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 .
Priority
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in Germany on 05/23/24. It is noted, however, that applicant has not filed a certified copy of the German application, DE10 2024 204 736.8, as required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 5/22/25 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Linder, British Patent Publication GB 2509100A (hereinafter "Linder") in view of Sui et al., Chinese Patent Publication CN 116811828 (hereinafter “Sui”).
In Reference to Claim 1:
Linder discloses a swivel angle measuring device designed and configured for indirectly sensing a swivel angle of a swashplate (1) or cylinder drum of a hydrostatic axial piston machine (Figure 1), the swivel angle being adjustable by an adjustment piston guided in an adjustment cylinder, the swivel angle measuring device comprising: a movable encoder (3) having a single magnet configured to be carried linearly and translationally by the adjustment piston (2) along a movement direction of the adjustment piston; and a transducer (5) affixed to a housing of the hydrostatic axial piston machine, wherein the swivel angle measuring device is translational, and wherein, in an end position of the adjustment piston.
Linder fails to disclose an encoder having two magnets and the two permanent magnets being separated from one another by a distance and at least one of the two permanent magnets is arranged at least in sections inside a return spring of the adjustment piston.
However, in the same field of endeavor, displacement sensors, Sui discloses a displacement sensor structure featuring two permanent magnets carried in a linear and translational manner by a piston along a direction of movement and wherein the two magnets are distanced from each other. See, Figure 1.
Examiner notes it would have been obvious to a person having ordinary skill in the art at the time of effective filing to modify the displacement sensor of Linder with the displacement sensor system as taught by Sui because such a modification is a simple substitution of one known sensor for another providing the same predictable results. Furthermore, it would have been obvious to a person having ordinary skill in the art at the time of effective filing to simply modify Linder with the teachings of Sui, namely two magnets separated, instead of substituting because as discussed in Linder such a modification provides for more accurate and precise results from the system of Linder.
Linder as modified by Sui fails to explicitly disclose wherein at least one of the two permanent magnets is arranged at least in sections inside a return spring of the adjustment piston.
However, it would have been obvious to a person having ordinary skill in the art at the time of effective filing to further modify Linder such that the magnets were placed in the end portion of the piston (in Sui they are located in the central portion of the master piston) of the piston wherein biasing/return spring would then be located to be surrounding said magnets (as can be seen in Sui the return/biasing spring sit within a flange area where the piston head extends beyond the spring) because such a modification is merely a design choice of rearranging parts without modifying the function/operation of the sensor. See, MPEP 2144.04, VI, C. Examiner further notes that review of Applicant’s specification fails to address any criticality or technical advantage to having the magnet surrounded by the piston.
In Reference to Claim 2 and 3:
It would have been obvious to a person having ordinary skill in the art at the time of effective filing to modify the end position of the adjustment piston, one of the two permanent magnets is arranged completely inside the return spring or alternatively one of the two permanent magnets is arranged completely inside the return spring, while the other of the two permanent magnets is arranged in sections inside the return spring, as such a modification of Lindor is merely a design choice or rearrangement of parts which would not destroy the fundamental operation of Lindor as modified by Sui. See, MPEP 2144.04, VI, C. Examiner further notes that review of Applicant’s specification fails to address any criticality or technical advantage to having the magnet surrounded by the piston.
In Reference to Claim 4:
Linder as modified further discloses wherein north poles and south poles of the permanent magnets are arranged in alternating order along the movement direction of the adjustment piston, or wherein either respective north poles (N) or respective south poles of the permanent magnets are assigned to one another along the movement direction of the adjustment piston. As shown in Sui Figure 2.
In Reference to Claim 5:
Examiner notes it would have been obvious to a person having ordinary skill in the art to have the orientation of the two permanent magnets has a main axis extending through a south pole and through a north pole, and main axes of the permanent magnets are arranged perpendicular to the movement direction of the adjustment piston as such a configuration is merely a design choice. The modification for orienting the magnets in a certain configuration would merely change the strength of the signal to the sensor but would not alter how the sensor functions just how said signal is registered and counted for when determining displacement.
In Reference to Claim 6:
Linder as modified further disclose wherein the transducer is configured to sense all possible directions of movement of the two permanent magnets in a plane of motion. Examiner notes Linder just like Applicants motion is limited to a single translational movement due to the piston being in a bore.
In Reference to Claim 7:
Linder as modified further discloses wherein the transducer has an electronic sensor component which has a longitudinal axis defining a main axis of the transducer, and the main axis of the transducer is arranged transversely or longitudinally to the movement direction of the adjustment piston. See, Linder Figure 1 and Sui also shows said configuration in Figure 2.
In Reference to Claim 8:
Linder discloses a hydrostatic axial piston machine (Figure 1) of a swashplate (1) or inclined axle design, comprising: a swashplate (1) or cylinder drum having a swivel angle that is adjustable by an adjustment piston (2) guided in an adjustment cylinder; and a swivel angle measuring device (3 and 5) configured to indirectly sense the swivel angle, the swivel angle measuring device comprising:a movable encoder (3) having a magnets configured to be carried linearly and translationally by the adjustment piston (2) along a movement direction of the adjustment piston, ; and a transducer (5) affixed to a housing of the hydrostatic axial piston machine wherein the swivel angle measuring device is translational
Linder fails to disclose wherein the encoder has two permanent magnets being separated from one another by a distance and wherein, in an end position of the adjustment piston, at least one of the two permanent magnets is arranged at least in sections inside a return spring of the adjustment piston.
However, in the same field of endeavor, displacement sensors, Sui discloses a displacement sensor structure featuring two permanent magnets carried in a linear and translational manner by a piston along a direction of movement and wherein the two magnets are distanced from each other. See, Figure 1.
Examiner notes it would have been obvious to a person having ordinary skill in the art at the time of effective filing to modify the displacement sensor of Linder with the displacement sensor system as taught by Sui because such a modification is a simple substitution of one known sensor for another providing the same predictable results. Furthermore, it would have been obvious to a person having ordinary skill in the art at the time of effective filing to simply modify Linder with the teachings of Sui, namely two magnets separated, instead of substituting because as discussed in Linder such a modification provides for more accurate and precise results from the system of Linder.
Linder as modified by Sui fails to explicitly disclose wherein at least one of the two permanent magnets is arranged at least in sections inside a return spring of the adjustment piston.
However, it would have been obvious to a person having ordinary skill in the art at the time of effective filing to further modify Linder such that the magnets were placed in the end portion of the piston (in Sui they are located in the central portion of the master piston) of the piston wherein biasing/return spring would then be located to be surrounding said magnets (as can be seen in Sui the return/biasing spring sit within a flange area where the piston head extends beyond the spring) because such a modification is merely a design choice of rearranging parts without modifying the function/operation of the sensor. See, MPEP 2144.04, VI, C. Examiner further notes that review of Applicant’s specification fails to address any criticality or technical advantage to having the magnet surrounded by the piston.
In Reference to Claim 9:
Linder as modified further disclose wherein: the adjustment cylinder is a differential cylinder, the adjustment piston has a piston rod to which a transverse pin is attached, the two permanent magnets are attached indirectly via a carrier component to an end portion of the piston rod, and the carrier component (See, Sui) extends along the movement direction. See, Linder Figure 2. Which shows a transverse pin (not labled) between the double acting adjustment piston responsible for moving the swash plate.
Allowable Subject Matter
Claim 10-13 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. The prior art fails to disclose the attachment structure of a carrier to house the two magnets and how said carrier is attached via screw and centered via pin as recited in claim 10 and similarly in claim 11.
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.
Claim 1 and 4-9 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1, 3-8 and 10 of co-pending Application No. 19211944 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the differences in the Application claims are broader in at least one aspect and recite additional features which areobvious modifications in light of a person having ordinary skill in the art.
This is a provisional non-statutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
A comparison of the application claims and the co-pending application claims highlights the additional features.
Application 19/216291 Claim 1
Co- Pending Application 19/211944 Claim 1
A swivel angle measuring device designed and configured for indirectly sensing a swivel angle of a swashplate or cylinder drum of a hydrostatic axial piston machine, the swivel angle being adjustable by an adjustment piston guided in an adjustment cylinder, the swivel angle measuring device comprising:
a movable encoder having two permanent magnets configured to be carried linearly and translationally by the adjustment piston along a movement direction of the adjustment piston, the two permanent magnets being separated from one another by a distance;
and a transducer affixed to a housing of the hydrostatic axial piston machine,
wherein the swivel angle measuring device is translational,
and wherein, in an end position of the adjustment piston, at least one of the two permanent magnets is arranged at least in sections inside a return spring of the adjustment piston.
A swivel angle measuring device configured for indirectly sensing a swivel angle of a swashplate or a cylinder drum of a hydrostatic axial piston machine, the swivel angle is adjustable by an adjustment piston guided in an adjustment cylinder, the swivel angle measuring device comprising:
a movable encoder;
and a transducer affixed to a housing of the hydrostatic axial piston machine, wherein the swivel angle measuring device is translational, wherein the movable encoder is formed by two permanent magnets carried in a linear and translational manner by the adjustment piston along a direction of movement of the adjustment piston, and
wherein the two permanent magnets have a distance to each other.
Following the rationale in In re Goodman, cited above, where applicant has once been granted a patent containing a claim for the specific or narrower invention, may not then obtain a second patent with a claim for the generic or broader invention without first submitting an appropriate terminal disclaimer. Since application claim 1 is anticipated by co pending application claim 1, with respect to the broadening aspect, and since anticipation is the epitome of obviousness, then application claim 1 is obvious over patent claim 1 with respect to the broadening aspect.
With regard to the additional features of claim 1, co-pending application fails to claim wherein, in an end position of the adjustment piston, at least one of the two permanent magnets is arranged at least in sections inside a return spring of the adjustment piston. However, it would have been obvious to a person having ordinary skill in the art at the time of effective filing to further modify Linder such that the magnets were placed in the end portion of the piston (in Sui they are located in the central portion of the master piston) of the piston wherein biasing/return spring would then be located to be surrounding said magnets (as can be seen in Sui the return/biasing spring sit within a flange area where the piston head extends beyond the spring) because such a modification is merely a design choice of rearranging parts without modifying the function/operation of the sensor. See, MPEP 2144.04, VI, C. Examiner further notes that review of Applicant’s specification fails to address any criticality or technical advantage to having the magnet surrounded by the piston.
For dependent claims 4-7, the recited limitations are contained in co-pending application claims 3-6, respectively.
For Independent claim 8, the recited limitations are contained within co-pending Application claim 8, with exception to the one additional feature of claim wherein, in an end position of the adjustment piston, at least one of the two permanent magnets is arranged at least in sections inside a return spring of the adjustment piston. However, it would have been obvious to a person having ordinary skill in the art at the time of effective filing to further modify Linder such that the magnets were placed in the end portion of the piston (in Sui they are located in the central portion of the master piston) of the piston wherein biasing/return spring would then be located to be surrounding said magnets (as can be seen in Sui the return/biasing spring sit within a flange area where the piston head extends beyond the spring) because such a modification is merely a design choice of rearranging parts without modifying the function/operation of the sensor. See, MPEP 2144.04, VI, C. Examiner further notes that review of Applicant’s specification fails to address any criticality or technical advantage to having the magnet surrounded by the piston.
For dependent claim 9, the recited limitations are contained in co-pending application claim 10, respectively.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIEL S. COLLINS whose telephone number is (313)446-6535. The examiner can normally be reached M-TH 8:00-5:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nathaniel Wiehe can be reached at (571) 272-4648. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DANIEL S COLLINS/ Examiner, Art Unit 3745
/NATHANIEL E WIEHE/ Supervisory Patent Examiner, Art Unit 3745
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