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 .
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 4, 10, 11, 12, 13 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.
Claim 4 includes the limitation “… comprises a dam preceded by a cavity …”. It is unclear whether the applicant is positively claiming a dam and a cavity or merely a dam that is defined by being preceded by a cavity. For the purposes of examination, the limitation is interpreted as referring to a dam that is defined by being preceded by a cavity
The term “resilient” in claim 10 and 11 is a relative term which renders the claim indefinite. The term “resilient” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear what makes a protrusion resilient. For the purposes of examination, every protrusion disclosed in the prior art is assumed to be resilient unless indicated otherwise by the prior art
Claim 11 includes the limitation “a bore surrounding axis of the crank”. It is unclear if this limitation refers to a bore, surrounding an axis of the crank, or an axis of the crank that is surrounded by a bore. For the purposes of examination, Claim 11 will be interpreted as though it read “… protruding inwards from a bore-surrounded axis of the crank”.
Where applicant acts as his or her own lexicographer to specifically define a term of a claim contrary to its ordinary meaning, the written description must clearly redefine the claim term and set forth the uncommon definition so as to put one reasonably skilled in the art on notice that the applicant intended to so redefine that claim term. Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357, 52 USPQ2d 1029, 1033 (Fed. Cir. 1999). The term “flared” in claim 12 is used by the claim to mean “going inward” while the accepted meaning is “a spreading outward” The term is indefinite because the specification does not clearly redefine the term.
The term “fully contact” in claim 13 is a relative term which renders the claim indefinite. The term “fully contact” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear when an object to be grated is fully contacting the cutting body.
Claim Rejections - 35 USC § 102
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, 21, 22 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by So et. al. (US 2008/0017737) hereafter referred to as “So”.
Re Claim 1, So discloses a rotary grater and/or slicer comprising: a grater body (grater 100), the grater body including a cutter housing portion (barrel 110) and a vertical hopper portion connected to the cutter housing portion (hopper 120), the vertical hopper portion of the grater body being configured to hold a workpiece for grating (“Food items are to be introduced into the receptacle through an upper opening 121 of the hopper 120, reaching the upper side of the drum 140” [0042]); a rotatable cutting device (hollow cylindrical rotary grating drum 140), the rotatable cutting device configured to be rotatably disposed inside the cutter housing portion of the grater body (“The drum 140 is fitted co-axially inside the barrel 110 and is supported thereby for rotation” [0042]), the rotatable cutting device comprising a plurality of blade members for grating the workpiece (“drum 140 which has numerous cutting apertures 141 through its stainless steel cylindrical wall for cutting food items 9” [0042]); and a rotary input device (shaft 173) coupled to the rotatable cutting device (outer gearwheel 174 is mounted on shaft 173 and is coupled to the drum 140), the rotary input device configured to rotate the rotatable cutting device ([0051]); wherein the vertical hopper portion is configured to serve as a handle for the rotary grater and/or slicer (hopper 120 has a lip at its top which, as currently configured, would constrain a hand that is grasping the hopper, Fig. 1), and the vertical hopper portion is used for feeding the workpiece to the rotatable cutting device (“Food items are to be introduced into the receptacle through an upper opening 121 of the hopper 120, reaching the upper side of the drum 140” [0042]).
Re Claim 21, So discloses the rotary grater and/or slicer according to claim 1 (see rejection of claim 1 by So above), further comprising a plurality of gears (inner gearwheel 172, outer gearwheel 174, gearwheel 143) to provide a mechanical advantage for a user of the rotary grater and/or slicer ([0058]).
Re Claim 22, So discloses the rotary grater and/or slicer according to claim 21 (see rejection of claim 21 above), wherein one or more outer rims of the rotatable cutting device are provided with one or more of the plurality of gears (“The right end of the drum 140 is closed, on and over which a gearwheel 143 is fixed” [0045]) that engage with a spur gear (outer gearwheel 174) mounted on a crank or crankshaft (shaft 173).
Claim(s) 1, 2, 3, 13, 14, 15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Pysher (US 1,617,499).
Re Claim 1, Pysher discloses a rotary grater and/or slicer comprising: a grater body (body 10), the grater body including a cutter housing portion (cylindrical portion of body 10) and a vertical hopper portion (hopper 11) connected to the cutter housing portion (“this body at its upper end being formed to provide a hopper 11” Col. 1, Lines 54-56), the vertical hopper portion of the grater body being configured to hold a workpiece for grating (Fig. 2 shows workpieces being held in hopper for grating); a rotatable cutting device (cylindrical knife carrier 14), the rotatable cutting device configured to be rotatably disposed inside the cutter housing portion of the grater body (“disposed within this portion of the body is a cylindrical knife carrier” col. 2, lines 60-62), the rotatable cutting device comprising a plurality of blade members for grating the workpiece (Fig. 1 shows the cylindrical knife carrier having knife 27 and knife blades 30); and a rotary input device (crank handle 21) coupled to the rotatable cutting device, the rotary input device configured to rotate the rotatable cutting device (“The cone is capped, as at 19, and engaged with these screw-threads is a spindle 20 carrying a crank handle 21 at its outer end” Col. 2, lines 73-76, and cone is integral part of cylindrical knife carrier); wherein the vertical hopper portion is configured to serve as a handle for the rotary grater and/or slicer (hopper 11 has a flared top that configures it to serve as a handle, fig. 2), and the vertical hopper portion is used for feeding the workpiece to the rotatable cutting device (Fig. 2 shows workpieces being held in hopper for grating).
Re Claim 2, Pysher discloses the rotary grater and/or slicer according to claim 1 (see rejection of claim 1 by Pysher above), and Pysher further discloses that the rotatable cutting device comprises a rotatable drum (cylindrical knife carrier 14) with the blade members (knife blades 30), and the rotary input device comprises a crank (crank handle 21) connected to the rotatable drum “The cone is capped, as at 19, and engaged with these screw-threads is a spindle 20 carrying a crank handle 21 at its outer end” Col. 2, lines 73-76, and cone is integral part of cylindrical knife carrier).
Re Claim 3, Pysher discloses the rotary grater and/or slicer according to claim 2 (see rejection of claim 2 above), and further discloses that one wall of the vertical hopper portion is tangent to the rotatable drum (Fig. 2).
Re Claim 13, Pysher discloses the rotary grater and/or slicer according to claim 2 (see rejection of claim 2 above), and further discloses that blade members on the rotatable drum are arranged such that the workpiece can fully contact the drum between the blade members so that the blade members are able to make clear cuts through the workpiece (Fig. 2 shows that the drum has a large area of no blades where the workpiece can fully contact the drum between the knife 27 and knife blades 30).
Re Claim 14, Pysher discloses the rotary grater and/or slicer according to claim 1 (see rejection of claim 1 by Pysher above), wherein the vertical hopper portion comprises a top lip that is flared to prevent the rotary grater and/or slicer from slipping from a grip of a user (hopper 11 has a flared top that configures it to serve as a handle, fig. 2).
Re Claim 15, Pyscher discloses the rotary grater and/or slicer according to claim 1 (see rejection of claim 1 by Pysher above), further comprising a stand (opposed clamping jaws 31 and 32) configured to maintain the vertical hopper portion in a generally vertical orientation when rotary grater and/or slicer is not being used for grating.
Claim Rejections - 35 USC § 103
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(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Pyscher (US 1,617,499) as applied to claim 3 above, and further in view of Sundstrand (US 2,137,366).
Re Claim 4, Pyscher discloses the rotary grater and/or slicer according to claim 3 (see rejection of claim 3 above), but fails to further disclose that the one wall of the vertical hopper portion that is tangent to the rotatable drum or another wall portion beneath the one wall comprises a dam () preceded by a cavity in order to discourage grated material from wedging between the rotatable drum and the grater body.
Sundstrand teaches another wall portion beneath the one wall of the vertical hopper portion that is tangent to the rotatable drum (Fig. 4) comprises a dam (“back wall 15 of the hopper 8 is bent inwardly above the grating cylinder 7, as indicated at 36” Col. 3, Line 50-51) preceded by a cavity (interior of hopper 8) in order to discourage grated material from wedging between the rotatable drum and the grater body (“eliminate likelihood of food getting wedged between the cylinder and the back wall” Col. 3, Line 55-57).
Pyscher discloses a rotary grater upon which the claimed invention could be seen as an improvement because grated material is discouraged from wedging. Sundstrand contains a comparable rotary grater where a wall portion comprises a drum preceded by a cavity in order to discourage grated material from wedging between the rotatable drum and the grater body. It would have been obvious to a person of ordinary skill in the art before the effective filing date of the invention to have applied the known improvement technique taught in Sundstrand to the device disclosed in Pyscher and discouraging grated material from wedging between the rotatable drum and the grater body would have been predictable to that person.
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Pyscher (US 1,617,499) as applied to claim 3 above, and further in view of Silberberg (US 2,804,896).
Re Claim 5, Pyscher discloses the rotary grater and/or slicer according to claim 2 (see rejection of claim 2 above), but fails to disclose that a wall area of the vertical hopper portion above the tangency is provided with sharp-edged horizontal ridges to prevent the workpiece from rolling.
Silberberg teaches that a wall area of the vertical hopper portion above the tangency is provided with sharp-edged horizontal ridges (inwardly extending deformations 84) to constrain the movement of the plunger (follower member 78)
The prior art includes each element claimed with the only difference between the claimed invention and the prior art being the lack of actual combination of the elements in a single reference. It would have been obvious to one of ordinary skill in the art before the effective filing date to have combined the elements by adding the inward extending deformations of Silberberg to the hopper of Pysher, to achieve the predictable result of a wall area with sharp-edged horizontal ridges on the vertical hopper portion. In combination each claimed element mere performs the same function as it does separately, and they would have recognized that the results of the combination were predictable.
Claim(s) 6, 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Pysher (US 1,617,499) as applied to claim 2 above, and further in view of Grace et. al. (US 2010/0270406), hereafter referred to as “Grace”.
Re Claim 6, Pysher discloses the rotary grater and/or slicer according to claim 2 (see rejection of claim 2 above), but fails to explicitly disclose that the crank is mounted on one edge of the rotatable drum.
Grace teaches that the crank is mounted (crank arm 36) on one edge (Fig. 5) of the rotatable drum (abrader cylinder 23).
Pysher contains a device that differs from the claimed invention by the crank be attached to the center of the side of the rotatable drum instead of mounted on one edge of the rotatable drum as claimed. Mounting the crank on one edge of the rotatable drum was known in the art and one of ordinary skill in the art before the effective filing date could have substituted attaching the crank to the center of the drum for mounting the crank on the edge. The results of the substitution would have been predictable as the device function the same as it did before.
Re Claim 7, Pysher, in view of Grace, disclose the rotary grater and/or slicer according to claim 6 (see rejection of claim 6 above), but Pysher fails to disclose that the crank is removably coupled to the rotatable drum such that the crank is able to mounted interchangeable on a first side or a second side of the rotatable drum, the first side of the rotatable drum being oppositely disposed relative to the second side of the rotatable drum.
Grace teaches that the crank is removably coupled to the rotatable drum such that the crank is able to mounted interchangeable on a first side or a second side of the rotatable drum (“The preferred design will allow for the retainer 32, or crank ring 34, to be mounted on either side of the barrel to enable a right-handed or left-handed user to manually rotate the crank arm 36” [0021]), the first side of the rotatable drum being oppositely disposed relative to the second side of the rotatable drum (Fig. 5).
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Pysher, in view of Grace, to incorporate the teachings of Grace by having the crank be removably couplable to the rotatable drum such that the crank is able to mounted interchangeable on a first side or a second side of the rotatable drum so that either right-handed or left-handed users could rotate the crank arm
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Pysher (US 1,617,499) in view of Grace (US 2010/0270406) as applied to claim 6 above, and further in view of Becker et. al. (US 2004/0090210), hereafter referred to as “Becker”.
Re Claim 8, Pysher, in view of Grace, discloses the rotary grater and/or slicer according to claim 6 (see rejection of claim 6 above), discloses that the crank is removably coupled to the rotatable drum but fail to disclose that the crank is removably coupled to the rotatable drum such that the crank is reversible from a first configuration where a handle portion of the crank projects outwardly from the rotary grater and/or slicer to a second configuration where the handle portion of the crank projects inwardly towards a centerline of the rotary grater and/or slicer, the second configuration enabling the rotary grater to be more compact for storage.
Becker teaches that the crank (crank arm 2) is removably coupled (“crank arm 2 has a free end indicated at 3 and its other end is pivotally connected at 4 to a crank 5” [0030]) to the rotatable drum (crank 5) such that the crank is reversible (“the pivot 4 enables the crank arm to be pivoted through substantially 180.degree” [0030]) from a first configuration where a handle portion of the crank projects outwardly from the rotary grater and/or slicer (Fig. 2) to a second configuration where the handle portion of the crank projects inwardly towards a centerline of the rotary grater and/or slicer (Fig. 1), the second configuration enabling the rotary grater to be more compact (“The resulting flashlight is both compact, easy to handle and highly efficient.” [0101]) for storage.
Pysher, in view of Grace, contain a base device upon which the invention of claim 8 could be seen as an improvement. Becker contains a “comparable” device that has been improved in the same way as the claimed invention by having a first configuration where the crank is extended for use and a second configuration where the crank projects in ward towards a centerline of the rotary device. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have applied the first and second configuration as done in Becker to the prior art in Pysher, in view of Grace, to achieve the predictable result of a more compact invention.
Claim(s) 9, 10, 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Pysher (US 1,617,499) as applied to claim 2 above, and further in view of Popeil et. al. (US 3,610,304), hereafter referred to as “Popeil”.
Re Claim 9, Pysher discloses the rotary grater and/or slicer according to claim 2 (see rejection of claim 2 above), and discloses that that the crank is affixed to the rotatable drum but fails to disclose that the crank is affixed to the rotatable drum by a bayonet mount.
Popeil teaches that the crank is affixed to the rotatable cutting device (disc 20 which contains crescent through holes 92) by a bayonet mount (combination of bayonet lugs 81 and crescent through holes 92).
Pysher contains a device that differed from the claimed invention by having the crank affixed to the rotatable drum through threads (Pysher, “The cone is capped, as at 19, and engaged with these screw-threads is a spindle 20 carrying a crank handle 21 at its outer end” Col. 2, lines 73-76, and cone is integral part of cylindrical knife carrier) instead of by a bayonet joint. Popeil teaches a bayonet joint to spin a rotatable cutting device (Popeil, “Thereafter, turning the disc 20 by means of the rotation of the crank handle 12 will always drive the bayonet lug notches 84 of the bayonet lugs 81 against the ends of the crescent through holes 92” Col. 7, Lines 58-61). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have substituted the threads of Pysher with the bayonet joint of Popeil to achieve a predictable result as both items serve the same purpose of connecting the crank to the rotatable cutting device.
Re Claim 10, Pysher, in view of Popeil, discloses the rotary grater and/or slicer according to claim 9 (see rejection of claim 9 above), but fails to disclose that the bayonet mount is secured by a resilient protrusion pressing out from the rotatable drum to engage a side of a tooth protruding inwards from a ring affixed to the crank.
Popeil teaches that the bayonet mount (combination of bayonet lugs 81 and crescent through holes 92) is secured by a resilient protrusion (bayonet lugs 81) pressing out from the ring (drive shaft collar 85) affixed (drive shaft collar 85 is attached to drive shaft 28 which is attached to hexagonal-shaped end 26, which is attached to crank handle 12) to the crank (crank handle 12) to engage a side of a tooth protruding inwards (crescent through holes 92) from the rotatable cutting device (disc 20).
Pysher, in view of Popeil, disclose the claimed invention except for the direction of the bayonet joint. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have reversed the direction of the bayonet joint such that the resilient protrusion is positioned on the drum and the tooth protruding inward is positioned on the ring of the crank, since it has been held that a mere reversal of the working parts of a device involves only routine skill in the art. In re Gazda, 219 F.2d 449, 104 USPQ 400.
Re Claim 11, Pysher, in view of Popeil, discloses rotary grater and/or slicer according to claim 9 (see rejection of claim 9 above), but fails to disclose that the bayonet mount is secured by a resilient protrusion pressing out from the rotatable drum to engage a side of a tooth protruding inwards from a bore surrounding axis of the crank.
Popeil teaches that the bayonet mount (combination of bayonet lugs 81 and crescent through holes 92) is secured by a resilient protrusion (bayonet lugs 81) pressing out from the ring (drive shaft collar 85) affixed (drive shaft collar 85 is attached to drive shaft 28 which is attached to hexagonal-shaped end 26, which is attached to crank handle 12) to a bore surrounded axis (drive shaft 28 is surrounded by drive shaft sleeve 52) of the crank (crank handle 12) to engage a side of a tooth protruding inwards (crescent through holes 92) from the rotatable cutting device (disc 20).
Pysher, in view of Popeil, disclose the claimed invention except for the direction of the bayonet joint. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have reversed the direction of the bayonet joint such that the resilient protrusion is positioned on the drum and the tooth protruding inward is positioned on the bore of the crank, since it has been held that a mere reversal of the working parts of a device involves only routine skill in the art. In re Gazda, 219 F.2d 449, 104 USPQ 400.
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Pysher (US 1,617,499) as applied to claim 2 above, and further in view of Perkins et. al. (US 5,660,341), hereafter referred to as Perkins.
Re Claim 12, Pysher discloses the rotary grater and/or slicer according to claim 2 (see rejection of claim 2 above), but fails to disclose that inner edges of lips of the rotatable drum are flared inwards to retain shavings when an axis of the rotatable drum is horizontal.
Perkins teaches a rotatable drum with a lip whose inner edge (ring-like frame member 52) is flared inwards (see Fig. 6 illustrated) to retain shavings when an axis of the rotatable drum is horizontal.
Pysher and Perkins discloses each element claimed with the only different between the claimed invention and the prior being the lack of actual combination of the elements in a single prior art reference. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined Pysher and Perkins by substituting the inner edges of the lips of Pysher with the inwardly flared, inner edge of the lip of Perkins and in combination the inner edge of the lip of Perkins and every other claimed element as disclosed in Pysher perform the same function as they do separately. One of ordinary skill in the art before the effective filing date of the claimed invention would have found the results of this combination to be predictable.
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Fig. 6 of Perkins, illustrated
Claim(s) 16-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Pysher (US 1,617,499) as applied to claim 1 above, and further in view of Beliveau (US 11,096,525).
Re Claim 16, Pysher discloses the rotary grater and/or slicer according to claim 1 (see rejection of claim 1 by Pysher above), but fails to disclose a spring-loaded plunger configured to be received within the vertical hopper portion.
Beliveau teaches a spring-loaded plunger (biasing assembly 13 received within first housing 5) configured to be received within the vertical hopper portion (loading section 9 and attached second housing 7, “a biasing assembly (13) operatively cooperable with the first housing (5) for biasing the product (3) to be grated inside the loading section (9)” Col. 5, Lines 47-49).
Pysher contains a rotary grater upon which the claimed invention can be seen as an improvement because it has a spring-loaded plunger. Beliveau contains a rotary grinder that comprises a spring loaded plunger configured to be received within the vertical hopper portion. It would be obvious to a person of ordinary skill in the art to have applied the spring-loaded plunger of Beliveau to the rotary grater of Pysher and it would be predictable to that person that the plunger would compress the object to be grated against the rotatable cutting device (Beliveau, “biasing assembly operatively cooperable with the first housing for biasing the product to be grated inside the loading section of the second housing towards and against the grating drum” Col. 5, Lines 47-51).
Re Claim 17, Pysher, in view of Beliveau, discloses the rotary grater and/or slicer according to claim 16 (see rejection of claim 16 above), wherein the plunger is configured to be clipped (Beliveau, interlocking assembly 79) into place within the vertical hopper portion (Beliveau, the biasing assembly 13 is within the loading section 9 when second housing 7 is connected to first housing 5 via interlocking assembly 79).
Re Claim 18, Pysher, in view of Beliveau, discloses the rotary grater and/or slicer according to claim 17 (see rejection of claim 17 above), wherein the plunger is configured to be clipped into place at two or more locations (Fig. 12 shows that the second housing 7 is configured to be clipped at two places) so as to accommodate different workpiece volumes.
Re Claim 19, Pysher, in view of Beliveau, disclose the rotary grater and/or slicer according to claim 16 (see rejection of claim 16 above), and Beliveau further discloses a workpiece engagement face (curved supporting surface 33) of the plunger is provided with sharp-edged ridges parallel to a rotational axis of the rotatable cutting device (Fig. 101 or Fig. 102) to prevent the workpieces from rolling (“for supporting the product” Col. 7, Line 3).
Re Claim 20, Pysher, in view of Beliveau, discloses the rotary grater and/or slicer according to claim 16 (see rejection of claim 16), and Beliveau further discloses that sections of the plunger are held together by a rotatable key (Fig. 9 shows sections of the biasing assembly 13 held together by a screw).
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, 2, and 6 rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1 and 8 of U.S. Patent No. 12,376,706 (“the reference patent”) in view of Frick (US 633,188). The claims of the instant application and the claims of the reference patent are compared in the table below, and the difference between the claims are highlighted below by bolding all limitations that differ, italicizing additional limitations, and underlining limitations that will be addressed below.
Instant Application
US Patent No. 12,376,706
A rotary grater and/or slicer comprising:
a grater body, the grater body including a cutter housing portion and a vertical hopper portion connected to the cutter housing portion, the vertical hopper portion of the grater body being configured to hold a workpiece for grating;
a rotatable cutting device, the rotatable cutting device configured to be rotatably disposed inside the cutter housing portion of the grater body, the rotatable cutting device comprising a plurality of blade members for grating the workpiece; and
a rotary input device coupled to the rotatable cutting device, the rotary input device configured to rotate the rotatable cutting device;
wherein the vertical hopper portion is configured to serve as a handle for the rotary grater and/or slicer, and
the vertical hopper portion is used for feeding the workpiece to the rotatable cutting device.
A rotary grater, comprising:
a grater body, the grater body including a cutter housing portion, a hopper portion connected to the cutter housing portion, and a body arm portion extending outwardly from the hopper portion, the hopper portion of the grater body being configured to hold a workpiece for grating;
a rotatable cutting device, the rotatable cutting device configured to be rotatably disposed inside the cutter housing portion of the grater body, the rotatable cutting device comprising a plurality of blade members for grating the workpiece;
a rotary input device coupled to the rotatable cutting device, the rotary input device configured to rotate the rotatable cutting device;
a grater plunger, the grater plunger including a plunger arm portion connected to a plunger head portion, the plunger arm portion having a first arm end and a second arm end, the second arm end of the plunger arm portion being oppositely disposed relative to the first arm end, the first arm end of the plunger arm portion being pivotably coupled to a distal end of the body arm portion, and the second arm end of the plunger arm portion being connected to the plunger head portion,
the plunger head portion configured to compress the workpiece in the hopper portion during the grating of the workpiece; and
a lever member pivotably coupled to the plunger arm portion or the body arm portion, the lever member having a first lever end portion and a second lever end portion, the second lever end portion of the lever member being oppositely disposed relative to the first lever end portion, the first lever end portion of the lever member configured to receive an input force applied by a user, and the second lever end portion of the lever member configured to apply an output force against a bearing wall of the grater body or the grater plunger so as to facilitate a compressing of the workpiece between the plunger head portion and the rotatable cutting device during the grating of the workpiece;
wherein the lever member is pivotably coupled to a middle region of the body arm portion, and the bearing wall against which the output force of the second lever end portion of the lever member is applied comprises a part of the grater plunger.
2. The rotary grater and/or slicer according to claim 1, wherein the rotatable cutting device comprises a rotatable drum with the blade members, and the rotary input device comprises a crank connected to the rotatable drum.
8. The rotary grater according to claim 1, wherein the rotatable cutting device comprises a cylindrical cutting device and the rotary input device comprises a crank connected to a first circular frame member, the first circular frame member configured to be removably attached to one end of the cylindrical cutting device.
6. The rotary grater and/or slicer according to claim 2, wherein the crank is mounted on one edge of the rotatable drum.
8. The rotary grater according to claim 1, wherein the rotatable cutting device comprises a cylindrical cutting device and the rotary input device comprises a crank connected to a first circular frame member, the first circular frame member configured to be removably attached to one end of the cylindrical cutting device.
Re Claim 1, Claim 1 of the reference patent recites all the limitations of claim 1 of the instant application except “wherein the vertical hopper portion is configured to serve as a handle for the rotary grater and/or slicer”. However, Frick teaches another rotary grater whose hopper portion (Frick, body of the device A) is configured to serve as a handle for the rotary grater (Frick, “the body of the device may be grasped in one hand” Pg. 1 Lines 78-79).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention modify the reference patent to configure the hopper portion to serve as a handle so that it the body of ten grater could be grasped in one hand while another hand turns the crank.
Furthermore, Examiner notes that the instant application claims “a rotary grater and/or slicer” which is anticipated by the reference patent claiming “a rotary grater”, “a vertical hopper portion” which has the same scope as “a hopper portion” in the reference patent as any hopper can be vertical is used in a vertical orientation, and “the vertical hopper portion is used for feeding the workpiece to the rotatable cutting device” which has the same scope as the limitation “the plunger head portion configured to compress the workpiece in the hopper portion during the grating of the workpiece” in the reference patent.
Re Claim 2, Claim 8 of the reference patent recites the same limitations as claim 2 of the instant application. Examiner notes that “a rotatable drum with the blade members” as used in the instant application is an equivalent to “cylindrical cutting device” as used in the reference patent and “a crank connected to the rotatable drum” as used in the instant application is anticipated by “a crank connected to a first circular frame member, the first circular frame member configured to be removably attached to one end of the cylindrical cutting device” as in the reference patent.
Re Claim 6, Claim 8 of the reference patent recites the same limitations as claim 6 of the instant application. Examiner notes that “is mounted on one edge of the rotatable drum” in the instant application is anticipated by “connected to a first circular frame member, the first circular frame member configured to be removably attached to one end of the cylindrical cutting device” in the reference patent.
Claim 1, 2, 6, and 7 provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1, 8, 8, and 9, respectively, of copending Application No. 19/289076 (reference application #1) and claims 1, 10, 10, and 11, respectively, of copending Application No. 19/321276 (reference application #2). The claims of the instant application and the claims of the reference patent are compared in the table below, and the difference between the claims are highlighted below by bolding all limitations that differ, italicizing additional limitations, and underlining limitations that will be addressed below.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Instant Application
Reference Application #1
Reference Application #2
1. A rotary grater and/or slicer comprising:
a grater body,
the grater body including a cutter housing portion and
a vertical hopper portion connected to the cutter housing portion,
the vertical hopper portion of the grater body being configured to hold a workpiece for grating;
a rotatable cutting device,
the rotatable cutting device configured to be rotatably disposed inside the cutter housing portion of the grater body,
the rotatable cutting device comprising a plurality of blade members for grating the workpiece; and
a rotary input device coupled to the rotatable cutting device,
the rotary input device configured to rotate the rotatable cutting device;
wherein the vertical hopper portion is configured to serve as a handle for the rotary grater and/or slicer, and
the vertical hopper portion is used for feeding the workpiece to the rotatable cutting device.
1. A rotary grater, comprising:
a grater body,
the grater body including a cutter housing portion,
a hopper portion connected to the cutter housing portion, and
a body arm portion extending outwardly from the hopper portion,
the hopper portion of the grater body being configured to hold a workpiece for grating;
a rotatable cutting device,
the rotatable cutting device configured to be rotatably disposed inside the cutter housing portion of the grater body,
the rotatable cutting device comprising a plurality of blade members for grating the workpiece;
a rotary input device coupled to the rotatable cutting device,
the rotary input device configured to rotate the rotatable cutting device;
a grater plunger,
the grater plunger including a plunger arm portion connected to a plunger head portion,
the plunger arm portion having a first arm end and a second arm end,
the second arm end of the plunger arm portion being oppositely disposed relative to the first arm end,
the first arm end of the plunger arm portion being pivotably coupled to a distal end of the body arm portion, and
the second arm end of the plunger arm portion being connected to the plunger head portion,
the plunger head portion configured to compress the workpiece in the hopper portion during the grating of the workpiece; and
a lever device pivotably coupled to the body arm portion,
the lever device having a first lever end portion and a second lever end portion,
the second lever end portion of the lever device being oppositely disposed relative to the first lever end portion,
the first lever end portion of the lever device configured to receive an input force applied by a user, and
the second lever end portion of the lever device configured to apply an output force against the plunger arm portion so as to facilitate a compressing of the workpiece between the plunger head portion and the rotatable cutting device during the grating of the workpiece.
1. A rotary grater, comprising:
a grater body,
the grater body including a cutter housing portion,
a hopper portion connected to the cutter housing portion, and
a body arm portion extending outwardly from the hopper portion,
the hopper portion of the grater body being configured to hold a workpiece for grating;
a rotatable cutting device,
the rotatable cutting device configured to be rotatably disposed inside the cutter housing portion of the grater body,
the rotatable cutting device comprising a plurality of blade members for grating the workpiece;
a rotary input device coupled to the rotatable cutting device,
the rotary input device configured to rotate the rotatable cutting device;
a grater plunger,
the grater plunger including a plunger arm portion connected to a plunger head portion,
the plunger arm portion having a first arm end and a second arm end,
the second arm end of the plunger arm portion being oppositely disposed relative to the first arm end,
the first arm end of the plunger arm portion being pivotably coupled to a distal end of the body arm portion, and
the second arm end of the plunger arm portion being connected to the plunger head portion,
the plunger head portion configured to compress the workpiece in the hopper portion during the grating of the workpiece; and
a lever device pivotably coupled to the body arm portion,
the lever device having a first lever end portion and a second lever end portion,
the second lever end portion of the lever device being oppositely disposed relative to the first lever end portion,
the first lever end portion of the lever device configured to receive an input force applied by a user, and
the second lever end portion of the lever device configured to apply an output force against the plunger arm portion so as to facilitate a compressing of the workpiece between the plunger head portion and the rotatable cutting device during the grating of the workpiece.
2. The rotary grater and/or slicer according to claim 1, wherein the rotatable cutting device comprises a rotatable drum with the blade members,
and the rotary input device comprises a crank connected to the rotatable drum.
8. The rotary grater according to claim 1, wherein the rotatable cutting device comprises a cylindrical cutting device and the rotary input device comprises a crank connected to a first circular frame member, the first circular frame member configured to be removably attached to one end of the cylindrical cutting device
10. The rotary grater according to claim 1, wherein the rotatable cutting device comprises a cylindrical cutting device and the rotary input device comprises a crank connected to a first circular frame member, the crank configured to be removably attached to the first circular frame member at one end of the cylindrical cutting device.
6. The rotary grater and/or slicer according to claim 2, wherein the crank is mounted on one edge of the rotatable drum.
8. The rotary grater according to claim 1, wherein the rotatable cutting device comprises a cylindrical cutting device and
the rotary input device comprises a crank connected to a first circular frame member, the first circular frame member configured to be removably attached to one end of the cylindrical cutting device
10. The rotary grater according to claim 1, wherein the rotatable cutting device comprises a cylindrical cutting device and
the rotary input device comprises a crank connected to a first circular frame member, the crank configured to be removably attached to the first circular frame member at one end of the cylindrical cutting device.
7. The rotary grater and/or slicer according to claim 6, wherein the crank is removably coupled to the rotatable drum such that the crank is able to mounted interchangeable on a first side or a second side of the rotatable drum,
the first side of the rotatable drum being oppositely disposed relative to the second side of the rotatable drum.
9. The rotary grater according to claim 8, wherein the rotatable cutting device further comprises a second circular frame member configured to be removably attached to the other end of the cylindrical cutting device that is opposite to the end on which the first circular frame member is attached,
the first circular frame member and the second circular frame member configured to be interchangeably used on either end of the cylindrical cutting device so as to accommodate both left-handed and right-handed users of the rotary grater.
11. The rotary grater according to claim 10, wherein the rotatable cutting device further comprises a second circular frame member configured to be attached to the other end of the cylindrical cutting device that is opposite to the end on which the first circular frame member is attached,
the crank configured to be interchangeably used on either end of the cutter housing portion of the grater body so as to accommodate both left-handed and right-handed users of the rotary grater.
Re Claim 1, Claim 1 of either reference application recites all the limitations of claim 1 of the instant application except “wherein the vertical hopper portion is configured to serve as a handle for the rotary grater and/or slicer”. However, Frick teaches another rotary grater whose hopper portion (Frick, body of the device A) is configured to serve as a handle for the rotary grater (Frick, “the body of the device may be grasped in one hand” Pg. 1 Lines 78-79).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention modify the reference patent to configure the hopper portion to serve as a handle so that the body of the grater could be grasped in one hand while another hand turns the crank.
Furthermore, Examiner notes that the instant application claims “a rotary grater and/or slicer” which is anticipated by the reference applications claiming “a rotary grater”, “a vertical hopper portion” which has the same scope as “a hopper portion” in the reference applications as any hopper can be vertical is used in a vertical orientation, and “the vertical hopper portion is used for feeding the workpiece to the rotatable cutting device” which has the same scope as the limitation “the plunger head portion configured to compress the workpiece in the hopper portion during the grating of the workpiece” in the reference applications.
Re Claim 2, either Claim 8 of the reference application #1 or Claim 10 of reference application #2 recites the same limitations as claim 2 of the instant application. Examiner notes that “a rotatable drum with the blade members” as used in the instant application is an equivalent to “cylindrical cutting device” as used in either reference application and “a crank connected to the rotatable drum” as used in the instant application is anticipated by “a crank connected to a first circular frame member, the first circular frame member configured to be removably attached to one end of the cylindrical cutting device” as in either reference application.
Re Claim 6, either Claim 8 of the reference application #1 or Claim 10 of reference application #2 recites the same limitations as claim 6 of the instant application. Examiner notes that “is mounted on one edge of the rotatable drum” in the instant application is anticipated by “connected to a first circular frame member, the first circular frame member configured to be removably attached to one end of the cylindrical cutting device” in either reference patent.
Re Claim 7, either Claim 9 of the reference application #1 or Claim 11 of reference application #2 recites the same limitations as claim 7 of the instant application. Examiner notes that “the crank is removably coupled to the rotatable drum” as in the instant application is recites as “a crank connected to a first circular frame member, the first circular frame member configured to be removably attached to one end of the cylindrical cutting device” in either Claim 8 of the reference application #1 or Claim 10 of reference application #2 which are incorporated into Claim 9 of the reference application #1 and Claim 11 of reference application #2, respectively. The instant application claims “the crank is able to mounted interchangeable on a first side or a second side of the rotatable drum” which is anticipated by “the first circular frame member and the second circular frame member configured to be interchangeably used on either end of the cylindrical cutting device” of Claim 9 of the reference application #1 and “the crank configured to be interchangeably used on either end of the cutter housing portion of the grater body” of Claim 11 of reference application #2. The instant application claims “the first side of the rotatable drum being oppositely disposed relative to the second side of the rotatable drum” which is anticipated by “the other end of the cylindrical cutting device that is opposite to the end on which the first circular frame member is attached” of either Claim 9 of the reference application #1 or Claim 11 of reference application #2.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WILLIAM D DICKSTEIN whose telephone number is (571) 272-1847. The examiner can normally be reached Monday - Friday 8:00 am to 5:00 pm.
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/WILLIAM DOUGLAS DICKSTEIN/Patent Examiner, Art Unit 3725
/Christopher L Templeton/Supervisory Patent Examiner, Art Unit 3725