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 .
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.
Claim 17 is 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 17 recites the limitation "the channel" in line 2. There is insufficient antecedent basis for this limitation in the claim. For purposes of examination, the examiner will consider said limitation as reading “a channel.” Correction and/or clarification are required.
Claim Rejections - 35 USC § 102
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.
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 14-19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Golden (4524673).
In reference to claim 14, Golden discloses a drum magazine comprising:
a drum comprising:
a generally cylindrical body (figure 1) having a top, a bottom, an inner portion (any one of elements 52, 54, or 56, or the combination of all three), and an outer portion (housing 12), wherein the inner portion and the outer portion are configured to rotate with respect to each other (column 4, lines 44-54);
an opening in the top of the body (figure 3, the opening in element 68);
a transition drum disposed at the opening (element 20);
a chamber configured to house a round of ammunition (element 220 has five such chambers),
wherein when the inner portion and the outer portion rotate with respect to each other, the drum magazine is configured such that rotational motion moves the round of ammunition towards the opening while the round of ammunition remains within the chamber, then when the round of ammunition reaches the opening, the rotational motion moves the round of ammunition from the chamber to the transition drum (column 5, lines 1-6; also see figure 3, which illustrates how a round of ammunition that is in a chamber of element 220 moves towards the opening while the round of ammunition 14 remains within the chamber, then when the round of ammunition reaches the opening, the rotational motion moves the round of ammunition from the chamber to the transition drum).
In reference to claim 15, Golden discloses the claimed invention (looking at figures 1-3, a person of ordinary skill in the art would at once envisage that the drum magazine is configured as claimed).
In reference to claim 16, Golden discloses the claimed invention (figure 4, the cylindrical, vertical walls of elements 72, 74, and 76 form a shell that is integrally formed with the outer portion).
In reference to claim 17, Golden discloses the claimed invention (figures 3 and 4, dividers 100 define channels 60 and prevent a round of ammunition from moving laterally with respect to the channel while still allowing the round to move latitudinally along the channel e.g., up to the next layer).
In reference to claim 18, Golden discloses a drum magazine comprising:
a drum comprising:
a generally cylindrical body (element 120);
a base having a base plate allowing access to an interior of the base (base plate 78 with loading door 80 allowing access);
a top having at least one of a top plate and a lid (element 68);
a channeled component having a plurality of channels, each being configured to hold a round of ammunition (figure 4, channeled component 52, channels 60); and
a tiered component having a platform (figures 1, 3, and 4, tiered component 12, which includes tiers 72, 74, and 76, each tier having a platform with a through opening, e.g., openings 108 and 110);
a transition drum configured to transfer the round of ammunition from the drum to a weapon (figures 1, 3, and 4, transition drum 20); and
an actuator disposed within the base, the actuator being configured to drive a rotation of the channeled component with respect to the tiered component, the rotation being configured to move the round of ammunition along the platform and into the transition drum (figure 5 shows the actuator, i.e., drive system; figure 2 shows that said actuator is disposed at least partially within the base).
In reference to claim 19, Golden discloses the claimed invention (spiral torsion spring 16 is part of the drive system).
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-16 of U.S. Patent No. 12305953. Although the claims at issue are not identical, they are not patentably distinct from each other because the patent claims include each and every feature of the application claims, except for some features that are known in the prior art as evidenced above. Further, it would have been obvious to modify the invention of the patent claims to include features of the application claims, in order to realize the advantages and benefits associated therewith. Thus, the application claims are not patentably distinct from the patent claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: see attached Notice of References Cited.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GABRIEL J KLEIN whose telephone number is (571)272-8229. The examiner can normally be reached 11:30am-8pm.
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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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GABRIEL J. KLEIN
Examiner
Art Unit 3641
/Gabriel J. Klein/ Primary Examiner, Art Unit 3641