DETAILED ACTION
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 29 & 40 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.
With regard to claim(s) 29, “wherein the first sensor are disposed at different heights” is unclear.
With regard to claim(s) 40, line(s) 1, “the agricultural system of claim 35”, but claim(s) 35 is a method; making this claim(s) unclear.
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 21 & 30 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent Harmon et al. 12,016,264. Although the claims at issue are not identical, they are not patentably distinct from each other because Harmon et al. 12,016,264 captures the claimed subject matter of these instant claim(s) .
With regard to claim(s) 21, Harmon et al. 12,016,264 recites in claim(s) 1: an application machine recited an air seeder; a storage component recited as a tank; a sensor in the storage component configured to detect an attribute and generate data, recited as a signal which is superimposed data, indicative of the attribute; and a controller configured to determine an amount, recited as a volume based on the data.
With regard to claim(s) 30, Harmon et al. 12,016,264 recites in claim(s) 1: a sensor & controller arrangement capturing the method of determining an amount of material wherein the sensor is underneath the material and incorporates a variable corresponding to the attribute of material above the sensor and incorporating that into programming calculations.
Claims 22-29 & 31-40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 of U.S. Patent Harmon et al. 12,016,264 in view of Dybro et al. (9,903,979).
With regard to claim(s) 22-29 & 31-36, Harmon et al. 12,016,264 does not claim(s) a second sensor to detect a surface attribute. Dybro et al. (9,903,979) teach(es) a second sensor to detect a surface attribute in an application machine. Please see column 4, last two paragraphs & column 16, last paragraph.
With regard to claim(s) 23 & 36, Harmon et al. 12,016,264 recites a surface attribute comprising shape in claim(s) 3.
With regard to claim(s) 24, Harmon et al. 12,016,264 recites a surface attribute comprising level in claim(s) 4.
With regard to claim(s) 25-26, Harmon et al. 12,016,264 lack(s) a sensor comprising a wave emitting camera. Dybro et al. (9,903,979) teach(es) a sensor comprising a wave emitting camera, column 4, line 55, et seq.
With regard to claim(s) 27-28 & 31 & 33, Dybro et al. (9,903,979) teach(es) first and second sensors in the storage component and configured to detect attributes of material above the sensors, generating corresponding sensor data indicative of an attribute above the sensors constituting an amount.
With regard to claim(s) 29, as Dybro et al. (9,903,979) employs an embedded sensor and an overhead camera sensor, these are clearly at different heights.
With regard to claim(s) 32, Dybro et al. (9,903,979) teach(es) an additional sensor to a surface attribute. Harmon et al. 12,016,264 in claim(s) 1 recites incorporating a variable into programming calculations.
With regard to claim(s) 34, Dybro et al. (9,903,979) teach(es) sensing a variable corresponding to a surface attribute. Harmon et al. 12,016,264 in claim(s) 1 recites incorporating a variable into programming calculations.
With regard to claim(s) 35, Harmon et al. 12,016,264 recites incorporating a storage component measurement into programming calculation in claim(s) 6.
With regard to claim(s) 37-39, Harmon et al. 12,016,264 captures this subject matter in claim(s) 1 by claiming at least one processor, recited as a controller, storing and executing instructions, recited as programming calculations, obtaining sensor data from a sensor in a storage component of an application machine, the data indicating a attribute above the sensor, and determining an amount, recited as a volume, based on the sensor data indicating the attribute above the material, as delineated supra.
With regard to claim(s) 40, Harmon et al. 12,016,264 fails to claim(s) a display. Dybro et al. (9,903,979) disclose(s) employing a display; 30.
It would have been obvious to a person of ordinary skill in the art before the effective filing date to modify Harmon et al. 12,016,264 to provide a camera constituting a second sensor above the material in order to increase efficiency as taught by Dybro et al. (9,903,979).
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 JOSEPH A DILLON JR whose telephone number is (571)272-6913. The examiner can normally be reached on Monday-Thursday; 8AM-6:30PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Mike McCullough can be reached on (571)272-7805. The fax phone numbers for the organization where this application or proceeding is assigned are (703)305-7687 for regular communications and (703)308-0552 for After Final communications.
Any inquiry of a general nature or relating to the status of this application or proceeding should be directed to the receptionist whose telephone number is (703)308-1134.
/JOSEPH A DILLON JR/Primary Examiner, Art Unit 3653