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 .
Terminal Disclaimer
Terminal Disclaimer filed 02 January 2026 was disapproved. The applicant cited on the TD must be cited exactly as it is cited on the ADS and or filing receipt and also in its entirety. Punctuation should be included if cited. Please correct and resubmit the TD. (No new fee required).
Double Patenting
A rejection based on double patenting of the "same invention" type finds its support in the language of 35 U.S.C. 101 which states that "whoever invents or discovers any new and useful process.. may obtain a patent therefor...' (Emphasis added). Thus, the term "same invention," in this context, means an invention drawn to identical subject matter. See Miller V. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957). A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 26 and 27 is/are rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 1, 9, 10, and 11 of prior U.S. Patent No. 11,771,014. This is a statutory double patenting rejection.
Claims 28 and 29 are rejected as being dependent upon rejected claims 26 and 27.
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 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 21-29, 31, 33-37 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11,771,014. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the instant application are coextensive in scope to the claims of the patented application which both including a service frame, a queue, a loader, a track, a carriage, and first and second dolly
staging rails.
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) 21, 23, 24, 33, 34, 35, 36 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Pub. No. 2017/0055461 to Neuhoff et al in view of U.S. Patent No. 11,076,537 to Glennerster.
Regarding Claim 21, Neuhoff teaches an apparatus comprising: a service frame
(Neuhoff Fig. 9 #210); a queue (Neuhoff Fig.5 #214; paragraph [0040]); a loader that is secured
to the queue (Neuhoff Fig. 9 #206; paragraph [0042]), wherein the loader comprises: a track
assembly that is configured to travel between a plurality of levels of the service frame (Neuhoff
Fig. 9 #604; paragraph [0042]); a carriage that is secured to the track assembly, wherein the
carriage is configured to move a tray between the queue and an aligned trough assembly from a
plurality of trough assemblies of a grow frame (Neuhoff Fig. 9; trays are pushed on and off by
load arms #602; paragraph [0042]); a first dolly staging rail and a second dolly staging rail
substantially parallel to one another, wherein the first and second dolly staging rails are secured
to the loader and spaced apart from one another by a distance (Neuhoff Fig. 9 load arms #602
act as staging rail to move tray #208 laterally, load arms #602 are spaced apart and parallel;
paragraph [0042]).
Neuhoff teaches the carriage further comprises; a pair of opposing loading arm assemblies (Neuhoff Fig. 9; load arms #602; paragraph [0042]); but is silent on a
cross-member that spans a distance between the opposing loading arm assemblies and comprising a top panel that includes a number of ports. However, Glennerster teaches the general knowledge of one of ordinary skill in the art that it is known to provide a cultivation apparatus with a cross member that spans the distance between the opposing loading arm assemblies (Glennerster Col. 3 lines 1-17; Fig. 1-2 cross member #11) and comprising a top panel that includes a number of ports (Glennerster Fig. 1 #16 apertures in “mesh” satisfies broad claim language of ports). It would have been obvious to one of ordinary skill in the art to modify the teachings of Neuhoff with the teachings of Glennerster before the effective filing date of the claimed invention with a reasonable expectation of success to provide strength and support and allow light to pass through as taught by Glennerster. The modification is merely the application of a known technique to a known device ready for improvement to yield predictable results.
Regarding Claim 33, Neuhoff as modified the cross-member further comprises; a pair of opposing side panels (Glennerster outside edges of #24 are the opposing side panels).
Regarding Claim 34, Neuhoff as modified teaches the top panel further comprises: a top
face and a bottom face; a number of supports extending generally perpendicular from the
bottom face (Glennerster Fig. 2 #20 and #21 top and bottom of #11; #24 are perpendicular to supports #11).
Regarding Claim 35, Neuhoff as modified teaches the side panels further comprise: a
center panel (Glennester Fig. 2 front face of #11); and opposing side supports (Glennester Fig.
2 #24 at each end) extending generally perpendicular from a front face of the center panel; a
bottom support extending between the side supports generally perpendicular to the front face of
its center panel (Glennester Fig. 2 curved member below #30); a pair of cross-supports
extending from a rear face of the center panel (Glennester Fig. 2 #27 side surfaces).
Regarding Claim 36, Neuhoff as modified teaches the cross-supports of the side panels
are secured to the side panels and top panel to prevent inwardly bending of the side panels
when the cross-member is under load. (Glennester Fig. 2 as identified above in claim 35; italics
indicates functional language the structure of Neuhoff as modified is capable of performing).
Regarding Claim 23, Neuhoff as modified teaches a light maintenance dolly that is secured to the loader, the light maintenance dolly including: a rolling frame that is dimensioned to span the distance, wherein the rolling frame is configured to rest on the first and second dolly staging rails during travel between the plurality of levels; (Neuhoff Fig. 8 place bottom #504 on top of load arms #602 while traveling between levels; the claims don't differentiate a structural
distinction between a plant dolly or a light maintenance dolly, thus either could be placed on the
dolly of Neuhoff; also applicant doesn't positively claim the presence of the light just a dolly that
could hold a light, Neuhoff structure satisfies the broad nature of the claim and is capable of
functioning in the claimed manner) and a plurality of panel lifters, wherein each panel lifter is
secured to at the rolling frame (Neuhoff Fig. 8 sides #506 secured to bottom #504 and the load
arms #602 when moving).
Regarding Claim 24, Neuhoff as modified teaches a first and second lift arms that are substantially parallel to one another, wherein each panel lifter is secured to at least one of the first and second lift arms (Neuhoff Fig. 9 load arms #602; paragraph [0042]).
Claim(s) 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent
Pub. No. 2017/0055461 to Neuhoff et al in view of U.S. Patent No. 11,076,537 to Glennerster as applied to claim 21 above and further in view of U.S. Patent Pub. No. 2018/0235156 to Blair
et al.
Regarding Claim 22, Neuhoff is silent on the queue comprises a gravity fed roller
assembly. However, Blair teaches a plant cultivation system with the queue comprising a gravity
fed roller assembly (Blair conveying device #230 is gravity driven with roller #232; paragraph
[0121]). It would have been obvious to one of ordinary skill in the art to further modify the teachings of Neuhoff with the teachings of Blair before the effective filing date of the claimed invention with a reasonable expectation of success to create a more energy efficient system that utilizes gravity instead of electric power. The modification is merely the simple substitution of one known system with another to obtain predictable results and/or the application of a known technique to a known device ready for improvement to yield predictable results.
Claim(s) 25 and 37 is/are rejected under 35 U.S.C. 103 as being unpatentable over
U.S. Patent Pub. No. 2017/0055461 to Neuhoff et al in view of U.S. Patent No. 11,076,537 to Glennerster as applied to claims 21, 23, 33, and 35 above and further in view of U.S. Patent Pub. No. 2017/0339846 to Lawrence et al.
Regarding Claim 25, Neuhoff as modified teaches a lift bracket, but is silent on each panel lifter includes: an upper mounting bracket; a lower mounting bracket; and a lift bracket. However, Lawrence teaches the general knowledge of one of ordinary skill in the art that it is known to provide an upper mounting bracket (Lawrence Fig. 14 #88), a lower mounting bracket
(Lawrence Fig. 14 #81), and a lift bracket (Lawrence paragraph [0034] Fig. 14 #93). It would
have been obvious to one of ordinary skill in the art to modify the teachings of Neuhoff with the
teachings of Lawrence before the effective filing date of the claimed invention with a reasonable
expectation of success to support and manipulate the dolly/carriage as taught by Lawrence. The
modification is merely the application of a known technique to a known device ready for
improvement to yield predictable results and/or simple substitution of one known lift for another
to obtain predictable results.
Regarding Claim 37, Neuhoff as modified teaches on the side panels further comprise: a
plurality of notches (Lawrence Fig. 14 notches in #94 to connect #91 and #92) configured to
allow for uninhibited operation of portions of drive assemblies of the loader; and a plurality of ports configured to allow for at least one of weight reduction, securing the loading arm
assemblies to respective center panels, (Lawrence Fig. 14 #96 circular port at top end for
securing arm #86 to center panel #89) securing the loading arm assemblies to the cross
member, and combinations thereof. It would have been obvious to one of ordinary skill in the art to further modify the teachings of Neuhoff with the teachings of Lawrence before the effective filing date of the claimed invention with a reasonable expectation of success to efficiently connect and support motion of the loading arm. The modification is merely the application of a known technique to a known device ready for improvement to yield predictable results.
Response to Arguments
Applicant’s arguments with respect to claim(s) 21-29, 31, 33-38 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant's arguments filed 02 January 2026 have been fully considered but they are not persuasive.
The examiner maintains the statutory double patenting rejection because the amended claim language of claim 21 is found in claims 9, 10, and 11 of U.S. Patent No. 11,771,014. The filed terminal disclaimer was disapproved as described in the above paragraphs.
It is the examiner’s position that it Neuhoff as modified by Glennerster satisfies the teachings of the claimed top panel. Neuhoff teaches the carriage further comprises; a pair of opposing loading arm assemblies (Neuhoff Fig. 9; load arms #602; paragraph [0042]); but is silent on a cross-member that spans a distance between the opposing loading arm assemblies and comprising a top panel that includes a number of ports. However, Glennerster teaches the general knowledge of one of ordinary skill in the art that it is known to provide a cultivation apparatus with a cross member that spans the distance between the opposing loading arm assemblies (Glennerster Col. 3 lines 1-17; Fig. 1-2 cross member #11) and comprising a top panel that includes a number of ports (Glennerster Fig. 1 #16 apertures in “mesh” satisfies broad claim language of ports). It would have been obvious to one of ordinary skill in the art to modify the teachings of Neuhoff with the teachings of Glennerster before the effective filing date of the claimed invention with a reasonable expectation of success to provide strength and support and allow light to pass through as taught by Glennerster. The modification is merely the application of a known technique to a known device ready for improvement to yield predictable results.
The claim language regarding the top panel member and its ports is broad in nature and does not explicitly indicate the number of ports and the structural relationship of the ports to the overall apparatus.
The examiner maintains that applicant hasn’t patentably distinguished over the prior art of record.
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 ANDREA M VALENTI whose telephone number is (571)272-6895. The examiner can normally be reached Available Monday and Tuesday only, eastern time.
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, Peter Poon can be reached at 571-272-6891. 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.
/ANDREA M VALENTI/Primary Examiner, Art Unit 3643
10 March 2026