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 Objections
Claims 30 and 53 are objected to because of the following informalities:
In claim 30, line 4, “blow” should be “blower” and “sparer” should be “sprayer”.
In claim 30, line 7, “spayer” should be “sprayer”.
In claim 30, line 8, “to cause” should be “causes”.
In claim 30, line 9, “to project” should be “projects”.
In claim 30, line 10, “a” should be added before “predetermined ratio”.
In claim 30, line 11, “To cause” should be “causes”.
In claim 53, “to collect” should be “collects”.
Appropriate correction is required.
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 30-57 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-29 of U.S. Patent No. 12,078,623 B2 (hereinafter Lane). Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claim 30, claim 1 of Lane teaches a method for determining volatility of a spray solution, comprising:
A blower disposed within an agricultural drift tunnel, the blower to generate airflow within the agricultural drift tunnel;
A sprayer (implicitly disposed downwind of the blower), the sprayer for projection of the spray solution within the agricultural drift tunnel; and
At least one sampler disposed within the agricultural drift tunnel and downwind of the sprayer (implicitly it should be downwind to capture the sample);
Wherein the blower causes a first target windspeed to be introduced into the agricultural drift tunnel during a first period of time; wherein the sprayer projects the spray solution during the first period of time, the spray solution having a predetermined ratio of an active ingredient and a tracer, wherein the blower causes a second target windspeed to be introduced into the agricultural drift tunnel during a second period of time, the second period of time being subsequent to the first period of time; and wherein, after the second period of time, an amount of volatilized active ingredient is determined based on a measured ratio of active ingredient to tracer disposed on the at least one sampler during the first and second time periods (i.e. the sample is deposited on the sprayer during both time periods).
Regarding claim 31, claim 2 of Lane teaches that the predetermined ratio of active ingredient to tracer in the spray solution is 2.5:1.
Regarding claim 32, claim 3 of Lane teaches that the predetermined ratio of active ingredient to tracer in the spray solution is in a range of 2.0:1.0 to 3.0:1.0.
Regarding claim 33, claim 4 of Lane teaches that the active ingredient of the spray solution comprises a herbicide.
Regarding claim 34, claim 5 of Lane teaches that the active ingredient of the spray solution comprises 3,6-dicholor-2-methoxybenzoic acid (dicamba).
Regarding claim 35, claim 6 of Lane teaches that the dicamba is a Diglycolamine salt or a Dimethylamine salt.
Regarding claim 36, claim 7 of Lane teaches that the tracer comprises a metal.
Regarding claim 37, claim 8 of Lane teaches that the tracer comprises a metal salt.
Regarding claim 38, claim 9 of Lane teaches that the tracer comprises Cesium Chloride.
Regarding claim 39, claim 10 of Lane teaches disposing at least one filter to be disposed within the agricultural drift tunnel during the first period of time, the at least one filter configured to collect droplets of the spray solution during the first period of time.
Regarding claim 40, claim 11 of Lane teaches that a baseline measurement is determined based on at least one filter, the baseline measurement being a ratio of projected active ingredient to tracer after the first predetermined time period has elapsed.
Regarding claim 41, claim 12 of Lane teaches that determining the baseline measurement based on the at least one filter includes utilizing liquid chromatography mass spectrometry to determine an amount of active ingredient present in the at least one filter and inductively coupled plasma mass spectrometry to determine an amount of tracer present in the at least one filter.
Regarding claim 42, claim 13 of Lane teaches that the at least one filter is disposed adjacent the at least one sampler.
Regarding claim 43, claim 14 of Lane teaches that the at least one filter is disposed at a first predetermined distance from a ground surface within the agricultural drift tunnel and the at least one sampler is disposed at a second predetermined distance from the at least one filter, the first predetermined distance being less than the second predetermined distance.
Regarding claim 44, claim 15 of Lane teaches that the at least one filter is disposed below the at least one sampler such that the at least one filter is disposed between the at least one sampler and a ground surface within the agricultural drift tunnel.
Regarding claim 45, claim 16 of Lane teaches that the at least one sampler comprises a plurality of samplers, each sampler of the plurality of samplers disposed at a predetermined distance from the sprayer within the agricultural drift tunnel.
Regarding claim 46, claim 17 of Lane teaches that the at least one sampler comprises a Polyurethane Foam (PUF) sampler.
Regarding claim 47, claim 18 of Lane teaches generating suction at an orifice of the at least one sampler using a vacuum pump during the second period of time.
Regarding claim 48, claim 19 of Lane teaches that generating suction at the orifice of the at least one sampler further includes generating at least on liters-per-minute (LPM) of air flow.
Regarding claim 49, claim 20 of Lane teaches that generating suction at the orifice of the at least one sampler comprises generating suction in a range of 1.0 LPM to 2.0 LPM.
Regarding claim 50, claim 13 of Lane teaches at least one filter disposed adjacent the at least one sampler.
Regarding claim 51, claim 22 of Lane teaches that a baseline measurement of active ingredient to tracer is determined after ceasing projection of the spray solution by the sprayer after the first period of time.
Regarding claim 52, claim 23 of Lane teaches that determining the baseline ratio of active ingredient to sampler includes averaging measurements from each of the plurality of filters.
Regarding claim 53, claim 24 of Lane teaches causing the at least one sampler to collect volatile vapor during the second period of time.
Regarding claim 54, claim 25 of Lane teaches a vacuum pump to create suction on an orifice of the at least one sampler; wherein causing the at least one sampler to collect volatile vapor during the second period of time includes generating suction at an orifice of each of the plurality of samplers using the vacuum pump.
Regarding claim 55, claim 27 of Lane teaches that determining the amount of volatilized active ingredient further comprises determining a ratio of active ingredient to tracer based on the plurality of samplers after the second period of time elapses and comparing the determined ratio to the ratio of the baseline measurement.
Regarding claim 56, claim 28 of Lane teaches that the first target windspeed is greater than the second target windspeed.
Regarding claim 57, claim 29 of Lane teaches that the first target windspeed is at least 10 MPH and the second target windspeed is 5 MPH or less.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID E SMITH whose telephone number is (571)270-7096. The examiner can normally be reached M to F 8:30 AM-5:00 PM.
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/DAVID E SMITH/Examiner, Art Unit 2881
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