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 .
Election/Restrictions
Applicant’s election of Group I (claims 1-16) in the reply filed on 3/18/2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
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: “engagement means” in claim 9.
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 § 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.
Claim 10 is 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.
Regarding claim 10, the phrase "for example" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
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 1-9, 12-13 and 16 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3 and 8-16 of copending Application No. 18/280904 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because they include the same limitations albeit with a different scope. In particular claim 1 of the 904 application requires additional elements that are either not present or presented in dependent claims of the current application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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(s) 1-9 and 11 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 2003/0034237 to Yester.
Regarding claim 1 Yester discloses a feeder comprising: a feed device (100) having: a material receiving end for receiving material (102); a material discharge end distal of the material receiving end (104); an endless conveyor (100/140) disposed to define a conveying surface between the material receiving end and the discharge end movable in use to cause material received at the material receiving end to be conveyed to the material discharge end, wherein the endless conveyor comprises a plurality of successively arrayed metal plates, pans or flights (140); a material flow monitoring device (150) disposed in association with the feed device and adapted to obtain in use a measurement representative of a quantity of material passing along the conveying surface of the endless conveyor; and wherein the material flow monitoring device is adapted to obtain a measurement representative of a weight of material passing along the conveyor (para 0015 and 0017).
Regarding claim 2 Yester discloses the flow monitoring device comprises a weighing system disposed below a part of the endless conveyor forming the conveying surface in a fixed relationship with the feeder so as to obtain a measure of weight of material passing over the conveying surface (see 150/154 in figure 2).
Regarding claim 3 Yester discloses the weighing system is disposed adjacent to a second surface of the endless conveyor opposed to the conveying surface (see figure 2).
Regarding claim 4 Yester discloses the weighing system comprises an array of weighing devices (154) mounted on a rigid frame (see figures 2 and/or 7).
Regarding claim 5 Yester discloses the weighing system comprises two frame portions wherein a first frame portion is adapted to engage the second surface of the endless conveyor (structure above 153 in figure 7), and a second frame (153) portion carries the weighing devices (154) disposed on the second frame portion such that a load carried by the first frame portion is transferred through and measurable by the weighing devices in use.
Regarding claim 6 Yester discloses the second frame portion is mounted on the feeder (see figure 7).
Regarding claim 7 Yester discloses the second frame portion is mounted to but carried spaced apart from a primary support frame of the feeder (see figure 7).
Regarding claim 8 Yester discloses first frame portion is seated upon the second frame portion, but is not mounted in fixed manner to the feeder (see figure 7).
Regarding claim 9 Yester discloses the first frame portion is provided with engagement means so configured as to be functionally continuous with corresponding engagement means on a primary support frame of the feeder such that the endless conveyor engages to be translatable thereon (see e.g., figure 4 central portion); and the first frame portion is provided with rotational drive engagement formations (122) configured to co-operate with equivalent rotational drive engagement formations on the support frame such that with the weighing system in position the endless conveyor engages to be translatable continuously thereon (see figures 4 and 7).
Regarding claim 11 Yester discloses the feeder comprises a processing module adapted to process the measured weight and derive a mass flow numerically therefrom using a known or measured speed of movement of the endless conveyor (para 0017).
Claim(s) 1-7 and 10 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by DE19640713 to Zinz.
Regarding claim 1 Zinz discloses a feeder comprising: a feed device (apron conveyor) having: a material receiving end for receiving material (end where material enters); a material discharge end distal of the material receiving end (opposite end); an endless conveyor (apron conveyor) disposed to define a conveying surface between the material receiving end and the discharge end movable in use to cause material received at the material receiving end to be conveyed to the material discharge end, wherein the endless conveyor comprises a plurality of successively arrayed metal plates, pans or flights (10); a material flow monitoring device (28/29) disposed in association with the feed device and adapted to obtain in use a measurement representative of a quantity of material passing along the conveying surface of the endless conveyor; and wherein the material flow monitoring device is adapted to obtain a measurement representative of a weight of material passing along the conveyor (para 0027 and 0030).
Regarding claim 2 Zinz discloses the flow monitoring device comprises a weighing system disposed below a part of the endless conveyor forming the conveying surface in a fixed relationship with the feeder so as to obtain a measure of weight of material passing over the conveying surface (see figures 3-4).
Regarding claim 3 Zinz discloses the weighing system is disposed adjacent to a second surface of the endless conveyor opposed to the conveying surface (see figure 3, pans 10 are supported by 37/38).
Regarding claim 4 Zinz discloses the weighing system comprises an array of weighing devices (36) mounted on a rigid frame (see figures 3-4).
Regarding claim 5 Zinz discloses the weighing system comprises two frame portions wherein a first frame portion is adapted to engage the second surface of the endless conveyor (37/38), and a second frame (32/33/34) portion carries the weighing devices (36) disposed on the second frame portion such that a load carried by the first frame portion is transferred through and measurable by the weighing devices in use (see figure 3).
Regarding claim 6 Zinz discloses the second frame portion is mounted on the feeder (see figure 3 at 47).
Regarding claim 7 Zinz discloses the second frame portion is mounted to but carried spaced apart from a primary support frame of the feeder (see figure 3).
Regarding claim 10 Zinz discloses the weighing devices are arranged in a distributed polygonal array (para 0027 and figure 4), and for example a triangular array.
Claim Rejections - 35 USC § 103
Claim(s) 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yester in view of US 2019/0367292 to Aga.
Regarding claim 16 Yester disclose the feeder of claim 1 (see above) but does not disclose a chassis supporting the feed device; and a transport carriage supporting the chassis and adapted to cause the feeder to be movable across a surface for deployment in use.
Aga teaches a conveyance system including a chassis (portion supporting conveyance device 10) supporting the feed device (10/100); and a transport carriage (lower portion with tracks 71) supporting the chassis and adapted to cause the feeder to be movable across a surface for deployment in use in order to locate and transport the system for use in mining or handling of ore (see para 0002).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of Applicant’s claim to have modified Yester to include a chassis supporting the feed device; and a transport carriage supporting the chassis and adapted to cause the feeder to be movable across a surface for deployment in use, as taught by Aga, in order to locate and transport the system for use in mining or handling of ore.
Claim(s) 1 and 12-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over SE1850502 to Sandstrom in view of Yester. Citations to the text of Sandstrom refer to the English translation provided by the Applicant.
Regarding claim 1 Sandstrom discloses a feeder comprising: a feed device (1) having: a material receiving end for receiving material (receiving end of 1); a material discharge end distal of the material receiving end (opposite end of 1); an endless conveyor (1) disposed to define a conveying surface between the material receiving end and the discharge end movable in use to cause material received at the material receiving end to be conveyed to the material discharge end, a material flow monitoring device (13 or page 4 paras 9-11) disposed in association with the feed device and adapted to obtain in use a measurement representative of a quantity of material passing along the conveying surface of the endless conveyor; and wherein the material flow monitoring device is adapted to obtain a measurement representative of a weight of material passing along the conveyor (page paras 9-11).
Sandstrom does not explicitly disclose wherein the endless conveyor comprises a plurality of successively arrayed metal plates, pans or flights.
Yester teaches an apron conveyor including the endless conveyor comprises a plurality of successively arrayed metal plates, pans or flights (140 and para 0037) in order to handle abrasive materials (para 0037).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of Applicant’s claims to have modified Sandstrom to include the endless conveyor comprises a plurality of successively arrayed metal plates, pans or flights, as taught by Yester, in order to handle abrasive materials. Furthermore, it is noted that such materials and construction are standard for apron conveyors (see Yester at para 0007).
Regarding claim 12 Sandstrom discloses the material flow monitoring device is adapted to obtain at least two different measurements each representative of a quantity of material passing along the endless conveyor (page 2 para 3).
Regarding claim 13 Sandstrom discloses the material flow monitoring device is additionally adapted to obtain a measurement representative of a volume of material passing along the conveyor (page 2 para 3).
Claim(s)14-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sandstrom and Yester as applied above in view of US 4,749,273 to Reinhold.
Sandstrom and Yester disclose all the limitations of the claims except the measurement representative of volume is a measurement of a secondary parameter comprising a height of material above the surface of the endless conveyor at a plurality of points across the width of the conveyor from which the volume be derived numerically and the flow monitoring device comprises a material sensor system comprising one or more height sensors carried in static position with respect to the feed device above the conveying surface on a suitable transverse support so as to define a monitoring plane and so as to measure a material height at a plurality of points extending transversely across the endless conveyor as material on the conveying surface of the endless conveyor is caused to move through the monitoring plane in use.
Reinhold teaches a system including the measurement representative of volume is a measurement of a secondary parameter comprising a height of material above the surface of the endless conveyor at a plurality of points across the width of the conveyor from which the volume be derived numerically (abstract and 7/8/9/) and the flow monitoring device comprises a material sensor system comprising one or more height sensors (7/8/9) carried in static position with respect to the feed device above the conveying surface on a suitable transverse support (3) so as to define a monitoring plane and so as to measure a material height at a plurality of points extending transversely across the endless conveyor as material on the conveying surface of the endless conveyor is caused to move through the monitoring plane in use (abstract and col. 1 lines 8-15) in order to provide a precise and reliable measurement of the height of material on the conveyor (abstract).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of Applicant’s claims to have modified Sandstrom and Yester to include the measurement representative of volume is a measurement of a secondary parameter comprising a height of material above the surface of the endless conveyor at a plurality of points across the width of the conveyor from which the volume be derived numerically and the flow monitoring device comprises a material sensor system comprising one or more height sensors carried in static position with respect to the feed device above the conveying surface on a suitable transverse support so as to define a monitoring plane and so as to measure a material height at a plurality of points extending transversely across the endless conveyor as material on the conveying surface of the endless conveyor is caused to move through the monitoring plane in use, as taught by Reinhold, in order to provide a precise and reliable measurement of the height of material on the conveyor. Additionally, doing so merely entails substituting one known measurement system for another to yield predictable results.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Additional cited references show other weighing systems for conveyors and related prior art.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARK C HAGEMAN whose telephone number is (571)272-5547. The examiner can normally be reached Mon-Fri 8:15-4:45 (PST).
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, Saul Rodriguez can be reached at 571-272-7097. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MARK C HAGEMAN/Primary Examiner, Art Unit 3652
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