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 .
Specification
The title of the invention is not descriptive. A new title is required that is clearly indicative of the invention to which the claims are directed.
The following title is suggested: Articulating Pick-Up Attachment for Self-Propelled Forage Harvester for Adapting to Ground Contour.
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.
Claim 1 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 18/867,116 (Pub. No: US 20250331463 A1), as well as claim 12 of copending Application No. 18/855,682 (Pub. No: US 20250248339 A1), and claim 14 of copending Application No. 18/710,769 (Pub. No: US 20250017143 A1). Although the claims at issue are not identical, they are not patentably distinct from each other because it is obvious that the narrower apparatus claims 1, 12, and 14 of the copending Applications No. covers all the limitations in the broader apparatus claim 1 of the instant application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 2-12 are provisionally rejected under the nonstatutory double patenting rejections because of their dependency on rejected claim 1.
Claim Objections
Claim 9 is objected to because of the following informalities:
Claim 9 lines 3-4 “with preferably degressively arranged pick-up implements (14)”. However, pick-up implements (14) are already set forth in claim 1 line 2, therefore this portion of claim 9 should be amended to read –and the pick-up implements (14) are designed as degressively arranged pick-up implements--.
Appropriate correction is required.
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 1-12 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.
Regarding claims 1, 7-9, and 12, the phrase "preferably" in each of the claims render them indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(c) and 2173.05(d). For purposes of examination, the examiner has omitted “preferably” from the interpretation of claims 1, 7-9, and 12 such that the limitations following the phrase are considered part of the claimed invention.
By virtue of their dependence on claim 1, this basis of rejection also applies to dependent claims 2-12.
Claims 4 and 5 recite the limitation "the guide elements" in line 2. There is insufficient antecedent basis for this limitation in the claims. It is noted that guide elements are positively set forth in claim 3.
Claim 6 recites the limitation "the machine frame" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 7 recites the limitations "the folded condition" and “the unfolded condition” in lines 3 and 4, respectively. There is insufficient antecedent basis for these limitations in the claim. It is noted that folding and unfolding of the pick-up attachment is set forth in claim 6.
Claim 7 recites “the pick-up attachment (10) in the folded condition has a transport width that is the maximum legally permissible, preferably 3 m” in lines 3-4. The metes and bounds of the claim are not clearly set forth as the “maximum legally permissible” transport width is not defined in terms of any definitive numerical value or range of values in the claim or specification. Furthermore, the legally permissible transport width varies in different countries leading to further confusion over the intended scope of the claim.
Claim 8 recites “wherein the pick-up attachment (10) has a transport width that corresponds to the working width”. It is unclear exactly what is being claimed in this case as “corresponds to” can be interpreted as either equivalent or proportional. For purposes of examination, the examiner has interpreted “that corresponds to” to mean –that is equivalent to--.
Claim 10 lines 2-3 “wherein the pick-up rotor (12) is joined rigidly to the machine frame (24) of the pick-up attachment” is contradictory to claim 1 lines 3-5 “the pick-up rotor (12) is assembled from several segments (18) joined to one another in at least partly articulated relationship for adaptation to the contours of the ground”. Thus, individual portions of pick-up 12 are configured to be movable relative to machine frame 24 at all times, even if a direct connection between a frame of the pick-up 12 and the frame 24 is rigid, i.e. such that pick-up 12 as a whole cannot pivot relative to frame 24. The Applicant must amend the claim language to make the structural relationship between elements clear.
Claims 10, 11, and 12 recite the limitation "the machine frame" in line 3. There is insufficient antecedent basis for this limitation in the claims.
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 1-5 and 9-10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Knüsel (EP 3326448 A1).
It is noted that all citations to Knüsel (EP 3326448 A1) are in reference to the corresponding English-translated document attached by the Examiner under NPL documents.
Regarding claim 1, Knüsel discloses a pick-up attachment (200) for a self-propelled forage harvester (100, para. [0002] “forage harvester”), comprising a pick-up rotor (1) with pick-up implements (2) for picking up crops (FG) from the ground (Fig. 1), wherein the pick-up rotor is assembled from several segments (25a-25d) joined to one another in at least partly articulated relationship for adaptation to the contours of the ground (Fig. 3, para. [0035] “Ground adaptation is optimized by the flexible or articulated pickup roller” wherein sections 25a-25d are connected to each other with universal joints 26a-26c, para. [0028]).
Regarding claim 2, Knüsel discloses the pick-up attachment according to claim 1, wherein the pick-up rotor (1) is flexible over the entire working width (Fig. 3, para. [0024]).
Regarding claim 3, Knüsel discloses the pick-up attachment according to claim 1, wherein several guide elements (4c-4f) distributed over the working width are provided in order to guide the pick-up rotor (1) to and/or over the ground (para. [0011]).
Regarding claim 4, Knüsel discloses the pick-up attachment according to claim 1, wherein the guide elements (4c-4f) are disposed underneath and directly behind the pick-up rotor (1) (Fig. 1) within its effective working width (Figs. 3-4).
Regarding claim 5, Knüsel discloses the pick-up attachment according to claim 1, wherein the guide elements (4c-4f) are constructed at least partly as sliding disks (Figs. 2-3, para. [0008] formed as circular sliding disks).
Regarding claim 9, Knüsel discloses the pick-up attachment according to claim 1, wherein the pick-up rotor (1) is designed as a non-steered pick-up rotor (Fig. 1, see circular trajectory 3 of tines) and the pick-up implements (2) are designed as degressively arranged pick-up implements comprising degressively arranged tines (as seen in Fig. 1, conveyor tines 2 are angled away/bent counter to the direction of rotation R1).
Note - “a non-steered pick-up rotor” and “degressively arranged pick-up elements” have been interpreted as defined in Applicant’s specification: “In the non-steered design, the tines extend along a circular trajectory and can rotate around a fixed axis of rotation.” (page 9 last paragraph), and “Degressive means that the legs of the tines or spring tines are angled away or bent counter to the direction of rotation” (page 10 paragraph 2).
Regarding claim 10, Knüsel discloses the pick-up attachment according to claim 1, wherein the pick-up rotor (1) is joined rigidly to a machine frame.
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Annotated Image of Knüsel Fig. 1
Claims 1-4, 6-7, and 11-12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Poettinger (DE 202010010038 U1).
It is noted that all citations to Poettinger (DE 202010010038 U1) are in reference to the corresponding English-translated document attached by the Examiner under NPL documents.
Regarding claim 1, Poettinger discloses a pick-up attachment (2) for a self-propelled forage harvester (note the preamble merely states the intended use of the invention. As Poettinger’s pick-up device is capable of use with a self-propelled forage harvester, it meets the claim), comprising a pick-up rotor (3) with pick-up implements (4) for picking up crops from the ground, wherein the pick-up rotor is assembled from several segments (3a, 3b, 3n) joined to one another in at least partly articulated relationship for adaptation to the contours of the ground (Fig. 3, para. [0043]).
Regarding claim 2, Poettinger discloses the pick-up attachment according to claim 1, wherein the pick-up rotor (3) is flexible over the entire working width (Fig. 5).
Regarding claim 3, Poettinger discloses the pick-up attachment according to claim 1, wherein several guide elements (13) distributed over the working width are provided in order to guide the pick-up rotor (3) to and/or over the ground (Fig. 1-2, 5).
Regarding claim 4, Poettinger discloses the pick-up attachment according to claim 1, wherein the guide elements (13) are disposed underneath and/or directly behind the pick-up rotor (3) (Fig. 2) and/or within its effective working width (Fig. 5).
Regarding claim 6, Poettinger discloses the pick-up attachment according to claim 1, wherein a machine frame (1a,1b,1c) of the pick-up attachment can be folded to a predetermined transport width and unfolded to a predetermined working width (para. [0053]).
Regarding claim 7, Poettinger discloses the pick-up attachment according to claim 1, wherein the pick-up attachment:
in the in the unfolded condition has a working width of 6 m (para. [0026] teaches each rotor segment 3a, 3b,…3n can have width between 0.5 and 3 meters, e.g. approx. 1 meter, six segments shown in Fig. 5 = approximately 6 meters), and
in the folded condition has a transport width that is a maximum legally permissible or 3 m (para. [0007] teaches it is desirable to provide a folding transport width to comply with the maximum permissible road width, and para. [0053] teaches outer machine units 1a, 1c are pivoted from the lowered working position shown in Fig. 5 into a raised transport position for road transport. Given the dimensions provided in para. [0026], a transport width of 3 m is readily obtained).
Regarding claims 11-12, Poettinger discloses the pick-up attachment according to claim 1, wherein the pick-up rotor of the pick-up attachment is combinable with a transverse reciprocating frame (linkage frame 14 connections to suspension points 9 and 10 extending in a transverse direction), which is disposed on the attachment side (Fig. 2), as per claim 11, wherein the pick-up rotor is in reciprocating or swinging operative communication with a machine frame (22) of the pick-up attachment via at least one swing arm (15,16,17), as per claim 12.
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 8 is rejected under 35 U.S.C. 103 as being unpatentable over Knüsel as applied to claim 1 above, and further in view of Dow (US 9386749 B1).
Regarding claim 8, Knüsel discloses the pick-up attachment according to claim 1, wherein the pick-up attachment (200) has a transport width that is equivalent to the working width (Knüsel teaches only one position which is therefore interpreted as both the working and transport position), but does not explicitly detail wherein this width is 3 m to at most 4.50 m
In the same field of endeavor, Dow discloses a similar pickup head for a forage harvester (col. 6 lines 57-58), wherein the overall width of the pickup head is 3 meters (col. 8 line 27).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to design Knüsel’s pick-up attachment to comprise a similar width of 3 meters, as taught by Dow, in order to comply with the maximum legally permissible width to move safely down the highway in the United States and most European countries (Dow at col. 8 lines 27-30).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Boll (US 20210282325 A1) discloses a pivoting harvesting apparatus. Rieter (US 20150230407 A1) discloses a flexible harvested crop pick-up. Gantzer et al. (US 20140150396 A1) discloses an articulated pick-up device. Dow (US 20100037584 A1) discloses a foldable windrow merger. Der Lely discloses a foldable harvesting machine.
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.
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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