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 .
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 1-5, 7-10, 12-20 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.
In claims 1 and 19, “a forward section of the forward portion” is vague and indefinite since “the forward portion” has no antecedent basis in the claims and it is not clear to what element it is the forward portion.
In claims 1, 19, and 20, “LED” is vague and indefinite. An acronym should be written out in full at least once within each independent claim in order to ensure what the phrase is claiming.
In claims 1, 19, and 20, it is vague and indefinite to claim a first directional sensor aimed in a first direction and a second omnidirectional sensor aimed in a second direction. Since an omnidirectional sensor has by definition no primary direction in which to be aimed, it is not clear how it is aimed in a second direction or how this direction would be defined, or how this second direction relates to the first direction.
In claims 1 and 20, the phrase “within a recess from a front edge of the frame portion” is vague and indefinite. It is not clear what structural limitations are intended or included by “a recess from a front edge”.
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.
Claims 1-5 and 14-20 are rejected under 35 U.S.C. 103 as being unpatentable over Parker et al (2023/0176388) in view of Ehrlich et al (2024/0167787).
Parker et al disclose an optical reflex aiming device 800 for a firearm comprising most claimed elements including a housing 104, 108; an optical element 127, 112 in the housing; an illumination device 804 to project light onto the optical element to display a reticle, the reticle having a first light intensity; a light sensor arrangement comprising a first sensor 820 and a second sensor 824, each sensor providing a respective signal; where the first sensor monitors light reflected from the target and the second sensor monitors the ambient light proximate the sight (paragraph 89); a power supply 812 (e.g. battery); a processor 808 configured to adjust the light intensity of the reticle as a function of the two sensor signals (paragraph 89), depending on the light thresholds of the detected light; and a motion sensor 816 to suspend (i.e. turn off) light adjustment. Parker et al fail to show the illumination device comprises a plurality of LEDs. Ehrlich et al teach that it is well known in sight illumination devices to have any one of a large number of light elements, including a plurality of LEDs. See paragraph 67. Motivation to combine is the mere substitution of particular lighting elements to perform the same function. To employ the teachings of Ehrlich et al on the aiming device of Parker et al and have a plurality of LEDs is considered to have been obvious to one having ordinary skill in the art at the time of the application’s filing.
Claims 6-13 are rejected under 35 U.S.C. 103 as being unpatentable over Parker et al (2023/0176388) in view of Ehrlich et al (2024/0167787) as applied to claims 1-5 and 14-20 above, and further in view of Beckman (2002/0196366).
Parker et al fail to specify that the first sensor is a directional sensor pointed at the target and the second sensor is an omnidirectional sensor; a network adapter to transmit date from the aiming device to a remote device; or the particular parameters of the sensor viewing angles. Beckman teaches that it is well known to use both a directional and an omnidirectional sensor in a rifle scope. Motivation to combine is the substitution of particular types of sensors to provide the same function of measuring light data at a particular angle, i.e. towards the target, and in an omnidirectional manner near the sight. Beckman also teach the transmission of data (paragraphs 60, 68) from the aiming device to a remote device (i.e. bullet 801). Motivation to combine is the improved performance available by being able to use sighting data to increase control over the fired bullet. To employ the teachings of Beckman on the sight device of Parker et al and have a direction and an omnidirectional light sensor, and a networked communication system is considered to have been obvious to one having ordinary skill in the art at the time of the Application’s filing. Also, the mere employment of particular sensing angles is considered to have been obvious to one of ordinary skill in the art since choice of measurement directions are inherently required and it would be well within obvious engineering practice to select angles to provide desired performance, and the particular claimed parameters show no unexpected results.
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 1-5, 7-10, and 12-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,264,894 in view of Ehrlich et al (2024/0167787).
Although the claims at issue are not identical, they are not patentably distinct from each other because they claim substantially the same optical aiming device, except, first, the patented claims include additional elements. However, the mere elimination of an element and its function is considered to be obvious to one having ordinary skill in the art. Secondly, the current claims specify a plurality of LEDs for illumination. However, Ehrlich et al teach that it is well known in sight illumination devices to have any one of a large number of light elements, including a plurality of LEDs. See paragraph 67. Motivation to combine is the mere substitution of particular lighting elements to perform the same function. To employ the teachings of Ehrlich et al on the patent claims and have a plurality of LEDs is considered to have been obvious to one having ordinary skill in the art at the time of the application’s filing.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to J. WOODROW ELDRED whose telephone number is (571)272-6901. The examiner can normally be reached M-F 9:00-5:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Troy Chambers can be reached at 571-272-6874. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/J. Woodrow Eldred/Primary Examiner, Art Unit 3641
JWE
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