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 Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “shooting device” in claims 1-19 and “adjustment mechanism arranged to change a width of the first sight window” in claim 12.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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.
Claim 20 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Beitman (8452171).
Beitman discloses a method comprising: orienting a device comprising a first body comprising a first sight window comprising a first central indicator comprising a first channel extending into a base edge of the first sight window and a second body comprising a second sight window comprising a second central indicator comprising a second channel extending into a base edge of the second sight window such that the second sight window is visible through the first sight window and a target is visible through the first sight window and the second sight window, wherein the first central indicator is aligned with the second central indicator (figure 1A, device 2, first body 50 and second body 70, each body can be formed as shown in figure 5B with a sight window 54 and a central indicator channel 56; column 14, lines 31-45; column 15, lines 52-62).
Claim Rejections - 35 USC § 103
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 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 1-11 and 14-20 are rejected under 35 U.S.C. 103 as being unpatentable over Neuhaus (2018/0135940) in view of Grey (2016/0258715), and further in view of Johnson (154871).
In reference to claim 1, Neuhaus discloses an apparatus comprising:
a shooting device comprising a muzzle, a front and a rear, the muzzle located at the front (figure 5, device 16, muzzle at front end 14);
a first body and a second body attached to the device, the first body and the second body aligned upon an axis (first body 30 and second body 18);
the first body comprising a first sight window, the first body comprising a first side edge, a second side edge and a base edge defining the first sight window (figures 1-6, first sight window defined between the inner vertical edges of elements 46 and the base edge connecting them, identical to Applicant’s);
the second body comprising a second sight window, the second body comprising a first side edge, a second side edge and a base edge defining the second sight window (figures 1-6, second sight window defined between the inner vertical edges of elements 22 and the base edge connecting them, identical to Applicant’s);
the axis extending through a center of the first sight window and a center of the second sight window (figures 2 and 3, axis extending into and out of the page through element 24).
Thus, Neuhaus discloses the claimed invention, except for the first body comprising a first central indicator comprising a first channel extending into the base edge, the first channel centered across a width of the first sight window, and the second body comprising a second central indicator comprising a second channel extending into the base edge, the second channel centered across a width of the second sight window. It is noted that the first and second sight windows of Neuhaus are generally U-shaped (figures 1-3).
Grey teaches that it is known to form the sight windows of first and second bodies, similar to those of Neuhaus, with a selected corresponding shape other than generally U-shaped or V-shaped, in order to provide a desired sight picture (figures 1-12; paragraph 37, channels 41 and 51 = first and second sight window analogous to those of Neuhaus). Further, Johnson teaches a known shape for a sight window as comprising a generally U-shaped portion with a centered channel extending into a base edge of the U-shaped portion, so as to provide an additional indicator for the purpose of sight alignment, i.e., the centered channel provides an additional indicator for sight alignment (figure 5, element E).
Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to form the first body with a first central indicator comprising a first channel extending into the base edge, the first channel centered across a width of the first sight window, and the second body with a second central indicator comprising a second channel extending into the base edge, the second channel centered across a width of the second sight window, with a reasonable expectation of success, to provide an improved sight picture including an additional indicator for the purpose of sight alignment, i.e., the centered channels would provide an additional indication of sight alignment.
In reference to claim 2, Neuhaus in view of Grey and further in view of Johnson (the modified Neuhaus) makes obvious the claimed invention (Neuhaus, figures 1-6).
In reference to claim 3, the modified Neuhaus makes obvious the claimed invention, since the channel taught by Johnson would be applied to the base edge of each of the first and second bodies, as set forth above.
In reference to claims 4 and 5, the modified Neuhaus makes obvious the claimed invention (Johnson, figure 5: the v-shaped channel central to element E is clearly less than 1/3 of the width of element E; element E spans between elements A).
In reference to claim 6, the modified Neuhaus makes obvious the claimed invention, as set forth above in the references to claims 2 and 3.
In reference to claim 7, the modified Neuhaus makes obvious the claimed invention (Neuhaus, figures 1-3).
In reference to claim 8, the modified Neuhaus makes obvious the claimed invention (Neuhaus, figure 1, the top surfaces of elements 22 and 32 include curved portions non-parallel to the axis).
In reference to claims 9 and 10, the modified Neuhaus makes obvious the claimed invention (Neuhaus, figures 1-3, either elements 40 or 42).
In reference to claim 11, the modified Neuhaus makes obvious the claimed invention except for the first indicator comprising a radioluminescent material. However, the examiner takes Official Notice that it is well-known to form the indicators of a firearm sight as radioluminescent indicators, e.g., tritium indicators, in order to provide indicators that are clearly visible in low-light environments. Thus, it would have been obvious to one of ordinary skill in the art to form the indicators of Neuhaus as radioluminescent indicators, in order to provide indicators that are clearly visible in low-light environments.
In reference to claim 14, the modified Neuhaus makes obvious the claimed invention, as set forth above in the references to claims 1, 9, and 10. It is noted that the second channel is visible through the first sight window, since the base edge of the second body can be viewed through the first sight window; also, the second channel can be viewed through the first channel.
In reference to claims 15 and 16, the modified Neuhaus makes obvious the claimed invention (Neuhaus, figures 1-3).
In reference to claims 17-19, the modified Neuhaus makes obvious the claimed invention, as set forth above in the references to claims 2-5.
In reference to claim 20, the modified Neuhaus makes obvious the claimed invention, as set forth above.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over the modified Neuhaus, further in view of Merrill (3834035).
The modified Neuhaus makes obvious the claimed invention, except for an adjustment mechanism arranged to change a width of the first sight window. However, Merrill teaches that it is known to provide a sight window of a sight body, similar to that of Neuhaus, with an adjustment mechanism arranged to change a width of the sight window, in order to allow for fine-tuning of the sight window relative to a specific firearm and/or ammunition and/or intended target (figure 1, sight window width D is adjustable via adjustment element 26; column 3, last sentence). Thus, it would have been obvious to one of ordinary skill in the art to modify the first body of the modified Neuhaus to include an adjustment mechanism arranged to change a width of the first sight window, in order to allow for fine-tuning of the sight window relative to a specific firearm and/or ammunition and/or intended target.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over the modified Neuhaus in view of Dueck (see attached Notice of References Cited, Reference U). Neuhaus discloses the claimed invention, except for the first body comprising a hook. It is noted that Applicant’s figure 4 shows a hook on the second body as being formed on a front side of the body (elements 92 and 94 each being a hook). Further, Dueck teaches that it is known to provide a sight body, like the first body of Neuhaus, with a hook on its front side to allow for the sight to engage a surface in order to rack the slide of an attached pistol (figure marked-up photo below). Thus, it would have been obvious to one of ordinary skill in the art to form the first body of the modified Neuhaus with a hook on its front side to allow for the sight to engage a surface in order to rack the slide of an attached pistol.
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Marked-up Photo of Dueck
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 1-22 of U.S. Patent No. 12,305,957. 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, and, thus, “anticipate” the more generic invention of the application claims. Therefore, the application claims are patentably indistinct 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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GABRIEL J. KLEIN
Examiner
Art Unit 3641
/Gabriel J. Klein/Primary Examiner, Art Unit 3641