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 .
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore:
the “first flow directing member and second flow directing member, means for distributing” as recited in claim 1;
the “barrier” as recited in claim 3;
the “first flow directing member and the second flow directing member are configured to be manipulated, so as to obtain a symmetric distribution patten” as recited in claim 4;
the “first flow directing member and said second flow directing member is independently configured to direct flow of said particulate material around said common axis” as recited in claim 6; and
the “distributing said particulate material in a non-static asymmetric pattern comprises one of: a means for reducing rotational speed of said spinner; a means for reducing flow of said particulate material; and a means for adjusting position” as recited in claim 7; must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
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. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. 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.
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: “flow directing member” in claim 1, where “member” is the placeholder and “flow directing” is the functional language.
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 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.
Claims 1-7 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.
The term “pattern” in line 18 of claim 1 is a relative term which renders the claim indefinite. The term “pattern” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The size, shape, range of distribution and spread, around a targeted region to meet the claim limitation is not known. In other words, the accuracy and/or the accepted tolerance (accepted deviation from the non-static pattern) to meet the claim limitation is not known. Furthermore, the method of measuring or determining such “pattern” is not provided in the disclosure, as originally filed by the Applicant. Same rejection applies to all pending claims. Similar rejection applies to the term “asymmetric” in claim 7. Loosely organized particulate material when spread out by spinners normally creates non-symmetrical spray patterns. It is unclear how “asymmetrical” is needed to meet the claim limitation. The accuracy and the accepted tolerance (accepted deviation from the non-static asymmetric pattern) to meet the claim limitation is not known. Furthermore, the method of measuring or determining the term “asymmetric” is not provided in the disclosure, as originally filed by the Applicant. Similar rejection applies to the term “equal” in line 3 of claim 2. Clarification is respectfully requested.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 7 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 7 further define the “non-static asymmetric pattern” of the spreader. However, the terms configured to,” in line 16 of claim 1 and “for,” in line 17 of claim 1 clearly indicated that the “non-static pattern” is not a positively recited limitation. Therefore, claim 7 fails to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 and 6 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 1 and 6 are of copending Application No. 18/763,407 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because both inventions have the features of a spreader for spreading particulate material comprising: a conveyor, a material divider, a first flow directing member; a second flow directing member; a spinner, wherein each of said first flow directing member and said second flow directing member is configured to rotate around a common axis so as to direct flow of said particulate material around said common axis and said spinner, where said common axis is a non-horizontal common axis; and wherein each of said first flow directing member and said second flow directing member is configured to direct particulate material flow in a configurable shape in separate and distinct locations onto said spinner for distribution in a non-static pattern.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Application Claims
U.S. Application No. 18/763,407
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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)(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.
Claims 1-7 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Podoll et al. (US 9,649,646. Podoll hereinafter).
With respect to claim 1, Podoll discloses a spreader (Figs. 1-22) for spreading particulate material across a field with increased application rate, swath width, driving speed, and control of pattern comprising: a conveyor (12), to transport particulate material; a material divider (25), positioned for receiving and dividing said particulate material; a first flow directing member (1 of 4 blade 22. Fig. 15); a second flow directing member (2 of 4 blade 22. The blade opposite the 1 of 4 blade); a spinner (spinner assembly with disk 21) positioned to receive thereon said particulate material from said conveyor, said material divider, said first flow directing member, and said second flow directing member; wherein each of said first flow directing member and said second flow directing member is configured to (capable of) rotate around a common axis (of disk 21) so as to direct flow of said particulate material around said common axis and said spinner, where said common axis is a non-horizontal (vertical) common axis; and wherein each of said first flow directing member and said second flow directing member is configured to (capable of) direct particulate material flow in a configurable shape in separate and distinct locations onto said spinner for distribution in a non-static (dynamic) pattern (Figs. 3-11).
With respect to claim 2, Podoll discloses the spreader of claim 1 wherein said material divider is configured to (capable of) separate said particulate material into columns of equal measure (Fig. 4) into said first flow directing member and said second flow directing member; wherein said first flow directing member and said second flow directing member include a distinct flow directing orifice (irregular shape orifice forms by the unmarked triangular plate and blade 22 at the outer end of 22. Fig. 15); and are configured (capable of), so that, a rotation of one of said first flow directing member and said second flow directing member around said common axis adjusts (changes) said non-static pattern.
With respect to claim 3, Podoll discloses the spreader of claim 2 wherein said spinner comprises: a barrier (unmarked triangular plate at the outer end of 22. Fig. 15) configured to (capable of) direct stray affect deflected grains of said particulate material onto said spinner; a plurality of separated centrifugal disks (left and right 21); a top centrifugal disk (left or right 21), with an annular shape, of said plurality of separated centrifugal disks for permitting passage of said particulate material; and an adjustment (via 84) of said non-static pattern occurs when one of said plurality of separated centrifugal disk is rotating around said common axis.
With respect to claim 4, Podoll discloses the spreader of claim 3 wherein said adjustment of said non-static pattern occurs when each of said first flow directing member and said second flow directing member rotates around said common axis, and wherein the first flow directing member and the second flow directing member are configured to (capable of) be manipulated, so as to obtain a symmetric distribution patten (Fig. 4).
With respect to claim 5, Podoll discloses the spreader of claim 3 wherein each of said first flow directing member and said second flow directing member is configured to (capable of) direct flow of said particulate material from said material divider onto only one of said plurality of separated centrifugal disks.
With respect to claim 6, Podoll discloses the spreader of claim 1 wherein said first flow directing member and said second flow directing member is independently (one can work without the other) configured to (capable of) direct flow of said particulate material around said common axis.
With respect to claim 7, Podoll discloses the spreader of claim 1 wherein said distribution of said particulate material in a non-static asymmetric pattern happens on an occasion of one of: a reduction in rotational speed of said spinner (switch or control of 84); a reduction of flow of said particulate material (switch or control of 12); and a change of position (mechanism of translating) of said first flow directing member and said second flow directing member.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The following patents are cited to show the art with respect to a particulate material spreader: Van der Lely et al., Egerdahl, Barbieri, Lewis, Truan et al., Kost et al. ‘590, Kost et al. ‘952, Schoenfeld, Gamble et al. and Sandler et al.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHEE-CHONG LEE whose telephone number is (571)270-1916. The examiner can normally be reached Monday-Friday 8am -5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Arthur O. Hall can be reached on (571)270-1814. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHEE-CHONG LEE/Primary Examiner, Art Unit 3752 June 22, 2026
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