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 October 27, 2025 have been fully considered but they are not persuasive.
Applicant’s argument that a terminal disclaimer is submitted to overcome the double patenting rejection is noted but is not considered persuasive because the submitted terminal disclaimer was not approved. The person who signed the terminal disclaimer is not the applicant, patentee or an attorney or agent of record. See below for details. Examiner suggests filing a power of attorney that gives power to the attorney who is signing the terminal disclaimer, along with another copy of the terminal disclaimer, or filing a terminal disclaimer that is signed by the applicant.
Applicant’s argument that Flanigan teaches a feedback loop that can alert an operator to manually initiate a mitigation protocol and fails to suggest program code that causes the controller to detect and mitigate a stall of the drilling tool while driving the foundation component to the target embedment depth is noted but is not considered persuasive because Flanigan explicitly describes that the controller detects and mitigates a stall of the drilling tool while driving the foundation component to the target embedment depth. In paragraph 0043, Flanigan recites “by employing feedback control, adjustments to the tool driver and/or rotary driver may be made in real-time to prevent equipment breakage”. Flanigan further recites in the same paragraph that “The feedback control loop allows these conditions to be detected quickly and for mitigation techniques to be automatically employed before either the soil or anchor are damaged. For example, if ground penetration slows or stalls, or the machine begins to lift up, the feedback controller may control the upper crowd motor to make the tool driver move ahead of the screw anchor and/or may control the tool driver to increase a rate or force of hammering while pausing the rotary driver to try to breakup whatever is impeding the screw anchor's progress. After a certain amount of time elapses or after the drill or tool has penetrated far enough beyond the anchor (i.e., to an acceptable depth), indicating that the refusal has been mitigated, the controller may control the rotary driver and lower crowd motor to resume the driving operation. All of this may be done without the need for an operator to be closely monitoring performance parameters of machine”. This disclosure of Flanigan clearly indicates that the controller detects and mitigates stalls of the drilling tool without any requirement for operator involvement.
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 1-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 3-17 of copending Application No. 18/520,322 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of Application 18/520,322 include the limitations of the instant application as a tracked chassis is a base machine.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
The terminal disclaimer filed on October 27, 2025 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of any patent granted on Application Number 18/520,322 has been reviewed and is NOT accepted.
The terminal disclaimer does not comply with 37 CFR 1.321 because:
This application was filed on or after September 16, 2012. The person who signed the terminal disclaimer is not the applicant, the patentee or an attorney or agent of record. See 37 CFR 1.321(a) and (b).
Claim Rejections - 35 USC § 102
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.
Claims 1, 6-8, 10, 13-15, 17 and 18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Flanigan et al (US 2020/0149241).
Regarding claim 1, Flanigan discloses a machine (e.g. 100, Fig. 3A) for driving foundation components (e.g. 10, Fig. 3A), the machine comprising: a base machine (e.g. 110, Fig. 3A, paragraph 0029); an adjustable mast attached to the base machine (e.g. 150, Fig. 3A, paragraph 0030); a rotary driver (e.g. 154, Fig. 3A, paragraph 0032), movably attached to the mast and controllable to drive a foundation component into underlying ground to a target embedment depth (e.g. foundation component 10, Fig. 3A, claim 15, paragraph 0036); a drilling tool (e.g. 156, Fig. 3A, paragraph 0032) movably attached to the mast and controllable to operate a drill rod through the rotary driver and foundation component (e.g. drill rod 158, Fig. 3A, claim 15, paragraph 0032); and a control system (e.g. 200, Fig. 5) including a controller (e.g. 210, Fig. 5) executing a control program for automatically controlling the rotary driver and the drilling tool to drive the foundation component to the target embedment depth (e.g. claim 15, paragraph 0038), wherein the control program contains program code causing the controller to detect and mitigate a stall of the drilling tool while driving the foundation component to the target embedment depth (e.g. paragraph 0043).
Regarding claim 6, Flanigan further discloses that the program code causing the controller to detect and mitigate a stall of the drilling tool comprises program code that causes the controller to pause driving the foundation component to clear the stall (e.g. paragraph 0043).
Regarding claim 7, Flanigan further discloses that the drill rod comprises a drill bit (e.g. 159, Fig. 9), and wherein clearing the stall comprises controlling the drilling tool to temporarily withdraw the drill bit and then to advance the drill bit ahead of the foundation component while ejecting pressurized air from the drill bit to clear the stall (e.g. “engage the upper crowd to separate from the drive train and to apply… release of pressurized air through and ahead of the screw anchor while the screw anchor rests in place to break up and clear any obstruction in front of the screw anchor causing the refusal”, paragraph 0050, similar to Fig. 9, paragraph 0054).
Regarding claim 8, Flanigan further discloses that the program code further causes the controller to control the rotary driver to resume driving the foundation component once the stall is cleared until the foundation component reaches the target embedment depth (e.g. paragraph 0043).
Regarding claim 10, Flanigan discloses a stall mitigation system (e.g. 200, Fig. 5) for an automated foundation component embedment machine (e.g. 100, Fig. 3A), the system comprising: a plurality of control nodes at the machine (e.g. Fig. 6, claim 1, paragraph 0038), the plurality of control nodes comprising a rotary driver (e.g. 154, Fig. 3A) and a drilling tool (e.g. 156, Fig. 3A); a controller (e.g. 210, Fig. 5) executing stored program code for controlling the rotary driver and the drilling tool of the machine to embed a foundation component (e.g. 10, Fig. 3A) into underlying ground (e.g. claim 3, paragraph 0038); and a plurality of sensor nodes (e.g. Fig. 6, claim 1, paragraph 0038), wherein the program code causes the controller to control the control nodes to begin an automated operation to embed the foundation component into the underlying ground (e.g. Fig. 11, claim 1, paragraph 0048), and, based on an output of at least one of the sensor nodes, to determine that a stall of at least the drilling tool has occurred and to mitigate the stall of at least the drilling tool while performing the automated operation (e.g. claim 10, paragraph 0043).
Regarding claim 13, Flanigan further discloses that in response to determining that a stall of at least the drilling tool has occurred, the stored program code causes the controller to pause embedment of the foundation component and to control at least the drilling tool to clear the stall (e.g. paragraph 0043).
Regarding claim 14, Flanigan further discloses that the drilling tool comprises a hydraulic drilling tool (e.g. hydraulic drifter, 156, paragraph 0034).
Regarding claim 15, Flanigan further discloses that the stored program code causes the controller to control the hydraulic drilling tool to perform an automated mitigation process to clear the stall (e.g. paragraph 0043).
Regarding claim 17, Flanigan discloses a method of controlling an automated machine (e.g. 100, Fig. 3A) for driving foundation components (e.g. 10, Fig. 3A, claim 18), the method comprising: with a digital controller (e.g. 210, Fig. 5) communicatively coupled to the automated machine, executing stored program code causing the controller to control the automated machine to attempt to embed a screw anchor (e.g. 10, Fig. 1A) into underlying ground to a target embedment depth (e.g. claim 18, paragraph 0038); and with the digital controller, executing stored program code causing the controller to monitor an output of at least one pressure sensor connected to a drilling tool of the automated machine (e.g. 156, paragraph 0038) to determine if a stall of the drilling tool has occurred and to mitigate the stall before continuing to attempt to embed the screw anchor (e.g. paragraph 0043).
Regarding claim 18, Flanigan further discloses that executing stored program code causing the controller to control the automated machine to attempt to embed a screw anchor into underlying ground to a target embedment depth comprises controlling with the digital controller at least a rotary driver (e.g. 154, Fig. 3A), a drive train (e.g. 170, shown but not labeled in Fig. 4, paragraph 0034), and the drilling tool to attempt to embed the screw anchor (e.g. Fig. 11, claim 3, paragraph 0048).
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.
Claims 2-5, 9, 11, 12, 16, 19 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Flanigan et al (US 2020/0149241) alone.
Regarding claim 2, Flanigan discloses the invention substantially as applied above and further discloses that the program code causing the controller to detect and mitigate a stall of the drilling tool comprises program code that instructs the controller to monitor hydraulic pressure sensor data comprising a series of sequential pressure readings (e.g. “pressure sensors for measuring hydraulic pressure” are one of the sensors “that provide real-time information to controller 210”, paragraph 0038, wherein providing real-time information results in providing a series of sequential readings) to detect a stall of the drilling tool (e.g. paragraph 0043). Flanigan also discloses that the drilling tool is a hydraulic drilling tool (e.g. hydraulic drifter, paragraph 0034) and that the controller receives information from the drilling tool (e.g. paragraph 0038) but Flanigan does not explicitly disclose that the hydraulic pressure readings are from within the drilling tool. It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to configure the controller of Flanigan to receive hydraulic pressure sensor data from within the drilling tool because the drilling tool is a hydraulic device and monitoring the hydraulic pressure within the drilling tool would provide feedback to the controller regarding the operation of the drilling tool.
Regarding claim 3, Flanigan further discloses that the program code that instructs the controller to monitor hydraulic pressure sensor data from within the drilling tool causes the controller to determine if the hydraulic pressure sensor data indicates a value is around a relative maximum pressure reading (e.g. paragraph 0042 wherein the controller compares the sensor values to optimal ranges of operating parameters) but Flanigan does not explicitly disclose that the value is a distribution of values over a pre-determined time period that are clustered around the relative maximum pressure reading. It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to compare a distribution of the values of Flanigan over a pre-determined time period to determine whether the values are clustered around the relative maximum pressure reading for the expected benefit of analyzing a greater number of values such that a single rogue high value will not impact the driving process.
Regarding claim 4, Flanigan further discloses that determining if the hydraulic pressure sensor data indicates a distribution of values over a pre-determined time period that are clustered around a relative maximum pressure reading comprises determining a relative maximum value from the hydraulic pressure sensor data (e.g. paragraph 0042 wherein determining the optimal range of operating parameters results in determining a maximum) and determining if during the predetermined time period most pressure readings are around the relative maximum value (e.g. as explained above) but Flanigan does not explicitly disclose that being around the relative maximum value is being within 10 PSI of the relative maximum value. It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to contrive any number of desirable ranges for the “around” limitation disclosed by Applicant, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. Further, it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. Finally, Applicant has not disclosed that this “around” limitation provides an advantage, is used for a particular purpose, or solves a stated problem.
Regarding claim 5, Flanigan does not explicitly disclose that most comprises at least 90% of the pressure readings. It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to contrive any number of desirable ranges for the “most” limitation disclosed by Applicant, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. Further, it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. Finally, Applicant has not disclosed that this “most” limitation provides an advantage, is used for a particular purpose, or solves a stated problem.
Regarding claim 9, Flanigan discloses the invention substantially as applied above and further discloses that the program code causes the controller to determine that a stall has been cleared (e.g. paragraph 0043) by monitoring hydraulic pressure sensor data while clearing the stall (e.g. paragraph 0038). Flanigan also discloses comparing the hydraulic pressure sensor data to a relative maximum reading (e.g. paragraph 0042 wherein determining the optimal range of operating parameters results in determining a maximum) but does not explicitly disclose determining that the stall has cleared when the hydraulic pressure sensor data is no longer clustered around the relative maximum reading. It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to configure the controller of Flanigan to determine that the stall has been cleared by ensuring that the hydraulic pressure sensor data is not clustered around the relative maximum reading for the expected benefit of ensuring that the hydraulic pressure is within optimal parameters and analyzing a greater number of values such that a single rogue high value will not impact the driving process.
Regarding claim 11, Flanigan discloses the invention substantially as applied above and further discloses that the stored program code causes the controller to determine that a stall of at least the drilling tool has occurred when the output of the at least one sensor node indicates a distribution of sequential pressure readings taken by the at least one sensor node over a pre-determined time period (e.g. the pressure sensors “provide real-time information to controller 210”, paragraph 0038, wherein providing real-time information results in providing a series of sequential readings) that are outside an optimal operating parameter (e.g. paragraph 0042). Flanigan does not explicitly disclose that the values being outside an optimal operating parameter include the values being clustered around a relative maximum value. It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to configure the controller of Flanigan to determine that the stall has occurred when the values are clustered around a relative maximum value for the expected benefit of analyzing a greater number of values such that a single rogue high value will not impact the driving process.
Regarding claim 12, Flanigan further discloses that the output of the at least one sensor node indicates a distribution of pressure readings over a pre-determined time period that are clustered around a relative maximum value (e.g. as explained above) but Flanigan does not explicitly disclose that being clustered around the relative maximum value is at least 90-percent of the readings within 10 PSI of the relative maximum value. It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to contrive any number of desirable ranges for the “clustered” limitation disclosed by Applicant, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. Further, it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. Finally, Applicant has not disclosed that this “clustered” limitation provides an advantage, is used for a particular purpose, or solves a stated problem.
Regarding claim 16, Flanigan discloses the invention substantially as applied above and further discloses that the automated mitigation process to clear the stall comprises controlling the drilling tool to partially withdraw a drill bit of the drilling tool (e.g. 159, Fig. 9) and to advance the drill bit ahead of the foundation component while ejecting pressurized air from the drill bit until the stall is cleared (e.g. “engage the upper crowd to separate from the drive train and to apply… release of pressurized air through and ahead of the screw anchor while the screw anchor rests in place to break up and clear any obstruction in front of the screw anchor causing the refusal”, paragraph 0050, similar to Fig. 9, paragraph 0054), such condition being determined by the controller when a distribution of sequential pressure readings taken by the at least one sensor node (e.g. the pressure sensors “provide real-time information to controller 210”, paragraph 0038, wherein providing real-time information results in providing sequential readings) over a predetermined time period are within an optimal operating parameter (e.g. paragraph 0042). Flanigan does not explicitly disclose that the values being within an optimal operating parameter include the values no longer being clustered around a relative maximum value. It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to configure the controller of Flanigan to determine that the stall is cleared when the values are no longer clustered around a relative maximum value for the expected benefit of analyzing a greater number of values such that a single value will not impact the driving process.
Regarding claim 19, Flanigan discloses the invention substantially as applied above and further discloses that executing stored program code causing the controller to monitor the output of the at least one pressure sensor and detect the occurrence of a stall of the drilling tool (e.g. paragraph 0043) by monitoring an output of the at least one pressure sensor comprises sensing hydraulic pressure and determining that a stall has occurred if the output indicates a value of sequential pressure readings over a pre-determined time period (e.g. “pressure sensors for measuring hydraulic pressure” are one of the sensors “that provide real-time information to controller 210”, paragraph 0038, wherein providing real-time information results in providing a series of sequential readings) is around a relative maximum pressure reading (e.g. paragraph 0042 wherein the controller compares the sensor values to optimal ranges of operating parameters). Flanigan also discloses that the drilling tool is a hydraulic drilling tool (e.g. hydraulic drifter, paragraph 0034) and that the controller receives information from the drilling tool (e.g. paragraph 0038) but Flanigan does not explicitly disclose that the hydraulic pressure readings are at the drilling tool. It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to configure the controller of Flanigan to receive hydraulic pressure sensor data from the drilling tool because the drilling tool is a hydraulic device and monitoring the hydraulic pressure at the drilling tool would provide feedback to the controller regarding the operation of the drilling tool. Flanigan also does not explicitly disclose that the value is a distribution of values that are clustered around the relative maximum pressure reading. It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to compare a distribution of the values of Flanigan to determine whether the values are clustered around the relative maximum pressure reading for the expected benefit of analyzing a greater number of values such that a single rogue high value will not impact the driving process.
Regarding claim 20, Flanigan further discloses that determining if the output indicates a distribution of sequential pressure readings over a pre-determined time period that are clustered around a relative maximum pressure reading comprises determining a relative maximum pressure reading from the output of the at least one pressure sensor during the predetermined time period (e.g. as explained above) but Flanigan does not explicitly disclose that being clustered around the relative maximum value is at least 90-percent of the values within 10 PSI of the relative maximum value. It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to contrive any number of desirable ranges for the “clustered” limitation disclosed by Applicant, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. Further, it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. Finally, Applicant has not disclosed that this “clustered” limitation provides an advantage, is used for a particular purpose, or solves a stated problem.
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 STACY N LAWSON whose telephone number is (571)270-7515. The examiner can normally be reached Mon-Fri 9am-3pm.
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, Amber Anderson can be reached at 571-270-5281. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/S.N.L./Examiner, Art Unit 3678
/AMBER R ANDERSON/Supervisory Patent Examiner, Art Unit 3678