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 Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: ride height measurement device in claims 5, 10, 16, and 18 and measurement device in claims 14 and 16
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Objections
5. Claim 7 is objected to because of the following informalities: on line 1 it appears that ‘wherein at least one camera’ should read -wherein the at least one camera-. Appropriate correction is required.
6. Claim 8 is objected to because of the following informalities: on line 3 it appears that ‘arch to an designed’ should read -arch to a designed-. Appropriate correction is required. Claims 9-11 are objected to by virtue of their dependency.
Claim Rejections - 35 USC § 103
7. 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.
8. Claims 1-6, 12-16, 18, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Todd et al. (3,077,139)-cited by applicant in view of Magill et al. (2019/0225289)-cited by applicant.
As for claims 1 and 14, treating claim 14 as the apparatus for the practice of claim 1, Todd in apparatus for aiming headlamps discloses/suggests the following: a method/apparatus for its practice (claims 1 and 14) (title refers to an apparatus for aiming headlamps; thereby, an apparatus for the practice of aiming headlamps; Figs. 1-6) comprising: determining an optical center as a reference target for a headlamp (claims 1 and 14)(Fig. 2: optical centers as reference target: L with 32 and R with 30 (headlamp centers); Figs 3-4: 32 and noting Fig. 6: 32’ and 30’); determining an aim bias based on the optical center and adjusting headlamp aim to a final aim target based on the aim bias (claims 1 and 14) (treating a good “null” with Fig. 5 as attaining a final aim target based on the aim bias which would be determined due to not being at a good null and therefore prior to achieving the correct aim; Figs. 4-5 with col. 6, line 45-col. 7, line 56).
As for measuring at least one front fender characteristic and determining an optical center as a reference target based on the at least one front fender characteristic and thereby having a measurement device that measures at least one front fender characteristic and one or more controllers to perform the various functions (claims 1 and 14), Todd does not explicitly state this. However, Todd refers to conventional aiming apparatus wherein the horizontal axis would be an axis passing through the projection of the respective lamp centers on the aiming screen thereby being determined by the heights of the respective lamp centers (col. 5, lines 12-16). However, he mentions that the respective vertical and horizontal axes are determined as a function of the average location of the lamp centers of successive vehicles whose headlamps are to be aimed (col. 5, lines 17-20). Nevertheless, Magill in a system and method for aiming a vehicular headlamp teaches determining a front fender height measurement which appears to be the measured distance from ground to an uppermost point of a wheel arch of a front fender to determine a headlamp height variation for aim adjustment by determining a modified headlamp position using a measurement device along with one more controllers (Fig. 2: 200, 208, 210, 206; Fig. 1: 110 with 104 and FRH and HLH; Fig. 3: 3021 with 304; Fig. 4: noting 404; Fig. 5: 502-508).
Therefore, it would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to at least try measuring at least one front fender characteristic and determining an optical center as a reference target based on the at least one front fender characteristic and thereby having a measurement device that measures at least one front fender characteristic and one or more controllers to perform the various functions (claims 1 and 14) in order to determine a front fender height measurement being the measured distance from ground to an uppermost point of a wheel arch of a front fender to be able to determine a headlamp height variation for aim adjustment by determining a modified headlamp position via automated control.
As for claims 2-3 and 15 and 20, Todd in view of Magill discloses/suggests everything as above (see claims 1 and 14). In addition, Todd discloses/suggests adjusting the headlamp aim to a vertical target and a horizontal target that is a predetermined distance from a front of a vehicle (claims 2 and 15) wherein the predetermined distance is approximately 25 feet (claims 3 and 20)(col. 4, lines 30-35: twenty-five feet; Figs. 3-5: noting both horizontal and vertical limits of adjustment and using the vertical and horizontal null detectors).
As for claims 4-5 and 16, Todd in view of Magill discloses/suggests everything as above (see claims 1 and 15). In addition, Todd in view of Magill discloses/suggests wherein the at least one front fender characteristic comprises at least a measured distance from ground to an uppermost point of a wheel arch of a front fender (claims 4 and 16) and using a ride height measurement to measure the measured distance (claims 5 and 16)(see claims 1 and 14 above: ‘it would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to at least try measuring at least one front fender characteristic and determining an optical center as a reference target based on the at least one front fender characteristic and thereby having a measurement device that measures at least one front fender characteristic and one or more controllers to perform the various functions (claims 1 and 14) in order to determine a front fender height measurement being the measured distance from ground to an uppermost point of a wheel arch of a front fender to be able to determine a headlamp height variation for aim adjustment by determining a modified headlamp position via automated control.’ Noting that the measurement device would necessarily be a ride height measurement device because it determines a front fender height measurement being the measured distance from ground to an uppermost point of a wheel arch of a front fender).
As for claim 6, Todd in view of Magill discloses/suggests everything as above (see claim 5). In addition, Todd in view of Magill discloses/suggests the ride height measurement device comprises at least one camera (see claims 1 and 14 above: the measurement device (necessarily being a ride height measurement device) is at least one camera as demonstrated by Magill: Fig. 3: 3021 ).
As for claims 12, 13, and 18, Todd in view of Magill discloses/suggests everything as above (see claims 5 and 16). In addition, Todd in view of Magill suggests wherein the ride height measurement device measures the measured distance for a front right fender and a front left fender; wherein the headlamp comprises a front right headlamp and a front left headlamp; wherein, the one or more controllers are configured to adjust aim for the front right headlamp based on the measured distance for the front right fender and adjust aim for the front left headlamp based on the measured distance for the front left fender (claims 12, 13, and 18)(see claims 1 and 14 above: noting that Magill: Fig. 2: 208 refers to both fender measurements (col. 4, lines 42-45), and please refer to Todd disclosing/suggesting that both headlamps are aimed/adjusted: Fig. 2: left headlamp and right headlamp; Fig. 6: left headlamp and right headlamp).
Allowable Subject Matter
9. Claims 7-11, 17 and 19 are 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.
Double Patenting
10. 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.
11. Claims 1, 4-6, and 12-14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 10-20 of copending Application No. 18/751,596 to Babbage et al.. Although the claims at issue are not identical, they are not patentably distinct from each other because it appears that claims 10-20 of ‘596 anticipate claims 1, 4-6, and 12-14.
The claims of X are unpatentable over the claims of Y as such:
Claims of 18/751,577
Claims of ‘596
1
10-14
4
11-14
5
12,13
6
13
12
14
13
14
14
15-20
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
12. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: please refer to the attached PTO-892.
Fax/Telephone Numbers
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Gordon J. Stock, Jr. whose telephone number is (571) 272-2431.
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/GORDON J STOCK JR/
Primary Examiner, Art Unit 2877
Prosecution Insights