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.
Claim 1 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 2 of copending Application No. 18/539,420 (Pub. No: US 20240215479 A1). Although the claims at issue are not identical, they are not patentably distinct from each other because it is obvious that the narrower apparatus claim 2 of copending Application No. 18/539,420 (Pub. No: US 20240215479 A1) covers the broader apparatus claim 1 of the instant application, wherein claim 2 of the copending application recites all the features of claim 1 of the instant application with the added limitation “wherein the cutter bed has a plurality of rotating rotary cutters, wherein said plurality of rotary cutters comprises at least one pair of oppositely rotating rotary cutters that sends a rearwardly-directed stream of cut plant material between the oppositely rotating pair of rotary cutters”.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 2-7 are provisionally rejected under the nonstatutory double patenting rejection because of their dependency on rejected independent claim 1.
Claim Objections
Claim 5 is objected to because of the following informalities:
Claim 5 line 3 “co-planer” should be –coplanar--.
Appropriate correction is required.
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.
Claims 2 and 4 are 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 2 recites the limitation “the signal generated by the sensor” in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 4 recites the limitation "the rockshaft" 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 1-2 and 5-7 are rejected under 35 U.S.C. 103 as being unpatentable over Hamilton (US 20210195833 A1) in view of Kormann et al. (US 20060027750 A1).
Regarding claim 1, Hamilton discloses a mower (swather 20) configured to cut plant material as the mower moves over a field and deposit 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 a rearwardly-directed stream of 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 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 (para. [0024] “NIR sensor 134 may be mounted in or on or otherwise incorporated into the swathboard 28…to determine the properties of the plant material and generate the evaluation information reflecting those properties, including an actual value for an RFV, a protein content value, a fiber content value, a TDN value, an ADF value, and an NDF value, or other property of interest”.
Hamilton fails to disclose 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.
Kormann discloses a similar NIR sensor (18) for deriving nutritional information (para. [0023-0024]) from a flowing swath crop stream (27) (para. [0014]), wherein the sensor is mounted on an upper wall (12) above the crop stream and moveable relative to the wall so as to move the orientation of a sensor face (26) with respect to the crop stream (Figs. 1-2, para. [0027]).
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 disclosed by Kormann, in order to allow for adjustment to a cleaning position in which an orientation of a sensor face extends at an angle with respect to the crop stream to be contacted by the crop and cleaned of any impurities, thereby improving measurement precision (Kormann at bottom of para. [0027]).
Regarding claim 2, Hamilton in view of Kormann discloses the mower of claim 1, wherein the sensor system automatically adjusts the orientation of the sensor by analyzing the signal generated by the sensor and adjusting the orientation of the sensor relative to the crop stream (Kormann at para. [0028] teaches the sensor can be moved into the cleaning position 31 automatically when signals from the sensor 18 remain constant for a certain time interval or indicate that the crop is present).
Regarding claim 5, Hamilton in view of Kormann discloses the mower of claim 1. Kormann further teaches wherein the sensor (18) is mounted on a shoe plate (22), wherein the upper wall (12) has a cutout (14) into which the shoe plate is received such that the upper wall and the shoe plate are generally coplanar in a base orientation (29) of the shoe plate (see Kormann Fig. 1), but with the shoe plate being capable of pivoting movement relative to the upper wall (see Kormann at Fig. 2).
Regarding claim 6, Hamilton in view of Kormann discloses the mower of claim 5. Kormann further teaches an actuator (30), wherein the position of the shoe plate (22) relative to the upper wall (12) is adjusted using the actuator (Kormann top of para. [0027]).
Regarding claim 7, Hamilton in view or Kormann discloses the mower of claim 1. Hamilton further discloses wherein the sensor (134) is a near-infra-red (NIR) sensor (para. [0024]).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Hamilton in view of Kormann as applied to claim 1 above, and further in view of Fay et al. (US 20220210972 A1).
Regarding claim 3, Hamilton in view of Kormann discloses the mower of claim 1, but does not explicitly detail wherein the sensor pivots about a same axis as an axis about which the swathboard pivots.
Fay discloses a swathboard (134) pivotally connected (via pivot tube 771) to a frame (122), wherein a sensor (148) for detecting crop information is seated in a through-hole/recessed portion of the swathboard (Fig. 2, para. [0038]) so as to pivot with the swathboard relative to the frame.
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 swathboard to be pivotable (i.e. such that the sensor mounted thereon pivots when the swathboard pivots), as taught by Fay, In order to allow a user to selectively set the angular position of the swath gate as desired. Note that in this case, the sensor mounted on the swathboard and disclosed by the combination would be capable of pivoting with the swathboard (i.e. when the angular position of the swathboard is adjusted) and/or relative to the swathboard (when only the sensor actuator is activated).
Allowable Subject Matter
Claim 4 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims, as well as to overcome the double patenting rejection set forth in the Office action.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Kirchbeck et al. (US 20180242523 A1) discloses an NIR sensor unit for detecting nutritional properties of harvested crop in a forage harvester. Claussen (US 20140111792 A1) discloses an adjustable NIR sensor for an agricultural harvesting machine. Greten et al. (US 7859674 B2) discloses an NIR sensor for measuring nutritional information of harvested crop in an agricultural machine.
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