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 .
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-3 and 8-9 are rejected under 35 U.S.C. 102 as being anticipated by Keller et al. (DE 43 14 462 and US 5,423,410).
In regard to claim 1, Keller shows an apparatus that conveys and apportions containers 2 that includes a single-track conveyor region 32 and a dual-track conveyor region 33/43 which is arranged directly downstream of the single-track conveyor region 32 (see figures 3-6). The dual-track conveyor region has a first conveyor track 33 and a second conveyor track 43. A distribution device 50/51 is configured to apportion articles conveyed from the single- track conveyor region 32 to the first conveyor track 33 and the second conveyor track 43. The dual-track conveyor region has a height-offset conveyor portion in which the first conveyor track 33 is arranged higher than the second conveyor track 43 (see figures 5 and 6 which show that the second conveyor track 43 is below the bend B in the transfer plate 52 and which show that the first conveyor track 33 is in line with the bend B).
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In regard to claim 2, in the height-offset conveyor portion, an upper-side conveyor face F1 of the first conveyor track 33 is arranged higher than an upper-side conveyor face F2 of the second conveyor track 43 (see the annotated figure below). The first conveyor track 33 and the second conveyor track 43 have upper longitudinal edges E1/E2 opposing one another. In the height-offset conveyor portion, the upper longitudinal edge E1 of the first conveyor track 33 is arranged higher than the upper longitudinal edge E2 of the second conveyor track 43.
In regard to claim 3, the second conveyor track 43 is inclined away from the first conveyor track 32 (see figure 5).
In regard to claim 8, the distribution device 50/51 is arranged at a downstream end of the single-track conveyor region 32 and as such, one of the features of claim 8 is fulfilled.
In regard to claim 9, the apparatus of Keller includes an air supply device 50 for supplying the articles with an air flow for movement towards the second first conveyor track 43. The air supply device supplies the articles with the air flow and is arranged upstream of the height-offset conveyor portion (see figure 3 showing the air supply device 50 upstream of the first conveyor track 33).
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In response to this rejection, the applicant’s representative asserts that Keller fails to show first and second conveyor tracks that have upper longitudinal edges opposing one another in the height-offset conveyor portion in which the upper longitudinal edge of the first conveyor trans is arranged higher than the upper longitudinal edge of the second conveyor track. The examiner respectfully disagrees.
In support of the above assertion, the applicant’s representative states that Keller does not explicitly state that the upper longitudinal edges of the belt that face each other are positioned at different heights. While this point is conceded, it is not dispositive, as it is believed that the drawings themselves suggest such an arrangement as described above.
The applicant’s representative further suggests that when a reference does not disclose that the drawings are to scale and is silent as to dimension, arguments abased on measurement of the drawing features are of little value and as such Keller does not disclose any specific geometric relationship between the upper longitudinal edges of the belts 33 and 43. The examiner respectfully disagrees. In particular, while drawings that are not to scale may not be relied upon to provide relative dimensions of the parts, they may still be relied upon to show the relative positions of the parts. Such relative positions would include geometric relationships between the parts. As at least figures 5 and 6 show the belt 43 with its upper edge positioned downwardly and to the right of the bend B shows above, the upper edge of the belt 43 must be below the opposing upper edge of the belt 33 as required by the claims. This is reinforced by figure 4 which appears to show the belts 33 and 43 are different heights. No measurements of the drawings was required to arrive at this conclusion, only an observation of the relative positions of the parts.
Finally, the applicant’s representative notes that, if figure 5 is taken into account, it shows that the opposing longitudinal edges are at substantially the same height. While the examiner does not dispute that the opposing longitudinal edges may be close in height, it should be noted that even if this statement is taken at face value, it does not preclude Keller from meeting the limitation of the claim that one of the upper longitudinal edges is higher than the other. The claims include no limitations concerning the amount of difference in the heights of the upper longitudinal edges. As such, even an upper longitudinal edge that is even slightly higher that the other meets the limitation of the claims. It is believed that the figures show at least such a height difference and the arguments are not found to be persuasive. Furthermore, this argument undermines the earlier assertion of the applicant’s representative that no specific geometric relationships between the upper longitudinal edges of the belts is disclosed by figure 5 of Keller.
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.
Claims 12 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Keller et al.
While Keller does not discuss the limitations of claims 11-16, it should be noted that the containers 2 being conveyed are can bodies that are being fed to downstream can processing equipment. Such can processing equipment commonly have a conveying capacity of > 60,000 articles per hour and commonly include pasteurizing, inspecting, packaging, and handling machines. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the present application to operate the apparatus of Keller at a conveying capacity > 60,000, and use it to feed the cans to at least one of a pasteurizing, inspecting, packaging, and handling machine. When this is done, the apparatus would have all the structure required by claims 12 and 16.
The applicant’s representative makes not further arguments with regard to the above rejection. As such, it is maintained for the same reasons given in section 3 above.
Allowable Subject Matter
Claims 4-7, 10-11, 13-15, and 17-20 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.
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 MARK A DEUBLE whose telephone number is (571)272-6912. The examiner can normally be reached Monday-Friday flex schedule.
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, Gene Crawford can be reached at 571-272-6911. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MARK A DEUBLE/Primary Examiner, Art Unit 3651
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