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 with traverse of Group I (claims 1-16) in the reply filed on 02/02/2026 is acknowledged. The traversal is on the ground(s) that there is not a serious search burden for the examiner to examine both groups. This is not found persuasive because while as Applicant notes there is some overlapping limitations between claims 1 and 17, the limitations cited by Applicant are known in the art and are found in most of the Applicant cited references. As noted in the restriction requirement, the detailed limitation of the load sensor and the sampling frequency being tied to the conveyor frequency is in group I but not found in group II. The fact that group II recites a generic sensor without specifying it is a load sensor causes it to be classified in a different area thus drastically changing the scope of the search. Examiner maintains a serious search burden exists for examining both sets of claims.
The requirement is still deemed proper and is therefore made FINAL.
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 and 11-16 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6 and 8-10 of U.S. Patent No. 11,930,737. Although the claims at issue are not identical, they are not patentably distinct from each other.
Regarding instant claim 1, this claim is anticipated by claim 1 of USPN 11,930,737.
Regarding instant claim 1, this claim is anticipated by claim 6 of USPN 11,930,737.
Regarding instant claim 2, this claim is anticipated by claim 1 of USPN 11,930,737.
Regarding instant claim 2, this claim is anticipated by claim 6 of USPN 11,930,737.
Regarding instant claim 3, this claim is anticipated by claim 1 of USPN 11,930,737.
Regarding instant claim 3, this claim is anticipated by claim 6 of USPN 11,930,737.
Regarding instant claim 4, this claim is anticipated by claim 6 of USPN 11,930,737.
Regarding instant claim 5, this claim is anticipated by claim 1 of USPN 11,930,737.
Regarding instant claim 5, this claim is anticipated by claim 6 of USPN 11,930,737.
Regarding instant claim 6, this claim is anticipated by claim 2 of USPN 11,930,737.
Regarding instant claim 6, this claim is anticipated by claim 7 of USPN 11,930,737.
Regarding instant claim 7, this claim is anticipated by claim 4 of USPN 11,930,737.
Regarding instant claim 7, this claim is anticipated by claim 9 of USPN 11,930,737.
Regarding instant claim 8, this claim is anticipated by claim 3 of USPN 11,930,737.
Regarding instant claim 8, this claim is anticipated by claim 8 of USPN 11,930,737.
Regarding instant claim 9, this claim is anticipated by claim 5 of USPN 11,930,737.
Regarding instant claim 11, this claim is anticipated by claim 1 of USPN 11,930,737.
Regarding instant claim 11, this claim is anticipated by claim 6 of USPN 11,930,737.
Regarding instant claim 12, this claim is anticipated by claim 1 of USPN 11,930,737.
Regarding instant claim 12, this claim is anticipated by claim 6 of USPN 11,930,737.
Regarding instant claim 13, this claim is anticipated by claim 4 of USPN 11,930,737.
Regarding instant claim 13, this claim is anticipated by claim 9 of USPN 11,930,737.
Regarding instant claim 14, this claim is anticipated by claim 3 of USPN 11,930,737.
Regarding instant claim 14, this claim is anticipated by claim 8 of USPN 11,930,737.
Regarding instant claim 15, this claim is anticipated by claim 5 of USPN 11,930,737.
Regarding instant claim 16, this claim is anticipated by claim 10 of USPN 11,930,737.
Claim 10 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 10 of U.S. Patent No. 11,930,737 in view of Bruns et al. (US 10,188,037; “Bruns”).
Regarding instant claim 10, claim 10 of USPN 11,930,737 discloses all the limitations except for the display being specifically within a cab of the agricultural windrower.
Bruns generally teaches that it is known to place a display within the cab of a windrower (col. 17, lines 47-59).
It would have been obvious to one of ordinary skill in the art before the effective filing of the invention to place the display of claim 10 is USPN 11,930,737 in the cab of the windrower as taught by Bruns for the purpose of allowing the driver to monitor the harvesting progress in real time while operating the machine to avoid the operator having to stop the machine and exit it.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-4 and 7-16 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Legal Framework
An invention is patent-eligible if it claims a “new and useful process, machine, manufacture, or composition of matter.” 35 U.S.C. § 101. However, the U.S. Supreme Court has long interpreted 35 U.S.C. § 101 to include implicit exceptions: “[l]aws of nature, natural phenomena, and abstract ideas” are not patentable. Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category, the Office is guided by the Court’s two-part framework, described in Mayo and Alice. Alice, 573 U.S. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that framework, Examiners first determine what concept the claim is “directed to.” See Alice, 573 U.S. at 219 (“On their face, the claims before us are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4 in petitioners’ application explain the basic concept of hedging, or protecting against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible, include certain methods of organizing human activity, such as fundamental economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611); mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts determined to be patent eligible include physical and chemical processes, such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191 (1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S. 252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69 (citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the Court held that “a claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula.” Diehr, 450 U.S. at 187; see also id. at 191 (“We view respondents’ claims as nothing more than a process for molding rubber products and not as an attempt to patent a mathematical formula.”). Having said that, the Court also indicated that a claim “seeking patent protection for that formula in the abstract . . . is not accorded the protection of our patent laws, and this principle cannot be circumvented by attempting to limit the use of the formula to a particular technological environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace that an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.”).
If the claim is “directed to” an abstract idea, Examiners turn to the second part of the Alice and Mayo framework, where “we must examine the elements of the claim to determine whether it contains an ‘inventive concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted). “A claim that recites an abstract idea must include ‘additional features’ to ensure ‘that the [claim] is more than a drafting effort designed to monopolize the [abstract idea].’” Id. (alterations in original) (quoting Mayo, 566 U.S. at 77). “[M]erely requir[ing] generic computer implementation[] fail[s] to transform that abstract idea into a patent-eligible invention.” Id.
In January 2019, the U.S. Patent and Trademark Office (“USPTO”) published revised guidance on the application of § 101 and further updated this guidance in October 2019. This guidance is now found in the Ninth Edition, Revision 10.2019 (revised June 2020) of the Manual of Patent Examination Procedure (MPEP), and particularly Sections 2103 through 2106.07(c). See MPEP §§ 2103–2106.07(c) (9th ed., Rev. 10.2019, June 2020).
Under the 2019 Revised Guidance and the October 2019 Update, Examiners first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract ideas (i.e., mathematical concepts, certain methods of organizing human activity such as a fundamental economic practice, or mental processes) (“Step 2A, Prong One”); and
(2) additional elements that integrate the judicial exception into a practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th ed. 2018)) (“Step 2A, Prong Two”). 2019 Revised Guidance, 84 Fed. Reg. at 52–55. Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do Examiners then look, under Step 2B, to whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not “well-understood, routine, [and] conventional” in the field (see MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception.
See 2019 Revised Guidance, 84 Fed. Reg. at 52–55.
Analysis
Examiners consider the claim as a whole giving it the broadest reasonable construction as one of ordinary skill in the art would have interpreted it in light of the Specification at the time of filing.
The Examiner finds, under Step 1 of the 2019 Revised Guidance, that claims 1-16, are directed to an apparatus (claims 1-10 to a system, 11-16 to a non-transitory computer readable medium) and therefore all claims are directed to a statutory category.
Revised Step 2A, Prong One –recites a judicial exception
According to Alice step one, “[w]e must first determine whether the claims at issue are directed to a patent-ineligible concept.” Alice, 573 U.S. at 218 (emphasis added). The Memorandum instructs Examiners first to determine whether each claim recites any judicial exception to patent eligibility. 84 Fed. Reg. at 54. The Memorandum identifies three judicially-excepted groupings: (1) mathematical concepts, (2) certain methods of organizing human activity such as fundamental economic practices, and (3) mental processes. Id. at 52. Examiners primarily focus here on the first and third groupings - mathematical concepts and mental processes.
Independent claims 1 and 11 both recite the limitations determine a mass of the crop material conveyed by the merger system based at least partially on the load signals and determine a crop yield based at least partially on the mass of crop material which under broadest reasonable interpretation fall under the group of mental processes.
Therefore independent claims 1 and 11 recite an abstract idea.
Revised Step 2A, Prong Two – Practical Application
Having determined that claims 1 and 11 recite abstract ideas, Examiners next look to determine whether the claims recite “additional elements that integrate the judicial exception into a practical application.” MPEP § 2106.05(a)–(c), (e)–(h); 2019 Revised 101 Guidance, 84 Reg. at 53–54. Integration into a practical application requires an additional element or a combination of additional elements in the claim to “apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.” 2019 Revised 101 Guidance, 84 Fed. Reg. at 53–54; see also id. at 55 (setting forth exemplary considerations indicative that an additional element or combination of elements may have integrated the judicial exception into a practical application).
In the current instance, there are no limitations integrating the abstract ideas into a practical application as there is no improvement to the functioning of a computer or to any other technology or technical field, it is not used by a particular machine or to effect a particular transformation.
Step 2B–Inventive Concept
Because the Examiner has determined that claims 1 and 11 are directed to an abstract idea and they do not include additional elements that integrate the abstract idea into a practical application, the Examiner looks to whether each claim provides an inventive concept, i.e., adds a specific limitation beyond the judicial exception that is not “well-understood, routine, conventional” in the field. 2019 Revised 101 Guidance, 84 Fed. Reg. at 56. That is not the case here. See Aatrix Software, Inc. v. Green Shades Software, Inc., 890 F.3d 1354, 1359 (Fed. Cir. 2018) (holding that “the ‘inventive concept’ cannot be the abstract idea itself”).
Regarding independent claim 1, the addition limitations are “one or more processing circuits” configured to “acquire load signals from a load sensor”, perform the abstract ideas identified above, and “provide a yield signal corresponding to the crop yield of the crop material deposited in the strip”.
The recited processing circuits are considered generic computing components utilized to carry out routine computational processes and are therefore not considered significantly more than the abstract idea. Merely providing information without it resulting in any further action to be taken is considered insignificant post solution activity. See Alice pg. 15, first paragraph: “The same is true with respect to the use of a computer to obtain data, adjust account balances, and issue automated instructions; all of these computer functions are “well-understood, routine, conventional activit[ies]” previously known to the industry. Mayo, 566 U. S., at ___ (slip op., at 4). In short, each step does no more than require a generic computer to perform generic computer functions.”
The step of acquiring load signals from a load sensor at a certain frequency is considered insignificant extra-solution solution activity as it is no more than mere data gathering at the highest level or generality. Examiner notes all uses of the claimed abstract idea require load data and therefore simply acquiring signals imposes no meaningful limitation on the data gathering step.
Similarly, providing a signal corresponding to the crop yield is also considered “necessary data gathering and output” and there does not impose any meaningful limitation on the abstract idea. See MPEP §2106.05(g) for examples of both necessary data gathering and insignificant application.
Regarding independent claim 11, the additional limitation is a computer readable medium that when executed by a processor cause the processor to carry out the above-mentioned abstract ideas, data gathering and signal output. Merely providing information without it resulting in any further action to be taken is considered insignificant post solution activity. See Alice pg. 15, first paragraph: “The same is true with respect to the use of a computer to obtain data, adjust account balances, and issue automated instructions; all of these computer functions are “well-understood, routine, conventional activit[ies]” previously known to the industry. Mayo, 566 U. S., at ___ (slip op., at 4). In short, each step does no more than require a generic computer to perform generic computer functions.”
Examiner notes that the limitations of independent claims 1 and 11 most resemble the Electric Power Group decision in which the Federal Circuit Court ruled that selecting information based on types of information and availability of information for collection, analysis and display was ineligible as the limitations were a combination of abstract ideas, routine data gathering and routine computer functions. Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1354-55, 119 USPQ2d 1739, 1742 (Fed. Cir. 2016);
Therefore, because there are no additional elements that can provide an inventive concept, the Examiner concludes that claims 1 and 11 do not recite patent eligible subject matter.
Turning to the dependent claims, claims 2-4 recite a generic load cell and basic windrower/merger components recited at a high level of generality. This is considered a field of use limitation, generally linking the use of a judicial exception to a particular technological environment. As explained by the Supreme Court, a claim directed to a judicial exception cannot be made eligible "simply by having the applicant acquiesce to limiting the reach of the patent for the formula to a particular technological use." Diamond v. Diehr, 450 U.S. 175, 192 n.14, 209 USPQ 1, 10 n. 14 (1981). Thus, limitations that amount to merely indicating a field of use or technological environment in which to apply a judicial exception do not amount to significantly more than the exception itself, and cannot integrate a judicial exception into a practical application. See MPEP §2106.05(h).
Claims 7-9 and 13-15 further define the abstract ideas of claims 1 and 11 respectively and are therefore not patent eligible.
Claims 10 and 16 recite a display in the cab of the machine which is a generic computer component used to perform “well-understood, routine, conventional activit[ies]” previously known to the industry. Mayo, 566 U. S., at ___ (slip op., at 4).
Claim 12 further defines the data gathering step which is considered insignificant extra solution activity as explained above.
Examiner notes that claims 5 and 6 are patent eligible.
Claim 5, in combination with intervening claims 2 and 3, describes a windrower comprising a load sensor, the merger, a chassis with a frame and the load sensor is positioned to measure the load at the frame mount. This constitutes a particular machine with a particular measurement configuration, which integrates the abstract idea into a practical application.
Claim 6, in combination with intervening claims 2 and 3, describes a windrower comprising multiple load sensors, the merger, a chassis with a frame and the load sensors are positioned to measure the load at the frame mount. This constitutes a particular machine with a particular measurement configuration, which integrates the abstract idea into a practical application.
Applying the guidance set forth in the Memorandum, the Examiner concludes that claims 1-4 and 7-16 do not recite patent-eligible subject matter.
Allowable Subject Matter
There are no prior art rejections for claims 1-16 however the Examiner cannot comment on their allowability until the double patenting and §101 rejections are overcome.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US 20250081893 discloses determining crop yield in a windrower with a load cell disposed on a merger drive actuator but is not available as prior art under 102(a)(1) or 102(a)(2).
US 20220087101 discloses an overload detection system for an agricultural machine where the load cells are located at the header and are sampled at a predetermined frequency.
US 20130124239 discloses a crop yield determining system where the load cells are on a conveyor in the harvester.
US 20180332771 generally discloses a triple windrow system.
US 20060046800 discloses determining crop mass using a load cell on the wheel hub of a harvester where load cell values are sampled at a predefined frequency.
US 20150242799 discloses determining crop yield of a harvester using load cells on the grain tank.
The remaining cited references represent the general state of the art.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NATALIE HULS whose telephone number is (571)270-5914. The examiner can normally be reached M-F 8-5 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, John Breene can be reached at (571) 272-4107. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/NATALIE HULS/Primary Examiner, Art Unit 2855