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 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 1-3, 4-9, 11 and 19 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 recites the limitation "the vehicle" in line 6. There is insufficient antecedent basis for this limitation in the claim. For the purpose of examination, it will be assumed that this was intended to read as “the vehicle chassis”.
Claim 19 depends from claim 18, which has been cancelled.
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 12 is rejected under 35 U.S.C. 102(a)(1) as being clearly anticipated by Cutts, Sr., et al. (US Patent No. 3,590,566).
In reference to claim 12, Cutts discloses a harvesting apparatus, comprising:
a. a chassis 1 (Fig. 2);
b. a shaker head 36 configured to engage a trunk of a tree 11 in an orchard row and apply vibratory motion thereto to dislodge fruit or nuts (Fig. 1); and
c. a blower unit 39 configured to blow the dislodged fruit or nuts to a path opposite the tree trunk (Fig. 1), wherein the shaker head 36 and blower unit 39 are operable to perform shaking and blowing operations sequentially or simultaneously in a single pass of said harvesting apparatus along said orchard row (Fig. 1).
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.
Claims 1, 23 and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Cutts, Sr., et al. (US Patent No. 3,590,566) in view of Block (US Patent No. 3,762,140).
In reference to claim 1, Cutts discloses a harvesting apparatus, comprising:
a. a vehicle chassis 1 (Fig. 2);
b. a shaker assembly 36 (Figs. 1 and 2) mounted to the chassis 1 and configured to engage a trunk of a tree 11 in an orchard row and apply vibratory forces to remove fruit or nuts from the tree 11 (Fig. 1); and
c. a blower assembly 39 mounted to the vehicle and configured to direct a flow of air beneath the tree 11 to move the removed fruit or nuts to an opposite side of said orchard row for collection (Fig. 1).
Cutts discloses all of the limitations of claim 1 with the exception of windrowing the fruit or nuts.
Block discloses that fruit gathered by a harvester can be deposited in a windrow (Fig. 3, col. 3, lines 1-2). It would have been obvious to a person having ordinary skill in the art to deposit collected fruit in a windrow rather than a container with a reasonable expectation of success so that the fruit or nuts can be picked up by a separate vehicle.
In reference to claim 23, Cutts discloses a method for harvesting fruit or nuts in an orchard using a mobile harvesting apparatus, comprising:
a. positioning the apparatus adjacent to a tree 11 in an orchard row (Fig. 1);
b. engaging a shaker head 36 with a trunk of the tree and applying a vibratory force to dislodge fruit or nuts (Fig. 1); and
c. operating a blower 39 attached to the apparatus to direct a stream of air beneath the tree and move the dislodged fruit or nuts to an opposite side of the orchard row for collection (Fig.1).
Cutts discloses all of the limitations of claim 23 with the exception of windrowing the fruit or nuts.
Block discloses that fruit gathered by a harvester can be deposited in a windrow (Fig. 3, col. 3, lines 1-2). It would have been obvious to a person having ordinary skill in the art to deposit collected fruit in a windrow rather than a container with a reasonable expectation of success so that the fruit or nuts can be picked up by a separate vehicle.
In reference to claim 26, Cutts discloses adjusting a pitch angle of a blower discharge outlet 71 to direct airflow (Fig. 1).
Double Patenting
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, 11, 12, 23 and 34 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 5, 6, 7, 14, 18, 20, 21 and 22 of copending Application No. 18/985,084 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the listed claims of the reference application entirely anticipate the listed claims of the present invention.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Allowable Subject Matter
Claims 13, 15, 16, 21, 24 and 28 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claims 2, 4-9, 11 and 19 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Marrs (US Patent Application Publication No. 2015/0319930) discloses a harvester with a shaker 27 and blower 50 (Fig. 1); and Windemuller et al. (US Patent No. 5,259,177) discloses a harvester with shakers 40 and blowers 160 (Fig. 3).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRAD HARCOURT whose telephone number is (571)272-7303. The examiner can normally be reached Monday through Friday, 9am to 6pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Doug Hutton can be reached at (571)272-4137. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/BRAD HARCOURT/Primary Examiner, Art Unit 3674
9/28/26
