DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. 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
2. 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).
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Claims 1, 2, 4, 5, 6, 8, 9, 10, 12, 13, 14, 17 and 18 are non-provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 1, 2+1, 4, 5+1, 11, 8, 9, 10, 1, 14, 14, 16 and 17 respectively of U.S. Patent No. 12313543 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant application is broader than the patent, therefore, the patented claims anticipate the instant claims.
Claims 1, 2, 4, 5, 6, 8, 9, 10, 12, 13, 14, 17 and 18 of the instant application correspond to the patented claims as follows:
Instant application
USPAT 12313543 B2
1, 2, 4, 5, 6, 8, 9, 10, 12
1, 2+1, 4, 5+1, 11, 8, 9, 10,1 respectively.
13, 14, 17, 18
14, 14, 16, 17 respectively.
Claim Rejections - 35 USC § 102
3. 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.
4. Claims 13-14 and 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US Patent No. 3951098 by Meyers (hereinafter Meyers).
Regarding Claim 13, Meyers teaches a method, comprising:
wicking water (Fig. 2 @ 34, 36, moisture flows from stem to indicator is a capillary action. Also see Col. 1, line 18-19: capillary action) in soil (Fig. 1 @ 14) at a target rate (inherently teaches a target rate) by a stem (Fig. 1 @ 34) of a device (Fig. 1-3 @ 18) positioned in the soil to an indicator (Fig. 2 @ 36) of the device (Fig. 1-3 @ 18) positioned above the soil (Fig. 1 @ 14, Abstract) while maintaining structural integrity of the device (Fig. 1-2, illustrates such configuration); and
visually indicating a moisture content of the soil via the indicator (Abstract, claim e), where the indicator is configured to change color when exposed to water (Abstract).
Regarding Claim 14, Meyers teaches the indicator and the stem are formed from a same piece of absorbent material (See Claim 1 rejection. Note: an apparatus claim can be used to implement a method claim).
Regarding Claim 20, Meyers teaches the target rate is an absorbency of 1mL water in about 5 to about 12 minutes (inherently teaches).
Claim Rejections - 35 USC § 103
5 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.
6. Claims 1-4 and 8-12 are rejected under 35 U.S.C. 103 as being unpatentable over US Patent No. 3951098 by Meyers (hereinafter Meyers) in view of US Patent Pub. No. 2016/0123867 A1 by Orihara (hereinafter Orihara).
Regarding Claim 1, Meyers teaches a device (Fig. 1-3 @ 18) for indicating a moisture content of soil (Abstract), comprising (Fig. 1-3):
a stem (Fig. 2 @ 34) configured to be inserted into the soil (Fig. 1 @ 14); and
an indicator (Fig. 2 @ 36) coupled to the stem (Fig. 2 @ 34) and configured to visually indicate the moisture content of the soil (Abstract, claim e), the stem (Fig. 2 @ 34) and the indicator (Fig. 2 @ 36) formed from a same piece of absorbent material (Fig. 2 @ 22, Col. 2, line 58-61: The wick 22 may be comprised of any moisture absorbing material, including fiberglas, a paper blotter-type material or cloth, or other known wicking material, e.g., cellulose sponge, Col. 2, line 65-68 to Col. 3, line 1-5, thus teaches the limitation because the indicator and the stem are part of the wick 22), and at least the indicator (Fig. 2 @ 36) including ink (Abstract: cobalt chloride, i.e., the ink) but does not explicitly teach hydrochromic ink on the absorbent material.
However, Orihara teaches the indicator (Fig. 1 @ 1) including hydrochromic ink (Fig. 1 @ 22, Par. [0022]) on the absorbent material (Fig. 1 @ 3, Par. [0022]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Meyers by Orihara as taught above such that the indicator including hydrochromic ink on the absorbent material is accomplished in order to visualize the hydrochromic ink changes in color tone between the water absorption state and the dry state (Orihara, Par. [0022]).
Regarding Claim 2, Meyers teaches wherein the indicator (Fig. 2 @ 36) is configured to be positioned above the soil (Fig. 1 @ 14, Abstract), wherein the stem (Fig. 2 @ 34) has a first width at a top region of the stem (Fig. 2 @ 34, illustrates a first width) where the stem (Fig. 2 @ 34) couples to the indicator (Fig. 2 @ 36) and the indicator (Fig. 2 @ 36) has a second width at a bottom region (Fig. 2 @ 36, illustrates a second width) where the indicator (Fig. 2 @ 36) couples to the stem (Fig. 2 @ 34), and wherein the second width is larger than the first width (Fig. 2 @ 34, 36, illustrates such configuration), and wherein the full surface of the indicator is visible and not obscured (Fig. 2 @ 36).
Regarding Claim 3, Meyers as modified by Orihara teaches the device is configured to allow fungal or bacterial growth (inherently teaches due to moisture content).
Regarding Claim 4, Meyers as modified by Orihara teaches wherein the indicator include the hydrochromic ink on the absorbent material (See Claim 1 rejection) but does not explicitly teach both the stem and the indicator include the hydrochromic ink on the absorbent material.
However, it is considered obvious to try all known solutions when there is a recognized need in the art (both the stem and the indicator include the hydrochromic ink on the absorbent material), there had been a finite number of identified, predictable solutions to the recognized need (both the stem and the indicator include the hydrochromic ink on the absorbent material, both the stem and the indicator do not include the hydrochromic ink on the absorbent material), and when one of ordinary skill in the art could have pursued the known potential solutions with a reasonable expectation of success. See MPEP § 2143, E. Furthermore, such an arrangement would imply to one of ordinary skill in the art before the effective filing date of the claimed invention to use both the stem and the indicator include the hydrochromic ink on the absorbent material to see the exact progression of the water. If the indicator doesn't change color, you can pull the tab out slightly to see if the stem turned color, confirming whether the water is successfully wicking upward or if the soil is completely dry.
Regarding Claim 8, Meyers teaches the absorbent material comprises a multilayer composite paper (Fig. 2 @ 22, Col. 2, line 58-61: The wick 22 may be comprised of any moisture absorbing material, including fiberglass, a paper blotter-type material (i.e., the multilayer composite paper) or cloth, or other known wicking material, e.g., cellulose sponge).
Regarding Claim 9, Meyers as modified by Orihara teaches wherein the absorbent material (See Claim 6 rejection) but does not explicitly teach comprises a wood pulp board.
However, it is considered obvious to try all known solutions when there is a recognized need in the art (a wood pulp board), there had been a finite number of identified, predictable solutions to the recognized need (a wood pulp board, composite paper), and when one of ordinary skill in the art could have pursued the known potential solutions with a reasonable expectation of success. See MPEP § 2143, E. Furthermore, such an arrangement would imply to one of ordinary skill in the art before the effective filing date of the claimed invention to use the absorbent material comprises a wood pulp board because it combines high liquid absorption, fast wicking, softness, and cost-effectiveness.
Regarding Claim 10, Meyers teaches wherein the absorbent material is configured to maintain a same shape, size, and structure when wet as when dry (Fig. 2 @ 22).
Regarding Claim 11, Meyers teaches the absorbent material (See Claim 1 rejection above) but does not explicitly teach a Cobb value of the absorbent material is 50g/m2.
However, it is considered obvious to try all known solutions when there is a recognized need in the art (50g/m2), there had been a finite number of identified, predictable solutions to the recognized need (50g/m2, 26 g/m2), and when one of ordinary skill in the art could have pursued the known potential solutions with a reasonable expectation of success. See MPEP § 2143, E. Furthermore, such an arrangement would imply to one of ordinary skill in the art before the effective filing date of the claimed invention to use a Cobb value of the absorbent material is 50g/m2, it is critical because the standard explicitly excludes materials below this grammage, making it a key quality and compliance parameter for this weight class ensuring predictable performance and adherence to ISO 535 requirements.
Regarding Claim 12, Meyers teaches the device is biodegradable (Fig. 1-3 @ 18, 22, Col. 2, line 58-61: The wick 22 may be comprised of any moisture absorbing material, including fiberglas, a paper blotter-type material or cloth, or other known wicking material, e.g., cellulose sponge, Col. 2, line 65-68 to Col. 3, line 1-5, thus teaches the limitation because the indicator and the stem are part of the wick 22 which is part of device 18. Note: Paper, cloth are biodegradable).
7. Claims 5-7 are rejected under 35 U.S.C. 103 as being unpatentable over Meyers in view of Oriharaas applied to Claim 1 above and further US Patent No. 8997682 B1 by Ashcroft (hereinafter Ashcroft).
Regarding Claim 5, Meyers as modified by Orihara teaches the hydrochromic ink, wherein at least a portion of the hydrochromic ink is visible (See Claim 1 rejection above. Also see Orihara, Par. [0022]) but does not explicitly teach a non-hydrochromic ink printed on the hydrochromic ink.
However, Ashcroft teaches a non-hydrochromic ink (Fig. 3a, 3b @ 28) printed on the hydrochromic ink (Fig. 3a, 3b @ 38).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Meyers as modified by Orihara by Ashcroft as taught above such that a non-hydrochromic ink printed on the hydrochromic ink is accomplished in order to when in the wet state, moisture indicating material 38 (i.e., the hydrochromic ink) is wetted and the moisture indicating material becomes transparent allowing the user to see the color of moisture indicating color 28 (i.e., the non-hydrochromic ink) (Ashcroft, Col. 6, line 11-14]).
Regarding Claim 6, Meyers as modified by Orihara teaches the hydrochromic ink (See Claim 1 rejection above) but does not explicitly teach is a reversible hydrochromic ink such that the hydrochromic ink is configured to change from being opaque to being transparent when the hydrochromic ink is exposed to water in the soil and, after becoming transparent when exposed to the water, is configured to change from being transparent to being opaque when the hydrochromic ink is no longer exposed to water in the soil and/or in the absorbent material.
Hoewver, Ashcroft teaches a reversible hydrochromic ink such that the hydrochromic ink is configured to change from being opaque to being transparent when the hydrochromic ink is exposed to water in the soil and, after becoming transparent when exposed to the water, is configured to change from being transparent to being opaque when the hydrochromic ink is no longer exposed to water in the soil and/or in the absorbent material (Fig. 3a, 3b, Col. 4, line 5-7, 60-67 - Col. 5, line 1-7).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Meyers as modified by Orihara by Ashcroft as taught above such that a reversible hydrochromic ink such that the hydrochromic ink is configured to change from being opaque to being transparent when the hydrochromic ink is exposed to water in the soil and, after becoming transparent when exposed to the water, is configured to change from being transparent to being opaque when the hydrochromic ink is no longer exposed to water in the soil and/or in the absorbent material is accomplished in order to provide visual information about dryness/wetness of a substrate such as plant soil (Ashcroft, Abstract).
Regarding Claim 7, Meyers as modified by Orihara as modified by Ashcroft teaches the stem and/or the indicator include an intervening layer of non-hydrochromic ink (Ashcroft, Fig. 3a, 3b @ 28, Col. 4, line 5-11, 60-67 to Col. 5, line 1-12; Col. 6, line 11-14) on the absorbent material (Ashcroft, Fig. 3a, 3b @ 30, 32, Col. 4, line 5-11, 60-67 to Col. 5, line 1-12; Col. 6, line 11-14) between the absorbent material (Ashcroft, Fig. 3a, 3b @ 30, 32, Col. 4, line 5-11, 60-67 to Col. 5, line 1-12; Col. 6, line 11-14) and the hydrochromic ink (Ashcroft, Fig. 3a, 3b @ 38, Col. 4, line 5-11, 60-67 to Col. 5, line 1-12; Col. 6, line 11-14), wherein the intervening layer is configured to allow water to be transmitted between the absorbent material and the hydrochromic ink (Ashcroft, Col. 4, line 5-11, 60-67 to Col. 5, line 1-12; Col. 6, line 11-14).
8. Claims 15-19 are rejected under 35 U.S.C. 103 as being unpatentable over Meyers in view of Ashcroft.
Regarding Claims 15-16, Meyers teaches the device (See Claim 13 rejection above) and the absorbent material (See Claim 14 rejection above) but does not explicitly teach has a thickness of 2 to 3 mm and wherein the thickness is the thickness of the absorbent material.
However, Ashcroft teaches a thickness and wherein the thickness is the thickness of the absorbent material (Fig. 3a, 3b @ 30, Col. 4, line 35-50).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Meyers by Ashcroft as taught above such that the device has a thickness and wherein the thickness is the thickness of the absorbent material is accomplished in order to balance the water transfer by capillary action and thereby representing the moisture content properly (Ashcroft, Col. 4, line 35-50).
Still lacking limitation such as: a thickness of 2 to 3 mm.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use optimum range in order to balance the water transfer by capillary action and thereby representing the moisture content properly. Since it has been held that where the general condition of a claim are disclosed in the prior art, discovering the optimum or working ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. (MPEP 2144.05).
Regarding Claim 17, Meyers as modified by Orihara teaches wicking water in the soil by the stem to the indicator comprises wicking the water with the absorbent material of the stem to the absorbent material of the indicator, and wherein visually indicating the moisture content of the soil via the indicator comprises exposing at least a portion of a hydrochromic ink on the absorbent material of the indicator to the water, wherein the water is wicked to the hydrochromic ink by the absorbent material of the stem and the indicator (Meyers, Fig. 1-2, See Claims 1, 13 rejection).
Regarding Claim 18, Meyers as modified by Orihara teaches visually indicating the moisture content of the soil via the indicator (See Claim 17 rejection above) comprises:
indicating that the moisture content is sufficient when the hydrochromic ink changes from opaque to transparent (See Claim 6 rejection above); and
indicating that the moisture content is insufficient when the hydrochromic ink changes from transparent to opaque (See Claim 6 rejection above).
Regarding Claim 19, Meyers as modified by Orihara teaches an amount of the hydrochromic ink changing from opaque to transparent or from transparent to opaque corresponds to a level of moisture in the soil (See Claim 6 rejection above).
Additional Prior Art
9. The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure. The reference listed teaches of other prior art method/system of indicating a moisture content of soil.
US Patent No. 4184445 by Burrows (Fig. 1-5).
US Patent No. 4201080 by Slepak et al. (Fig. 1-4).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMIL AHMED whose telephone number is (571)272-1950. The examiner can normally be reached M-F: 9:00 AM - 5:00 PM.
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/JAMIL AHMED/Primary Examiner, Art Unit 2877
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