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 .
Claims 1-20 are pending in the current application.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description: #48. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent No. 11865885. Although the claims at issue are not identical, they are not patentably distinct from each other because similar subject matter is claimed.
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.
Claims 25 and 35 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claims 25 and 35 each recite the limitation "the power source". There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 102
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 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 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 21, 26, 27, 28, 29 30, 31, 36-39 and 40 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Marvi et al., US 11499665. Marvi discloses and amphibious vehicle #100 comprising a frame defining a central axis (see Fig. 1) and having one or more floatable members #192; wheels #110 A-D positioned about the central axis of the frame for engaging a ground driven by a power source #118A; and a propeller #132A coupled to the frame at a central axis having a power source #136A; wherein the propeller is oriented vertically to provide a thrust vector in a generally vertical direction. Marvi further discloses the power source includes a controller #170 that provides power to the propellers and the wheels.
The method of claims 31, 36, 37 38 and 40 are embodied in the apparatus of Marvi since the intended use of agitation of manure in a manure lagoon is able to be performed by the apparatus of Marvi.
Claim Rejections - 35 USC § 103
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 103 that form the basis for the rejections under this section made 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 25 and 35 are rejected under 35 U.S.C. 103 as being unpatentable over Marvi. Marvi discloses the invention set forth above, but does not explicitly disclose wherein the propeller is hydraulically driven by the power source. Such electro-hydraulic systems are widely known in the art and would be an alternative drive system for the propeller.
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 apparatus of Marvi by powering the propeller by an electro-hydraulic drive system. Doing so uses known power systems to provide an alternative propeller drive.
Claims 21-40 are rejected under 35 U.S.C. 103 as being unpatentable over Nuhn, US 9694636 (disclosed by applicant) in view of GB 2366218 (disclosed by applicant). Nuhn discloses an amphibious vehicle having four wheels (3, 4), a pump (9), a hydraulic power source 8, conduits (20, 21, 22) and nozzles/outlets (11, 13, 16) at various locations around the vehicle to provide a stream of liquid manure above the surface of the lagoon and directed downward to provide agitation of the manure lagoon for maneuvering around a manure lagoon and pumping and recirculating fluid within the lagoon. All features claimed by the applicant in claims 21, 28, 31 and 38 are clearly disclosed by Nuhn. Nuhn does not explicitly disclose the use of a propeller to agitate the manure lagoon.
GB2366218 discloses a floating mixer for sewage treatment lagoons comprising
a propeller 36 which can be vertically oriented (Fig. 1) and raised to a horizontal position (Fig. 3). The examiner notes that propulsive thrust would be provided upward and downward by the propeller when oriented vertically and when oriented at a generally horizontal direction the propeller would provide propulsion. The outlets/nozzles of Nuhn would be above the propeller disclosed by GB2366218. Additionally, Nuhn discloses nozzles/outlets positioned at a central axis of the frame between two of the four wheels (See nozzles 13 on Fig. 1). GB2366218 discloses the propeller 36 in a similar location (See Fig. 2).
GB 2366218 teaches that solid matter will settle to the bottom of the lagoon in a short time and that pumping only (as taught by Nuhn) will only recirculate the liquid component leaving the solid matter deposited on the base to build up reducing the effective volume of the lagoon and eventually requiring expensive and time-consuming excavation (See pages 1-2). GB explicitly recites that “a person skilled in the art will readily appreciate that the impeller 36 may be replaced with any other suitable equivalent. For example, an alternative mixer could be some form of pneumatic or hydraulic jet to be directed into the liquid in order to agitate the liquid.” The examiner considers that it would likewise be appreciated by an artisan that pneumatic or hydraulic jets could be replaced or enhanced by the addition of an impeller/propeller such as that discloses by GB 2366218.
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 amphibious apparatus of Nuhn with a mixing propeller as disclosed by GB2366218 to better agitate the solid matter on the bottom of the lagoon to effectively recirculate the lagoon contents and avoid expensive and time-consuming excavation to get rid of solid matter build up.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANTHONY D WIEST whose telephone number is (571)270-5974. The examiner can normally be reached M-F 6:00 - 3:00.
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, Marc Jimenez can be reached on 571 272 4530. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ANTHONY D WIEST/Primary Examiner, Art Unit 3617