Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
Claims 1-10 and 12-19 are rejected under 35 U.S.C. 112(a) as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Applicant’s specification does not provide support for the amendment to claim 1 now reciting “non-laser.” Applicant’s remarks dated 10/6/25 describe applicant’s specification paragraph 0033 as providing support for this amendment. However, applicant’s paragraph 0033 describes employing lasers. There is no mention of employing non-lasers. Claims 12 and 17 recite similar issues.
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 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(s) 1-10 and 12-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hornung US 8,667,930 in view of Cramer US 6,575,597.
Regarding claim 1, Hornung teaches a method to repel geese, comprising:
a) providing a device that has a light emitter that emits a predetermined wavelength of light that is detectable by geese, wherein the light emitter employs non-laser LED lighting elements (described in at least the abstract),
b) activating the light of the device to deter geese from occupying the area prior to nightfall (column 4 lines 65-66), wherein the light emitted by the device is directed at least on a plane at the eye level of a goose (the shown device would inherently provide the light on the plane at the eye level of a goose at some point in time), wherein the device does not employ a single rhythmic cyclical flashing light pattern (column 2 line 59, column 4 lines 62-65, column 5 lines 41-49, column 6 lines 37-39);
c) randomly emitting unsynchronized light emissions using the device (as previously described for “wherein the device does not employ a single rhythmic cyclical flashing light pattern”), with the light emissions being emitted within a time period varying from one second to 120 second intervals (the previously identified lines of the prior art also describe random light emissions where at least some of the emissions would inherently fall within a range of one second to 120 seconds);
but does not specify solely emits a single wavelength of 490 nm.
Cramer; however, teaches “at least one laser diode light source capable of producing a beam of light within a wavelength region of 400-700 nanometers” (claim 1). Therefore, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to adjust the wavelength in the system of Hornung to the recited 490 nm, as suggested by Cramer; in order to meet design preferences; since all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in the respective functions, and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention.
Regarding claim 2, the references teach the method as set forth in claim 1, but do not teach wherein the device further comprises a sound emitter that emits a sound wavelength between 20 kHz and 22 kHz.
Hornung; however, does teach sound emitters to be old and well known (column 1 lines 52-59). Therefore, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to provide a sound emitter, in order to meet user design preferences; since all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in the respective functions, and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention. Furthermore, applicant’s disclosure specifically describes “either or both” the light/sound emitter. Therefore, it is clear that mere combination of such emitters is not critical to applicant’s novel concept.
Regarding claim 3, the references teach the method as set forth in claim 1, wherein the device further comprises a sound emitter that produces a subharmonic at F/2 in the range of 7.5 kHz to 10 kHz (see claim 2 rejection).
Regarding claim 4, the references teach the method as set forth in claim 1, wherein a sequence of light emissions vary so that geese do not grow accustomed to a steady rhythmic emission of light from said device (see claim 1 rejection).
Regarding claim 5, the references teach the method as set forth in claim 1, wherein Hornung further teaches the device includes a battery (column 5 lines 34-35).
Regarding claim 6, the references teach the method as set forth in claim 1, wherein Hornung further teaches the device further comprises at least one solar panel (column 5 line 33).
Regarding claim 7, the references teach the method as set forth in claim 1, but do not specify wherein the light emitter is positioned within about 15″-24″ from ground level.
However, such a size range is within an obvious range of the elements described to those with ordinary skill in the art of deterring geese/waterfowl. Therefore, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to provide such a size, in order to meet user design preferences; since such a modification would have involved a mere change in the size of a component, and a change in size is generally recognized as being within the level of ordinary skill in the art.
Regarding claim 8, the references teach the method as set forth in claim 1, but do not specify wherein the light emitter varies a frequency of the unsynchronized light emissions in the range of 1 Hz to 7 Hz.
However, such a range is within an obvious range of the elements described. Therefore, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to provide such a frequency range, in order to meet user design preferences; since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art.
Regarding claim 9, the references teach the method as set forth in claim 1, wherein Hornung further teaches comprising pre-programming desired lighting patterns, intensities, and durations of the light emitter (the abstract summarizes preset code within a microcontroller).
Regarding claim 10, the references teach the method as set forth in claim 2, but do not specify wherein the light emitter is positioned within 15”-24” from ground level.
However, such a range is within an obvious range of the elements described. Therefore, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to provide such a size, in order to meet user design preferences; since such a modification would have involved a mere change in the size of a component, and a change in size is generally recognized as being within the level of ordinary skill in the art.
Regarding claim 12, the references teach a method to repel geese, comprising: a) providing a device that has a light emitter that solely emits a predetermined single wavelength of light at a wavelength of 409 nm that is detectable by geese, wherein the light emitter employs non-laser LED lighting elements, b) activating the light of the device to deter geese from occupying the area prior to nightfall, wherein the light emitted by the device is directed at least on a plane at the eye level of a goose, wherein the device does not employ a single rhythmic cyclical flashing light pattern; c) randomly emitting unsynchronized light emissions using the device, with the light emissions being emitted within a time period varying from one second to 120 second intervals; wherein the light emitter makes geese anxious enough to depart the area, and wherein the device includes a battery (see previous rejections).
Regarding claim 13, the references teach the method as set forth in claim 12, wherein the device further comprises a sound emitter that emits a sound wavelength between 20 kHz and 22 kHz (see previous rejections).
Regarding claim 14, the references teach the method as set forth in claim 1, wherein the device further comprises a sound emitter that produces a subharmonic at F/2 in the range of 7.5 kHz to 10 kHz (see previous rejections).
Regarding claim 15, the references teach the method as set forth in claim 1, wherein the device further includes a solar panel and a sound emitter (see previous rejections).
Regarding claim 16, the references teach the method as set forth in claim 1, wherein the device further comprises at least one solar panel (see previous rejections).
Regarding claim 17, the references teach a method to repel geese, comprising: a) providing a device that has a light emitter that solely emits a predetermined single wavelength of light that is detectable by geese, wherein the light emitter employs non-laser LED lighting elements, and wherein the light wavelength is 09 nm; b) activating the light of the device to deter geese from occupying the area prior to nightfall, wherein the device does not employ a single rhythmic cyclical flashing light pattern; c) randomly emitting unsynchronized light emissions using the device, with the light emissions being emitted within a time period varying from one second to 120 second intervals; wherein the light emitter makes geese anxious enough to depart the area (see previous rejections).
Regarding claim 18, the references teach the method as set forth in claim 17, wherein the light emitter varies a frequency of the unsynchronized light emissions in the range of 1 Hz to 7 Hz (see previous rejections).
Regarding claim 19, the references teach the method as set forth in claim 17, further comprising pre-programming desired lighting patterns, intensities, and durations of the light emitter (see previous rejections).
Response to Arguments
Applicant's arguments filed 10/6/25 have been fully considered but they are not persuasive.
Applicant’s argument that since Cramer’s light emitter is a laser this “precludes the Examiner from concluding that one skilled in the art would have had a reason to arrive at the 409 nm wavelength of light” is not convincing. 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). Therefore, Cramer has at least rendered the recited wavelength obvious.
Applicant’s argument that Cramer’s range is too broad of a range to render the 409 value as obvious is not convincing. MPEP 2144.05 III. D. describes a very broad range as “ordinary motivation to optimize did not apply where disclosure was 68,000 protein variants including 2,332 amino acids.” It is not convincing that a value of 409 within the range of 400-700 rises to this “very broad” range.
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).
Applicant’s arguments directed towards the rejection of claim 10 are unclear for being directed towards limitations that have been cancelled.
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 or earlier communications from the examiner should be directed to JESSICA WONG whose telephone number is (571)272-7889. The examiner can normally be reached Monday through Friday from 8:00am to 4:30pm MST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Timothy Collins can be reached at (571)272-6886. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JESSICA B WONG/Primary Examiner, Art Unit 3644