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 .
Response to Arguments
Applicant's response submitted January 28, 2026, has been received. Applicant's arguments have been fully considered but they are not persuasive. Regarding Applicant’s arguments beginning on page 6 of the remarks, asserting that the cited art does not provide “adjust one or more merge variables associated with the merge portion based at least in part on the one or more product parameters”. While Rezik was included to provide the physical adjustment of the merge variables, it is noted that Engel also broadly provides at paragraphs [0056-0058, 0078], using a validation device determining the contents of each article (product parameter) to determine destination (merge variable).
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 21-40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 21, 26-29, 34-37, and 40 of U.S. Patent No.11,789,410. Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘410 patent also discloses the independent claims of the current application, for example, a material handling system, method, and computer product comprising a merge portion and a central controller that is configured (‘410, claim 21) to: determine one or more product parameters associated with one or more articles based at least in part on one or more unique product identifiers associated with the one or more articles (‘410, claim 21); and adjust one or more merge variables associated with the merge portion based at least in part on the one or more product parameters (‘410, claim 7).
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.
Claims 21-40 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Pub. 2018/0085788 (“Engel”) in view of U.S. Patent Pub. 2007/0246328 (“Reznik”).
Claim 21
Engel discloses a material handling system comprising a merge portion and a central controller that is configured (paragraph [0058, 0078], merge conveyor 408 and central controller) to: determine one or more product parameters associated with one or more articles based at least in part on one or more unique product identifiers associated with the one or more articles (paragraph [0043], unique product identifiers).
Engel does not appear to explicitly disclose adjust one or more merge variables associated with the merge portion based at least in part on the one or more product parameters.
Reznik discloses a package sorter and conveyer including merge variable of pusher frequency and speed being controlled at a merge portion (paragraph [0048-0049]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have incorporated adjust one or more merge variables associated with the merge portion based at least in part on the one or more product parameters, as disclosed by Reznik, into the device of Engel, for the purpose of preventing blocking and freeing space for subsequent pushes (Reznik, paragraph [0050]).
Claim 22
Engel in view of Reznik discloses the material handling system of claim 21, wherein the central controller is configured to: determine one or more sortation destinations associated with the one or more articles based at least in part on the one or more product parameters (Engel, paragraph [0078], one or more destination containers).
Claim 23
Engel in view of Reznik discloses the material handling system of claim 21, wherein the one or more product parameters comprise one or more of a weight parameter, a length parameter, a width parameter, or a coefficient of friction parameter (Engel, paragraph [0056], weight).
Claim 24
Engel in view of Reznik discloses he material handling system of claim 21, wherein the one or more merge variables comprise one or more of a product spacing variable, a speed variable, an acceleration variable, or a merging mode variable (Reznik, spacing and speed variables; paragraph [0048-0049]).
Claim 25
Engel in view of Reznik discloses the material handling system of claim 21, wherein each of the one or more articles comprises: a first characteristic that corresponds to visually identifiable information associated with the one or more articles (Engel, paragraph [0084], color); and a second characteristic that corresponds to a barcode associated with the one or more articles, wherein the second characteristic is different from the first characteristic (Engel, paragraph [0063], barcode).
Claim 26
Engel in view of Reznik discloses the material handling system of claim 21, further comprising a vision system configured to capture one or more images of the one or more articles (Engel, tracking system 308 with cameras).
Claim 27
Engel in view of Reznik discloses the material handling system of claim 26, wherein the central controller is configured to identify one or more characteristics associated with the one or more articles based on the one or more images (Engel, paragraph [0055], machine readable code or barcode provide movement, status, location).
Claim 28
Engel discloses a method comprising: determining, by a central controller of a material handling system (paragraph [0058, 0078], merge conveyor 408 and central controller), one or more product parameters associated with one or more articles based at least in part on one or more unique product identifiers associated with the one or more articles (paragraph [0043], unique product identifiers).
Engel does not appear to explicitly disclose and adjusting, by the central controller, one or more merge variables associated with a merge portion of the material handling system based at least in part on the one or more product parameters.
Reznik discloses a package sorter and conveyer including merge variable of pusher frequency and speed being controlled at a merge portion (paragraph [0048-0049]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have incorporated adjusting, by the central controller, one or more merge variables associated with a merge portion of the material handling system based at least in part on the one or more product parameters, as disclosed by Reznik, into the device of Engel, for the purpose of preventing blocking and freeing space for subsequent pushes (Reznik, paragraph [0050]).
Claim 29
Engel in view of Reznik discloses the method of claim 28 further comprising: determining, by the central controller, one or more sortation destinations associated with the one or more articles based at least in part on the one or more product parameters (Engel, paragraph [0078], one or more destination containers).
Claim 30
Engel in view of Reznik discloses the method of claim 28, wherein the one or more product parameters comprise one or more of a weight parameter, a length parameter, a width parameter, or a coefficient of friction parameter (Engel, paragraph [0056], weight).
Claim 31
Engel in view of Reznik discloses the method of claim 28, wherein the one or more merge variables comprise one or more of a product spacing variable, a speed variable, an acceleration variable, or a merging mode variable (Reznik, spacing and speed variables; paragraph [0048-0049]).
Claim 32
Engel in view of Reznik discloses the method of claim 28, wherein each of the one or more articles comprises: a first characteristic that corresponds to visually identifiable information associated with the one or more articles (Engel, paragraph [0084], color); and a second characteristic that corresponds to a barcode associated with the one or more articles, wherein the second characteristic is different from the first characteristic (Engel, paragraph [0063], barcode).
Claim 33
Engel in view of Reznik discloses the method of claim 28, further comprising: capturing, by a vision system of the material handling system, one or more images of the one or more articles (Engel, tracking system 308 with cameras).
Claim 34
Engel in view of Reznik discloses the method of claim 33, further comprising: identifying, by the central controller, one or more characteristics associated with the one or more articles based on the one or more images (Engel, paragraph [0055], machine readable code or barcode provide movement, status, location).
Claim 35
Engel discloses a computer program product comprising at least one non-transitory computer-readable storage medium having computer-readable program code portions stored therein, the computer-readable program code portions comprising an executable portion (paragraph [0101], stored code) configured to: determine one or more product parameters associated with one or more articles based at least in part on one or more unique product identifiers associated with the one or more articles (paragraph [0043], unique product identifiers).
Engel does not appear to explicitly disclose adjust one or more merge variables associated with a merge portion based at least in part on the one or more product parameters.
Reznik discloses a package sorter and conveyer including merge variable of pusher frequency and speed being controlled at a merge portion (paragraph [0048-0049]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have incorporated adjust one or more merge variables associated with a merge portion based at least in part on the one or more product parameters, as disclosed by Reznik, into the device of Engel, for the purpose of preventing blocking and freeing space for subsequent pushes (Reznik, paragraph [0050]).
Claim 36
Engel in view of Reznik discloses the computer program product of claim 35, wherein the computer- readable program code portions comprise the executable portion configured to: determine one or more sortation destinations associated with the one or more articles based at least in part on the one or more product parameters (Engel, paragraph [0078], one or more destination containers).
Claim 37
Engel in view of Reznik discloses the computer program product of claim 35, wherein the one or more product parameters comprise one or more of a weight parameter, a length parameter, a width parameter, or a coefficient of friction parameter (Engel, paragraph [0056], weight).
Claim 38
Engel in view of Reznik discloses the computer program product of claim 35, wherein the one or more merge variables comprise one or more of a product spacing variable, a speed variable, an acceleration variable, or a merging mode variable (Reznik, spacing and speed variables; paragraph [0048-0049]).
Claim 39
Engel in view of Reznik discloses the computer program product of claim 35, wherein each of the one or more articles comprises: a first characteristic that corresponds to visually identifiable information associated with the one or more articles (Engel, paragraph [0084], color); and a second characteristic that corresponds to a barcode associated with the one or more articles, wherein the second characteristic is different from the first characteristic (Engel, paragraph [0063], barcode).
Claim 40
Engel in view of Reznik discloses the computer program product of claim 35, wherein the computer- readable program code portions comprise the executable portion configured to: identify one or more characteristics associated with the one or more articles based on one or more images of the one or more articles (Engel, paragraph [0055], machine readable code or barcode provide movement, status, location).
Conclusion
THIS ACTION IS MADE FINAL. 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 ERICA S Y LIN whose telephone number is (571)270-7911. The examiner can normally be reached M-F 8-4, TW M,W.
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, Douglas X Rodriguez can be reached at (571) 431-0716. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ERICA S LIN/Primary Examiner, Art Unit 2853
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