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 .
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.
Information Disclosure Statement
The information disclosure statement filed 2/5/25 fails to comply with 37 CFR 1.98(a)(1), which requires the following: (1) a list of all patents, publications, applications, or other information submitted for consideration by the Office; (2) U.S. patents and U.S. patent application publications listed in a section separately from citations of other documents; (3) the application number of the application in which the information disclosure statement is being submitted on each page of the list; (4) a column that provides a blank space next to each document to be considered, for the examiner’s initials; and (5) a heading that clearly indicates that the list is an information disclosure statement. The information disclosure statement as submitted has been indicated as considered, but there are no references cited on said document (it has been submitted blank with no references listed). Applicant should review their filings and resubmit a completed IDS if they wish to have any references considered.
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 1-22 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-41 of U.S. Patent No. 12,256,656. Although the claims at issue are not identical, they are not patentably distinct from each other because both the patented claims and the current claims disclose a trench depth sensing system including a light source, receiver, sensor, monitoring system, and gps receiver configured to associate gps coordinates with the data frame and further discloses starting and stopping multiple wavelengths and calculating the difference (via subtraction – claim 38) to determine a net image.
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.
Claim(s) 1-2, 5-6, 9, 14 and 15 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Koch et al. (2018/0128933).
Regarding claims 1 and 14, Koch et al. discloses an agricultural depth sensing system and method of determining a depth of a trench comprising:
An agricultural row unit (200) including an opening disc (222) configured to open a trench in a soil surface as the row unit advances in a forward direction of travel through a field; and a
A light plane triangulator (figure 14) with a light source (L1) disposed above said trench and configured to direct a scanned laser light (pgph 0017) downwardly toward said trench (Figure 14 – Pgph 0040);
a receiver (R1) disposed at an angle relative to said light source to receive reflected light from said light source reflected from said trench and soil surface (Figure 14, pgph 0040);
a sensor (100-1 to 100-5) connected to said receiver, said sensor generating an output signal (110) based on said reflected light (pgph 0029);
a monitoring system (300) in communication with said sensor (100), said monitor system configured to generate a data frame based on said sensor output signal, said data frame containing a triangulated line pattern and intensity values of said reflected light along said triangulated line pattern indicative of a measured depth of said trench (pgph 0039, 0061);
a GPS receiver (310) in communication with said monitoring system; whereby said monitor system is configured to associate GPS coordinates from said GPS receiver with each said data frame (pgph 0062)
Regarding claims 2 and 15, Koch discloses that the light source, receiver and sensor can be disposed in a single body (100A) mounted to a frame member of said agricultural row unit or separately disposed.
Regarding claims 5, the monitoring system (300) is configured to display a spatial map of said measured depths of said trench as said agricultural row unit advances through said field (pgph 0062).
Regarding claims 6 and 9, Koch discloses a downforce actuator (214) and depth control actuator (234) wherein the monitoring system is configured actuate and adjust the depth and downforce.
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.
Claim(s) 7-8 and 10-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Koch et al. (2018/0128933) in view of Radtke (WO2016/205424).
Regarding claim 7, Koch discloses the depth sensing system with a reflectivity sensor and light source as described above. Koch fails to specifically disclose the sensor capabilities as it relates to intensity, wavelength. Like Koch, Radtke also discloses a depth sensing system for a row unit including a light source and reflectivity sensors. Unlike Koch, Radtke discloses utilizing intensity and wavelength variations to indicate trench characteristics (pgph 0115). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize intensity and wavelength variations of the light source to more accurately monitor trench conditions as the use of a known technique to improve similar devices in the same way (KSR International Co. v. Teleflex Inc., 550 USPQ2d 1385 (2007)).
Regarding claim 8, the combination discloses that the monitoring system is configured to generate a profile of the trench and a spatial map of seed depth based on the generated data frame as the agricultural row unit advances through the field.
Regarding claim 10, the combination discloses a row cleaner (274) mounted forward of the opening disc, said row cleaner including a row cleaner actuator (276) for adusting downforce of the row cleaner, wehreing the monitoring system is configured actuate and adjust the depth and downforce.
Regarding claims 11, the combination discloses that the system further comprises a liquid placement system in fluid communication with a liquid source, said liquid placement system including a valve movable between an open position and a closed position wherein in said open position fluid from said fluid source is released wherein said monitoring system is configured to pen said valve to release liquid relative to said seeds in said trench such that said liquid is placed either on said seeds between said seeds or adjacent to said seeds (pgph 0124).
Regarding claims 12-13, the combination of Koch and Radtke fails to specifically disclose that the monitoring system compares consecutive images to generate trench data. The examiner takes Official Notice that comparative imaging is old and well known in the art of computer data analysis. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize a monitoring system that compares images to find differences to monitor changes in the trench.
Allowable Subject Matter
Claims 3-4 are 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 and filed along with the appropriate Terminal Disclaimer(s).
Claims 16-22 are allowed when filed along with the appropriate Terminal Disclaimer(s).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Anderson (CA2530707) discloses using varying wavelength to determine soil characteristics but measures spectral characteristics instead of spatial characteristics.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jamie L McGowan whose telephone number is (571)272-5064. The examiner can normally be reached Monday through Friday 9:00-5:00 CST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Chris Sebesta can be reached at 571-272-0547. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JAMIE L MCGOWAN/Primary Examiner, Art Unit 3671
