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 .
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.
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Claims 1-5, 7-23, 26, 40, 42-63, 65 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 40--41 of U.S. Patent No. 12,419,217. Although the claims at issue are not identical, they are not patentably distinct from each other because :
Claim 1 of the present application recites: A grain cart comprising: a grain tank; a grain transfer element configured to transfer grain from the grain tank to a receiving container, the grain transfer element including a movable spout configured to direct a stream of discharged grain;
a first sensor configured to detect an interface between an upper surface of a grain mound in the receiving container and an interior surface of a wall of the receiving container, the first sensor is further configured to detect at least a portion of an upper edge of the wall,
a second sensor configured to detect an orientation of the movable spout; and
a processor configured to compare the detected interface and the detected portion of the upper edge to the detected orientation of the movable spout, and the processor is further configured to control the operation of the grain transfer element to direct a transfer of grain from the supplying container to the receiving container based at least in part on a result of the comparison of the detected interface and the detected portion of the upper edge to the detected orientation of the movable spout.
Claim 40 of patent 12,419,217 discloses a grain cart comprising:
a supplying container;
a grain transfer element configured to transfer grain from the supplying container to a receiving container;
a movable spout coupled to the grain transfer element, the movable spout is movable to direct the grain generally laterally farther away from the grain cart and generally laterally nearer to the grain cart, and to direct the grain generally longitudinally toward a forward end of the receiving container and longitudinally toward a rearward end of the receiving container;
a spout articulation mechanism to control the movement of the movable spout; a spout position sensor configured to detect at least one of a position or orientation of the movable spout;
one or more sensors configured to detect at least a portion of an upper perimeter of the receiving container and at least a portion of an upper surface of a grain mound in the receiving container; and a processor configured to control the spout articulation mechanism based at least in part on the detected portion of the upper perimeter, the detected portion of the upper surface, and at least one of the detected position or detected orientation of the movable spout, and the processor is configured to control the spout articulation mechanism to control the movement of the movable spout.
Though the claims are not identical, they are not patentably distinct from each other because the prior art does not specifically disclose a second sensor. However, it discloses one or more sensors. Therefore it would have been obvious to one of ordinary skill in the art before the effective date of the claimed invention with a reasonable expectation of success to modify the system to include a second sensor since it would have achieved a desired result to operate in connection with transferring grain.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Ringwald et al. (U.S. Patent No. 20100274452) disclose a grain transfer control system, and method of use thereof, for automatedly controlling the transfer of grain from a mobile transferor-type vehicle, such as a combine harvester, to a mobile transferee-type vehicle, such as a crop transport, by varying the position and speed of the transferor-type and transferee-type vehicles relative to one another during the transfer operation, especially by varying the position and rate of walk of the discharge spout along at least a portion of the length of a grain holding receptacle of the transferee-type vehicle, to effect a generally even fill of the grain holding receptacle of the transferee-type vehicle along the length of the grain holding receptacle.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GERTRUDE ARTHUR JEANGLAUDE whose telephone number is (571)272-6954. The examiner can normally be reached Monday-Thursday, 7:30-8:00 EST.
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/GERTRUDE ARTHUR JEANGLAUDE/Primary Examiner, Art Unit 3661
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