DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed in parent Application No. 14/185,330, filed on 20 February 2014.
Specification
The prior objection to the abstract has been overcome by the response filed 20 February 2026, wherein Applicant amended the length and language of the abstract.
Double Patenting
The non-statutory 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 non-statutory 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 non-statutory 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 non-statutory 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 1-7 are rejected on the ground of non-statutory double patenting as being unpatentable over claims 1-3 of U.S. Patent No. 11,805,716 B2. Although the claims at issue are not identical, they are not patentably distinct from each other for the below stated reasons.
CLAIM 1 All of the method steps and structural limitations recited therein are within the scope of patented claim 2.
CLAIM 2 U.S. Patent ‘716 recites a leveler in claim 2 but fails to recite a plurality of levelers. It would have been obvious for one having ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the patented leveler such that it would have comprised a plurality of levelers, each aligned with a corresponding one of the plurality of rows of worked soil, since it has been held that the mere duplication of parts has no patentable significance unless a new and unexpected result is produced. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960). The motivation for making the modification would have been to have included additional means for levelling simultaneously the plurality of rows of worked soil.
CLAIM 3 The limitation(s) recited therein naturally occurs during performance of the steps of claim 2 in U.S. Patent ‘716.
CLAIM 4 The limitations recited therein are within the scope of patented claim 3.
CLAIM 5 Claim 3 of U.S. Patent ‘716 fails to recite a pivotal attachment between the leveler and the flap. It would have been obvious for one having ordinary skill in the art, before the effective filing date of the claimed invention, to have pivotably secured the leveler to the flap, since the examiner takes Official Notice of the use of pivotal attachments between soil working tools. The motivation for making the modification would have been to have prevented damage to the connection between the leveler and the flap when working on uneven soil surfaces.
CLAIM 6 The limitations recited therein are within the scope of patented claim 2.
CLAIM 7 The limitations recited therein are within the scope of patented claim 2, when performed in combination with a seeding implement. It would have been obvious for one having ordinary skill in the art, before the effective filing date of the claimed invention, to have used the patented method in combination with a seeding implement, since the examiner takes Official Notice of trench opening and closing assemblies in combination with seeding implements. The motivation for making the modification would have been to have facilitated the performance of planting operations with a single assembly.
Terminal Disclaimer
The terminal disclaimer filed on 20 February 2026 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of U.S. Patent No. 11,805,716 B2 has been reviewed and is NOT accepted.
The terminal disclaimer does not comply with 37 CFR 1.321 because:
This application was filed on or after September 16, 2012. The person who signed the terminal disclaimer is not the applicant, the patentee or an attorney or agent of record. See 37 CFR 1.321(a) and (b).
It should be noted that applicant is not required to pay another disclaimer fee as set forth in 37 CFR 1.20(d) when submitting a replacement or supplemental terminal disclaimer.
Allowable Subject Matter
CLAIM 8 is 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.
CLAIMS 9-17 are allowed.
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 TARA MAYO whose telephone number is (571)272-6992. The examiner can normally be reached Monday through Friday 8:30AM-5:00PM EST.
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, Joseph Rocca can be reached at 571-272-8971. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/TARA MAYO/Primary Examiner, Art Unit 3671
/tm/
19 April 2026
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