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 .
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, 9, 18, and 20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 16 of copending Application No. 18/533,749 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because both applications claim a work machine comprising: a frame presenting an interior compartment; a drive assembly configured to propel said frame over a ground surface; an engine or motor positioned within the interior compartment of said frame; a pair of drive motors configured to power said drive assembly; a pair of hydrostatic transmissions that receive rotary power from said engine or motor and positioned forward of said engine or motor and configured to provide hydraulic power to said pair of drive motors; an auxiliary pump configured to provide hydraulic power to an attachment, wherein said auxiliary pump receives rotary power from said engine or motor and is positioned between said engine or motor and said pair of hydrostatic transmissions, and wherein said auxiliary pump is positioned between said pair of drive motors.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 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 –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-3, 5, 9-11, 18, and 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Holder et al (US 6,672,843). Holder discloses:
With regard to claim 1 - A work machine configured to operate an attachment, said work machine comprising:
a drive assembly configured to propel said work machine over a ground surface;
a pair of drive motors 90 configured to power the drive assembly;
an engine 84;
an auxiliary pump 106’ configured to provide hydraulic power to the attachment (“Auxiliary pumps are known for use with bantam duty pumps and other hydrostatic devices and generally are used to provide hydraulic fluid to power elements such as hydraulic lifts, mower decks, and the like.” – column 9, lines 45-50),
wherein said auxiliary pump 106’ receives rotary power from said engine (“Input shaft 25' shown in FIG. 25 differs from input shaft 25 shown in FIG. 6 in the addition of a spline or other engagement means (not shown) to engage auxiliary pump 106'.” – column 10, lines 14-17), and wherein said auxiliary pump is positioned between said pair of drive motors 90 (see Fig. 8);
at least one hydrostatic transmission 10 configured to provide hydraulic power to said pair of drive motors 90, wherein said auxiliary pump 106’ is positioned between said engine and said at least one hydrostatic transmission (see Fig. 25).
With regard to claim 2 - wherein said at least one hydrostatic transmission 10 is a first hydrostatic transmission 51a, wherein said work machine comprises a second hydrostatic transmission 51b, and wherein said first hydrostatic transmission 51a is positioned between, operatively and physically, said auxiliary pump 106’ and said second hydrostatic transmission 51b (see Figs. 23 and 25).
With regard to claim 3 - wherein said first hydrostatic transmission 51a is coupled to said auxiliary pump 106’ and said second hydrostatic transmission 51b is coupled to said first hydrostatic transmission 51a, and wherein at least one of said first hydrostatic transmission 51a and said second hydrostatic transmission 51b is further coupled with a frame 88 of said work machine (“A mounting flange 40 may be integrally formed with or otherwise attached to housing 20 to secure the pump apparatus 10 to frame 88 in a number of known manners.” – column 6, lines 11-13).
With regard to claim 5 - wherein said auxiliary pump and said at least one hydrostatic transmission are positioned forward of said engine 84 (see Fig. 16).
With regard to claim 9 - a frame 88 enclosing an interior space, and wherein each of said engine, said auxiliary pump, and said at least one hydrostatic transmission is positioned in the interior space of the frame (see Fig. 8).
With regard to claim 10 - further comprising a plurality of hydraulic hoses 70a, 70b fluidly connecting said at least one hydrostatic transmission to said drive motors.
With regard to claim 11 - a hydraulic reservoir 86 for holding hydraulic fluid, wherein said hydraulic reservoir 86 is positioned in the interior space of the frame 88, and further comprising another plurality of hydraulic hoses 91a, 91b fluidly connecting said auxiliary pump and/or said at least one hydrostatic transmission to said hydraulic reservoir 86 (“This embodiment includes an external oil reservoir 86 which may be mounted at various locations on the vehicle. Oil drains from pump chamber 50 through case drain 23, through outlet hose 91b to the reservoir.” – column 6, lines 35-38).
With regard to claim 18 - A method of operating a work machine that operably supports an attachment, said method comprising the steps of:
(a) providing a drive assembly configured to propel the work machine over a ground surface, a pair of drive motors 90 configured to power the drive assembly, and an engine 84;
(b) providing power from the engine 84 to an auxiliary pump 106’ configured to provide hydraulic power to the attachment, wherein the auxiliary pump 106’ is positioned between the pair of drive motors 90; and
(c) providing power through the auxiliary pump 106’ to at least one hydrostatic transmission 10 configured to provide power to the pair of drive motors 90.
With regard to claim 20 - wherein the at least one hydrostatic transmission 10 is a first hydrostatic transmission 51a, wherein the work machine comprises a second hydrostatic transmission 51b, wherein the auxiliary pump 106’ is positioned forward of the engine 84 (see Fig. 16), the first hydrostatic transmission 51a is coupled to the auxiliary pump 106’, and wherein the second hydrostatic transmission 51b is coupled to the first hydrostatic transmission 51a.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Holder in view of Kovach et al (US 7,597,172). Holder fails to explicitly disclose a flywheel coupled to said engine, and wherein said auxiliary pump is coupled to said flywheel. Kovach teaches a hydraulic energy recovery and a mechanical drive system comprising a prime mover 22, an auxiliary pump 39, and a hydrostatic transmission 35, wherein Kovach further teaches utilizing “a flywheel as an energy storage device for collecting and storing vehicle deceleration energy, either alone or in combination with a hydraulic accumulator” – column 1, lines 37-40. Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to modify the work machine of Holder with the teaching of Kovach so as to include a flywheel coupled to said engine so as to make the work machine more fuel-efficient by capturing the energy normally lost in decelerating or braking the vehicle.
Allowable Subject Matter
Claims 12-17 are allowed.
Claims 6-8 and 19 are 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.
The following is a statement of reasons for the indication of allowable subject matter: the claimed orientation of the auxiliary pump and hydrostatic transmission is not taught by the art nor is it simply an obvious variant of the given prior art as there would be no motivation to make such a modification. Applicant has stated in the specification that the orientation is to better facilitate placement and while this is a known motivation in the art for the orientation of components of an apparatus, to match the specifically claimed angles would require an impermissible amount of hindsight.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TIMOTHY WILHELM whose telephone number is (571)272-6980. The examiner can normally be reached Monday-Friday 8:30-5:30.
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/TIMOTHY WILHELM/ Primary Examiner, Art Unit 3617 April 22, 2026
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