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 § 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 4-10 and 11-17 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 4 recites the limitation "said first securing portion and said second securing portion" in lines 1-2. Claim 5 also recites the limitation "said first securing portion…and said second securing portion" in lines 1-2. However, claims 4 and 5 were amended by Applicant to depend from claim 1 instead of claim 3, therefore there is now insufficient antecedent basis for these limitations in the claims as “a first securing portion and a second securing portion” set forth in claim 3. The examiner has therefore interpreted claims 4 and 5 as still depending from claim 3 in order to provide the appropriate antecedent basis for all limitations in the claims.
By virtue of their dependence on claim 5, this basis of rejection also applies to dependent claims 6-10.
Claim 11 recites the limitations "said securing structure" in line 1 and “a third securing portion” in line 2. However, claim 11 was amended by Applicant to depend from claim 1 instead of claim 3, therefore there is now insufficient antecedent basis for these limitations in the claim as “a securing structure” is set forth in claim 2, while “a first securing portion and a second securing portion” are set forth in claim 3. The examiner has therefore interpreted claim 11 as still depending from claim 3 in order to provide the appropriate antecedent basis all limitations in the claim.
By virtue of their dependence on claim 11, this basis of rejection also applies to dependent claims 12-17.
Claim 17 recites the limitation "said first position common aperture" in lines 2-3. However, claim 17 was amended by Applicant to depend from claim 14 instead of claim 16, therefore there is now insufficient antecedent basis for this limitation in the claim as “a first position common aperture” is not set forth until claim 16. The examiner has therefore interpreted claim 17 as still depending from claim 16 in order to provide the appropriate antecedent basis all limitations in the claim.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-9, 11-18, 22-24 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Mitchell et al. (US 2351830 A).
Regarding claim 1, Mitchell discloses an apparatus (Fig. 1) for towing behind a vehicle (“tractor” 112), said apparatus comprising:
a body portion (11);
a wheel (21); and
a mounting member (45,51) connecting said wheel to said body portion, wherein said mounting member comprises a hinge portion (54), and
wherein said wheel is movable from a first position (solid line position in Fig. 2 and 4) substantially behind said body portion to a second position (solid line position in Fig. 3 and 5) substantially adjacent to said body portion via actuation of said hinge portion (col. 7 line 66-col. 8 line 17 to move the wheels from their rearwardly extending to forwardly extending position, horizontal rockshaft 24 is first swung to the midpoint of its range to position pivot bolt 54 in a substantially vertical orientation, wherein bolt 75 may be removed, and the wheel supporting arm 23 and wheel 21 swung laterally outwardly to their oppositely extending position);
and wherein the first position and the second position are disposed at the same level (i.e. wheels 21 are substantially level with sidewalls 18 in each of the solid line positions of Figs. 2-3 and Figs. 4-5).
Regarding claim 2, Mitchell discloses the apparatus of claim 1, wherein said mounting member (45,51) further comprises a securing structure (75,76,77,78) for securing said wheel (21) in said first position and said second position (Fig. 6, col. 6 lines 45-56 connector 45 has an aperture 76 through which bolt 75 extends to align with either aperture 77,78 to secure the wheel in a respective position).
Regarding claim 3, Mitchell discloses the apparatus of claim 2, wherein said securing structure (75,76,77,78) comprises a first securing portion (78) and a second securing portion (75,76), wherein said hinge portion (54) is intermediate said first securing portion and said second securing portion (see Fig. 7).
Regarding claim 4, Mitchell discloses the apparatus of claim 3, wherein said first securing portion (78) comprises an aperture (aperture 78), and said second securing portion (75,76) comprises a projection (bolt 75) dimensioned to engage with or pass through said aperture when said wheel is in said second position (col. 6 lines 27-29,48-52 bolt 75 aligns with aperture 78 in stub arm 71 in the second position, i.e. in dotted line position of Fig. 1).
Regarding claim 5, Mitchell discloses the apparatus of claim 3, wherein said first securing portion (78) comprises a first securing portion aperture (aperture 78) and said second securing portion (75,76) comprises a second securing portion aperture (aperture 76).
Regarding claim 6, Mitchell discloses the apparatus of claim 5, wherein the cross section of said first securing portion aperture (78) and said second securing portion aperture (76) are substantially identical (as seen in Fig. 7).
Regarding claim 7, Mitchell discloses the apparatus of claim 5, wherein said first securing portion aperture (78) and said second securing portion aperture (76) are positioned such that they define a second position common aperture when said wheel is in said second position (Figs. 6-7, when wheel is in dotted line position of Fig. 1, apertures 76,78 are aligned forming a common aperture to receive bolt 75, col. 6 lines 45-56).
Regarding claim 8, Mitchell discloses the apparatus of claim 7, wherein said second position common aperture has a cross section identical to said first securing portion aperture (78) and/or said second securing portion aperture (76) (see Fig. 7, apertures 76,78 have identical cross-sections and therefore form a common aperture having the same cross-section).
Regarding claim 9, Mitchell discloses the apparatus of claim 7, wherein said securing structure (75,76,77,78) comprises a fixing member (75) sized to extend at least partially through said second position common aperture (in the second position, bolt 75 extends through common aperture formed by aligned apertures 76,78).
Regarding claim 11, Mitchell discloses the apparatus of claim 3, wherein said securing structure (75,76,77,78) comprises a third securing portion (77).
Regarding claim 12, Mitchell discloses the apparatus of claim 11, wherein said hinge portion (54) is intermediate said first securing portion (78) and said third securing portion (77) (see Fig. 7).
Regarding claim 13, Mitchell discloses the apparatus of claim 11, wherein said hinge portion (54) is intermediate said second securing portion (75,76) and said third securing portion (77) (in the wheel second position, bolt and aperture 75,76 are aligned with aperture 78 such that hinge portion 54 is disposed between apertures 76 and 77).
Regarding claim 14, Mitchell discloses the apparatus of claim 11, wherein said third securing portion (77) comprises an aperture (aperture 77), and said second securing portion (75,76) comprises a projection (bolt 75) dimensioned to engage with or pass through said aperture when said wheel is in said first position (as seen in Figs. 6-7, bolt 75 extends through aperture 77 in wheel first position).
Regarding claim 15, Mitchell discloses the apparatus of claim 14, wherein said second securing portion (75,76) comprises a second securing portion aperture (aperture 76) and said third securing portion (77) comprises a third securing portion aperture (aperture 77).
Regarding claim 16, Mitchell discloses the apparatus of claim 15, wherein said second securing portion aperture (76) and said third securing portion aperture (77) are positioned such that they define a first position common aperture when said wheel is in said first position (as seen in Fig. 7, apertures 76 and 77 are aligned in the wheel first position forming a common aperture for receiving bolt 75).
Regarding claim 17, Mitchell discloses the apparatus of claim 16, wherein said projection (75) comprises a fixing member sized to extend at least partially through said first position common aperture (as seen in Fig. 7, bolt 75 extends through aligned apertures 76,77).
Regarding claim 18, Mitchell discloses the apparatus of claim 1, wherein said apparatus comprises an adjustment mechanism (85) for adjusting the height of said body (11) relative to said wheel (21) (col. 6 lines 57-60).
Regarding claim 22, Mitchell discloses the apparatus of claim 1, wherein said apparatus further comprises a second wheel and a second mounting member connecting said second wheel to said body portion, wherein said second mounting member comprises a hinge portion (as seen in Fig. 1, apparatus comprises identical wheels 21 and mounting arrangements 45,51 at each end), wherein said second wheel is movable from a first position (solid line position of Fig. 1) substantially behind said body portion to a second position (dotted line position of Fig. 1) substantially adjacent to said body portion via actuation of said hinge portion
Regarding claim 23, Mitchell discloses the apparatus of claim 22, wherein said wheel and said second wheel (21,21) are connected to said body portion (11) such that the movement of said wheel between its first and second positions is independent of the movement of said second wheel between its first and second positions (col. 7 line 66 – col. 8 line 17 bolts 75 at each end of the apparatus must be removed individually to swing each wheel between the first and second position).
Regarding claim 24, Mitchell discloses the apparatus of claim 1, wherein the apparatus further comprises a tow bar (15).
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.
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.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Mitchell as applied to claim 9 above.
Regarding claim 10, Mitchell discloses the apparatus of claim 9, wherein said fixing member (bolt 75) comprises a fixing thread (Mitchell teaches threaded bolts) received in at least one of said first securing portion aperture (78) and said second securing portion aperture (76), but does not explicitly detail wherein said aperture(s) comprise an aperture thread complementary to said fixing thread.
However, the Examiner takes official notice that it is old and well known to use complementary threads between a bolt and aperture. Therefore, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have form the apertures of Mitchell with complementary threads in to form a secure and strong connection between the components. Note the well-known in the art statement is taken to be admitted prior art as applicant did not traverse the examiner’s assertion of official notice in Applicant’s response filed 1/9/2026.
Claims 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Mitchell as applied to claim 1 above, and further in view of Scarnato et al. (US 3678671 A).
Regarding claims 19-20, Mitchell discloses the apparatus of claim 1, but does not explicitly detail wherein said apparatus is a flail mower.
In the same field of endeavor, Scarnato discloses a similar apparatus (11) for towing behind a tractor (10), wherein said apparatus is a flail mower (“flail mower”, see Abstract).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to utilize a flail mower for use with the adjustable wheel assembly of Mitchell, as taught by Scarnato, to provide an alternative apparatus capable of mowing/shredding crop and as a mere simple substitution of one work implement for another to yield predictable results.
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Mitchell in view of Scarnato as applied to claim 1 above, and further in view of Lundstrom et al. (US 20030177747 A1).
Regarding claim 21, The combination of Mitchell discloses the apparatus of claim 20, wherein the axis of rotation of said wheel is laterally adjacent the axis of rotation of a flail within said flail mower when said wheel is in said second position (inherent from combination, wheel is disposed directly adjacent body of housing when in wheel second position), but does not explicitly detail wherein their axes are coaxial.
In the same field of endeavor, Lundstrom discloses a similar apparatus (10) for towing being a tractor, wherein the apparatus comprises a wheel movable from a first “wheels-trailing” position behind a body of the apparatus (Figs. 1-3) to a second “wheels-in-line” position adjacent the body portion of the apparatus (Figs. 4-6) in which the wheels are arranged effectively "in-line" with the rotor of the threshing machine (para. [0003]).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to configure the wheels to be substantially co-axial with the rotor of the flail mower in the wheel second position in the combination of Mitchell, as Lundstrom teaches that such an arrangement allows accurate control of the positioning of the rotor with respect to a crop or stubble as the wheels are effectively "in-line" with the rotor and thus travel over the same ground as the wheels (Lundstrom at para. [0028]).
Response to Arguments
Rejection under 35 U.S.C. § 102/103
Regarding the rejection of Claims 1-24, the Examiner has considered the Applicant’s arguments; however the arguments are not persuasive. Applicant argues:
“Mitchell does not disclose…wherein the first position and the second position are disposed at the same level," as recited in amended claim 1. In contrast, Mitchell's wheels are raised or lowered between a first position and a second position…see also col. 3, lines 35-40 ("Figure 2 is a side elevational view of the scraper showing in solid lines the wheels in their raised position for maximum depth of cut in land leveling work, and in dotted lines the wheels are shown in transport position when they are set for border building work.").” (see Applicant’s remarks page 9).
Regarding (a), as detailed in the present office action, a different interpretation of Mitchell still reads on Applicant’s claim amendment, wherein the “first position” of wheel 21 is drawn to the solid line positions of Fig. 2 and 4, while the “second position” of wheel 21 is drawn to the solid line position of Figs. 3 and 5. Such a transition between the rearwardly extending position of Figs. 2,4 to the forwardly extending position of Figs. 3,5 occurs by first swinging the rockshaft 24 to the midpoint of its range such that pivot bolt 54 moves from its angled orientation in Figs. 2,4 to a substantially vertical orientation (see vertically oriented pivot bolt 54 in Fig. 6), wherein the retaining bolt 75 is then removed, thereby permitting the wheel supporting arm 23 and wheel 21 to be swung laterally outwardly to a forwardly extending position (Mitchell col. 7 line 66-col. 8 line 17), wherein horizontal rockshaft 24 is once again swung (i.e. counterclockwise) to position pivot bolt 54 in the angled orientation corresponding to the forwardly extending solid line position of wheel 21 shown in Figs. 3,5 (col. 9 lines 23-38).
It should be noted that the claim does not require movement between the first and second positions to occur solely via actuation of the hinge portion. Therefore Mitchell, which teaches transitioning of wheel 21 between the first position (i.e. solid line position of Fig. 2 or 4) and the second position (i.e. solid line position of Fig. 3 or 5) being accomplished by a combination of the hinge mechanism 54 and rockshaft 24 (i.e. hinging wheel 21 and arm 23 about pivot bolt 54 to swing them toward their oppositely extending positions and swinging horizontal rockshaft 24 through a definite range of movement) still reads on the claim.
For purposes of aiding further amendment, however, Applicant should note that a transition using solely the hinge portion is known in the art. For example, Hipple (US 2581533 A) discloses a hinge mechanism for transitioning a wheel 48 between a first position substantially behind an implement to a second position substantially adjacent the implement solely via actuation of a hinge portion 47 (col. 3 lines 5-10), wherein the first position and the second position are disposed at the same level (col. 3 lines 17-27). Fueslein (US 3640346 A) similarly discloses a hinge mechanism for transitioning a wheel 20 between a first position substantially behind an implement to a second position substantially adjacent the implement solely via actuation of a hinge portion 32, wherein the first position and the second position are disposed at the same level (Fig. 2, col. 2 lines 9-14).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Hipple (US 2581533 A) discloses an adjustable wheel assembly for an agricultural implement. Fueslein (US 3640346 A) discloses an adjustable wheel positioning hinge mechanism.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JULIA C TRAN whose telephone number is (571) 272-8758. The examiner can normally be reached M-F 9-5 EST.
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, Joesph Rocca, can be reached on (571) 272-8971. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JULIA C TRAN/Examiner, Art Unit 3671
/JOSEPH M ROCCA/Supervisory Patent Examiner, Art Unit 3671