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 .
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.
Here—the claim 1 contains the limitation “trimming deflection element,” in which “element” is nonce, it is defined by the function of the element (trimming deflection) however, there is sufficiently defined structure in the final paragraph of claim 1 to achieve the whole function of trimming deflection. The importation of detail from the specification is therefore not permitted, and the capability of deflection based on ‘extending radially’ (claim 1 line 9) to outside the margin of the blade (claim 1 line 10) is the structural requirement of the claim.
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.
Claims 1-23 are 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.
Claim 1-23 use the term “trimming deflection element” which is unclear. As the claims as a whole make clear—the size of the element can be between 20 and 255 degrees of arcuate shape—which means it will overlap largely with the circular element of the gauge assembly. The trimming deflection element is also unitary and integral with the gauge—meaning the boundary between what can be called “deflection element” and what is a gauge is not well bounded based on the present record.
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) 1-4, 7, 9, 10, 12-16, 18-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by EP 0689905.
Regarding claim 1, EP 0689905 is considered to be the closest prior art and discloses a power driven rotary knife for slicing thin strips of food, the rotary knife comprising: a handpiece (62); a blade housing (84); an annular blade (82) supported for rotation by the blade housing (84), the annular blade (82) defining an outer circumferential end. EP 0689905 discloses a trimming deflection element 140 (the gauge is per se a deflection element especially at its rolled lip which is a flange portion (148) coupled to the handpiece (60), wherein the flange portion (148) is configured to extend radially outward beyond the extent of the blade housing (84) by a distance (E1 figure 11) and deflect meat so that the slice (22) does not enter a central area of the blade housing (84) (see column 7, lines 19-28, claim 1, and figures 2, 3, 11).
Regarding claim 2 EP 0689905 further discloses annular blade terminating in cutting edge and deflection element spaced axially (see claim 9 and figure 8: the annular blade (34) includes a cutting edge (150) at one axial end, and the flange portion (148) is spaced axially from the cutting edge (150)).
Regarding claim 3 EP 0689905 further discloses the flange portion (148) extending axially in a direction away from the cutting edge (150)). (see figure 8)
Regarding claim 4 EP 0689905 further discloses the flange portion (148) is configured to extend radially outward beyond the extent of the blade housing (84) by a distance (E1 figure 11). (see column 7, lines 19-28, claim 1, and figures 2, 3, 11)
Regarding claim 7 is disclosed in D1 (see figure 11: the flange portion (148) extending radially outward beyond the extent of the blade housing (84) to a distal end of the flange portion (148)).
Regarding claim 9 is disclosed in D1 (see claim 1 and figure 11: a blade housing (84) defining an outer circumferential end that is spaced radially outward from the outer circumferential end of the annular blade (82), the flange portion (148) extending radially outward beyond the extent of the blade housing (84)).
Regarding claim 10 (see claim 7 and figure 3: the handpiece (62) including
an elongated handle (64) that extends longitudinally away from the handpiece (62), the
flange portion (148
EP 0689905 further discloses claim 12 (see column 7, lines 6-28 and figure 11: a cut thickness gauge (140) includes a tubular central portion (144) and a radiused portion (146), and a flange portion (148) is formed at least partially around an upper surface of the cut thickness gauge (140)).
EP 0689905 further discloses claims 13, 14. See column 7, lines 40-58 and figure 11: a clearance (T2) exists between a cutting edge (150) of the annular blade (82) and the radiused edge (146), and the clearance (T2) essentially establishes the thickness (T) of the strip (22) of meat).
EP 0689905 further discloses claim 15: See column 8, lines 1-20 and figure 11: a position of the gauge (140) relative to the cutting edge (150) of the blade (82) can be adjusted to control a depth of cut into a log (24) and a thickness (T) of the strip (22) by establishing a clearance (T2) between the radiused edge (146) of the gauge (140) and the cutting edge (150) of the blade (82) by setting a distance (D3) so that the end surface (142) of the gauge (140) is spaced from the cutting edge of the blade).
Claims 18-20 are clearly anticipated in similar manner as disclosed above.
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.
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) 5, 6, 8, 11, and 23 are rejected under 35 U.S.C. 103 as being unpatentable over EP 0689905.
Regarding claims 5,6, 8, 11 and 23, EP 0689905 does not specify the sizes or angles of the trimming guide and related components. This is clearly because these sizes are adjustable to affect their operation as a designer wishes in an optimization or customization.
The level of ordinary skill in the art is considered to be a person with a B.S. degree in Mechanical engineering, a closely related field or equivalent work experience, as indicated by the quality, nature and extent of the cited references. Additionally, Examiner takes official notice of the fact that a person of ordinary skill in the art would possess a B.S. degree in Mechanical engineering, a closely related field or equivalent work experience. It has been held that changing the size or range of an article is not ordinarily a matter of invention. Appropriate selection of size, weight, ratios, etc. is considered routine, and is typically a matter of design choice. See In re Rose 105 USPQ 237 (CCPA 1955) and also In re Yount (36 C.C.P.A. (Patents) 775, 171 F.2d 317, 80 USPQ 141.
Regarding claims 5, 6, 8, 11, and 23, EP 0689905 discloses a flange which extends substantially around the circular annu8lar blade, in order to direct outward—however does not label the angle of the folded arcuate section, nor the whole surround angle. These elements are clearly the type of dimensions a person of ordinary skill would be able and expected to modify. The fold angle for the guide adjusts the force and direction with which meat is directed, and may be adjusted to adjust that feel and effect. Similarly the extent to which the rim extends around the circumference is adjustable to make it more or less omni-directional. Selecting less than 360 degrees will promote a single or lower range of uses—helping the user to guide with a predictable direction, and having the effect of permitting ergonomic considerations for the handle, etc. rather than permitting more directional variance in the user.
Claim(s) 16-17, 21, 22 are rejected under 35 U.S.C. 103 as being unpatentable over EP 0689905 as applied to claims 1, 18-20 inter alia, above, and further in view of Long (US 20030131482).
Regarding claims 16-17, 21-22, the adjustment of the guide structure of EP 0689905 is not particularly described to include a threaded screw—but this is a known manner of adjusting depth gauges in meat trimmers, as seen in Long: “…via a mount 74 and an adjustment screw 76 which, when rotated, will move the plate 72 upwards or downwards relative to the plane of cutting edge 52. The plate 72 restricts the depth which the knife 10 is permitted to go, although it should be noted that other types of depth control devices can be used with the present invention which will accomplish the same purposes.” ([0034]).
It would have been obvious to one of ordinary skill to adjust EP 0689905 to include specifically a threaded screw engagement and adjustment element, as taught in Long, for the same purpose as expressed therein.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SEAN M MICHALSKI whose telephone number is (571)272-6752. The examiner can normally be reached Typically M-F 6a-3:30p East Coast Time.
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SEAN M. MICHALSKI
Primary Examiner
Art Unit 3724
/SEAN M MICHALSKI/Primary Examiner, Art Unit 3724
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