are faded.
The refence number 105 described in the specification is not in any of the drawings. Reference signs not mentioned in the description shall not appear in the drawings, and vice versa (PCT Rule 11.13.l, MPEP 1825).
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.
Claim Objections
Claims 5-13 are objected to under 37 CFR 1.75(c) as being in improper form because a multiple dependent claim cannot depend from any other multiple dependent claim. Claims 5-13 depend on claim 4, which is a multiple dependent claim. See MPEP § 608.01(n). Accordingly, the claims have not been further treated on the merits.
Claim 4 is objected to because of the following informalities: recommend amending the claim to recite: “…photovoltaic panels…” Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
“heating element” in claim 1
The generic placeholder is “element” and the functional limitation is “heating.”
Structure that is used from the Specification includes a halogen lamp or a light emitting diode.
“electronic control system” in claim 1
The generic placeholder is “system” and the functional limitation is “electronic control.”
Structure that is used from the Specification includes a switch.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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.
Claims 2-4 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 2 recites: “further comprising means for stacking said device on another copy of the same device and whose removable stake has been removed, the stacking means being arranged on the one hand on the main housing and on the other hand on the upper housing.” The scope of this limitation is indefinite. Specifically, are two “devices” required or is just one device required? If two devices, how do these two “devices” fit within the scope of the preamble set by claim 1, which sets forth: “A heating device for plants?”
Additionally, there is insufficient antecedent basis for the word “whose” in this claim. If the antecedent for “whose” is the “said device” of claim 1, then it is unclear how the stake can be removed from the scope of the claim (claim 2 must include all the limitations of claim 1).
This uncertainty carries through to the rest of the claim. Specifically, it is unclear which device (the “said device” of claim 1 or the “same device” of claim 2) possesses the “stacking means.” Or do both devices need “stacking means?” Or does one device have a main-housing stacking means and the other device have an upper-housing stacking means?
For the purpose of the examination, claim 2 will be interpreted under its broadest reasonable interpretation as requiring only one device (the device of claim 1) with “stacking means” and so long that this device is stackable onto another device without a stake, then the claim limitations are satisfied, i.e., the “same device” is within a functional limitation and is not required structure within the scope of the claim, and the antecedent for “whose” is the “same device.”
Claims 3-4 are rejected based on their dependency to claim 2.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kuelbs et al. (US-20060187656-A1, hereinafter Kuelbs ‘656).
Kuelbs ‘656 teaches a heating device (fig. 5; “heating,” para 0037) for plants (“plants,” para 0044) comprising a heating element (light element 20, fig. 4; “light emitting diodes,” para 0025), a main housing (main housing 14, fig. 5) incorporating an electronic control system (switch 28, fig. 4; the switch located on the lower surface 24 of the main housing, para 0026) and a battery (batteries 46, fig. 4) configured to power said electronic control system (paras 0026 and 0043; fig. 3), an upper housing (solar housing 12, fig. 5) comprising a photovoltaic panel (solar panel 18, fig. 5) suitable for charging said battery (fig. 3; para 0043), the device further comprising a removable stake (stake 52, fig. 5) removably attached to said main housing (fig. 7) and suitable for securing the device in the soil (“insertion in soil,” para 0044).
Kuelbs ‘656, fig. 7
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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.
Claims 2-4 are rejected under 35 U.S.C. 103 as being unpatentable over Kuelbs et al. (US-20060187656-A1, hereinafter Kuelbs ‘656) as applied to claim 1 above and further in view of Kuelbs et al. (US-20060120067-A1, herein after Kuelbs ‘067).
Regarding claim 2, Kuelbs ‘656 teaches further comprising means for stacking said device, the stacking means being arranged on the one hand on the main housing and on the other hand on the upper housing (interpreted under 112f as a wide tube 10 on the main housing and a less wide tube 6 on the upper housing; Kuelbs ‘656 teaches a support member 29, which is construed as the wide tube and which is located on the bottom surface of the main housing 14, fig. 4; Kuelbs ‘656 also teaches a shaft 30 and ball 32, which is construed as the less wide tube, and which is located on the solar housing 12, fig. 4).
Kuelbs ‘656 does not explicitly disclose stacking said device on another copy of the same device and whose removable stake has been removed.
However, in the same field of endeavor of outdoor landscape devices, Kuelbs ‘067 teaches stacking said device (upper light housing 201, shade member 2025, and stake member 2015) on another copy of the same device (shade member 2027, fig. 10) and whose removable stake has been removed (shade member 2027 does not include a stake, i.e., only one stake is shown in fig. 10, which is construed as being part of the “said device”).
Kuelbs ‘067, fig. 10
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Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date to modify the invention of Kuelbs ‘656, in view of the teachings of Kuelbs ‘067, by adding an additional member 2027, as taught by Kuelbs ‘067, where the additional member was a main housing 14, added between the main housing 14 and solar housing 12, as taught by Kuelbs ‘656, in order to add additional members that direct more light emitted from LEDs toward specific lawn or landscaping objects, for the advantage of providing additional heating that can be customized based on the height of the plant (Kuelbs ‘067, para 0064).
Regarding claim 3, Kuelbs ‘656 teaches wherein the stake (stake 52 and riser 50, fig. 7) is adapted to be able to be removably fitted onto the stacking means (member 29, fig. 7) arranged on the main housing (main housing 14, fig. 7).
Regarding claim 4, Kuelbs ‘656 teaches wherein the upper housing (solar housing 12, fig. 12, fig. 1) comprises a disc plate (top of solar housing 12 is construed as a “disc plate”) and the photovoltaic panels (solar panel 18, fig. 1) cover said disc plate, and the stacking means (shaft 30/ ball 32, fig. 4) arranged on the upper housing are cylindrical and centered on the center of the disc plate (shaft 30 is centered on solar housing 12, fig. 4).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Wheatley et al. (US-20170367274-A1) teach infrared LEDs.
Catinis et al. (US-9899823-B1) teach polyethylene apparatuses.
Ross et al. (US-20180295785-A1) teach an LED plant growth system.
Waxenberger et al. (DE-102004010625-A1) teach using halogen lamps for plant heating.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERWIN J WUNDERLICH whose telephone number is (571)272-6995. The examiner can normally be reached Mon-Fri 7:30-5:30.
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, Edward Landrum can be reached at 571-272-5567. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ERWIN J WUNDERLICH/Examiner, Art Unit 3761 2/5/2026