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.
“Conveyance means” is considered to be some sort of conveyor belt, turntable, carousel, or equivalent device for conveying containers.
“Means for resting” is considered to be support feet or like supporting structure for the footboard.
“Removable means” is considered a mechanical locking device, such as physical snapping devices, or electromechanical devices, such as may use current to restrict movement.
“Sensor means” is interpreted as being a sensor using known methods for presence detection such as light, pressure, etc.
“Signaling means” is considered to be a signal emitter such as a light or sound emitter, etc.
“Fixing means” is considered to be a detachable mechanism, such a snapping, screws, or any known means to re-detachably secure a part.
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.
Claim 31-34 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.
Examiner notes the claims are often written in unconventional English that can make terminology confusing. Examiner encourages the Applicant to clarify the claims when possible.
Claim 31 recites “said sensor means are connected to signaling means which can be activated on command following a detection, by signaling means, of a positioning of said footboard in an intermediate position between said active condition and said inactive condition.” This language is confusing about what the signaling means does. The claim says the signaling mean “can be activated on command following a detection.” This suggest after detection of a condition by the sensor means, the signaling means “can be activated” but possibly need not be activated. This is not how the signaling means in the instant specification operates. As describes, when the senor means detects the footboard in a location between the active and inactive condition, i.e. a partially deployed position, a signal, such as an auditory or visual alert, from the signaling means is automatically implemented so an operator is aware of the partially deployment. Thus, the “signaling means” would appear to be nothing more than a light or sound emitter that lights up or emits sound when the sensor means detects a condition. If such a signal did not occur automatically, it would not suitably operate as an alert. Examiner requires clarification and suggests this language be written to more clearly recite the function of the signaling means.
In Claim 32, “said footing” has no antecedent basis. Examiner notes Claim 32 is not dependent on any claims in which the footing is claim, nor any claims in which the footboard in in contact with the footing. Examiner recommends re-writing claim with more clarity and proper claim dependency and antecedent basis.
Likewise, in Claim 33, “said removable mean” has no antecedent basis as Claim 33 does not depend from Claim 29 wherein the removable means is introduced. Examiner also is confused by the language of this claim and request Applicant re-write with more clarity. The detection means is previously described as detection position and the removable means allows locking, such as a snap or electromagnetic lock. It is unclear how the detection means plays a role in this function and the language “of the positioning in the condition of engagement of said supporting structure with said footing” does not make sense at all. Examiner further nots “supporting structure” and “footing” do not have antecedent basis.
Claim 34 recites the fixing means, which provides for detachable engagement, can be “deactivated” by the sensor means. It is unclear what this means. Does it mean detachable engagement is no longer possible? Does it mean detachment occurs? Clarification is required.
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 (i.e., changing from AIA to pre-AIA ) 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.
Claim(s) 18-20, 22, 23, 26, and 27 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Eder et al. (US 2005/0153427).
Regarding Claims 18 and 26, Eder et al. a labeling machine (See Abstract), comprising a frame [2] which supports conveyance means [3] for containers to be labeled (See page 2, paragraph [0024], page 3, paragraphs [0040], and Fig. 6, wherein a rotating carousel [3], which can convey bottles for labeling, is a conveyance means as claimed) at least one labeling unit [8] for the containers conveyed by said conveyance means (See page 2, paragraph [0024] and Fig. 2, wherein a labelling aggregate, i.e. a labelling unit, may be arranged to able labels to the conveyed articles, such as bottle containers), wherein said frame [2] supports at least one board [41] configured to move between an active condition, in which the footboard defines a resting surface, arranged spaced apart above a floor, and at least one inactive condition, in which the board [41] occupies a smaller space, laterally to said frame [2], with respect to said active condition (See page 3, paragraphs [0041]-[0042] and Fig. 8, showing a board [41] flipped, by rotation around an parallel to the floor, between active and inactive conditions as claimed; note such “flipping” is considered to oscillate as in Claim 26 since it is unclear how else “oscillate around a rotation axis” can be interpreted).
Although not taught specifically as a footboard for the foot of an operator, Examiner submits to the extent this limits structure, it implies a study structurally secure flat surface close to, but above the ground, and the plate [41] qualifies. Surely an operator could easily step onto such a surface, and such a surface would support their weight with ease, thus making the plate [41] reasonably interpreted as a “footboard” as claimed unless Applicant can articulate a clear structural distinction such terminology conveys that distinguishes from said plate [41]. Examiner submits the intended use of a given structure does not convey patentability when all structure of such a device is otherwise identical.
Regarding Claim 19, Eder et al. teaches a footing for supporting conveyance means [3] (See Fig. 8, clearly showing “feet” as a “footing”) and teaches the labeling aggregate is centered relative to the carousel (See page 1, paragraph [0009], clearly indicating close proximity), and Examiner submits anything that supports the area where labels are applied (i.e. the label head, etc.), which necessarily must be present, is a support structure that may be considered part of the device frame of the device, which is considered the support base in contact with the ground/floor.
Regarding Claims 20 and 22, Eder et al. teaches means for resting [42], i.e. feet, on the floor for the board [41], and disposed substantially at an end of board [41] furthest from frame [2] (See Fig. 8 and page 3, paragraph [0041]).
Regarding Claim 23, Examiner notes this language is extremely vague and given broad interpretation to mean any overlap in a plan view of anything that may be interpreted to be frame and anything interpreted to be board reads on claim 23. Examiner submits ring [4] is considered part of the frame and connection element [10’] is considered part of the footboard, and they clearly overlap (See Fig. 8, where in connection element [10’] wraps around ring [4], including in the inactive condition) and thus have “perimetric space occupation” as claimed.
Regarding Claim 27, the frame [2] may be considered a footing, and as previously articulated, any bottom-most support structure in contact with the floor, the frame.
Claim Rejections - 35 USC § 103
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 (i.e., changing from AIA to pre-AIA ) 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 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 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.
Claim(s) 28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Eder et al. as applied to Claim 19 above.
Regarding Claim 28, Eder et al. teaches the method of Claim 19 as described above. As described above, a carousel-type labeling machine necessarily includes a stationary frame structure that supports each labeling aggregate in fixed relation to the rotating carousel during operation. Because the labelling aggregate must ultimately be secured to such a stationary support close to area it is to be secured, it would have been obvious to position the foldable reception plate [41] adjacent portion of the frame to facilitate alignment and installation. Locating the plate [41] on a portion of the frame supporting the carousel or the labeling unit is little more than a design choice as to where to support the labelling aggregate prior to securing it, and any location close to the final area would have predictably been suitable, whether on the frame support the carousel or the frame supporting the labelling aggregate. See In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice).
Allowable Subject Matter
Claims 21, 24, 25, 29 and 30 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.
Claim 31-34 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: Examiner notes the “removable means” must lock in both the inactive AND active condition. Although locking in an inactive condition is likely obvious, locking in both active and inactive is much more specific and the board [41] in Eder et al. would appear to use gravity to remain in an active condition.
Although Eder et al. teaches a board that reads on the board as claimed, it is for a different intent and thus any further engineering of the board in line with known footboards generally cannot be considered obvious. Footboards for functional use are known in labelling, such as a foot pedal to accomplish a function (See, for example, CH1321962, Figs. 3-4, showing foot pedal [8] in labelling device), but this is distinct from the purpose in the instant invention and may be made small and located in a less accessible area, thus providing limited motivation for an inactive condition where it takes up less lateral space.
Examiner notes although foot supports or stands are surely common in any factory settings to engage in work higher up, such a support would typically be loose and moved where needed. Although simplistic steps or stands, such as welded in place supports, are also surely known, their documentation is sparse, indicating a lack of engineering associated with such supported. CN202212959 (Fig. 6) and Kodama et al. (US 2017/0057766) (Fig. 2) teaches steps in factory settings, but these are fixed steps that do not retract or stow as claimed. Such stowable footboards are well-known in seating (See e.g., Johnson et al., US 3,869,169, teaching a sliding stowable footrest), and transportation (See e.g., Reitnouer, US 10,710,508, teaching a retractable foot support/step), but such technology is not considered analogous to factory settings, such as in labelling machinery. Therefore, since step supports such as footboards are sparse in factory and industry setting such as in a labelling machine as claimed, there appears to be limited engineering effort put into efforts for such steps. As such, for the specific aspects of the instant claims not readable or generally inferable from the support [41] in Eder et al., there is considered limited motivation to implement them in a labelling machine as described absent hindsight.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SCOTT W DODDS whose telephone number is (571)270-7653. The examiner can normally be reached M-F 10am-6pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Orlando can be reached at 5712705038. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SCOTT W DODDS/Primary Examiner, Art Unit 1746