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 .
Response to Arguments
Applicant's arguments filed 07/16/2025 have been fully considered but they are not persuasive. It is noted that no terminal disclaimer is present in the application file, contrary to applicant’s arguments.
Applicant argues that Grant et al. does not disclose or make obvious the limitation of a spring drum that is rotatably mounted within the housing such that the coil spring is mounted to the spring drum and the coil spring is coilable and uncoilable upon rotation of the spring drum. Grant et al. states resilient member (32) can engage biasing member (22 – the coil spring) and pulleys (34 – spring drum) are further rotated by the resilient member (32) ([0022]). Therefore coiling/uncoiling of the coil spring (22) causes movement of the resilient member (32) and rotation of the spring drum (34) and as such the coil spring is also coilable and uncoilable upon rotation of the spring drum.
Applicant argues that Grant et al. does not teach the pusher controller being configured to repeat a wireless transmission. The pusher controller of Grant et al. (sweep detector 16 , monitoring device 18) disclose wifi/Bluetooth/rf communication processes ([0023]). The fact that such an apparatus is disclosed to perform such a wireless transmission would lead to the conclusion it is configured to repeat the transmission.
Applicant argues that Grant et al. does not teach the upper-level system controller configured to receive software update data. Grant teaches the upper-level system controller (18) communicating with remote devices and cloud network(s) ([0025]). If the controller is configured to communicate with a remote device it is configured to receive data and therefore configured to receive software update data.
Applicant argues that Grant et al. does not disclose one or more visual indicators configured to indicate whether the upper-level system controller is receiving power, or transmitting data, or receiving data. However, the disclosure of a visual alarm ([0023]) discloses at least receiving of alarm data.
Regarding claims 3/15, applicant argues that Grant et al. in view of Swafford et al. does not disclose an RFID reader to automatically scan RFID on retail items. The combination teaches the addition of an RFID reader and RFID product codes and it is within the level of ordinary skill in the art to have such a reader automatically scan products (as Swafford teaches with UPC codes) when present in a device such as that of Grant et al. in view of Swafford et al.
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 1-2, 4-5, 7-11, 13-14, 16-19, 41-42, 44-53 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-29 of U.S. Patent No. 11,363,894. Although the claims at issue are not identical, they are not patentably distinct from each other because the non-identical parts and limitations required are either obvious variants or obvious over the patent claimed limitations.
Claims 1-2, 4-5, 7-11, 13-14, 16-19, 41-42, 44-53 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-26 of U.S. Patent No. 11,707,141. Although the claims at issue are not identical, they are not patentably distinct from each other because the non-identical parts and limitations required are either obvious variants or obvious over the patent claimed limitations.
Claims 1-2, 4-5, 7-11, 13-14, 16-19, 41-42, 44-53 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of U.S. Patent No. 12,137,819. Although the claims at issue are not identical, they are not patentably distinct from each other because the non-identical parts and limitations required are either obvious variants or obvious over the patent claimed limitations.
Claim Rejections - 35 USC § 103
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 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) 1-2, 4-5, 7-14, 16-19, 41-42, 44-54 is/are rejected under 35 U.S.C. 103 as being unpatentable over Grant et al. (US 2019/0183259).
Regarding claim 1, Grant et al. (hereafter “Grant”) teaches a retail merchandise pusher system comprising: a pusher assembly having a pusher configured to slide along a track of the pusher assembly, the pusher assembly being mountable to a retail merchandise shelf ([0020]), the pusher comprising: a housing (28); a spring drum (at pulley 34 of sensor 30 – [0021]) rotatably mounted within the housing; a coil spring (bias member 22; [0020]) mounted to the spring drum, the coil spring coilable and uncoilable upon rotation of the spring drum; and a pusher controller (sweep detector 16 / monitoring device 18; [0006]) coupled to a sensor arrangement (sensor 30; figure 9; [0021]) carried within the housing, the sensor arrangement comprising: a spring drum sensor (30) for detecting rotation of the spring drum ([0021]), wherein the pusher controller is configured to calculate, based on data from the sensor arrangement, a number of retail items in the track, and to wirelessly transmit inventory data indicative of the number of retail items in the track ([0003, 0023]).
Although Grant fails to expressly teach a spring drum sensor, a direction sensor and an incremental distance sensor separately, Grant teaches the sensor (30) is configured to perform the same functions as a spring drum sensor, a direction sensor and an incremental distance sensor combined in paragraphs [0021]-[0023]. Therefore, it would have been obvious to a person having ordinary skill in the art on the effective filing date of the claimed invention to substitute the spring drum sensor, the direction sensor and the incremental distance sensor with Grant’s sensor because these sensors were art-recognized equivalents to perform the same functions and to reduce space.
Regarding claim 2, Grant discloses wherein the pusher controller is further configured to transmit a unique identifier for the pusher assembly ([0025] – alerting personnel of inventory of a pusher device based on sensor data; inherently each pusher device is differentiated on a shelf/rack; [0024] disclosing code or identifier for detector 16/18).
Regarding claim 4, Grant discloses further comprising a receiver (monitoring device 18 – [0024] disclosing wireless communication and [0025] communication with remote devices and cloud network), located remotely from the pusher assembler, the receiver configured to receive the inventory data and to transmit the inventory data to an upper-level system controller.
Regarding claim 5, Grant discloses wherein the receiver (18) is configured to transmit, along with the inventory data, a unique identifier for the receiver (inventory level management of pushers disclosed and inherently each pusher device is differentiated on a shelf/rack; [0024] disclosing code or identifier for detector 16/18).
Regarding claim 7, Grant discloses wherein the pusher controller calculates the number of retail items in the track based on a position of the pusher and on a size of the retail item ([0025] disclosing monitoring of number of items based on sensor input; [0023] teaching number of items input by a user – thickness of items must be known to indicate the number of items associated with theft occurrence).
Regarding claim 8, Grant discloses wherein the pusher controller (16 /18) is configured to repeat each wireless transmission of inventory data at least once (capable of transmitting data more than once).
Regarding claim 9, Grant discloses further comprising an upper-level system controller (remote computer and/or monitoring device 18 – [0025] discloses communication with remote devices and cloud network) configured to receive the inventory data, and to transmit the inventory data to a networked computer server.
Regarding claim 10-12, see the discussions of claims 5 and 9 (communication with remote devices and/or cloud network).
Regarding claim 13, Grant discloses wherein the upper-level system controller (18 or remote computer communicates with 16 or 18) is configured to communicate directly with the pusher controller.
Regarding claim 14, Grant discloses wherein the upper-level system controller includes one or more visual indicators configured to indicate whether the upper-level system controller is receiving power, or transmitting data, or receiving data (monitoring device 18 disclosed as comprising a visual alarm – [0023]).
Regarding claims 16-19, Grant discloses communicating data from pusher controller (at 16) to upper-level device or receiver (18) and to remote computer and/or cloud network ([0025]).
Regarding claims 41-42, 45-47, 50-51, see the discussions of claims 1-2, 4-5, 7-14, 16-19 above.
Regarding claim 44, Grant discloses further comprising a user interface (actuator disclosed – [0024]) on the receiver / controller (18) but does not specify a display for data / inventory. It would have been obvious to one of ordinary skill in the art at the time of the effective filing date to display on the controller sensed or calculable parameters as it is already motivated to indicate a pairing status.
Regarding claim 48, Grant discloses wherein the controller (18) determines if the change is an increase in displayed inventory or a decrease in displayed inventory based on the direction of travel information sensed by the sensor arrangement ([0025] discloses monitoring a number of items based on sensor data).
Regarding claims 49 and 52-53, Grant discloses wherein the controller (18) is configured to determine the product depth by receiving distance of travel information from a zero position from the sensor assembly sensed upon insertion of a predetermined number of retail items and then dividing the distance of travel information by the predetermined number of retail items ([0023] disclosing calculating product thickness; [0025] determining / monitoring inventory levels).
Regarding claim 54, per the discussion of claim 44 Grant discloses a user input and addition of a display / interface is an obvious modification. User input of product parameters in order to calibrate the controller would have been obvious to one of ordinary skill in the art at the time of the effective filing date.
Claim(s) 3, 6, 15, 20-40 is/are rejected under 35 U.S.C. 103 as being unpatentable over Grant et al. (US 2019/0183259) in view of Swafford et al. (US 2018/0047243).
Regarding claims 3 and 15, Grant does not disclose wherein the pusher assembly includes a UPC reader or QR code scanner to automatically scan a UPC or QR code on each retail item.
Swafford et al. (hereafter “Swafford”) discloses a pusher system (pusher assembly 15) comprising inventory management features including a UPC reader ([0100, 0107]) or RFID ([0129 disclosing rfit communication from pusher for calculating inventory and [0170] disclosing it is known to use rfid tags on products]) for identifying a type of merchandise for a computer (90) and controller (55) to determine product inventory data.
It would have been obvious to one of ordinary skill in the art at the time of the effective filing date to add a UPC code reader and/or RFID reader to Grant as taught by Swafford for quick and automatic identification of product types.
Regarding claim 6, Grant does not disclose wherein the receiver includes an external antenna, and wherein the receiver can receive data from a pusher located 200 feet from the receiver.
Swafford teaches a controller (55) with antennas (65 and 80 – figure 3) which receive pusher data and forward on to access points ([0054, 0062]).
It would have been obvious to one of ordinary skill in the art at the time of the effective filing date to utilize an antenna on the receiver and remote computer of Grant as taught by Swafford for communication efficiencies.
Regarding claims 20-40, Grant discloses a computer server (cloud network) configured to receive and aggregate the inventory data transmitted by the pusher controller (18), the computer server being linked to a network, but does not specifically disclose being further configured to send the inventory data to a display of a client device, and wherein the computer server is configured to transmit inventory data to the display, in real-time, such that the display shows the inventory data from a plurality of pusher assemblies.
Swafford teaches a store computer (90) in communication with sensors to display real time data and network with a plurality of stores ([0076]) for aggregating total inventory data.
It would have been obvious to one of ordinary skill in the art at the time of the effective filing data to provide a store / remote computer or hand-held data display as taught by Swafford for the pusher system of Grant to display inventory data. As modified, it is within the level of ordinary skill to configure the device to display the data graphically or textually received from a controller and/or remote network and to provide user prompts based on the data, including any and all data collected about the pushers and products including identifications and amounts.
Conclusion
THIS ACTION IS MADE FINAL. 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PATRICK D HAWN whose telephone number is (571)270-5320. The examiner can normally be reached Monday - Friday 9-6.
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, Jonathan Liu can be reached at 5712728227. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PATRICK D HAWN/Primary Examiner, Art Unit 3631
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