The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
DETAILED ACTION
Claim Objections
Claim 22 is objected to because of the following informalities: the phrase “the ate least” contains a misspelled word. It should be “the at least” for accuracy. 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 use the word “means” or “step” but are nonetheless not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph because the claim limitation(s) recite(s) sufficient structure, materials, or acts to entirely perform the recited function. Such claim limitation(s) is/are: “fan member” in Claims 19, 24, and 26.
Because this/these claim limitation(s) is/are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are not being interpreted to cover only the corresponding structure, material, or acts described in the specification as performing the claimed function, and equivalents thereof.
If applicant intends 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 remove the structure, materials, or acts that performs the claimed function; or (2) present a sufficient showing that the claim limitation(s) does/do not recite sufficient structure, materials, or acts to perform the claimed function.
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
Determining the scope and contents of the prior art.
Ascertaining the differences between the prior art and the claims at issue.
Resolving the level of ordinary skill in the pertinent art.
Considering objective evidence present in the application indicating obviousness or nonobviousness.
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.
Claims 19 and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Prager US 2012/0234412 (hereafter Prager) in view of Wagner et al. US 5813088 (hereafter Wagner et al.).
Regarding Claim 19, Prager teaches:
19. (new) A battery powered backpack blower (blower apparatus 1 - drive motor can be powered by a battery pack, Paragraph [0012]), comprising:
a backplate (carrying frame 3);
a volute assembly (blower spiral 6) for providing an air flow pathway through the backpack blower;
a fan member (blower wheel 17) to generate air flow through the volute assembly;
a motor assembly (drive motor 9) secured to the volute assembly and operatively connected to the fan member, the motor being powered by at least one battery (drive motor 9 can be an electric motor with a battery pack – Paragraph [0012]);
a tube assembly (blower tube 7 and folded bellow section 8) connected to the volute assembly for exhausting the air flow (Figure 1);
a control assembly (handle 10) to be grasped by a user, the control assembly located on the tube assembly (Figure 1), the control assembly having a trigger (throttle trigger 11) for varying the speed of the fan member (see discussion below);
a switch (throttle lock 12) on the control assembly (Figure 1) for setting a first fan speed so that the trigger may be released and the fan speed is maintained (see discussion below).
Prager teaches a blower apparatus that can be powered with an internal combustion engine or a battery pack as disclosed in Paragraph [0012]. His specification focuses on the embodiment employing the internal combustion engine. Therefore, the control assembly (handle 10) has a trigger (throttle trigger 11) and a switch (throttle lock 12). The operation of the throttle trigger is implied and understood by a user of the device but it is not specifically presented in the specification. The reference Wagner et al. discloses a backpack blower that is also powered with an internal combustion engine. Like the Prager device, Wagner et al. discloses a throttle trigger 64 and a throttle lock 66. In Column 2, Lines 25-34, Wagner et al. provides evidence that the throttle trigger 64 controls the speed of the engine (and therefore the speed of the fan) and a lock 66 that allows the throttle to be maintained in an open position (fan speed maintained) when throttle trigger 64 is released. It would have been obvious to one having ordinary skill before the effective filing date of the claimed invention to modify the Prager device, if necessary, to use the throttle trigger to vary the speed of the fan member and use the throttle lock to maintain the fan speed when the throttle trigger is released as taught by Wagner et al. with the motivation to provide the user a simple means for adjusting the fan speed and allowing the user to lock the speed at a desired level and release the trigger to reduce strain on the user’s finger.
Regarding Claim 24, Prager teaches:
24. (new) A method of operating a battery powered backpack blower (blower apparatus 1 - drive motor can be powered by a battery pack, Paragraph [0012]), comprising the steps of:
providing a blower (blower apparatus 1) having a backplate (carrying frame 3), a volute assembly (blower spiral 6) for providing an air flow pathway through the backpack blower, a fan member (blower wheel 17) to generate air flow through the volute assembly, a motor assembly (drive motor 9) secured to the volute assembly and operatively connected to the fan member (Figure 2), the motor being powered by at least one battery (drive motor 9 can be an electric motor with a battery pack – Paragraph [0012]), a tube assembly (blower tube 7 and folded bellow section 8) connected to the volute assembly for exhausting the air flow, and a control assembly (handle 10), the control assembly located on the tube assembly (Figure 1), the control assembly having a trigger (throttle trigger 11) for varying the speed of the fan member (see discussion below), and a switch (throttle lock 12) on the control assembly for setting a first fan speed;
depressing the trigger to actuate the motor assembly and initiate an air flow through the blower;
actuating the switch and setting the first fan speed; and
releasing the trigger, wherein the fan member continues to operate at the first fan speed (see discussion below).
Prager teaches a blower apparatus that can be powered with an internal combustion engine or a battery pack as disclosed in Paragraph [0012]. His specification focuses on the embodiment employing the internal combustion engine. Therefore, the control assembly (handle 10) has a trigger (throttle trigger 11) and a switch (throttle lock 12). The method of operation of the throttle trigger is implied and understood by a user of the device but it is not specifically presented in the specification. The reference Wagner et al. discloses a backpack blower that is also powered with an internal combustion engine. Like the Prager device, Wagner et al. discloses a throttle trigger 64 and a throttle lock 66. In Column 2, Lines 25-34, Wagner et al. provides evidence that the throttle trigger 64 controls the speed of the engine (and therefore the speed of the fan) and a lock 66 that allows the throttle to be maintained in an open position (fan speed maintained) when throttle trigger 64 is released. It would have been obvious to one having ordinary skill before the effective filing date of the claimed invention to use the Prager device by to operating the blower using the throttle trigger to vary the speed of the fan member and using the throttle lock to maintain the fan speed when the throttle trigger after it is released as taught by Wagner et al. with the motivation to provide the user a simple means for adjusting the fan speed and allowing the user to lock the speed at a desired level and release the trigger to reduce strain on the user’s finger.
Allowable Subject Matter
Claims 20-23 and 25-27 are objected to as being dependent upon a rejected base claim but it would be allowable if rewritten to overcome the rejection(s) set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure can be found in form PTO-892 Notice of References Cited. Specifically, the prior art references include pertinent disclosures of blowers.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARC CARLSON whose telephone number is (571)272-9963. The examiner can normally be reached Monday-Thursday 6:30am-3:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, BRIAN KELLER can be reached on (571) 272-8548. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MARC CARLSON/Primary Examiner, Art Unit 3723
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