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.
Drawings
The drawings are objected to because all of the drawings are in gray-scale rather than composed of solid line drawings. See 37 CFR 1.84(a)(1) and 37 CFR 1.84 (l). Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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.
Claims 1, 5, 14 and 18 are rejected under 35 U.S.C. 102(a)(1) as being clearly anticipated by Windemuller et al. (US Patent No. 5,113,644).
In reference to claim 1, Windemuller discloses a harvesting machine 10 comprising:
a. a shaking mechanism 40 operable to shake fruit or nuts from a tree or bush, wherein said shaking mechanism 40 is located on a first lateral side of the harvesting machine 10 (Fig. 3, each shaking mechanism 40 is located on a lateral side); and
b. blowing mechanism 160 positioned posteriorly to said shaking mechanism 40 (Fig. 3, each blowing mechanism 160 is located posteriorly to the respective shaking mechanism 40 relative to the tree or bush) for moving said fruit or nuts shaken free by said shaking mechanism 40 from a base of the tree or bush and away from a row in which the tree or bush is positioned (Fig. 3), wherein said blowing mechanism 160 is located on said first lateral side of the harvesting machine 10 (Fig. 3).
In reference to claim 5, Windemuller discloses a rotating brush 40 (each shaker mechanism 40 is formed as a rotating brush) having a plane of rotation that is substantially parallel to a horizontal plane (Figs. 3 and 6).
In reference to claim 14, Windemuller discloses a method of harvesting using a harvesting vehicle 10 comprising:
a. attaching a shaking mechanism 40 operable to shake fruit or nuts from a tree or bush in a row (Fig. 3);
b. activating said shaking mechanism 40 to vibrate said tree or bush such that said fruit or nuts fall from said tree or bush (Fig. 3); and
c. activating a blowing mechanism 160 for moving said fruit or nuts away from a base of the tree or bush to an opposite side of said row from said harvesting vehicle 10 (Fig. 3).
In reference to claim 18, Windemuller discloses activating a rotating brush 40 (each shaker mechanism 40 is formed as a rotating brush) having a plane of rotation that is substantially parallel to the horizontal and moves said fruit or nuts from said base of said tree or bush (Fig. 3).
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 1-3, 5-7, 9, 10, 14-16, 18 and 20-23 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 10,806,080. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the reference patent entirely anticipate the claims of the present invention.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Marrs (US Patent Application Publication No. 2015/0319930) discloses a harvesting machine with a shaking mechanism 27 and a blowing mechanism 47 (Fig. 3); Cutts et al. (US Patent No. 3,590,566) discloses a harvester with a blower 39 and shaking mechanism 36 (Fig. 1); and Bobard et al. (US Patent No. 4,241,569) with a shaking means 21 and blower 15 (Figs. 1 and 4).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRAD HARCOURT whose telephone number is (571)272-7303. The examiner can normally be reached Monday through Friday, 9am to 6pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Doug Hutton can be reached at (571)272-4137. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/BRAD HARCOURT/Primary Examiner, Art Unit 3674
8/27/26
Prosecution Insights