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 .
Double Patenting Rejections
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.
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Claims 1-20 are rejected as being unpatentable over Brosh (U.S. Patent 12,209,393 B2).
Claim 1 is rejected on the grounds of nonstatutory double patenting as being unpatentable over Claim 1 of U.S. Patent No. 12,209,393. Although the claims at issue are not identical, they are not patentably distinct from each other. Claim 1 of the Instant application states: a control system comprising an earthmoving machine, wherein:
The earthmoving machine comprises a machine chassis, a linkage assembly, an earthmoving implement, and control architecture;
The control architecture comprises one or more linkage assembly actuators and an architecture controller programmed to:
Generate a surface associated with a curved surface of the earthmoving implement;
Project the surface onto a two-dimensional (2D) plane associated with the earthmoving implement;
Determine a continuous curve based on the surface projected on to the 2D plane;
Determine a derivative of the continuous curve;
Project a design plane normal n* of a ground surface for smoothing onto the 2D plane associated with the earthmoving implement;
Determine a point of perpendicular intersection between the derivative of the continuous curve and the design plane normal n* of the ground surface projected onto the 2D plane; and
Operate the earthmoving machine using the one or more linkage assembly actuators and the point of perpendicular intersection.
Claim 1 of the reference teaches a grade control system comprising an earthmoving machine, wherein:
The earthmoving machine comprises a machine chassis, a linkage assembly, an earthmoving implement, and control architecture;
The control architecture comprises one or more linkage assembly actuators and an architecture controller programmed to:
Generate a continuous differential surface associated with a rear curved surface of the earthmoving implement;
Project the continuous differential surface onto a two-dimensional (2D) plane associated with the earthmoving implement;
Determine a piecewise-derivative continuous curve based on the surface projected on to the 2D plane;
Determine a derivative of the piecewise-derivative continuous curve;
Project a design plane normal n* of a ground surface for smoothing onto the 2D plane associated with the earthmoving implement;
Determine a point of perpendicular intersection between the derivative of the piecewise-derivative continuous curve and the design plane normal n* of the ground surface projected onto the 2D plane; and
Operate the earthmoving machine using the one or more linkage assembly actuators and the point of perpendicular intersection to smooth the ground surface.
Both claims are directed to a system that operate an earthmoving implement according to a model that is defined by the intersection of 2D representations of the ground surface and the derivate of a curve defined by the rear surface of the earthmoving implement. In Claim 1, and in all other claims, the following terms or limitations have been changed in the following ways:
The term “grade control system” in the reference has been changed to “control system” in the Instant Application.
The term “continuous differential surface” in the reference has been changed to “surface” in the Instant Application.
The term “rear curved surface” (of the earthmoving implement) in the reference has been changed to “curved surface” in the Instant Application.
The term “piecewise-derivative continuous curve” in the reference has been changed to “continuous curve” in the Instant Application.
The limitation “one or more linkage assembly actuators and the point of perpendicular intersection to smooth the ground surface” in the reference has been changed to “one or more linkage assembly actuators and the point of perpendicular intersection” in the Instant Application.
Claims 1-20 are only grammatically different from those in the reference by omitting certain descriptors used to describe terms within the claims, but the scope of the invention remains the same.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PAUL W ARELLANO whose telephone number is (571)270-0102. The examiner can normally be reached M-F 7:30-4:30 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ramon Mercado, can be reached on (571) 270-5744. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PAUL W ARELLANO/Examiner, Art Unit 3658
/Ramon A. Mercado/Supervisory Patent Examiner, Art Unit 3658
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