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).
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.
2a. Claims 1-4 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6 of U.S. Patent No. 9,585,303. Although the claims at issue are not identical, they are not patentably distinct from each other because the scope of the claims has already been encompassed by those of the patent. Specifically:
Claim 1 has already been encompassed by claims 1 and 5 of the patent.
Claim 2 has already been encompassed by claims 2 and 5 of the patent.
Claim 3 has already been encompassed by claims 3 and 6 of the patent.
Claim 4 has already been encompassed by claim 4 of the patent.
2b. Claims 1-4 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 2 of U.S. Patent No. 11,304,361. Although the claims at issue are not identical, they are not patentably distinct from each other because the scope of the claims has already been encompassed by those of the patent. Specifically:
Claim 1 has already been encompassed by claims 1 and 2 of the patent.
Claim 2 has already been encompassed by claim 1 of the patent.
Claim 3 has already been encompassed by claim 1 of the patent.
Claim 4 has already been encompassed by claim 1 of the patent.
2c. Claims 6-8 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, and 5 of U.S. Patent No. 12,389,820. Although the claims at issue are not identical, they are not patentably distinct from each other because the scope of the claims has already been encompassed by those of the patent. Specifically:
Claim 6 has already been encompassed by claim 1 of the patent.
Claim 8 has already been encompassed by claim 3 of the patent.
Claim 7 has already been encompassed by claim 5 of the patent.
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 3, 5, 6, and 10 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Wagers (US 2014/0277959).
Regarding claim 1, Wagers discloses a method (seed plater control system and method; Wagers at title) comprising:
Adjusting a changeable component of a seed planting machine when switching from a first variety of seed to a second variety of seed during planting (row unit components adjusted according to seed type being planted; Wagers at 0007, 0025).
Wherein the adjusting is based on a location of the planting machine (seed type will be planted according to location of the implement in the working area; Wagers at 0025).
Regarding claim 3, Wagers discloses wherein the seed planting machine comprises a vacuum seed meter, and wherein adjusting the changeable component comprises adjusting a
vacuum level applied to the vacuum seed meter (vacuum level on metering disc adjusted according to seed type; Wagers at 0006, 0007).
Regarding claim 5, Wagers discloses wherein adjusting configures the seed planting machine to maximize performance of planting of the one of the first variety of seed and the
second variety of seed (row unit adjusted to optimize planting of the seed according to type of seed; Wagers at 0007).
Regarding claim 6, Wagers discloses a multiple variety planter (farming system configured to plant a plurality of types of seeds; Wagers at title, abstract, Fig. 1) comprising:
Planting machine comprising an adjustable component, the adjustable component being adjustable between a first configuration and a second configuration, the first configuration set to maximize planting efficiency of a first variety of seed relative to other varieties of seeds, the second configuration set to maximize planting efficiency of a second variety of seed relative to other varieties of seeds (row units on implement adjustable to optimize planting of variety of seeds contained in the plurality of hoppers; Wagers at 0007, 0008, 0026)
A controller in communication with the planting machine (controller 402 communicatively connected to row units; Wagers at 0036), the controller configured to automatically adjust the adjustable component between the first configuration and the second configuration based on a particular location of the planting machine in a field of land comprising a plurality of different locations that include the particular location (based on location of the planter, row units will be configured to dispense seed at an optimal level according to seed type; Wagers at 0036, 0037).
Regarding claim 10, Wagers discloses wherein the planting machine comprises a planter having a plurality of row units (Wagers at Fig. 1, 0036).
Claim Rejections - 35 USC § 103
4. 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 2, 4, and 7-9 are rejected under 35 U.S.C. 103 as being unpatentable over Wagers, as applied above, and further in view of Garner (US 2012/0240838).
Regarding claims 2 and 7, Wagers is silent as to wherein the component comprises
a double eliminator configured to prevent multiple seeds from being planted at a particular location.
Garner, in a similar invention in the same field of endeavor, teaches utilizing a doubles eliminator in the row unit for the elimination of excess seeding (Wagers at abstract 0035).
It would be obvious to one of ordinary skill in the art before the time of the claimed invention into augment the row unit of Wagers with the doubles eliminator of Garner. Doing so would cut down on seed costs due to overplanting.
Regarding claim 4, the combination teaches wherein the seed planting machine comprises a double eliminator and a vacuum seed meter (Garner at 0007, 0008, 0045, 0052), and wherein adjusting comprises: changing the double eliminator to prevent multiple seeds from being planted at a particular location; and adjusting a vacuum level applied to the vacuum seed meter (controlled based on discharge location; Garner at 0058, 0066).
Regarding claim 8, Wagers discloses wherein the adjustable component comprises a vacuum control system configured to control a vacuum level applied to a vacuum seed meter configured to dispense seeds during a given planting operation (vacuum level on metering disc adjusted according to seed type; Wagers at 0006, 0007).
Regarding claim 9, the combination teaches wherein the adjustable component further comprises a double eliminator configured to prevent multiple seeds from being planted in the particular location during a given planting operation (Garner at abstract), and wherein both the double eliminator and the vacuum control system are configured to be adjusted as part of the adjustable component being adjusted (row unit components adjusted due to planting location; Garner at 0058, 0066, Wagers at abstract).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JONATHAN M DAGER whose telephone number is (571)270-1332. The examiner can normally be reached on M-F 0830-1730.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Angela Ortiz can be reached on 571-272-1206. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JONATHAN M DAGER/Primary Examiner, Art Unit 3663 04 September 2026
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