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 .
Claim Objections
Claim 12 is objected to because of the following informalities: in the final two lines, “and wherein the at least two holes are configured to align to at least two clamp rings of a ring binder” is redundant to the limitation added to independent claim 11, from which claim 12 depends. Appropriate correction is required.
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(s) 1-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nowell et al. 5,325,798 in view of Campbell 4,730,399, Schwartzman 5,340,229 and Check 5,450,678.
Independent Claim 1: Nowell discloses a garden dibble, comprising:
a shank (seen in Fig. 4), wherein the shank is rectilinear and has a rectangular cross section (as seen in Fig. 5), wherein the shank has a length (the vertical extension as seen in Fig. 4), a width (the horizontal extension as seen in Fig. 4) and a thickness (the vertical extent as seen in Fig. 5), wherein the thickness is between a first face of the shank (the face shown in Fig. 4) and a second face of the shank opposite the first face (the bottom face as seen in Fig. 5), wherein the length is at least 6 times the thickness (as seen between Figs. 4 and 5) and the width is at least twice the thickness (as seen between Figs. 4 and 5);
a plurality of rule marks on the first face of the shank (as seen in Fig. 4), wherein the plurality of rule marks is distributed along the length of the shank;
a tooth (at the top left of the shank as seen in Fig. 4) that extends from an end of the shank, wherein the tooth is substantially triangular, wherein the tooth extends from a long edge of the shank and comprises an apex that is oriented orthogonally to a long axis of the shank (as seen in Fig. 4), as per claim 1.
However, Nowell fails to disclose wherein the shank has a rectangular footprint;
at least two holes extending through the thickness of the shank between the first face and the second face, wherein the at least two holes are distributed along the length of the shank, and wherein the at least two holes are configured to align to at least two clamp rings of a ring binder; and
wherein a plurality of depth marks is distributed on a third face of the tooth, and wherein the third face is substantially coplanar and contiguous with the first face, as per claim 1.
Campbell discloses a similar measuring device wherein shank (11) has a rectangular footprint (as seen in Figs. 1 and 5), as per claim 1.
Schwartzman discloses a similar measuring device (10) comprising at least two holes (42) extending through the thickness of the shank (21) between the first face (the top face) and the second face (the bottom face), wherein the at least two holes are distributed along the length of the shank (as seen in Fig. 3), and wherein the at least two holes are configured to align to at least two clamp rings of a ring binder (col. 3, lns. 61-64), as per claim 1.
Check discloses a similar garden dibble wherein a plurality of depth marks (8) is distributed on a third face (the face shown in Fig. 1) of the tooth (5), and wherein the third face is substantially coplanar and contiguous with the first face, as per claim 1.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide the rectangular shank shape disclosed by Campbell for the dibble of Nowell since such a rectangular shape is old and well known in the measuring arts and, generally speaking, such a change of shape has also been held to be a matter of design choice well within the skill of one in the art.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide the binder holes of Schwartzman on the measuring device of Nowell in order to clip the measuring device to objects such as a three ring binder for safe keeping.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide the depth marks of Check on Nowell’s dibble in order to allow a user to measure the depth of the dibble holes as they are made.
Dependent Claims 2-3: The garden dibble is disclosed as applied above. However, the combination fails to disclose wherein the shank has a length to width aspect ratio that is between 6:1 and 30:1, as per claim 2;
wherein the shank has a width to thickness aspect ratio that is between 2:1 and 40:1, as per claim 3.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide the shank with a length to width aspect ratio between 6:1 and 30:1, as per claim 2, in order to control for the type and size of seed to be sown, and at the specific depth to be inserted into the field, and to account for the size and condition of the field in which the seed is sown. Such a modification would merely constitute routine optimization of a result effective variable and, furthermore, it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine optimization.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide the shank with a width to thickness aspect ratio between 2:1 and 40:1, as per claim 3, in order to control for the type and size of seed to be sown, and at the specific depth to be inserted into the field, and to account for the size and condition of the field in which the seed is sown. Such a modification would merely constitute routine optimization of a result effective variable and, furthermore, it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine optimization.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Dependent Claims 4-10: The garden dibble is disclosed as applied above.
Campbell, of the resultant combination, further discloses wherein the shank (11) includes two opposing long edges (the left and right edges as seen in Fig. 5) and two opposing short edges (the top and bottom edges as seen in Fig. 5), where the two opposing long edges extend along the length of the shank and the two opposing short edges extend along the width of the shank, wherein the two opposing long edges are joined to the two opposing short edges by a plurality of fillets (as seen in Figs. 1 and 5), wherein individual fillets of the plurality of fillets extend between an individual long edge of the two opposing long edges and an individual short edge of the two opposing short edges, and wherein the individual fillets follow substantially circular arcs (as seen in Figs. 1 and 5), as per claim 4;
wherein the base (unnumbered, see in annotated Figs. 5 below) is colinear with a first long edge (the left-side long edge as seen in Fig. 5) of the two opposing long edges of the shank (11), as per claim 5;
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wherein the tooth (13) comprises a leading edge (the top edge of tooth 13 as seen in Fig. 5) and a trailing edge (the bottom edge of tooth 13 as seen in Fig. 5), and wherein the leading edge and the trailing edge extend at a first oblique angle and at a second oblique angle, respectively, from the base (as seen in Figs. 1 and 5, see the “base” above), as per claim 7;
wherein the apex has an angle that is subtended by the leading edge (the top edge of the tooth 13) and the trailing edge (the bottom edge of tooth 13), as per claim 9.
Nowell further discloses wherein the leading edge (in this case, the bottom edge of Nowell’s tooth as seen at the top left corner of the shank in Fig. 4) extends at a right angle from the base (of the tooth), as per claim 8.
Check further discloses wherein:
the plurality of depth marks (8) is distributed between the base (at the inner end of the tooth 5) and the apex (the outer end of the tooth) of the tooth (5);
individual depth marks (8) of the plurality of depth marks are separated by an incremental distance ranging between 0.1 and 0.5 inch (0.25-0.5 inches as seen in Fig. 1);
individual depth marks of the plurality of depth marks extend partially across the third face of the tooth (the face of the tooth 5 seen in Fig. 1); and
the plurality of depth marks is distributed along the trailing edge of the tooth (the depth marks extend across the entirety of the tooth and so are distributed along both the leading and tailing edges of the tooth), as per claim 10.
However, the combination fails to specifically disclose wherein the circular arcs have a radius of curvature between 0.1 inch and 0.5 inch, as per claim 4;
wherein the tooth extends between one inch and two inches from a base of the tooth to the apex, as per claim 5;
wherein the base of the tooth extends between 0.5 inch and 3 inches, as per claim 6;
wherein the angle is between 30 degrees and 60 degrees and wherein the apex of the tooth has a radius of curvature between 0.1 inch and 0.5 inch, as per claim 9.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide the circular arcs with a radius of curvature between 0.1 and 0.5 inches, as per claim 4, in order to enhance a user grip comfort while still maintaining effective soil smoothing functionality. Such a modification would merely constitute routine optimization of a result effective variable and, furthermore, it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine optimization.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to extend the tooth 1-2 inches from the tooth base to the apex, as per claim 5, in order to control for the depth at which the specific type and size of seed is to be sown. Such a modification would merely constitute routine optimization of a result effective variable and, furthermore, it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine optimization.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
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 tooth base with an extension of 0.5-3 inches, as per claim 6, in order to control for the depth at which the specific type and size of seed is to be sown. Such a modification would merely constitute routine optimization of a result effective variable and, furthermore, it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine optimization.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
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 tooth apex angle between 30 and 60 degrees and a radius of curvature between 0.1 and 0.5 inches, as per claim 9, in order to control for the depth and soil conditions at which the specific type and size of seed is to be sown. Such a modification would merely constitute routine optimization of a result effective variable and, furthermore, it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine optimization.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Independent Claim 11: Nowell discloses a garden dibble, comprising:
a shank (seen in Fig. 4), wherein the shank comprises a front face (the face shown in Fig. 4) and a rear face (the bottom face as seen in Fig. 5), a first long edge (the right edge as seen in Fig. 4) and an opposing second long edge (the left edge as seen in Fig. 4), a first short edge (the top edge as seen in Fig. 4) and an opposing second short edge (the bottom edge as seen in Fig. 4), wherein the shank has a length (the vertical extent as seen in Fig. 4), a width (the horizontal extent as seen in Fig. 4) and a thickness (the vertical extent seen in Fig. 5), wherein the thickness extends between the front face and the rear face (as seen in Fig. 5);
a plurality of rule marks (seen in Fig. 4) on the front face of the shank, wherein the plurality of rule marks is distributed along the length of the shank (seen in Fig. 4);
a tooth (at the top left corner of the shank as seen in Fig. 4) that extends from an end of the shank and is contiguous with the shank, wherein the tooth is substantially triangular (as seen in Fig. 4), wherein the tooth extends from the opposing second long edge of the shank and comprises an apex that is oriented orthogonally to the opposing second long edge of the shank (as seen in Fig. 4), as per claim 11.
However, Nowell fails to disclose wherein the front face and the rear face are rectangular,
wherein the first short edge and the opposing second short edge extend orthogonally between the first long edge and the opposing second long edge,
at least two holes extending through the thickness of the shank between the front face and the rear face, wherein the at least two holes are distributed along the length of the shank, and wherein the at least two holes are configured to align to at least two clamp rings of a ring binder; and
wherein a plurality of depth marks is distributed on a marked face of the tooth, and wherein the marked face is substantially coplanar and contiguous with the front face, as per claim 11.
Campbell discloses a similar measuring gauge wherein the front face (of 11, seen in Figs. 1 and 5) and the rear face (the opposite, un-shown face) are rectangular (Figs. 1, 4),
wherein the first short edge (the top edge of 11) and the opposing second short edge (the bottom edge) extend orthogonally between the first long edge and the opposing second long edge (Figs. 1, 4), as per claim 11.
Schwartzman discloses a similar measuring device (10) comprising at least two holes (42) extending through the thickness of the shank (21) between the front face (the top face) and the rear face (the bottom face), wherein the at least two holes are distributed along the length of the shank (as seen in Fig. 3), and wherein the at least two holes are configured to align to at least two clamp rings of a ring binder (col. 3, lns. 61-64), as per claim 11.
Check discloses a similar garden dibble wherein a plurality of depth marks (8) is distributed on a marked face of the tooth (5), and wherein the marked face is substantially coplanar and contiguous with the front face (as seen in Fig. 1), as per claim 11.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide the rectangular shank shape disclosed by Campbell for the dibble of Nowell since such a rectangular shape is old and well known in the measuring arts and, generally speaking, such a change of shape has also been held to be a matter of design choice well within the skill of one in the art.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide the binder holes of Schwartzman on the measuring device of Nowell in order to clip the measuring device to objects such as a three ring binder for safe keeping.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide the depth marks of Check on Nowell’s dibble in order to allow a user to measure the depth of the dibble holes as they are made.
Dependent Claims 12-15: Schwartzman, of the resultant combination above, further discloses a similar measuring device wherein the at least two holes comprise three holes (42, 42, 42, see Fig. 3) comprising a first hole (the right hole 42 as seen in Fig. 3), a second hole (the middle hole 42 as seen in Fig. 3) and a third hole (the left hole 42 as seen in Fig. 3) distributed along the length of the shank (21), wherein the first hole is located within a first end portion of the shank (the right end as seen in Fig. 3), wherein the third hole is located within a second end portion of the shank (the left end as seen in Fig. 3), wherein the first end portion is opposite the second end portion, wherein the second hole is located in a center portion of the shank and the second hole is circular (as seen in Fig. 3), and wherein the at least two holes are configured to align to at least two clamp rings of a ring binder (col. 3, lns. 61-64), as per claim 12.
Campbell, of the resultant combination above, further discloses wherein:
the first long edge (the right edge as seen in Fig. 5) is joined to the first short edge (the top edge as seen in Fig. 5) by a first fillet (the top right corner of Fig. 5) and is joined to the opposing second short edge (the bottom edge as seen in Fig. 5) by a second fillet (the bottom right corner as seen in Fig. 5), wherein the first fillet and the second fillet follow circular arcs;
the opposing second long edge (the left edge as seen in Fig. 5) is joined to the opposing second short edge (the bottom edge) by a third fillet (the bottom left corner), as per claim 13.
However, the combination fails to disclose wherein the first hole and the third hole are oval-shaped and the second hole is circular, as per claim 12;
wherein the circular arcs have a radius of curvature between 0.1 inch and 0.5 inch;
wherein the third fillet follows a circular arc having a radius of curvature between 0.1 and 0.5 inch;
the opposing second long edge is joined to the tooth by a fourth fillet, wherein the fourth fillet follows a circular arc or oval arc having a radius of curvature between 0.1 inch and 0.5 inch, as per claim 13;
wherein individual rule marks of the plurality of rule marks are separated by an incremental distance of one inch, and wherein individual depth marks of the plurality of depth marks are separated by an incremental distance of 0.25 inch to 0.5 inch, as per claim 14;
wherein the shank and the tooth have a polycarbonate composition, as per claim 15.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide oval-shaped first and third holes, as per claim 12, since such a change of shape, lacking any criticality, has been held to be a simple matter of design choice.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to also provide a fillet shape following a circular or oval arc wherein the second long edge joins the tooth, as per claim 13, since such a change of shape has been held to mere a simple matter of design choice well within the skill of one in the art.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide the fillets with a radius of curvature between 0.1 and 0.5 inches, as per claim 13, in order to enhance a user grip comfort while maintaining soil smoothing functionality. Such a modification would merely constitute routine optimization of a result effective variable and, furthermore, it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine optimization.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to separate individual rule marks by one inch and individual depth marks by 0.25-0.5 inches, as per claim 14, in order to account for the depth and spacing at which specific seeds must be sown relative to each other. Such a modification would merely constitute routine optimization of a result effective variable and, furthermore, it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine optimization.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to compose the shank and tooth of a polycarbonate, as per claim 15, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice.
Response to Arguments
Please see the updated art rejections now incorporating Schwartzman. While Schwartzman was previously used to reject claim 12, applicant did not address that rejection in their arguments and therefore the rejection of the binder holes under Schwartzman is maintained.
Allowable Subject Matter
Claims 16-20 are allowed.
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 Alicia M. Torres whose telephone number is 571-272-6997. The examiner’s fax number is 571-273-6997. The examiner can normally be reached Monday through Friday from 9:00 a.m. – 5:30 p.m EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joseph M. Rocca, can be reached at (571) 272-8971.
Any inquiry of a general nature or relating to the status of this application or proceeding should be directed to the group receptionist whose telephone number is 571-272-3600. The fax number for this Group is 571-273-8300.
/Alicia Torres/Primary Examiner, Art Unit 3671 July 17, 2026
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