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 .
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because "In one aspect the invention is directed to" is an implied phrase. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Claim Objections
Claims 2-4 are objected to because of the following informalities:
Claim 2 line 1 “The mower of claim 1 movement of the sensor” should be --The mower of claim 1 wherein movement of the sensor--.
Claim 3 line 1 “The mower of claim 1 the cutter bed” should be --The mower of claim 1 wherein the cutter bed--.
Claim 3 lines 3-4 “an overlap region between second and third rotary cutters and eighth and ninth rotary cutters, respectively” should be –an overlap region between the second and a third rotary cutter and an eighth and the ninth rotary cutter, respectively— as second and ninth rotary cutters are positively set forth in claim 3 line 2.
Claim 4 line 2 “by second and third rotary cutters” should be –by the second and third rotary cutters—as second and third rotary cutters are positively set forth in claim 3.
Appropriate correction is required.
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.
Claim 1 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 18/539,435 (Pub. No: US 20240219363 A1) to Hamilton et al. in view of U.S. Patent No. 5463852 to O'Halloran (from Applicant’s IDS filed 12-18-2023).
Claim 1 of Hamilton ‘435 recites a mower configured to cut plant material as the mower moves over a field and deposit the cut plant material on the field, the mower including a header assembly having a cutter bed, conditioning rollers, and a swathboard positionable to shape a rearwardly-directed stream of cut plant material into windrows, wherein the header assembly comprises a sensor system mounted on the swathboard and having a sensor configured to collect nutrient information of the plant material being cut by the mower, wherein the sensor is moveable relative to the swathboard so as to move the orientation of a sensor face with respect to the crop stream (i.e. sensor positioned on the swathboard to coincide with location where the stream of cut plant material interacts with the swathboard). Claim 1 of Hamilton ‘435 lacks the cutter bed comprising a plurality of rotating rotary cutters having at least one pair of oppositely rotating rotary cutters. O'Halloran discloses a similar mower 10 including a cutter bed 30 comprised of a plurality of rotating rotary cutters 32a-32j including at least one pair of counter-rotating cutters (Fig. 2, col. 7 lines 58-67 cutters 32b-32i arranged in cooperating pairs so that the two cutters of each pair rotate in opposite directions).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the cutter bed of the mower recited in claim 1 of Hamilton ‘435 to be a plurality of counter-rotating cutter pairs, as taught by O'Halloran, in order to facilitate direction of severed crop material rearwardly between such cutters.
This is a provisional nonstatutory double patenting rejection.
Claims 2-6 are provisionally rejected under the nonstatutory double patenting rejection based on their dependency on rejected independent claim 1.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 5 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 5 recites the limitation "the fourth and fifth rotary cutters" in line 2. There is insufficient antecedent basis for this limitation in the claim.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 3, and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Hamilton (US 20210195833 A1) in view of O'Halloran et al. (US 5463852 A), provided in Applicant’s IDS filed 12-18-2023.
Regarding claim 1, Hamilton discloses a mower (swather 20) configured to cut plant material as the mower moves over a field and deposits the cut plant material on the field (para. [0021] “swather 20 may be configured to move over a field, cut plant material, and deposit the cut plant material in windrows on the field”), the mower including:
a header assembly (22) having a cutter bed (24), conditioning rollers (26), and a swathboard (28), the swathboard being positionable to shape the cut plant material into windrows (para. [0021] “swathboard 28 may be configured to assist in directing the conditioned plant material back to the ground and shaping the windrows”),
wherein the cutter bed has a plurality of rotating rotary cutters (130, para. [0023] cutting elements 130 configured as rotary cutters) configured to send a rearwardly-directed stream of cut plant material,
wherein the header assembly comprises: a sensor system (124) mounted on the swathboard, the sensor system having a sensor (NIR sensor 134) configured to collect nutrient information of the plant material being cut by the mower, wherein the sensor is positioned on the swathboard to coincide with the location where the stream of cut plant material interacts with the swathboard (Fig. 3, para. [0024] NIR sensor 134 mounted on swathboard 28 emits waves coinciding with exiting cut plant stream such that near-infrared radiation reflected by the cut plant material is used to determine relative feed value (RFV), protein content value, fiber content value, total digestible nutrient (TDN) value, acid detergent fiber (ADF) value, and/or a neutral detergent fiber (NDF) value of the plant material).
Hamilton does not explicitly detail wherein the plurality of rotary cutters comprises at least one pair of oppositely rotating rotary cutters, however, such a design is old and well-known in rotary cutters of this type.
In the same field of endeavor, O'Halloran discloses a similar mower 10 including a cutter bed 30 comprised of a plurality of rotary cutters 32a-32j, wherein the plurality of rotary cutters includes at least one pair of oppositely rotating rotary cutters (cutters 32b-32i are arranged in cooperating pairs such that two cutters of each pair rotate in opposite directions) thereby sending a rearwardly-directed stream of cut plant material between the oppositely rotating pair of rotary cutters (Fig. 2, col. 7 lines 58-67).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to configure the rotary cutters of Hamilton according to the configuration as disclosed by O'Halloran, in order to facilitate direction of the severed crop material rearwardly between such cutters at their point of convergence (O'Halloran col. 7 lines 58-67).
Regarding claim 3, Hamilton in view of O'Halloran discloses the mower of claim 1. O'Halloran further teaches wherein the cutter bed (30) comprises ten rotary cutters (32a-32j) across the cutter bed (Fig. 2), and the crop material cut by first (32a) and second (32b) rotary cutters and ninth (32i) and tenth (32j) rotary cutters is thrown laterally inwardly across a front portion of the header assembly (14) to an overlap region between the second (32b) and a third (32c) rotary cutter and an eighth (32h) and the ninth (32i) rotary cutter, respectively, where the cut crop material is swept rearwardly in streams from the overlap regions (col. 8 lines 1-8 teaches outermost first and tenth cutters 32a and 32j rotate in the same direction as second and ninth cutters 32b and 32i, respectively, such that crop materials severed thereby is moved inwardly along the front of the cutters 32a, 32b and 32j, 32i until reaching the next converging nip point of the cutters in front of the discharge opening 102, i.e. respective nip points between counter-rotating pairs 32b, 32c and 32h, 32i).
Regarding claim 6, Hamilton in view of O'Halloran discloses the mower of claim 1. Hamilton further teaches wherein the sensor (134) is a near-infra-red (NIR) sensor (para. [0024]).
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Hamilton in view of O'Halloran, as applied to claim 1 above, and further in view of Claussen (US 20140111792 A1).
Regarding claim 2, Hamilton in view of O'Halloran discloses the mower of claim 1, but fails to disclose wherein movement of the sensor relative to the swathboard changes the orientation of a crop-facing sensor face of the sensor relative a crop facing surface of the swathboard.
Claussen discloses a similar NIR sensor 12 for use with a swather (para. [0023]) and configured to collect nutrient information of a crop flow 13 (see top of para. [0033]), wherein an orientation of a crop-facing surface 31 of the sensor is adjustable relative to a crop-facing surface 32 of an ejection device 10 (Fig. 2, para. 0035] adjusting device 21 allows for adjustment of angle of sensor 12 relative to surface of ejection device 10).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the NIR sensor of Hamilton to be angularly adjustable with respect to the swathboard surface, in the manner as disclosed by Claussen, in order to allow for exact positioning of the sensor relative to the crop flow thus ensuring good quality measurement signals (Claussen at para. [0015]).
Claims 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over Hamilton in view of O'Halloran, as applied to claim 3 above, and further in view of Greten et al. (US 7859674 B2).
Regarding claims 4-5, Hamilton in view of O'Halloran discloses the mower of claim 3.
Hamilton further teaches wherein the sensor (134) is positioned to interact with the crop stream at an interior middle portion of the swathboard (28) (Fig. 3, NIR sensor 134 disposed centrally with respect to swathboard 28), but fails to disclose wherein the sensor is positioned adjacent an outer end of the swathboard to interact with the crop stream produced by the second and third rotary cutters, as per claim 4, or positioned to interact with the crop stream produced by the fourth and fifth rotary cutters, as per claim 5.
In a similar field of endeavor, Greten discloses a harvesting machine comprising a similar NIR sensor 20 for collecting nutrient information of harvested plant material 50 (col. 5 lines 43-48 measures moisture, starch content, oil content, sugar content, protein content, digestibility, neutral detergent fiber content, etc.), and further comprising an actuator device 25 “capable of precisely conveying the sensor device 20 to…a number of measuring positions 100” (Fig. 2, col. 9 lines 7-15).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to incorporate a similar adjustable positioning system for Hamilton’s sensor, as taught by Greten, in order to allow an operator to selectively convey the sensor in a variety of different directions and/or orientations such that the sensor may be precisely positioned relative to a discrete number of measurement positions as desired (Greten col. 10 lines 4-10). Furthermore, it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70. See also, In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Fay (US 20220210972 A1) discloses a mower-conditioner machine comprising one or more crop characteristic sensors. Digman (US 20220210975 A1) discloses a mower-conditioner machine comprising one or more crop characteristic sensors for sensing a nutritional quality of the crop. Murray (US 20210015032 A1) discloses a near-infrared image sensor for a mower conditioner. Kirchbeck et al. (US 20180242523 A1) discloses an NIR sensor for detection nutrition information of crop in a harvesting machine. Kormann et al. (US 20060027750 A1) disclose an angularly adjustable NIR sensor.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JULIA C TRAN whose telephone number is (571) 272-8758. The examiner can normally be reached M-F 9-5 EST.
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/JULIA C TRAN/Examiner, Art Unit 3671
/JOSEPH M ROCCA/Supervisory Patent Examiner, Art Unit 3671