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 .
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 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.
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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-22 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 10,820,489 and over claims 1-20 of U.S. Patent No. 11,770,997 Although the claims at issue are not identical, they are not patentably distinct from each other because both the current application and the patent claim a row unit for a seeding machine comprising a seed reservoir, seed meter, metering member, and a nozzle to eject the seeds from the seed meter with pressurized air.
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.
Claim 1-4, 7-10, 14-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bristow (1,331,235) in view of Garner et al. (8,869,719) and Official Notice.
Regarding claims 1, 16, 18, 20 and 21, Bristow discloses a row unit for a seeding machine and a method of use, the row unit comprising:
A seed reservoir (29)
A seed meter assembly including
A metering member (27) having a seed side facing the seed reservoir and a non seed side opposite the seed side, the metering member operable to selectively move seeds from the seed reservoir (via valves 6,7a)
A pump/air source (1) providing a pressure differential between the seed side and the non seed side for adhering the seeds to the metering member
A pneumatic seed displacer in fluidic communication with the air source including a positive air pressure including a nozzle for concentrating air (page 2 lines 19-22), wherein the seed displacer is disposed adjacent the metering member, and wherein it is configured to eject the air towards the metering member for directing the seeds from the metering member to the chute (page 2 lines 80-105)
While Bristow discloses the invention as described above, it fails to disclose a seed delivery system having a conveyor having an inlet for receiving seeds and an outlet for discharging the seeds and including a belt movable between the inlet for receiving seeds and the outlet for ejecting seeds. Like Bristow, Garner also discloses a seed metering device that utilizes suction to maintain seeds on orifices of a seed meter. Unlike Bristow, Garner discloses the use of a belted conveyor (424,426) for transporting seeds from the inlet at the seed meter to the outlet at a release point. It would have been obvious to one of ordinary skill in the art at the time the invention was made to utilize a belted conveyor in Bristow as taught by Garner meter as the use of a known technique to improve similar devices in the same way (KSR International Co. v. Teleflex Inc., 550 USPQ2d 1385 (2007)) to enable consistent predictable release of seeds from the outlet of the seed since the bristles on the belt would regulate the release of seeds since a gravity release as taught by Bristow is less predictable due to varying size/shape/moisture content of individual seeds .
Regarding claim 2, the combination discloses that the air source provides a higher than atmospheric pressure air to the pneumatic seed displacer.
Regarding claim 3, the air source includes an output side of the pump.
Regarding claim 4, the combination discloses that the air pressure can be varied (Bristow – page 2 lines 19-21). Depending on the degree of adjustment, the output pressure could be considered an air knife.
Regarding claim 7, the combination discloses that the air for dislodging the seed from the seed meter originates on the non seed side of the seed meter.
Regarding claims 8 and 22, the combination fails to specifically disclose that the nozzle is disposed on the seed side of the metering member. It would have been obvious to one of ordinary skill in the art at the time the invention was made to place the nozzle on the seed side of the metering member since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70. See also, In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975).
Regarding claim 9, the combination discloses that the metering member includes apertures extending from the seed side to the non seed side, wherein the nozzle is configured to eject air through the apertures.
Regarding claim 10, the combination discloses that the belt includes a brush belt, and wherein the nozzle is configured to eject air into bristles of the brush belt.
Regarding claim 14, the combination discloses multiple seed meter assemblies (Figure 1) and therefore multiple conveyors and multiple seed displacers/nozzles.
Regarding claim 15, the combination discloses that the seed meter assembly includes a housing defining a chamber (26) fluidly coupled to the pump for providing the pressure differential, wherein the seed meter assembly further includes a cutoff disposed immediately adjacent the chamber, wherein the nozzle is disposed outside of the chamber in the cutoff (Figure 3).
Regarding claim 17, the combination discloses that the injecting includes using a higher than atmospheric pressure air.
Regarding claim 19, the combination discloses a pump to provide both the pressure differential and the air directed at the seeds.
Claim 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bristow (1,331,235) in view of Garner et al. (8,869,719) as applied to claim 1 above and further in view of Sauder et al. (6,681,706).
Regarding claim 11, the combination of Bristow and Garner discloses the invention as described above, but discloses a bristle belt instead of a flighted belt. Like the combination, Sauder also discloses a seed meter wherein the seeds are deposited on a belted conveyor before being released into the soil. Unlike the combination, Sauder discloses the use of flights on the conveyor to hold the seeds instead of bristles. It would have been obvious to one of ordinary skill in the art at the time the invention was made to utilize flights instead of bristles on the belt of the combination as taught by Sauder as a simple substitution of one known element for another to obtain predictable results (KSR International Co. v. Teleflex Inc., 550 USPQ2d 1385 (2007)).
Claims 12 and 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bristow (1,331,235) in view of Garner et al. (8,869,719) as applied to claim 1 above and further in view of Maury (4,399,757).
Regarding claims 12 and 13, the combination of Bristow and Garner discloses the invention as described above, but discloses a rotating ejection member instead of a venturi device. Like the combination, Maury also discloses a seed meter utilizing a vacuum to hold the seeds on an aperture metering device. Unlike the combination, Maury discloses the use of a venturi and “blade” (22) device to aid in removing the seeds from the apertures. It would have been obvious to one of ordinary skill in the art at the time the invention was made to a venturi device in the combination as taught by Maury as a simple substitution of one known element for another to obtain predictable results (KSR International Co. v. Teleflex Inc., 550 USPQ2d 1385 (2007)).
Allowable Subject Matter
Claims 5-6 objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Response to Arguments
Applicant's arguments filed 3/11/2026 have been fully considered but they are not persuasive. Applicant argues that the combination of Bristow and Garner fails to disclose the claimed invention but fails to provide any details/specifics as to what elements are missing. A generalized statement repeating the claims and saying that the combination does not disclose the claims is insufficient to overcome the previous rejection. The amendments to the claims in an apparent attempt to clarify the seed delivery system do not read over the current combination. The response fails to adequately describe why applicant feels that the current combination does not read on the amended claims. While not argued in the current response, applicant argued in the interview on 2/20/2026 that the combination of Bristow and Garner would not be obvious because the gap between the rigid funnel and the metering disc of Bristow must be maintained so as not to knock the seeds off of the metering member prematurely. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). In this case, Garner discloses a bristle belt conveyor that requires contact between he bristles and the seed as the bristles move past the seed meter to remove the seed from the vacuum pressure of the seed meter. The combination would therefore disclose that the bristles would engage the seeds on the meter of Bristow to move them from the inlet of the conveyor to the release point/outlet. Further, in response to applicant's argument that one of ordinary skill in the art would not make the combination because applicant believes the gap must be maintained, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). In this case, Bristow discloses a vacuum pressure seed meter that moves the seeds from the meter to a conduit. Garner discloses that the conduit can be a belted conveyor. It would have been obvious to one of ordinary skill in the art at the time the invention was made to utilize a belted conveyor in Bristow as taught by Garner meter as the use of a known technique to improve similar devices in the same way (KSR International Co. v. Teleflex Inc., 550 USPQ2d 1385 (2007)) to enable consistent predictable release of seeds from the outlet of the seed since the bristles on the belt would regulate the release of seeds since a gravity release as taught by Bristow is less predictable due to varying size/shape/moisture content of individual seeds .
Additionally, in the interview on 2/20/2026, the examiner indicated that the embodiment shown in Figure 4 to include a separate conduit (48) that moves seeds from the seed meter to the conveyor (32) would appear to read over the current combination of Bristow and Garner. It is unclear if the amendments were an attempt to call out this embodiment since there are no arguments/explanations in the response as to what applicants believe is demonstrably different between the previous claims and the present claims. The current claims, however, do not sufficiently call out the embodiment described by the examiner in the interview as it relates to Figure 4. Clear recitation of both the conduit (48) and conveyor (32) as shown in Figure 4 would be required to read over the current combination of references if this is what applicant was attempting.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jamie L McGowan whose telephone number is (571)272-5064. The examiner can normally be reached Monday through Friday 9:00-5:00 CST.
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/JAMIE L MCGOWAN/Primary Examiner, Art Unit 3671