DETAILED ACTION
The response dated 7/15/2026 has been entered and is treated below.
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 .
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.
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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 § 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) 1-9 and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2003/0034237 to Yester in view of US 4,463,816 to MacFarlane.
Regarding claim 1 Yester discloses a plate feeder for handling overburden or material, the plate 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 material 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 rigid metal plates, pans or flights (140) conformed as at least on of overlapping and interlocking to form a continuous surface (para 0037 and figure 8); and a material flow monitoring device (150) disposed in association with the feed device and adapted to obtain in use a direct measurement of a weight of material passing through a weighing zone defined relative to the endless conveyor progressively as material on the conveying surface of the endless conveyor is caused to move along the endless conveyor through the weighing zone (para 0015 and 0017); wherein the material flow monitoring device comprises a weighing system comprising an array of weighing the devices (para 0041, two load cells in linear array).
Yester does not disclose the array of weighing devices arranged in a triangular array.
MacFarlane teaches a weighing system for a conveyor including the array of weighing devices arranged in a triangular array (see figure 2 and col. 4 lines 12-20) in order to provide better accuracy and minimize temperature sensitivity (col. 3 lines 65-67 and col. 4 lines 33-36).
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 the array of weighing devices arranged in a triangular array, as taught by MacFarlane, in order to provide better accuracy and minimize temperature sensitivity.
Regarding claim 2 Yester discloses the weighing system is disposed below a part of the endless conveyor forming the conveying surface in a fixed relationship with the plate 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 the combination teaches the array of weighing devices mounted on a rigid frame (see figures 2 and/or 7 of Yester and discussion above).
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) 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yester and MacFarlane in view of US 2019/0367292 to Aga.
Regarding claim 16 Yester and MacFarlane teach the feeder of claim 1 (see above) but do 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 and MacFarlane 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) 12-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yester and MacFarlane in view of SE1850502 to Sandstrom.
Yester and MacFarlane teach all the limitations of the claims except 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 and the material flow monitoring device is additionally adapted to obtain a measurement representative of a volume of material passing along the conveyor.
Sandstrom teaches a measuring system including 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) and 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 and page 4 para 4) in order or provide control of the conveyor based on both mass/weight and volume of material being carried (page 4 para 4).
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 and MacFarlane to include 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 and the material flow monitoring device is additionally adapted to obtain a measurement representative of a volume of material passing along the conveyor, as taught by Sandstrom, in order or provide control of the conveyor based on both mass/weight and volume of material being carried.
Claim(s)14-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yester, MacFarlane and Sandstrom as applied above in view of US 4,749,273 to Reinhold.
Yester, MacFarlane and Sandstrom 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 Yester, MacFarlane and Sandstrom 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.
Response to Arguments
Applicant’s arguments, filed 7/15/2026, with respect to the rejection(s) of claim(s) 1 under Yester or Zinz have been fully considered and are persuasive. Therefore, the rejections have been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Yester in view of MacFarlane. As set forth in detail above, MacFarlane teaches a triangular array of load cells for weighing a material on a conveyor.
Conclusion
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 MARK C HAGEMAN whose telephone number is (571)272-5547. The examiner can normally be reached Mon-Fri 8:15-4:45 (PST).
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/MARK C HAGEMAN/Primary Examiner, Art Unit 3652
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