DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of pre-AIA 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 –
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of application for patent in the United States.
Claim 1 is rejected under pre-AIA 35 U.S.C. 102(b) as being anticipated by Klinner (US 5,044,147).1 Klinner teaches a belt (Element 2 in Figures 1b and/or 36) which is capable transport seeds (which were removed from harvested crops). Klinner further teaches that the crop engaging elements (15) can either be teeth or brush bristles (Abstract “In other embodiments, the teeth may be replaced by a brush-like structure or by rods or other crop engaging elements, backed by plain transverse ribs for collecting and conveying detached crop parts”; Col. 5, Lines 10-21 “crop engaging elements may be filaments, e.g. bristles, of a brush”; Col. 21, Line 36-44; Col. 24, Lines 56-68; Col. 29, Line 46 to Col. 30, Line 12; Col. 37, Lines 57-65). Under the broadest reasonable interpretation Klinner discloses a brush belt of a seeding machine, the seeding machine including a seed metering system and a seed delivery system having a housing (see claim interpretation in footnote 1), the brush belt (“conveyor belt” 2) comprising:
a base member (base of conveyor belt 2) configured to be rotatably driven by the seed delivery system through at least a portion of the housing (see claim interpretation in footnote 1);
a plurality of bristles coupled to the base member, each bristle of the plurality of bristles comprising a first end coupled to the base member and a second end (Col. 5, Lines 10-21; Col. 29, Line 46 to Col. 30, Line 12; Fig. 1b and/or 36);
wherein, a first plurality of bristles of the plurality of bristles is configured to capture a seed at an upper opening of the housing (see claim interpretation in footnote 1).;
wherein, as the brush belt is rotated, the first plurality of bristles is configured to move the seed from the upper opening toward a lower opening of the housing (see claim interpretation in footnote 1).;
wherein, the first plurality of bristles is configured to accelerate the seed horizontal velocity and discharge the seed through the lower opening (see claim interpretation in footnote 1).
Claims 1-6 and 9-12 are rejected under pre-AIA 35 U.S.C. 102(b) as being anticipated by Peterson (US 3,065,481). Peterson discloses a brush belt of a seeding machine, the seeding machine including a seed metering system and a seed delivery system having a housing (see claim interpretation in footnote 1), the brush belt comprising:
a base member (“endless belt” 24) configured to be rotatably driven by the seed delivery system through at least a portion of the housing (see claim interpretation in footnote 1);
a plurality of bristles (Figs. 6 and 7; brush material 34 coupled via resilient mountings 40 – Col. 3, Line 42 to Col. 4, Line 9) coupled to the base member, each bristle of the plurality of bristles comprising a first end coupled to the base member and a second end;
wherein, a first plurality of bristles of the plurality of bristles is configured to capture a seed at an upper opening of the housing (see claim interpretation in footnote 1, also, note the bristles as shown in Figures 6 and 7 and discussed in Peterson would be configured to engage a seed of at least some size and would thus meet the claim under the broadest reasonable interpretation);
wherein, as the brush belt is rotated, the first plurality of bristles is configured to move the seed from the upper opening toward a lower opening of the housing (see claim interpretation in footnote 1);
wherein, the first plurality of bristles is configured to accelerate the seed horizontal velocity and discharge the seed through the lower opening (see claim interpretation in footnote 1).
Regarding claim 2, Peterson further discloses that the base member is configured to be wrapped around a first drive pulley and a second idler pulley of the seed delivery system (see claim interpretation in footnote 1), the brush belt comprising a resilient gripping portion configured to engage the seed (brush material 34 coupled via resilient mountings 40 would form a resilient gripping portion under the broadest reasonable interpretation – Col. 3, Line 42 to Col. 4, Line 9). Note the bristles as shown in Figures 6 and 7 and discussed in Peterson would be configured to engage a seed of at least some size and would thus meet the claim under the broadest reasonable interpretation.
Regarding claim 3, Peterson further discloses that said gripping portion consists of the plurality of bristles (See, Figs. 6 and 7; Col. 3, Line 42 to Col. 4, Line 9).
Regarding claims 4, Peterson further discloses that the travel speed of the resilient gripping portion is configured to be lower at the upper opening than the speed of the resilient gripping portion at the lower opening (see claim interpretation in footnote 1). In this regard, it is noted that only the brush belt itself is specifically recited by the claim (see claim interpretation in footnote 1); thus, the claim is met by the prior art as the belt is reasonably construed as being configured to perform the claimed function.
Regarding claim 5, Peterson further discloses that the base member is configured to be partially disposed within said housing and rotatably driven by the seed delivery system around a first drive pulley and a second idler pulley (see claim interpretation in footnote 1, also it is noted that only the brush belt itself is specifically recited by the claim); a gripping portion comprising a plurality of bristles (34) each having a first end coupled to the base member and a second end configured to (see claim interpretation in footnote 1) be positioned in close proximity to and moved along an inner surface of said housing; wherein, the gripping portion is configured to receive a seed from the seed metering system proximate the upper opening; wherein, the gipping portion is configured to convey the seed from the upper opening to said lower opening of the housing; wherein, the gripping portion is configured to discharge the seed through the lower opening. Note the bristles as shown in Figures 6 and 7 and discussed in Peterson would be configured to engage and grip a seed of at least some size and would thus meet the claim under the broadest reasonable interpretation. Also, as discussed elsewhere, it is noted that only the brush belt itself is specifically recited by the claim (see claim interpretation in footnote 1); thus, the claim is met by the prior art as the belt is reasonably construed as being configured to perform the claimed function
Regarding claim 6, Peterson further discloses that the speed of the second ends of said plurality of bristles is configured to be lower proximate the upper opening than the speed of the second ends of said plurality of bristles proximate the lower opening. In this regard, it is noted that only the brush belt itself is specifically recited by the claim (see claim interpretation in footnote 1); thus, the claim is met by the prior art as the belt is reasonably construed as being configured to perform the claimed function.
Regarding claim 9, Peterson further discloses that the plurality of bristles are configured to receive the seed at the upper opening in a direction parallel to the length of said plurality of bristles. In this regard, it is noted that only the brush belt itself is specifically recited by the claim (see claim interpretation in footnote 1); thus, the claim is met by the prior art as the belt is reasonably construed as being configured to perform the claimed function.
Regarding claim 10, Peterson further discloses the plurality of bristles is configured to receive the seed at the upper opening in a direction substantially perpendicular to the length of said plurality of bristles. In this regard, it is noted that only the brush belt itself is specifically recited by the claim (see claim interpretation in footnote 1); thus, the claim is met by the prior art as the belt is reasonably construed as being configured to perform the claimed function.
Regarding claim 11, Peterson further discloses that the first plurality of bristles is configured to separate from one another proximate the upper opening for receiving the seed. In this regard, it is noted that only the brush belt itself is specifically recited by the claim (see claim interpretation in footnote 1); thus, the claim is met by the prior art as the belt is reasonably construed as being configured to perform the claimed function. Additionally, it is noted that Peterson teaches bristles that are configured to separate from one another as the bristles are disclosed as being resiliently mounted at (40) and formed from a variety of flexible materials (Col. 3, Line 42 to Col. 4, Line 9).
Regarding claim 12 Peterson further discloses that the first plurality of bristles is configured to hold the seed in cooperation with an inner surface of the housing as the first plurality of bristles moves between the upper opening and lower opening. In this regard, it is noted that only the brush belt itself is specifically recited by the claim (see claim interpretation in footnote 1); thus, the claim is met by the prior art as the belt is reasonably construed as being configured to perform the claimed function.
Claim Rejections - 35 USC § 103
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 (i.e., changing from AIA to pre-AIA ) 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.
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1, 5-6, 9-10, and 12 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Sauder (US 6,681,706) in view of Thiemke (US 6,651,570).
Sauder teaches a belt (132) of a seeding machine, the seeding machine including a seed metering system and a seed delivery system having a housing, the belt comprising:
a base member (base of belt 132) configured to be rotatably driven by the seed delivery system through at least a portion of the housing (Figs. 2-3 housing 108, also see claim interpretation in footnote 1, it is noted that only the brush belt itself is specifically required by the claim); and
a plurality of flights (136) coupled to the base member, each flight of the plurality of flights comprising a first end coupled to the base member and a second end (Figs. 2-3);
wherein, a first plurality of flights (136) of the plurality of flights is configured to capture a seed (25) at an upper opening (104) of the housing (Fig. 2);
wherein, as the belt (132) is rotated, the first plurality of flights (136) is configured to move the seed from the upper opening (104) toward a lower opening of the housing (Col. 6, Lines 6-9, “… lower end 106, opened to allow dispensing of the seeds 25 into the furrow 40”; Fig. 2); and
wherein, the first plurality of flights is configured to accelerate the seed horizontal velocity and discharge the seed through the lower opening (Figure 2, shows that the belt 132 rotates around a bottom pulley 146, the movement around the bottom pulley 146 results in an acceleration in the horizontal direction consistent with that described by Applicant – compare with Applicant’s Spec. Bottom Paragraph on Page 6 over to Page 7).
While Sauder teaches a belt having flights, Sauder does not specifically teach that the belt is a brush belt that includes a plurality of bristles coupled to the base member, each bristle of the plurality of bristles comprising a first end coupled to the base member and a second end, wherein, a first plurality of bristles of the plurality of bristles is configured to capture a seed at an upper opening of the housing; wherein, as the brush belt is rotated, the first plurality of bristles is configured to move the seed from the upper opening toward a lower opening of the housing; wherein, the first plurality of bristles is configured to accelerate the seed horizontal velocity and discharge the seed through the lower opening.
Thiemke teaches a wheel (Element 42) designed to transport seeds. Thiemke further teaches that the wheel uses brush bristles to grip and capture a seed (Col. 5, Lines 3-18, “… contiguous disjoint surface utilized, as will be described in more detail hereinafter, a high co-efficient of friction is provided which grips the seeds and carries the seeds at the pre-determined rate through the area between wheel 42 and seed slide 40 without excessively damaging the seeds. In the embodiment shown in FIGS. 4 and 5, the plurality of contiguous disjoint surfaces are in the form of a nylon bristle material …”). When the flights of Sauder are replaced with bristles of the type taught by Thiemke, the resulting arrangement would be one where the belt is a brush belt that includes a plurality of bristles coupled to the base member, each bristle of the plurality of bristles comprising a first end coupled to the base member and a second end, wherein, a first plurality of bristles of the plurality of bristles is configured to capture a seed at an upper opening of the housing; wherein, as the brush belt is rotated, the first plurality of bristles is configured to move the seed from the upper opening toward a lower opening of the housing; wherein, the first plurality of bristles is configured to accelerate the seed horizontal velocity and discharge the seed through the lower opening.
It would have been obvious to one of ordinary skill in the art at the time the invention was made to have replaced the flights on the belt of Sauder with the brush bristles taught by Thiemke, resulting in a brush belt arrangement where the belt is a brush belt that includes a plurality of bristles coupled to the base member, each bristle of the plurality of bristles comprising a first end coupled to the base member and a second end, wherein, a first plurality of bristles of the plurality of bristles is configured to capture a seed at an upper opening of the housing; wherein, as the brush belt is rotated, the first plurality of bristles is configured to move the seed from the upper opening toward a lower opening of the housing; wherein, the first plurality of bristles is configured to accelerate the seed horizontal velocity and discharge the seed through the lower opening. Specifically, the above arrangement would have amounted to the obvious simple substitution of one known element for another to obtain predictable results. In this regard, using a brush belt with bristles, in view of the teachings of Thiemke, in place of a brush belt with flights would have amounted to the simple substitution of one known way to transport seeds for another in a manner that would have yielded predictable results. Specifically, one having ordinary skill in the art would have predicted that Thiemke’s brush bristles known to be used for transporting seeds could also predictably be used to transport seeds in Sauder’s device (in place of Sauder’s flights). Additionally, it would have been obvious to one of ordinary skill in the art at the time the invention was made to have replaced the flights on the belt of Sauder with the brush bristles taught by Thiemke, since using the belt bristles in place of the flights would have allowed for a gentler conveyance of the seed, thereby protecting it during travel through the machine.
Regarding claim 5, the combination of Sauder in view of Thiemke, further teaches, based on the teachings of Thiemke as incorporated into the device taught by Sauder in view of Thiemke as discussed above, that the base member is configured to be partially disposed within said housing and rotatably driven by the seed delivery system around a first drive pulley and a second idler pulley (Figs. 2-3 of Sauder teaches housing 108, pulleys 138, 146 etc.; also, see claim interpretation in footnote 1, it is noted that only the brush belt itself is specifically required by the claim); a gripping portion comprising a plurality of bristles each having a first end coupled to the base member and a second end configured to be positioned in close proximity to and moved along an inner surface of said housing; wherein, the gripping portion is configured to receive a seed from the seed metering system proximate the upper opening; wherein, the gipping portion is configured to convey the seed from the upper opening to said lower opening of the housing; wherein, the gripping portion is configured to discharge the seed through the lower opening. Specifically, Thiemke’s bristles as incorporated are broadly and reasonably a gripping portion, based in particular on Thiemke’s teaching that a “[g]ripping outside layer 54 is formed with a circumferential periphery which has a plurality of contiguous disjoint surfaces…. the plurality of contiguous disjoint surfaces are in the form of a nylon bristle material made by 3M Corporation. The bristles are approximately 0.003 inch in diameter and approximately 1/8 inch in length. Depending upon the particular application, the material type, bristles length and bristle diameter may vary. For example, the bristles may range up to approximately one inch in length and up to approximately 0.024 inch in diameter.” (Quoting, Thiemke Col. 5, Lines 3-18). In this regard, when Thiemke’s gripping outside layer formed of bristles are incorporated on Sauder’s belt, the resulting brush belt would have the above feature.
Regarding claim 6, the combination of Sauder in view of Thiemke, further teaches that the speed of the second ends of said plurality of bristles is configured to be lower proximate the upper opening than the speed of the second ends of said plurality of bristles proximate the lower opening. In this regard, it is noted that only the brush belt itself is specifically recited by the claim (see claim interpretation in footnote 1); thus, the claim is met by the prior art as the belt is reasonably construed as being configured to perform the claimed function.
Regarding claim 9, the combination of Sauder in view of Thiemke, further teaches that the plurality of bristles are configured to receive the seed at the upper opening in a direction parallel to the length of said plurality of bristles. In this regard, it is noted that only the brush belt itself is specifically recited by the claim (see claim interpretation in footnote 1); thus, the claim is met by the prior art as the belt is reasonably construed as being configured to perform the claimed function.
Regarding claim 10, the combination of Sauder in view of Thiemke, further teaches that the plurality of bristles is configured to receive the seed at the upper opening in a direction substantially perpendicular to the length of said plurality of bristles. In this regard, it is noted that only the brush belt itself is specifically recited by the claim (see claim interpretation in footnote 1); thus, the claim is met by the prior art as the belt is reasonably construed as being configured to perform the claimed function.
Regarding claim 12, the combination of Sauder in view of Thiemke, further teaches that the first plurality of bristles is configured to hold the seed in cooperation with an inner surface of the housing as the first plurality of bristles moves between the upper opening and lower opening. In this regard, it is noted that only the brush belt itself is specifically recited by the claim (see claim interpretation in footnote 1); thus, the claim is met by the prior art as the belt is reasonably construed as being configured to perform the claimed function. Further, Sauder teaches the use of a belt in cooperation with an inner surface of a housing (See Sauder element 114 which cooperates with belt 132). Additionally, Thiemke’s brush (42) is designed to cooperate with an inner surface of a housing met by seed slide (40). Accordingly, this feature is taught by the combined teachings of the references.
Claims 2-4 and 11 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Sauder (US 6,681,706) in view of Thiemke (US 6,651,570), as applied to claims 1, 5-6, 9-10, and 12 above, and further in view of B.L. Deopura, R. Alagirusamy, M. Joshi, B. Gupta, Polyesters and Polyamides, Chapter 2, Polyamide Fibers, Part of series: Woodhead Publishing Series in Textiles, Woodhead Publishing, ISBN: 978-1-84569-298-8 (2008) (hereinafter Polyamide fibers).
The combination of Sauder in view of Thiemke teaches that the base member is configured to be wrapped around a first drive pulley and a second idler pulley of the seed delivery system, the brush belt comprising a gripping portion (formed of nylon bristles) configured to engage the seed, which [claim 3] further consists of a plurality of bristles. However, it is recognized that the combination of Sauder in view of Thiemke does not explicitly discuss that the gripping portion is a resilient gripping portion. Nevertheless, it is known that nylon is resilient. Polyamide fibers, discusses on page 57, section 2.63, that nylon fibers have “excellent elastic recovery behavior” thereby teaching that it is known for nylon to be resilient. It would have been obvious to one of ordinary skill in the art at the time the invention was made to have further modified the combination of Sauder in view of Thiemke, so as to utilize resilient nylon bristles, further in view of Polyamide fibers, since doing so would have allowed for increased durability due to the benefit of excellent elastic recovery behavior, as such would allow for repeated use over a long service life.
Regarding claim 4, the combination of Sauder in view of Thiemke, further in view of Polyamide fibers, further teaches that the travel speed of the resilient gripping portion is configured to be lower at the upper opening than the speed of the resilient gripping portion at the lower opening. In this regard, it is noted that only the brush belt itself is specifically recited by the claim (see claim interpretation in footnote 1); thus, the claim is met by the prior art as the belt is reasonably construed as being configured to perform the claimed function.
Regarding claim 11, the combination of Sauder in view of Thiemke, further in view of Polyamide fibers, additionally teaches, the first plurality of bristles is configured to separate from one another proximate the upper opening for receiving the seed. Specifically, as discussed above, it would have been obvious to one of ordinary skill in the art at the time the invention was made to have further modified the combination of Sauder in view of Thiemke, so as to utilize resilient nylon bristles, in view of Polyamide fibers, since doing so would have allowed for increased durability due to the benefit of excellent elastic recovery behavior, as such would allow for repeated use over a long service life. Further, it would have been understood that resilient bristles would be configured to separate from one another proximate an upper opening for receiving the seed. It is noted that only the brush belt itself is specifically required by the claim (see claim interpretation in footnote 1); thus, the claim is met by the prior art as the belt is at least reasonably construed as being configured to perform the claimed function.
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, 5-6, 9-10, and 12 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 17-20 of U.S. Patent No. 8,850,995 in view of Sauder (US 6,681,706). Claims 17-20 of US Patent No. 8,850,995, recite among other things a brush belt designed to convey seed, the brush belt having a plurality of bristles configured to be rotatably driven. In this regard, claims 17-20 of US Patent No. 8,850,995 recite all the structural limitations2 of claims 1, 5-6, 9-10, and 12 in the present application except for specifically reciting that the brush belt has a base member, where the bristles have first and second ends, where the first end of the bristles are coupled to the base member.
While a base member for a belt, bristles having first and second ends, with a first end of the bristles being coupled to the base member, is arguably inherent (since some base would need to be present to form the belt and further the claimed bristles would need to be at least indirectly coupled to this base in order for the bristles to function as part of an operable brush belt), it is nevertheless obvious to include a base member, where the bristles have first and second ends, where the first end of the bristles are coupled to the base member. Specifically, Sauder teaches a belt (132) having a base member (base of 132), flights (136) having first and second ends, where first ends of flights are coupled to the base member (Figs. 2-3). A person having ordinary skill in the art would have had a reasonable expectation of success in attaching the bristles to a base of a belt in a similar manner to how Sauder’s flights are attached to the base of Sauder’s belt.
It would have been obvious to one of ordinary skill in the art at the time the invention was made to have modified claims 17-20 of US Patent No. 8,850,995 to include a brush belt that has a base member, where the bristles have first and second ends, where the first end of the bristles are coupled to the base member, in view of Sauder. The motivation for utilizing a brush belt that has a base member, where the bristles have first and second ends, where the first end of the bristles are coupled to the base member would have been the expected and predictable benefit of ensuring that the bristles are able to rotate and form part of an operable brush belt (i.e. if the bristles were not coupled to the base member in some way an operable brush belt could not be readily formed).
Claims 2-4 and 11 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 17-20 of U.S. Patent No. 8,850,995 in view of Sauder (US 6,681,706) and further in view of Thiemke (US 6,651,570) and Polyamide fibers (note: this is the same document applied in 35 U.S.C. 103 rejection of claims 2-4 and 11 above).
Regarding claims 2 and 3 of the present application, claims 17-20 of U.S. Patent No. 8,850,995 in view of Sauder teaches that the base member is configured to be wrapped around a first drive pulley and a second idler pulley of the seed delivery system, the brush belt comprising a gripping portion (formed of bristles) configured to engage the seed, which [claim 3] further consists of a plurality of bristles. However, it is recognized that claims 17-20 of U.S. Patent No. 8,850,995 in view of Sauder (US 6,681,706) does not explicitly discuss that the gripping portion is a resilient gripping portion.
Thiemke; however, further teaches using nylon bristles to grip and capture a seed (Col. 5, Lines 3-18, “… contiguous disjoint surface utilized, as will be described in more detail hereinafter, a high co-efficient of friction is provided which grips the seeds and carries the seeds at the pre-determined rate through the area between wheel 42 and seed slide 40 without excessively damaging the seeds. In the embodiment shown in FIGS. 4 and 5, the plurality of contiguous disjoint surfaces are in the form of a nylon bristle material …”). It would have been obvious to one of ordinary skill in the art at the time the invention was made to have further modified claims 17-20 of US Patent No. 8,850,995 to include a brush belt formed using nylon bristles, in view of Thiemke, since nylon bristles are known to be an effective bristle material for conveying seeds, and also using nylon is beneficial because nylon bristles are readily available and manufactured by known sources (e.g. 3M – as discussed by Thiemke at Col. 5, Lines 3-18). It is noted that claims 2-3 specifically recite that the gripping portion is a resilient gripping portion. Nevertheless, it is known that nylon is resilient. Polyamide fibers, discusses on page 57, section 2.63, that nylon fibers have “excellent elastic recovery behavior” thereby teaching that it is known for nylon to be resilient. It would have been obvious to one of ordinary skill in the art at the time the invention was made to have further modified claims 17-20 of US Patent No. 8,850,995, so as to utilize resilient nylon bristles, further in view of Polyamide fibers, since doing so would have allowed for increased durability due to the benefit of excellent elastic recovery behavior, as such would allow for repeated use over a long service life.
Regarding claim 4, claims 17-20 of U.S. Patent No. 8,850,995 in view of Sauder, further in view of Thiemke and Polyamide fibers, further teaches that the travel speed of the resilient gripping portion is configured to be lower at the upper opening than the speed of the resilient gripping portion at the lower opening. In this regard, it is noted that only the brush belt itself is specifically recited by the claim (see above footnotes regarding claim construction / broadest reasonable interpretation); thus, the claim is met by the reference patent prior art combination as the belt taught is reasonably construed as being configured to perform the claimed function.
Regarding claim 11, the combination of claims 17-20 of U.S. Patent No. 8,850,995 in view of Sauder, further in view of Thiemke and Polyamide fibers, additionally teaches, the first plurality of bristles is configured to separate from one another proximate the upper opening for receiving the seed. Specifically, as discussed above, it would have been obvious to one of ordinary skill in the art at the time the invention was made to have further modified claims 17-20 of U.S. Patent No. 8,850,995 in view of Sauder, further in view of Thiemke and Polyamide fibers, so as to utilize resilient nylon bristles. Further, it would have been understood that resilient bristles would be configured to separate from one another proximate an upper opening for receiving the seed. It is noted that only the brush belt itself is specifically recited by the claim (see above footnotes regarding claim construction / broadest reasonable interpretation); thus, the claim is met by the reference patent prior art combination as the belt taught is reasonably construed as being configured to perform the claimed function.
Claims 1, 5-6, 9-10, and 12 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of U.S. Patent No. 9,345,188 in view of Sauder (US 6,681,706). Claims 1-15 of US Patent No. 9,345,188, recite among other things a brush belt designed to convey seed, the brush belt having a plurality of bristles configured to be rotatably driven and a gripping portion (i.e. since seeds are carried in the bristles the area where seeds are carried is broadly a gripping portion). Accordingly, claims 1-15 of U.S. Patent No. 9,345,188 recite all the structural limitations of claims 1, 5-6, 9-10, and 12 in the present application except for specifically reciting that the brush belt has a base member, where the bristles have first and second ends, where the first end of the bristles are coupled to the base member (see above footnotes regarding claim construction / broadest reasonable interpretation).
While a base member for a belt, bristles having first and second ends, with a first end of the bristles being coupled to the base member, is arguably inherent (since some base would need to be present to form the belt and further the claimed bristles would need to be at least indirectly coupled to this base in order for the bristles to function as part of an operable brush belt), it is nevertheless obvious to include a base member, where the bristles have first and second ends, where the first end of the bristles are coupled to the base member. Specifically, Sauder teaches a belt (132) having a base member (base of 132), flights (136) having first and second ends, where first ends of flights are coupled to the base member (Figs. 2-3). A person having ordinary skill in the art would have had a reasonable expectation of success in attaching the bristles to a base of a belt in a similar manner to how Sauder’s flights are attached to the base of Sauder’s belt.
It would have been obvious to one of ordinary skill in the art at the time the invention was made to have modified claims 1-15 of U.S. Patent No. 9,345,188 to include a brush belt that has a base member, where the bristles have first and second ends, where the first end of the bristles are coupled to the base member, in view of Sauder. The motivation for utilizing a brush belt that has a base member, where the bristles have first and second ends, where the first end of the bristles are coupled to the base member would have been the expected and predictable benefit of ensuring that the bristles are able to rotate and form part of an operable brush belt (i.e. if the bristles were not coupled to the base member in some way an operable brush belt could not be readily formed).
Claims 2-4 and 11 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of U.S. Patent No. 9,345,188 in view of Sauder (US 6,681,706) and further in view of Thiemke (US 6,651,570) and Polyamide fibers (note: this is the same document applied in 35 U.S.C. 103 rejection of claims 2-4 and 11 above).
Regarding claims 2 and 3 of the present application, claims 1-15 of U.S. Patent No. 9,345,188 in view of Sauder teaches that the base member is configured to be wrapped around a first drive pulley and a second idler pulley of the seed delivery system, the brush belt comprising a gripping portion (formed of flexible bristles) configured to engage the seed, which [claim 3] further consists of a plurality of bristles. However, it is recognized that claims 1-15 of U.S. Patent No. 9,345,188 in view of Sauder (US 6,681,706) does not explicitly discuss that the gripping portion is a resilient gripping portion.
Thiemke; however, further teaches using nylon bristles to grip and capture a seed (Col. 5, Lines 3-18, “… contiguous disjoint surface utilized, as will be described in more detail hereinafter, a high co-efficient of friction is provided which grips the seeds and carries the seeds at the pre-determined rate through the area between wheel 42 and seed slide 40 without excessively damaging the seeds. In the embodiment shown in FIGS. 4 and 5, the plurality of contiguous disjoint surfaces are in the form of a nylon bristle material …”). It would have been obvious to one of ordinary skill in the art at the time the invention was made to have further modified claims 1-15 of U.S. Patent No. 9,345,188 to include a brush belt formed using nylon bristles, in view of Thiemke, since nylon bristles are known to be an effective bristle material for conveying seeds, and also using nylon is beneficial because nylon bristles are readily available and manufactured by known sources (e.g. 3M – as discussed by Thiemke at Col. 5, Lines 3-18). It is noted that claims 2-3 specifically recite that the gripping portion is a resilient gripping portion. Nevertheless, it is known that nylon is resilient. Polyamide fibers, discusses on page 57, section 2.63, that nylon fibers have “excellent elastic recovery behavior” thereby teaching that it is known for nylon to be resilient. It would have been obvious to one of ordinary skill in the art at the time the invention was made to have further modified claims 1-15 of U.S. Patent No. 9,345,188, so as to utilize resilient nylon bristles, further in view of Polyamide fibers, since doing so would have allowed for increased durability due to the benefit of excellent elastic recovery behavior, as such would allow for repeated use over a long service life.
Regarding claim 4, claims 1-15 of U.S. Patent No. 9,345,188 in view of Sauder, further in view of Thiemke and Polyamide fibers, further teaches that the travel speed of the resilient gripping portion is configured to be lower at the upper opening than the speed of the resilient gripping portion at the lower opening. In this regard, it is noted that only the brush belt itself is specifically recited by the claim (see above footnotes regarding claim construction / broadest reasonable interpretation); thus, the claim is met by the reference patent prior art combination as the belt taught is reasonably construed as being configured to perform the claimed function.
Regarding claim 11, the combination of claims 1-15 of U.S. Patent No. 9,345,188 in view of Sauder, further in view of Thiemke and Polyamide fibers, additionally teaches, the first plurality of bristles is configured to separate from one another proximate the upper opening for receiving the seed. Specifically, as discussed above, it would have been obvious to one of ordinary skill in the art at the time the invention was made to have further modified claims 1-15 of U.S. Patent No. 9,345,188 in view of Sauder, further in view of Thiemke and Polyamide fibers, so as to utilize resilient nylon bristles. Further, it would have been understood that resilient bristles would be configured to separate from one another proximate an upper opening for receiving the seed. It is noted that only the brush belt itself is specifically recited by the claim (see above footnotes regarding claim construction / broadest reasonable interpretation); thus, the claim is met by the reference patent prior art combination as the belt taught is reasonably construed as being configured to perform the claimed function.
Claims 1, 5-6, 9-10, and 12 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 23 of U.S. Patent No. 11,770,995. Claim 23 of U.S. Patent No. 11,770,995, recites among other things a brush belt having a base member with bristles designed to convey seed, the brush belt having a plurality of bristles configured to be rotatably driven (claim 23 depends from claim 22 which recites “rotating the base member”) and a gripping portion (i.e. portion configured to “entrap the seed”). Accordingly, claim 23 of U.S. Patent No. 11,770,995 recite all the structural limitations of claims 1, 5-6, 9-10, and 12 in the present application under the broadest reasonable interpretation (see above footnotes regarding claim construction / broadest reasonable interpretation).
Claims 2-4 and 11 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 23 of U.S. Patent No. 11,770,995 in view of Thiemke (US 6,651,570) and Polyamide fibers (note: this is the same document applied in 35 U.S.C. 103 rejection of claims 2-4 and 11 above).
Regarding claims 2 and 3 of the present application, claim 23 of U.S. Patent No. 11,770,995 recite all structural limitations of claims 2-3 except for explicitly discussing that the gripping portion is a resilient gripping portion.
Thiemke; however, further teaches using nylon bristles to grip and capture a seed (Col. 5, Lines 3-18, “… contiguous disjoint surface utilized, as will be described in more detail hereinafter, a high co-efficient of friction is provided which grips the seeds and carries the seeds at the pre-determined rate through the area between wheel 42 and seed slide 40 without excessively damaging the seeds. In the embodiment shown in FIGS. 4 and 5, the plurality of contiguous disjoint surfaces are in the form of a nylon bristle material …”). It would have been obvious to one of ordinary skill in the art at the time the invention was made to have modified claim 23 of U.S. Patent No. 11,770,995 to include a brush belt formed using nylon bristles, in view of Thiemke, since nylon bristles are known to be an effective bristle material for conveying seeds, and also using nylon is beneficial because nylon bristles are readily available and manufactured by known sources (e.g. 3M – as discussed by Thiemke at Col. 5, Lines 3-18). It is noted that claims 2-3 specifically recite that the gripping portion is a resilient gripping portion. Nevertheless, it is known that nylon is resilient. Polyamide fibers, discusses on page 57, section 2.63, that nylon fibers have “excellent elastic recovery behavior” thereby teaching that it is known for nylon to be resilient. It would have been obvious to one of ordinary skill in the art at the time the invention was made to have further modified claim 23 of U.S. Patent No. 11,770,995, so as to utilize resilient nylon bristles, further in view of Polyamide fibers, since doing so would have allowed for increased durability due to the benefit of excellent elastic recovery behavior, as such would allow for repeated use over a long service life.
Regarding claim 4, claim 23 of U.S. Patent No. 11,770,995 in view of Thiemke and Polyamide fibers, further teaches that the travel speed of the resilient gripping portion is configured to be lower at the upper opening than the speed of the resilient gripping portion at the lower opening. In this regard, it is noted that only the brush belt itself is specifically recited by the claim (see above footnotes regarding claim construction / broadest reasonable interpretation); thus, the claim is met by the reference patent prior art combination as the belt is reasonably construed as being configured to perform the claimed function.
Regarding claim 11, the combination of claim 23 of U.S. Patent No. 11,770,995 in view of Thiemke and Polyamide fibers, additionally teaches, the first plurality of bristles is configured to separate from one another proximate the upper opening for receiving the seed. Specifically, as discussed above, it would have been obvious to one of ordinary skill in the art at the time the invention was made to have further modified claim 23 of U.S. Patent No. 11,770,995 in view of Thiemke and Polyamide fibers, so as to utilize resilient nylon bristles. Further, it would have been understood that resilient bristles would be configured to separate from one another proximate an upper opening for receiving the seed. It is noted that only the brush belt itself is specifically recited by the claim (see above footnotes regarding claim construction / broadest reasonable interpretation); thus, the claim is met by the reference patent prior art combination as the belt is reasonably construed as being configured to perform the claimed function.
Response to Arguments
Applicant’s arguments with respect to claims 1-6 and 9-12 have been considered but are moot because the new grounds of rejection do not rely on any reference applied in the prior rejections of record for any teaching or matter specifically challenged in the argument. Notably, Applicant changed the scope of the claims, such that the amended claims are now drawn to the sub-combination of the brush belt and no longer to the combination of the brush belt and the seeding machine. This change, gave rise to the new prior art rejections above, along with the new grounds of double patenting rejections above.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 should be directed to Joseph M Rocca at telephone number (571)272-8971.
Examiner interviews are available via a variety of formats. See MPEP § 713.01. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
/JOSEPH M ROCCA/Supervisory Patent Examiner, Art Unit 3671
1 At the outset, it is noted that the claims as amended are drawn to the sub-combination of the brush belt and not the combination of the brush belt and the seeding machine. Moreover, reciting an element (i.e. the brush belt) functionally (i.e. by what it does) carries with it a risk. In re Schreiber, 128 F.3d 1473, 1477–78 (Fed. Cir. 1997). This risk is that Appellant may bear the burden to prove that the prior art does not possess the functional characteristic. In other words, where the Patent Office has reason to believe that a functional limitation is an inherent characteristic of the prior art, it can require an applicant to show that the prior art does not possess the claimed functional feature. Id. (discussing, In re Swinehart, 439 F.2d 210, 213 (CCPA 1971)).
It is further observed that under the broadest reasonable interpretation of the amended claims, the claims do not structurally require the housing or any related structure of the seeding machine (e.g. seed delivery system, driving device, housing, upper opening, lower opening, etc.). Rather, this seeding machine and related equipment are only recited in the context of an intended use or purpose for the belt along with mere functional limitations related to the seeding machine and related equipment. In this regard, neither the seeding machine nor related equipment are positively or structurally required by the claim language. Among other things, please also note that the claims are now directed to “[a] brush belt …, the brush belt comprising” rather than the claims being directed to a seeding machine as was previously required prior to amendment. Specifically, the claims merely require that the brush belt be configured to perform the intended use and functions as recited.
Regarding the recitation “of a seeding machine” in the preamble, it is noted that the body of the respective claims recite a structurally complete invention. In this regard, “where a patentee defines a structurally complete invention in the claim body and uses the preamble only to state a purpose or intended use for the invention, the preamble is not a claim limitation.” Quoting, Rowe v. Dror, 112 F.3d 473, 478 (Fed. Cir. 1997). In any event, the applied prior art for each of the rejections, based on the current record is at least configured to perform the intended use and/or functions recited.
Further, it is noted that the broadest reasonable interpretation of the claims does not require actual belt rotation and/or actual acceleration of the horizontal seed velocity. In this regard, the claims merely require that the resulting structure is “configured to” perform in the claimed environment and/or “configured to” carry out the claimed functions (e.g. “configured to be rotatably driven”, “configured to capture …”, configured to move…”, “configured to accelerate…”, “configured to be wrapped around a…”, etc.). Additionally, if Applicant intends for any of the “configured to” limitations to be construed more narrowly than “capable of”, it is suggested that Applicant point to specific context from the claim language or written description that suggests that the respective “configured to” limitations should be construed more narrowly than “capable of.” Moreover, in the interests of compact prosecution, it is recommended that Applicant should explain how the structure disclosed and/or taught by the prior art rejections would not meet this proposed narrower claim construction. Although non-precedential, the Federal Circuit’s decision in In re Blue Buffalo, may provide helpful discussion regarding the phrase “configured to.” In re Blue Buffalo Enterprises, Inc., No. 2024-1611 (Fed. Cir. Jan. 14, 2026).
Additionally, it is noted that structural claims, such as claims directed to an article or apparatus, must be distinguished from the prior art in terms of structure. See, In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997) and cases cited therein; see also, In re Danly, 263 F.2d 844, 848 (CCPA 1959) (“Claims drawn to an apparatus must distinguish from the prior art in terms of structure rather than function”); In re Gardiner, 171 F.2d 313, 315‒16 (CCPA 1948) (“It is trite to state that the patentability of apparatus claims must be shown in the structure claimed and not merely upon a use, function, or result thereof.”).
2 Note claim interpretation discussion in footnote 1, which is applicable to both the prior art rejections and the double patenting rejections. As discussed, among other things, only a brush belt is specifically required by the claims. The seeding machine is not specifically required by the claims. (See further details in footnote 1). Further, the structure claimed by the reference patents are configured to perform the functions recited.
Prosecution Insights