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 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 and 14-20 are rejected under 35 U.S.C. 102(a)(1) as being clearly anticipated by Parker et al (2023/0176388).
Parker et al disclose an optical reflex aiming device 800 for a firearm comprising all 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.
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 6-13 are rejected under 35 U.S.C. 103 as being unpatentable over Parker et al (2023/0176388) in view of Beckman (2002/0196366).
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 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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,264,894. 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 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.
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