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.
Claim Objections
Claim 9 is objected to because of the following informalities: Claim 9 reads “wielding” instead of –welding--. Appropriate correction is required.
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.
Claim(s) 1, 3-5 and 8 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Breuer (10,480,154).
Regarding claim 1, Breuer discloses an accessory for an excavator (100) or mini excavator comprising:
Wherein excavator has a bucket (212) with an opening and a movable thumb (404) on the opposite of the bucket opening
A plate (520) sized to cover at least a portion of the opening of the bucket (Figure 11)
a socket (space between elements 530) for receiving the thumb (404) to attach said plate (520) to the thumb (404) (Figure 9) thereby allowing said attachment to move with the thumb wherein operation of the thumb causes said attachment to cover (Figure 11) or uncover (Figure 10) said portion of the opening of the bucket
Regarding claim 3, Breuer disclose that the plate is rectangular (Figure 10).
Regarding claim 4, Breuer discloses that the plate is larger than, smaller than or equal in size to the excavator bucket but larger than the thumb (Figure 10).
Regarding claim 5, Breuer discloses that the plate is solid (Figure 10).
Regarding claim 8, the socket has holes (522) for receiving bolts or screws (Figure 9).
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.
Claim(s) 2 and 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Breuer (10,480,154)
Regarding claim 2, Breuer discloses the invention as described above but fails to disclose if the plate is constructed of one of steel, iron and plastic. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize steel, iron or plastic for the plate, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416. It is also common knowledge to choose a material that has sufficient strength, durability, flexibility, hardness, etc. for the application and intended use of that material.
Regarding claim 9, Breuer discloses the invention as described above, but fails to specifically disclose how the plate is attached to the socket. It would have been an obvious matter of design choice to utilize welding, bolts or screws to attach the plate to the socket, as Applicant has not disclosed that it solves any stated problem of the prior art or is for any particular purpose. It appears that the invention would perform equally well as the invention disclosed by Breuer.
Claim(s) 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Breuer (10,480,154) as applied to claim 1 above and further in view of Matsumoto (2013/0192098).
Regarding claim 6, Breuer discloses the invention as described above but fails to disclose a lip on a downward edge that is bent upward at a 90° angle. Like Breuer, Matsumoto also discloses an attachment for a bucket that pushes material into the bucket comprising a plate (32). Unlike Breuer, Matsumoto discloses a lip (16) bent upward at a 90° angle for aiding in moving material into the bucket. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include a lip on the plate of Breuer as taught by Matsumoto as it would be combining prior art elements according to known methods to obtain predictable results (KSR International Co. v. Teleflex Inc., 550 USPQ2d 1385 (2007)).
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Breuer (10,480,154) as applied to claim 1 above and further in view of Hawkins (5,678,332).
Regarding claim 7, Breuer discloses the invention as described above including the socket formed between the socket elements (530) for receiving the thumb (404). Breuer fails to disclose that the socket could be a square opening, rectangular opening or two bent u-shaped openings. Like Breuer, Hawkins also discloses an attachment for a thumb of an excavator that includes a socket for receiving the thumb. Unlike Breuer, Hawkins discloses a square opening (42) for receiving the thumb. It would have been obvious to one having ordinary skill before the effective filing date of the claimed invention to utilize a square socket as taught by Hawkins since a change in the shape of a prior art device is a design consideration within the skill of the art. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
Claim(s) 10-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Breuer (10,480,154) as applied to claim 1 above and further in view of Hawkins (5,678,332).
Regarding claims 10 and 11, Breuer discloses the invention as described above but fails to disclose that the plate has a cutting edge attached on the side of the plate and extending toward the bucket. Like Breuer, Hawkins also discloses an attachment including a plate member (C) for a thumb on an excavator. Unlike Breuer, Pisco discloses a cutting member (serrated edge of 40) connected perpendicular to the side of the plate member. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include a serrated member capable of cutting in Breuer as taught by Hawkins as it would be combining prior art elements according to known methods to obtain predictable results (KSR International Co. v. Teleflex Inc., 550 USPQ2d 1385 (2007)). Further, Hawkins discloses that the width of the attachment can vary (Figures 4-5). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize an attachment that extends within the edges of the bucket or beyond the edges of the bucket since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level or ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. McCoy (7,533,481) also discloses a socket on a thumb of an excavator for receiving an attachment.
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/JAMIE L MCGOWAN/Primary Examiner, Art Unit 3671
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