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 .
Specification
The disclosure is objected to because of the following informalities: From page 25 line 19 – page 27 line 16, the specification labels the optical sensor “114” and the optical reflector “116”. This is deemed to be a typographical error and the respective elements should be labeled “214” and “216”.
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-29 of U.S. Patent No. 12,162,640. Although the claims at issue are not identical, they are not patentably distinct from each other because the differences that exist are ones of word synonyms and differences in grammar that do not materially change the scope of what is being claimed. The claims of the ‘640 patent are generally more narrow than the instant claims, but they are deemed to essentially claim the same subject matter.
Regarding claim 1, the limitations are read on by claims 1, 13, 17, 20, 24 and 27 of the ‘640 patent.
Regarding claim 2, the limitations are read on by claim 18 of the ‘640 patent.
Regarding claims 3-4, the sensor or the reflector is located “above” or “below” the path is a matter of relative positioning and deemed to be a matter of obvious design choice. This is because the sensor/reflector arrangement is deemed to work equally well in other positions. For these reasons, the claimed combination is deemed obvious as it would involve a simple rearrangement of parts (MPEP 2144.04 VI C).
Regarding claims 5-9, the limitations are read on by claims 1, 13, 17, 20, 24 and 27 of the ‘640 patent.
Regarding claims 10 the limitations are read on by claim 18 of the ‘640 patent.
Regarding claims 11-13, the limitations are read on by claims 1, 13, 17, 20, 24 and 27 of the ‘640 patent.
Regarding claim 14 the limitations are read on by claim 18 of the ‘640 patent.
Regarding claim 15, the limitations are read on by claims 1, 13, 17, 20, 24 and 27 of the ‘640 patent.
Regarding claims 16, making a previously disclosed element adjustable is understood to be obvious and involves only a routine level of skill in the art (MPEP 2144.04 V D)
Regarding claims 17-18 the limitations are read on by claim 18 of the ‘640 patent.
Regarding claims 19-20, the limitations are read on by claims 1, 13, 17, 20, 24 and 27 of the ‘640 patent.
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) 8, 10 and 14 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Holmes (US Patent 5,269,120).
Regarding claim 8, Holmes discloses a system (fig. 1) for applying bag closures (20; col. 11 lines 13-50) from an elongate strip (202; figs. 2b, 3 and 8) of connected (218) bag closures to bags (10) as the bags travel along a path (fig. 9; right to left) with respect to the system, comprising:
a first conveyor (12 or 412);
a second conveyor (412 or 12), wherein the first conveyor and the second conveyor are configured to convey the bags along the path (col. 11 lines 1-31); and
an optical sensor (432; fig. 8; col. 11 lines 20-23, 50-64 – “optical "bag closed" sensor”; see also 1605 in fig. 16), wherein the optical sensor is located above or below the first conveyor to detect a presence of one of the bags along the path (figs. 8-9).
Regarding claim 10, Holmes discloses wherein the first conveyor (12 or 412) and the second conveyor (412 or 12) each include a wheel (412) or a conveyor belt (12), or both.
Regarding claim 14, Holmes discloses wherein the optical sensor (432) is located between (fig. 1; the first conveyor 12 extends along the length of the line and the second conveyor 412 is located in the middle of the line. Optical sensor 432 is located near 412 and has portions of conveyor 12 extend before and after it. As such, it can be deemed to be between portions of the conveyor in the horizontal plane of fig. 1) the first conveyor (12) and the second conveyor (412).
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) 1, 3-4, 7, 9, 11, 15 and 17-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Holmes (US Patent 5,269,120) in view of Yourgalite et al. (US Patent 5,005,335) hereinafter referred to as Yourgalite.
Regarding claim 1, Holmes discloses a system (fig. 1), comprising:
a closure machine (40) configured to apply bag closures (20; col. 11 lines 13-50) to bags (10) as the bags travel along a path (fig. 9; right to left) with respect to the closure machine, the closure machine including:
an optical sensor (432; fig. 8; col. 11 lines 20-23, 50-64 – “optical "bag closed" sensor”; see also 1605 in fig. 16) located at a first side of the path; and
wherein the optical sensor detects the presence of one of the bags as the bags travel along the path (col. 11 lines 20-64).
Holmes discloses an optical sensor located at a first side of the path, but does not disclose an optical reflector located at a second side of the path opposite to the first side of the path, wherein the optical sensor and the optical reflector face one another such that light emitted by the optical sensor is reflected by the optical reflector toward the optical sensor to detect the presence of one of the bags between the optical sensor and the optical reflector as the bags travel along the path.
However, Yourgalite teaches an optical sensor (26a; 28a; col. 3 lines 24-27) located at a first side of the path (bottom fig. 2); and an optical reflector (26b; 28b; col. 3 lines 24-27) located at a second side of the path (top of fig. 2) opposite to the first side of the path, wherein the optical sensor and the optical reflector face one another such that light emitted by the optical sensor is reflected by the optical reflector toward the optical sensor to detect the presence of one of the articles (25) between the optical sensor and the optical reflector as the articles travel along the path (col. 3 lines 1-37).
Given the teachings of Yourgalite, it would have been obvious to one of ordinary skill in the art before the time of effective filing to modify the optical sensor of Holmes with the optical sensor and optical reflector of Yourgalite. Doing so would provide the optical sensor with a base level of light via the reflective surface to better detect the presence of objects in their line of sight.
Regarding claim 3, Holmes as modified by Yourgalite above discloses wherein the optical sensor (Holmes - 432) or the optical reflector (Yourgalite – 26b, 28b; located opposite the sensor 26a, 28a and outside the path of the article), or both, are located above or below wheels (Holmes – 412 or 428; figs. 8-9) of the closure machine that define, at least in part, the path (Holmes – fig. 9 right to left).
Regarding claim 4, Holmes as modified by Yourgalite above discloses wherein the optical sensor (Holmes – 432; Yourgalite – 26a, 28a) is below the path and the optical reflector (Yourgalite – 26b, 28b; located opposite the sensor 26a, 28a and outside the path of the article) is above the path.
The combination of Holmes as modified by Yourgalite results in an optical sensor and optical reflector located on opposite sides of the path. Which of the sensor or the reflector is located “above” or “below” the path is a matter of relative positioning not defined by the claim and deemed to be a matter of obvious design choice. This is because the sensor/reflector arrangement is deemed to work equally well in the reverse position. For these reasons, the claimed combination is deemed obvious in view of Holmes as modified by Yourgalite as it would involve a simple rearrangement of parts (MPEP 2144.04 VI C).
Regarding claim 7, Holmes as modified by Yourgalite above discloses wherein the second side of the path is located opposite to the first side of the path in a vertical direction (Yourgalite – 26b, 28b; located opposite the sensor 26a, 28a and outside the path of the article).
The combination of Holmes as modified by Yourgalite results in an optical sensor and optical reflector located on opposite sides of the path in the vertical direction. Which direction is the vertical direction is a matter of relative positioning not defined by the claim and deemed to be a matter of obvious design choice. This is because the sensor/reflector arrangement is deemed to work equally well in the other positions. For these reasons, the claimed combination is deemed obvious in view of Holmes as modified by Yourgalite as it would involve a simple rearrangement of parts (MPEP 2144.04 VI C).
Regarding claim 9, Holmes discloses an optical sensor (432) located above or below the first conveyor to detect a presence of one of the bags along the path (figs. 8-9; col. 11 lines 20-23, 50-64), but fails to disclose an optical reflector, wherein the optical sensor and the optical reflector face one another such that light emitted by the optical sensor is reflected by the optical reflector toward the optical sensor to detect the presence of one of the bags between the optical sensor and the optical reflector as the bags travel along the path.
However, Yourgalite teaches an optical reflector (26b; 28b; col. 3 lines 24-27), wherein the optical sensor (26a; 28a; col. 3 lines 24-27) and the optical reflector face one another such that light emitted by the optical sensor is reflected by the optical reflector toward the optical sensor to detect the presence of one of the articles (25) between the optical sensor and the optical reflector as the articles travel along the path (fig. 2; col. 3 lines 1-37).
Given the teachings of Yourgalite, it would have been obvious to one of ordinary skill in the art before the time of effective filing to modify the optical sensor of Holmes with the optical sensor and optical reflector of Yourgalite. Doing so would provide the optical sensor with a base level of light via the reflective surface to better detect the presence of objects in their line of sight.
Regarding claim 11, Holmes discloses an optical sensor (432) located above or below the first conveyor to detect a presence of one of the bags along the path (figs. 8-9; col. 11 lines 20-23, 50-64), but fails to disclose an optical reflector, wherein the optical sensor and the optical reflector are aligned in a vertical direction relative to the path and face each other.
However, Yourgalite teaches an optical reflector (26b; 28b; col. 3 lines 24-27), wherein the optical sensor (26a; 28a; col. 3 lines 24-27) and the optical reflector are aligned in a vertical direction relative to the path and face each other (fig. 2; col. 3 lines 1-37).
The combination of Holmes as modified by Yourgalite results in an optical sensor and optical reflector located on opposite sides of the path in the vertical direction. Which direction is the vertical direction is a matter of relative positioning not defined by the claim and deemed to be a matter of obvious design choice. This is because the sensor/reflector arrangement is deemed to work equally well in the other positions. For these reasons, the claimed combination is deemed obvious in view of Holmes as modified by Yourgalite as it would involve a simple rearrangement of parts (MPEP 2144.04 VI C).
Regarding claim 15, Holmes discloses a system, comprising:
a closure machine (fig. 1) configured to convey (col. 11 lines 1-31) bags (10) along a path (fig. 9; right to left) and apply bag closures (20; col. 11 lines 13-50) to the bags as the bags travel along the path with respect to the closure machine, the closure machine including:
an optical sensor (432; fig. 8; col. 11 lines 20-23, 50-64 – “optical "bag closed" sensor”; see also 1605 in fig. 16); and
wherein the optical sensor detects the presence of a first one of the bags as the bags travel along the path (col. 11 lines 20-64), and
wherein the optical sensor is configured to send a signal (1605, 1610; fig. 16) to the closure machine to initiate a cycle (1614; fig. 16) of a mechanical bag closure breakoff subassembly (442, 418, 420) to apply one of the bag closures to the first one of the bags in response to the optical sensor no longer detecting the presence of the first one of the bags (col. 11 liens 24 – col. 12 line 33).
Holmes discloses an optical sensor detects the presence of a first one of the bags as the bags travel along the path, but fails to disclose an optical reflector, wherein the optical sensor and the optical reflector face one another such that light emitted by the optical sensor is reflected by the optical reflector toward the optical sensor to detect the presence of a first one of the bags between the optical sensor and the optical reflector as the bags travel along the path.
However, Yourgalite teaches an optical sensor (26a; 28a; col. 3 lines 24-27) and an optical reflector (26b; 28b; col. 3 lines 24-27), wherein the optical sensor and the optical reflector face one another such that light emitted by the optical sensor is reflected by the optical reflector toward the optical sensor to detect the presence of a first one of the articles (25) between the optical sensor and the optical reflector as the bags travel along the path (col. 3 lines 1-37).
Given the teachings of Yourgalite, it would have been obvious to one of ordinary skill in the art before the time of effective filing to modify the optical sensor of Holmes with the optical sensor and optical reflector of Yourgalite. Doing so would provide the optical sensor with a base level of light via the reflective surface to better detect the presence of objects in their line of sight.
Regarding claim 17, Holmes as modified by Yourgalite discloses wherein the closure machine (Holmes - fig. 1) further includes a first conveyor (Holmes - 12) and a second conveyor (Holmes - 412), the optical sensor (Holmes – 432; Yourgalite - 26a; 28a) and the optical reflector (Yourgalite - 26b; 28b; col. 3 lines 24-27) located between (fig. 1; the first conveyor 12 extends along the length of the line and the second conveyor 412 is located in the middle of the line. Optical sensor 432 is located near 412 and has portions of conveyor 12 extend before and after it. As such, it can be deemed to be between portions of the conveyor in the horizontal plane of fig. 1; The optical reflector would be located across from the optical sensor and would similarly be located between the two conveyors) the first conveyor and the second conveyor.
Regarding claim 18, Holmes wherein the first conveyor (12) and the second conveyor (412) each include a wheel (412) or a conveyor belt (12), or both.
Regarding claim 19, Holmes as modified by Yourgalite discloses wherein the optical sensor (Holmes – 432; Yourgalite - 26a; 28a) and the optical reflector (Yourgalite - 26b; 28b; col. 3 lines 24-27) are aligned in a vertical direction on opposite sides of the path (Yourgalite - fig. 2; col. 3 lines 1-37).
The combination of Holmes as modified by Yourgalite results in an optical sensor and optical reflector located on opposite sides of the path in the vertical direction. Which direction is the vertical direction is a matter of relative positioning not defined by the claim and deemed to be a matter of obvious design choice. This is because the sensor/reflector arrangement is deemed to work equally well in the other positions. For these reasons, the claimed combination is deemed obvious in view of Holmes as modified by Yourgalite as it would involve a simple rearrangement of parts (MPEP 2144.04 VI C).
Regarding claim 20, Holmes as modified by Yourgalite discloses wherein the optical sensor (Holmes – 432; Yourgalite - 26a; 28a) and the optical reflector (Yourgalite - 26b; 28b) are located upstream (1605, 1610; fig. 16; signal is sent from sensor before breakoff) of the mechanical bag closure breakoff subassembly (1614; 442, 418, 420) relative to the path.
The combination of Holmes as modified by Yourgalite is deemed to result in wherein the optical sensor and the optical reflector located upstream of the mechanical bag closure breakoff subassembly relative to the path. To the extent that the precise positions of the elements are not adequately shown, the Office notes that the disclosure of Holmes demonstrates that the information of the presence of the bag is needed for the breakoff subassembly to operate. It would therefore have been obvious to have the sensor/reflector arrangement upstream of the breakoff subassembly. For these reasons, the claimed combination is deemed obvious in view of Holmes as modified by Yourgalite as it would involve a simple rearrangement of parts (MPEP 2144.04 VI C).
Claim(s) 5-6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Holmes (US Patent 5,269,120) in view of Yourgalite (US Patent 5,005,335) in view of Seiver et al. (US Patent 10,807,744 B1) hereinafter referred to as Seiver.
Regarding claim 5, Holmes discloses wherein the closure machine further includes the optical sensor (432) facing toward (col. 11 lines 20-64) the bag closures (20, 212), but fails to disclose where the closure machine further includes a fiber optic cable.
However, Seiver teaches an optical sensor (154) further comprising a fiber optic cable (154a, 154b) facing toward the article (col. 20 lines 44-46; col. 21 lines 20-42).
Given the teachings of Seiver, it would have been obvious to one of ordinary skill in the art before the time of effective filing to modify the optical sensor of Holmes in view of Yourgalite with the fiber optic cable of Seiver. Holmes as modified by Yourgalite is already concerned with the problem of having an optical sensor facing the bag closures. Seiver teaches that it was known in the art of optical sensors to make use of fiber optic cables as part of such sensors. Doing so allows for very specific parts of an object to be sensed to be illuminated and for detailed positioning information of the object.
Regarding claim 6, Holmes as modified by Yourgalite and Seiver above discloses wherein the closure machine includes a guide plate (Holmes - 404; 406; fig. 8; col. 6 lines 31-37) having a slot (Holmes - 404) and an opening (Holmes - 406), the bag closures (Holmes - 20) configured to be received in the slot and the fiber optic cable (Holmes – 432; Seiver – 154a,b) faces the opening in the guide plate (Holmes - col. 11 lines 20-64).
Claim(s) 12 and 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Holmes (US Patent 5,269,120) in view of Seiver (US Patent 10,807,744 B1).
Regarding claim 12, Holmes discloses wherein the closure machine further includes the optical sensor (432) facing toward (col. 11 lines 20-64) the bag closures (20, 212), but fails to disclose where the closure machine further includes a fiber optic cable.
However, Seiver teaches an optical sensor (154) further comprising a fiber optic cable (154a, 154b) facing toward the article (col. 20 lines 44-46; col. 21 lines 20-42).
Given the teachings of Seiver, it would have been obvious to one of ordinary skill in the art before the time of effective filing to modify the optical sensor of Holmes with the fiber optic cable of Seiver. Holmes is already concerned with the problem of having an optical sensor facing the bag closures. Seiver teaches that it was known in the art of optical sensors to make use of fiber optic cables as part of such sensors. Doing so allows for very specific parts of an object to be sensed to be illuminated and for detailed positioning information of the object.
Regarding claim 13, Holmes as modified by Seiver above discloses wherein the closure machine includes a guide plate (Holmes - 404; 406; fig. 8; col. 6 lines 31-37) having a slot (Holmes - 404) and an opening (Holmes - 406), the bag closures (Holmes - 20) configured to be received in the slot and the fiber optic cable (Holmes – 432; Seiver – 154a,b) faces the opening in the guide plate (Holmes - col. 11 lines 20-64).
Claim(s) 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Holmes (US Patent 5,269,120) in view of Yourgalite (US Patent 5,005,335) in view of Herzog (US 2005/0284102 A1).
Regarding claim 16, Holmes discloses an optical sensor, but fails to disclose wherein a sensitivity of the optical sensor is adjustable.
However, Herzog teaches wherein a sensitivity of the optical sensor (506; 510) is adjustable (paragraphs 0050, 0061).
Given the teachings of Herzog, it would have been obvious to one of ordinary skill in the art before the time of effective filing to modify the optical sensor of Holmes so that its sensitivity was adjustable. Doing so would allow a user to dial in a desired amount of signal that would trigger if the bag/article was present or absent. Given the various light conditions that may exist, it is obvious to allow for varying amounts of sensitivity to account for this.
Allowable Subject Matter
Claim 2 would be allowable if it were to incorporate all dependent subject matter and overcome the obvious double patenting rejection with a properly filed terminal disclaimer.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See Notice of References Cited. The art not relied upon generally pertains to bag closure devices and optical sensors along production lines.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW M TECCO whose telephone number is (571)270-3694. The examiner can normally be reached M-F 11a-7p.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anna Kinsaul can be reached at (571) 270-1926. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREW M TECCO/ Primary Examiner, Art Unit 3731