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 § 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, 8, 15, and 16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by McCoy et al. (US 8,819,985), hereinafter (“McCoy”). McCoy discloses an optical sighting device comprising: a body (1) bounding a field of view through which a user can see a target, the body having a longitudinal axis; an alignment indicator (4) configured to assist the user in determining whether his or her eye is properly aligned with the longitudinal axis of the body, the alignment indicator being configured to be perceived by the user as being disposed outboard of the field of view when the eye of the user is in a correct eye alignment with respect to the longitudinal axis of the body, and the alignment indicator being configured so that at least a portion of the alignment indicator is visible by the eye of the user when the eye of the user is in an incorrect eye alignment with respect to the longitudinal axis of the body. In other words, during proper alignment, the alignment indicator is clearly disposed outside the field of view; and the alignment indicator would inherently be seen when in improper alignment.
Claim(s) 1, 2, 4-6, 9-12, and 17-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hoadley (US 6,557,291).
Re claims 1, 2, 4, 5, 9-12, and 17-20, Hoadley discloses an optical sighting device comprising: a body bounding a field of view through which a user can see a target, the body having a longitudinal axis; an alignment indicator (Figs 16-20) configured to assist the user in determining whether his or her eye is properly aligned with the longitudinal axis of the body, the alignment indicator being configured to be perceived by the user as being disposed outboard of the field of view when the eye of the user is in a correct eye alignment with respect to the longitudinal axis of the body (Fig 18), and the alignment indicator being configured so that at least a portion of the alignment indicator is visible by the eye of the user when the eye of the user is in an incorrect eye alignment with respect to the longitudinal axis of the body (Fig 16, for example).
Re claim 6, Hoadley discloses the optical sighting device of claim 2, wherein the alignment ring comprises a broken line (Fig 14).
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) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hoadley (US 6,557,291). Hoadley discloses the claimed invention including that the alignment indicator being any suitable color (c. 6, l. 32+) to complement the user’s needs. Before the effective filing date of the claimed invention, it would have been obvious for one of ordinary skill in the art to modify the color of the alignment indicator to be red. The motivation would simply be to choose a color that suit the user’s needs. All 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 their respective functions, and the combination would have yielded predictable results to a skilled artisan at the time the invention was made.
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over McCoy. McCoy discloses the claimed invention with the exception of the alignment indicator is iridescent or fluorescent. Iridescent and/or fluorescent bubble levels are commonly known and used in the art to allow viewing in darker conditions. Before the effective filing date of the claimed invention, it would have been obvious for one of ordinary skill in the art to modify the alignment indicator to be iridescent or fluorescent. The motivation (as is commonly known in the art) would be to allow viewing in darker conditions. All 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 their respective functions, and the combination would have yielded predictable results to a skilled artisan at the time the invention was made.
Allowable Subject Matter
Claims 13 and 14 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.
Response to Arguments
Applicant's arguments filed 9-26-25 have been fully considered but they are not persuasive. Applicant initially argues that the examiner’s reference to McCoy does not anticipate at least claim 1 because “…the leveling device is not used by the user to determine whether the user’s eye is properly aligned with the longitudinal axis of the scope….” The examiner disagrees.
MPEP 2114(II) states that “[a] claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). It is the examiner’s position that McCoy clearly discloses an alignment indicator configured to assist the user in determining whether his or her eye is properly aligned with the longitudinal axis of the body. Although the indicator in McCoy is not used for that purpose, the indicator is inherently configured to assist the user in determining whether his or her eye is properly aligned with the longitudinal axis of the body. In other words, if the user is able to see the level in McCoy while aiming, then that is a clear indication that the user’s eye is not in proper alignment with the longitudinal axis of the scope (see also MPEP 2114(I)). As stated above, a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. McCoy clearly discloses all of the structural limitations of at least claim 1.
Applicant further argues that the examiner’s reference to Hoadley does not anticipate at least claim 1 because “…the interior surface of the tube if perceived as being coincident with the inner, proximal edge…when the sighting apparatus is correctly aligned with the user’s eye.” The examiner disagrees. Hoadley clearly discloses “…alignment indicator being configured to be perceived by the user as being disposed outboard of the field of view when the eye of the user is in a correct eye alignment with respect to the longitudinal axis of the body…” (perceived defined broadly to mean to become aware of, know, or identify by means of the senses; https://www.dictionary.com/browse/perceive). In addition, the alignment indicator in Hoadley is in the exact same position as applicant’s (i.e. the interior surface of the scope).
Conclusion
THIS ACTION IS MADE FINAL. 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 REGINALD S TILLMAN, JR whose telephone number is (571)270-7010. The examiner can normally be reached M-F 830-530.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Troy Chambers can be reached at 571-272-6874. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/REGINALD S TILLMAN, JR/Primary Examiner, Art Unit 3641