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 Rejections - 35 USC § 102
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 1-3, 7, 10-12, 16, and 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sullivan (US 2021/0022388).
Claims 1 and 2. Sullivan discloses an apparatus for producing smokable products filled with cannabis or other smoking material (Abstract). The apparatus comprises a cone loading station 3 which includes a plurality of tubes 7 (lower tube assembly), each arranged to receive a stack of cones 6 for transport to a gripper 9 (pick and place gripper) driven that pulls individual ones of the cones 6 from the tubes 7. The plurality of tubes 7 (lower tube assembly) are connected to a tray by a plurality of brackets 30 ([0075]; Figures 2 and 3). The tubes 7 are moved to a position adjacent the gripper 9 by a chain mechanism (locking mechanism) including a chain 25, motor 28 for driving the chain, and brackets 30 extending from the chain 25 for holding respective tubes during transport and withdrawal of the cones 6 ([0076]; Figure 4). The gripper 9 is made up of jaws 9a and 9b arranged to move horizontally in opposite directions, as indicated by arrow 17, in response to a driving force provided by a linear actuator 10. Jaws 9a and 9b are also arranged to move collectively in a vertical direction indicated by arrow 13, in response to a driving force provided by a motor 20, illustrated in FIG. 4, which is arranged to move the entire linear actuator 10, including jaws 9a and 9b in the vertical direction 13 along a track 14. Initially, the jaws 9a and 9b are moved to an open position and the open jaws are moved together with actuator 10 to an upper position so that the jaws are situated on two sides of a cone 6. The jaws 9a and 9b are then moved towards each other to grip an end of a cone 6 extending from the tube 7, and the closed jaws together with the actuator 10 are moved downward to transfer the cone 6 from the tube 7 to a split clamshell holder 16 (holder assembly), which includes an opening 18 for receiving the cone 6 upon opening of the jaws 9a and 9b and release of the cone 6. Split clamshell holder 16 is connected to the turntable 5 of FIG. 1 by an arm 70 so that the loaded holder 16 can be moved away from the cone loading station and an empty one of the holders 16 moved into the cone loading station to receive another cone 6 in response to gripping and vertical transport of the cone by the gripper 9 in response to jaw opening and closing by linear actuator 10 and vertical movement of the gripper 9 driven by motor 20 ([0077]; Figures 4, 5, 8). Gripper 9 made up of jaws 9a and 9b arranged to move horizontally in opposite directions, as indicated by arrow 17, in response to a driving force provided by a linear actuator 10 ([0077]; Figure 3). Cone twisting station 4 (closing station) that is used to complete the smokable product after the cone has been filled with precisely measured portions of powdered cannabis dispensed at the weighing and filling stations 1,2 of the apparatus. Cones 6 that have been filled with cannabis powder at the weighing and filling stations 1,2, are transported by the holders 16 to a position at which the tops of the cones 6 can be gripped by a twister device 67 and rotated in the direction indicated by arrow 57 (or in an equivalent reverse direction), the twister device 76 having jaws 91 that open and close in the direction indicated by arrows 59, and move up and down in the direction indicated by arrow 58 ([0083]). After twisting using a mechanism such as the one illustrated in FIGS. 8-20, the cone 6 is transported by the arm 70 and split clamshell holder 16 to the packaging station (collection station), where the jaws 16a and 16b of the split clamshell holder 16 are opened in the direction of arrows 211, releasing the twisted cone 6 in direction 216 to drop into a funnel 215, and from the funnel 215 into a childproof packaging tube 218 having a lid 219 ([0105]).
Claim 3. Sullivan discloses cone twisting station 4 (closing station) at which the tops of the cones 6 can be gripped by a twister device 67 and rotated in the direction indicated by arrow 57 (or in an equivalent reverse direction), the twister device 76 having jaws 91 that open and close in the direction indicated by arrows 59, and move up and down in the direction indicated by arrow 58 ([0083]).
Claims 7 and 10. Sullivan discloses a method for producing smokable products filled with cannabis or other smoking material (Abstract). The method of closing is performed on an apparatus comprising a powder weighing and cone-filling station 1,2, which uses a vacuum system (vacuum collector) to increase production speed by expediting transfer of biomass 234 into a cone 6 at the cone weighing and filling stations 1,2. The vacuum system includes a vacuum pump 238 that pulls a vacuum from the bottom of the cone through an opening 235 in the cone holder and through a collection filter 237 in the direction of arrows 236, 239 and 240 as the cone 6 is vibrated to reduce the time it takes for irregular shapes of biomass 234 to settle into the cone ([0107]; Figure 39). The apparatus further comprises a cone loading station 3 which includes a plurality of tubes 7 (lower tube assembly), each arranged to receive a stack of cones 6 for transport to a gripper 9 (pick and place gripper) driven that pulls individual ones of the cones 6 from the tubes 7. The plurality of tubes 7 (lower tube assembly) are connected to a tray by a plurality of brackets 30 ([0075]; Figures 2 and 3). The tubes 7 are moved to a position adjacent the gripper 9 by a chain mechanism (locking mechanism) including a chain 25, motor 28 for driving the chain, and brackets 30 extending from the chain 25 for holding respective tubes during transport and withdrawal of the cones 6 ([0076]; Figure 4). The gripper 9 is made up of jaws 9a and 9b arranged to move horizontally in opposite directions, as indicated by arrow 17, in response to a driving force provided by a linear actuator 10. Jaws 9a and 9b are also arranged to move collectively in a vertical direction indicated by arrow 13, in response to a driving force provided by a motor 20, illustrated in FIG. 4, which is arranged to move the entire linear actuator 10, including jaws 9a and 9b in the vertical direction 13 along a track 14. Initially, the jaws 9a and 9b are moved to an open position and the open jaws are moved together with actuator 10 to an upper position so that the jaws are situated on two sides of a cone 6. The jaws 9a and 9b are then moved towards each other to grip an end of a cone 6 extending from the tube 7, and the closed jaws together with the actuator 10 are moved downward to transfer the cone 6 from the tube 7 to a split clamshell holder 16 (holder assembly), which includes an opening 18 for receiving the cone 6 upon opening of the jaws 9a and 9b and release of the cone 6. Split clamshell holder 16 is connected to the turntable 5 of FIG. 1 by an arm 70 so that the loaded holder 16 can be moved away from the cone loading station and an empty one of the holders 16 moved into the cone loading station to receive another cone 6 in response to gripping and vertical transport of the cone by the gripper 9 in response to jaw opening and closing by linear actuator 10 and vertical movement of the gripper 9 driven by motor 20 ([0077]; Figures 4, 5, 8). Cone twisting station 4 (closing station) that is used to complete the smokable product after the cone has been filled with precisely measured portions of powdered cannabis dispensed at the weighing and filling stations 1,2 of the apparatus. Cones 6 that have been filled with cannabis powder at the weighing and filling stations 1,2, are transported by the holders 16 to a position at which the tops of the cones 6 can be gripped by a twister device 67 and rotated in the direction indicated by arrow 57 (or in an equivalent reverse direction), the twister device 76 having jaws 91 that open and close in the direction indicated by arrows 59, and move up and down in the direction indicated by arrow 58 ([0083]). After twisting using a mechanism such as the one illustrated in FIGS. 8-20, the cone 6 is transported by the arm 70 and split clamshell holder 16 to the packaging station (collection station), where the jaws 16a and 16b of the split clamshell holder 16 are opened in the direction of arrows 211, releasing the twisted cone 6 in direction 216 to drop into a funnel 215, and from the funnel 215 into a childproof packaging tube 218 having a lid 219 ([0105]).
Claim 11. Sullivan discloses cone twisting station 4 (closing station) at which the tops of the cones 6 can be gripped by a twister device 67 and rotated in the direction indicated by arrow 57 (or in an equivalent reverse direction), the twister device 76 having jaws 91 that open and close in the direction indicated by arrows 59, and move up and down in the direction indicated by arrow 58 ([0083]).
Claim 12. Sullivan discloses cone twisting station 4 (closing station) which comprises rotating twister mechanism 67 has three sets of jaws 91 (at least one gripper), which are positioned 120 degrees apart to grab and twist the top end of a cone 6 positioned in the split clamshell holder 16. The jaws 91 open and close in the direction indicated by arrows 59, and move up and down in the direction indicated by arrow 58. Opening and closing of the jaws 91 is provided by a linkage 92 actuated by a rotating drive shaft motor 84 (closing motor). The up and down movement of the twister mechanism is provided by a stepper or servo motor 68 ([0083]-[0086]; Figures 8-14).
Claims 16 and 20. Sullivan discloses a method for producing smokable products filled with cannabis or other smoking material (Abstract). The method of closing is performed on an apparatus comprising a powder weighing and cone-filling station 1,2, which fills the cones with precisely measured portions of powdered cannabis and uses a vacuum system (vacuum collector) to increase production speed by expediting transfer of biomass 234 into a cone 6 at the cone weighing and filling stations 1,2. The vacuum system includes a vacuum pump 238 that pulls a vacuum from the bottom of the cone through an opening 235 in the cone holder and through a collection filter 237 in the direction of arrows 236, 239 and 240 as the cone 6 is vibrated to reduce the time it takes for irregular shapes of biomass 234 to settle into the cone ([0083]; [0107]; Figure 39). The apparatus further comprises a cone loading station 3 which includes a plurality of tubes 7 (lower tube assembly), each arranged to receive a stack of cones 6 for transport to a gripper 9 (pick and place gripper) driven that pulls individual ones of the cones 6 from the tubes 7. The plurality of tubes 7 (lower tube assembly) are connected to a tray by a plurality of brackets 30 ([0075]; Figures 2 and 3). The tubes 7 are moved to a position adjacent the gripper 9 by a chain mechanism (locking mechanism) including a chain 25, motor 28 for driving the chain, and brackets 30 extending from the chain 25 for holding respective tubes during transport and withdrawal of the cones 6 ([0076]; Figure 4). The gripper 9 is made up of jaws 9a and 9b arranged to move horizontally in opposite directions, as indicated by arrow 17, in response to a driving force provided by a linear actuator 10. Jaws 9a and 9b are also arranged to move collectively in a vertical direction indicated by arrow 13, in response to a driving force provided by a motor 20, illustrated in FIG. 4, which is arranged to move the entire linear actuator 10, including jaws 9a and 9b in the vertical direction 13 along a track 14. Initially, the jaws 9a and 9b are moved to an open position and the open jaws are moved together with actuator 10 to an upper position so that the jaws are situated on two sides of a cone 6. The jaws 9a and 9b are then moved towards each other to grip an end of a cone 6 extending from the tube 7, and the closed jaws together with the actuator 10 are moved downward to transfer the cone 6 from the tube 7 to a split clamshell holder 16 (holder assembly), which includes an opening 18 for receiving the cone 6 upon opening of the jaws 9a and 9b and the cone 6. Split clamshell holder 16 is connected to the turntable 5 of FIG. 1 by an arm 70 so that the loaded holder 16 can be moved away from the cone loading station and an empty one of the holders 16 moved into the cone loading station to receive another cone 6 in response to gripping and vertical transport of the cone by the gripper 9 in response to jaw opening and closing by linear actuator 10 and vertical movement of the gripper 9 driven by motor 20 ([0077]; Figures 4, 5, 8). Cone twisting station 4 (closing station) that is used to complete the smokable product after the cone has been filled with precisely measured portions of powdered cannabis dispensed at the weighing and filling stations 1,2 of the apparatus. Cones 6 that have been filled with cannabis powder at the weighing and filling stations 1,2, are transported by the holders 16 to a position at which the tops of the cones 6 can be gripped by a twister device 67 and rotated in the direction indicated by arrow 57 (or in an equivalent reverse direction), the twister device 76 having jaws 91 that open and close in the direction indicated by arrows 59, and move up and down in the direction indicated by arrow 58 ([0083]). After twisting using a mechanism such as the one illustrated in FIGS. 8-20, the cone 6 is transported by the arm 70 and split clamshell holder 16 to the packaging station (collection station), where the jaws 16a and 16b of the split clamshell holder 16 are opened in the direction of arrows 211, releasing the twisted cone 6 in direction 216 to drop into a funnel 215, and from the funnel 215 into a childproof packaging tube 218 having a lid 219 ([0105]). A conveyor then carries the packaged twisted cone to a labeling machine ([0030]).
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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-3 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Manalang et al. (US 2022/0160021).
Claims 1-3 and 5. Manalang et al. discloses a machine 100 for closing and trimming pre-filled cones, the machine comprising a tip gripper 102 (gripper), height sensor 104, arrangement tray 106 (lower tube assembly), moveable table 108, tip snipper 110 (cut station), and a body gripper 112 (holder assembly) ([0027]; Figure 1). Tip gripper 102 (gripper) is attached to a trolley 116, configured to move the tip gripper 102 into position for picking up a cone, as well as to lift the tip gripper 102 following picking up a cone and moving it into position for closure ([0028]). Arrangement tray 106 (lower tube assembly) is configured with multiple apertures for receiving pre-filled but open cones. The apertures of the arrangement tray 106 may be configured in a grid pattern, and are sized to hold each cone at a predetermined height ([0030]; Figure 1). Arrangement tray 106 may be attached at its base to moveable table 108 (tray) ([0031]). Tip snipper 110 (cut station) is configured with cutting surfaces to cut or snip a tip off of a cone following closure by twisting ([0032]). Body gripper 112 (holder assembly) is secured to a trolley 120, which allows body gripper 112 to move along an x axis, with respect to housing 114. Trolley 120 positions body gripper 112 in concert with trolley 116 of tip gripper 102 so that body gripper 112 can grip the cone while tip gripper 102 is twisting or closing the cone (at a closing station). Following the closing process, trolley 120 can move the body gripper 112 with a cone into position to be trimmed by tip snipper 110 (cut station), and subsequently for depositing into an exit bin (collection station) ([0034]; Figure 1).The tip gripper 102 (pick and place gripper) comprises jaws 306 of the body gripper includes a tip gripper finger 304, which, in the depicted embodiment, are each bolted to its corresponding jaw 306. Each tip gripper finger 304 may be constructed from a rigid material, such as a polymer material, and may include one or more grooves. The grooves may, in some embodiments, be fitted with a rubber o-ring or similar elastic band material, to enhance the grip of the tip gripper 102 on the tip of cone 302. In other embodiments, the tip gripper finders 304 may be coated or partially constructed from an elastomeric material that enhances grip ([0046]).
Manalang et al. does not explicitly disclose a locking mechanism configured to maintain the lower tube assembly and the tray in position on the cone loading/unloading station.
Manalang et al. discloses that the arrangement tray 106 is attached at its base to moveable table 108. Movable table 108 can be configured to move the arrangement tray 106 in x and y directions, e.g. left to right and front to back, with respect to housing 114. This x, y motion allows moveable table 108 to position each aperture in the arrangement tray 106, in turn, beneath the travel of tip gripper 102 and its trolley 116 so that tip gripper 102 can pick up a cone inserted into a given aperture. Where moveable table 108 moves in both x and y axes, trolley 116 may only need to provide vertical motion to tip gripper 102. Alternatively, trolley 116 is capable of x and/or y motion, moveable table 108 may only need to move in one direction, or may not need to move ([0031]). Where the trolley 116 is capable of motion in the x and y directions, the moveable table 108 does not need to move, thus, it would have been obvious to one of ordinary skill in the art before the effective filing date that the moveable table 108 (tray) and the arrangement tray 106 (lower tube assembly) be held in position by a locking mechanism.
Claims 4, 13, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Sullivan (US 2021/0022388) in view of Crowe (US 2020/0288768).
Claim 4. Sullivan discloses the closing machine of claim 1 but does not explicitly disclose that the closing station is a folding station comprising at least one pneumatic piston configured to press the end of the cone.
Crowe discloses a cigarette closure device wherein the device is actuated to sequentially fold portions of excess distal tip rolling paper in a manner that effectively closes the cigarette distal tip to the environment ([0025]). Any means for actuating and cycling the depression mechanism 108 between a retracted and depressed state may be used. Means for cycling between retracted and depressed states may include pneumatic, hydraulic, electric, or electro-mechanical actuators such as cylinder-pistons, linear motors, ball-screws, belt drives, mechanical linkages, or any other actuator capable of providing the cyclical motion ([0030]). Upon completion of the folding portion of the closure, the dimpler 114 depresses the center of the distal tip to form a generally flat or concave depression at the distal tip ([0033]).
Crowe teaches that the folded end that is depressed to form a flat or concave depression at the distal tip secures the folds in a manner that will tend to retain closure even upon handling of the finished joint product ([0033]). It would have been obvious to one of ordinary skill in the art before the effective filing date that the cone twisting station 4 of Sullivan may be replaced with a folding and dimpling apparatus such as that of Crowe which results in a closed joint product which retains its closure even upon handling.
Claim 13. Sullivan discloses the method of claim 11 but does not explicitly disclose wherein closing an end of each of the cones using the closing station comprises folding an end of each of the cones.
Crowe discloses a cigarette closure device wherein the device is actuated to sequentially fold portions of excess distal tip rolling paper in a manner that effectively closes the cigarette distal tip to the environment ([0025]). Upon completion of the folding portion of the closure, the dimpler 114 depresses the center of the distal tip to form a generally flat or concave depression at the distal tip ([0033]).
Crowe teaches that the folded end that is depressed to form a flat or concave depression at the distal tip secures the folds in a manner that will tend to retain closure even upon handling of the finished joint product ([0033]). It would have been obvious to one of ordinary skill in the art before the effective filing date that the cone twisting station 4 of Sullivan may be replaced with a folding and dimpling apparatus such as that of Crowe which results in a closed joint product which retains its closure even upon handling.
Claim 14. Modified Sullivan discloses that the depression mechanism 108 has a plurality of shaped depressors 112. The depressors 112 have depression surfaces 126 that are adapted to interact with excess rolling paper to fold the excess rolling paper toward the major axis. Each shaped depressor 112 is nominally positioned above the joint. During actuation, the depressors are urged downward into contact with the joint. The shaped depressors 112 are axially staged or staggered, residing at differing heights above the positioner 102. This staggered arrangement will cause the shaped depressors to contact the joint in sequence during actuation, resulting in a sequence of folds that effectively closes the joint. In other words, a sequential fold pattern occurs in which a first shaped depressor will contact a first portion of excess rolling paper to form a first arcuate fold that closes a first portion of the distal dip of the joint, then a second depressor will contact a second portion of excess rolling paper to form a second arcuate fold that closes a second portion of the distal dip of the joint, and so on until the joint has been effectively closed. In the embodiment, three shaped depressors 112 serve to each fold a portion of the excess paper. In alternative embodiments, two, four, or more shaped depressors may serve the same function. In the preferred embodiment, shaped depressors are located at uniform angular spacing of approximately 120 degrees. In alternative embodiments, shaped depressors may have non-uniform angular spacing or angular spacing that corresponds to the number of depressors employed by a given embodiment (Crowe [0032]). Any means for actuating and cycling the depression mechanism 108 between a retracted and depressed state may be used. Means for cycling between retracted and depressed states may include pneumatic, hydraulic, electric, or electro-mechanical actuators such as cylinder-pistons, linear motors, ball-screws, belt drives, mechanical linkages, or any other actuator capable of providing the cyclical motion (Crowe [0030]).
Claims 5, 8, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Sullivan (US 2021/0022388) in view of Manalang et al. (US 2022/0160021).
Claim 5. Sullivan discloses the closing machine of claim 1 but does not disclose a cut station comprising at least one cutter configured to cut off excess material from the end of the at least one cone.
Manalang et al. discloses a similar apparatus for filling and closing cones. The apparatus of Manalang et al. includes a tip snipper 110 which engages the closed tip of the cone at a predetermined distance below its end, and trims the excess material from the tip ([0044]; [0057]; Figure 8).
Manalang et al. discloses that the end is trimmed so that it is not overly long, which would otherwise result in an undesirable "wick" that would need to burn down when the cone 302 is ignited, and possibly result in ash or an ember falling from the cone ([0057]). It would have been obvious to one of ordinary skill in the art before the effective filing date to include a tip snipper 110 as disclosed by Manalang et al. in the apparatus of Sullivan in order to prevent the cone from having an overly long end or undesirable "wick".
Claim 8. Sullivan discloses the method of claim 7 but does not disclose cutting excess material from an end of the cones using the cut station.
Manalang et al. discloses a similar apparatus for filling and closing cones. The apparatus of Manalang et al. includes a tip snipper 110 which engages the closed tip of the cone at a predetermined distance below its end, and trims the excess material from the tip ([0044]; [0057]; Figure 8).
Manalang et al. discloses that the end is trimmed so that it is not overly long, which would otherwise result in an undesirable "wick" that would need to burn down when the cone 302 is ignited, and possibly result in ash or an ember falling from the cone ([0057]). It would have been obvious to one of ordinary skill in the art before the effective filing date to include a step of cutting excess material from an end of the cones using a cut station as disclosed by Manalang et al. in the method of Sullivan in order to prevent the cone from having an overly long end or undesirable "wick".
Claim 18. Sullivan discloses the method of claim 16 but does not disclose cutting excess material from an end of the cones using the cut station.
Manalang et al. discloses a similar apparatus for filling and closing cones. The apparatus of Manalang et al. includes a tip snipper 110 which engages the closed tip of the cone at a predetermined distance below its end, and trims the excess material from the tip ([0044]; [0057]; Figure 8).
Manalang et al. discloses that the end is trimmed so that it is not overly long, which would otherwise result in an undesirable “wick” that would need to burn down when the cone 302 is ignited, and possibly result in ash or an ember falling from the cone ([0057]). It would have been obvious to one of ordinary skill in the art before the effective filing date to include a tip snipper 110 as disclosed by Manalang et al. in the apparatus of Sullivan in order to prevent the cone from having an overly long end or undesirable “wick”.
Claims 9 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Sullivan (US 2021/0022388) in view of Kustal et al. (US 2021/0392944).
Claim 9. Sullivan discloses the method of claim 7 but does not disclose tamping the cones using a tamp station.
Kustal et al. discloses an apparatus for filling and twisting the ends of cones (Abstract). If the height of the filler material inside the cone 202 is above the threshold range or the threshold height, the tamping actuator 287 can be actuated to advance the tamping member 286 into the cone 202 to tamp the filler material when the cone 202 is indexed below the tamping member 286 ([0076]; Figures 8a and 8b).
It would have been obvious to one of ordinary skill in the art before the effective filing date to include a tamping member 286 and tamping actuator 287 in the apparatus of Sullivan to ensure that the cones can are packed to a consistent height as taught by Kustal et al.
Claim 19. Sullivan discloses the method of claim 16 but does not disclose transporting the lower tube assembly, the tray, and the at least one cone to a tamping station; and tamping the at least one cone using a tamping station.
Kustal et al. discloses an apparatus for filling and twisting the ends of cones (Abstract). If the height of the filler material inside the cone 202 is above the threshold range or the threshold height, the tamping actuator 287 can be actuated to advance the tamping member 286 into the cone 202 to tamp the filler material when the cone 202 is indexed below the tamping member 286 ([0076]; Figures 8a and 8b).
It would have been obvious to one of ordinary skill in the art before the effective filing date to include a tamping member 286 and tamping actuator 287 in the apparatus of Sullivan to ensure that the cones can are packed to a consistent height as taught by Kustal et al.
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, 3, 4, 9, 11-16, and 18 of U.S. Patent No. 12048324. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Claim 1 of the ‘324 patent includes all limitations of claims 1, 2, and 5 of the instant invention.
Claims 3 and 4 of the ‘324 patent includes all limitations of claim 3 of the instant invention.
Claim 9 of the ‘324 patent includes all limitations of claim 4 of the instant invention.
Claim 11 of the ‘324 patent includes all limitations of claim 6 of the instant invention.
Claim 12 of the ‘324 patent includes all limitations of claims 7, 8, 9, 10, and 15 of the instant invention.
Claim 13 of the ‘324 patent includes all limitations of claim 11 of the instant invention.
Claim 14 of the ‘324 patent includes all limitations of claim 12 of the instant invention.
Claim 15 of the ‘324 patent includes all limitations of claim 13 of the instant invention.
Claim 16 of the ‘324 patent includes all limitations of claim 14 of the instant invention.
Claim 18 of the ‘324 patent includes all limitations of claims 16, 17, 18, 19, and 20 of the instant invention.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Katherine A Will whose telephone number is (571)270-0516. The examiner can normally be reached Monday-Friday 10:00AM-6:00PM(EST).
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/KATHERINE A WILL/Primary Examiner, Art Unit 1747
