DETAILED ACTION
Applicant’s response, filed Dec 22 2025, has been fully considered. Rejections and/or objections not reiterated from previous Office Actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
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 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 Status
Claims 1-2, 4-8, 13-14, 22, and 24 are pending.
Claims 3, 9-12, 15-21, and 23 are canceled.
Claim 24 is newly added.
Claims 1-2, 4-8, 13-14, 22, and 24 are rejected.
Priority
The instant Application was filed Jan 7 2020 and does not claim the benefit of an earlier filed application.
Claim Rejections- 35 USC § 112
The outstanding rejections to the claims are withdrawn in view of the amendments submitted herein.
35 USC § 112(b)
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.
Claims 1-2, 4-8, 13-14, 22, and 24 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, regards as the invention. The instant rejection is newly stated and is necessitated by claim amendment.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 1 recites the broad recitation of “each of the one or more field plots comprises between 45 and 240 distinct hybrid varieties”, and the claim also recites “each subplot containing at least 60 distinct sections, each distinct section containing a single hybrid variety” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. Ultimately, it is not clear whether the claim requires at least 60 distinct hybrids in the distinct sections of the subplots, which are part of the maturity zones, with are part of the field plots, or if the field plot can have only 45 distinct hybrid varieties. For compact examination, it is assumed that at least 60 distinct varieties are required. Claims 2, 4-8, 13-14, 22, and 24 are rejected based on their dependency from claim 1.
Claim Rejections - 35 USC § 101
The outstanding rejections from the previous Office Action are withdrawn in view of the amendments submitted herein. Specifically, Applicant has cancelled the previously rejected claims 15-20 and 23.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
A. Claims 1-2, 4-7, 13-14, 22, and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Meese et al. (Journal of Production Agriculture, 1991, 4(1):74-80; previously cited) in view of Arjal et al. (California Agriculture, 1978, 32(3):14-15; previously cited), Rutan et al. (Agronomy Journal, 2018, 110(5):2059-2069; previously cited), Gaffney et al. (Crop Science, 55(4):1608-1618; newly cited), and Piepho et al. (Journal of Agronomy and Crop Science, 2018, 204:429-455; previously cited). The instant rejection is newly stated and is necessitated by claim amendment.
Claim 1 discloses a method of characterizing distinct plant varieties, the method comprising:
planting the plant varieties in one or more field plots, each field plot comprising a nested configuration of:
two or more crop rotation zones;
two or more maturity zones within each of the rotation zones, each maturity zone comprising two subplots, each subplot containing at least 60 distinct sections, each distinct section containing a single hybrid variety;
two or more nitrogen exposure zones within each of the maturity zones, wherein at least one of the two or more nitrogen exposure zones is exposed to non-limited nitrogen levels; and
two or more population zones within each of the maturity zones; and
extracting growth data from the plant varieties after a growing period,
wherein each of the one or more field plots comprises between 45 and 240 distinct hybrid varieties, and
wherein, in at least one of the one or more field plots, one of the two or more crop rotation zones comprises a continuous planting zone within which a single plant species is planted in consecutive growing seasons, and another of the two or more crop rotation zones comprises a rotating zone within which a single plant species is not planted in consecutive growing seasons.
Meese discloses a study to determine the influence of tillage, N (nitrogen) fertilizer level, and hybrid/cultivar (i.e., distinct plant varieties) on growth and grain yield of corn and soybean grown in various rotation sequences (abstract). Meese teaches using a split-split-split plot (i.e., nested configuration) randomized complete block arrangement of treatments with four replicates, where main plots were the different tillage methods; where subplots consisted of 14 rotation sequences (i.e., crop rotation zones) involving corn and soybeans in continuous monoculture (i.e., a continuous planting zone) or rotating either every year (i.e., a rotating zone) or every few years (Table 1); where sub-subplots were different nitrogen levels (i.e., nitrogen exposure zones); and where sub-sub-subplots were two corn hybrids or soybean cultivars (p. 74, col. 2, par. 4 through p. 75, col. 1, par. 1). As Meese teaches that the different soybean cultivars have different days to maturity (p. 78, col. 1, par. 3 through col. 2, par. 1), it is considered that the sub-sub-subplots of Meese read on the one or more maturity zones as instantly claimed. Meese teaches planting corn at 31,000 seeds/acre and soybeans at 180,000 seeds/acre (i.e., population zone) (p. 75, col. 1, par. 2-3). Meese is considered to teach planting one population zone for each of corn and soybeans, which is further considered to read on two population zones overall, but does not teach two or more population zones within the maturity zones.
Meese does not teach: two or more maturity zones within each of the rotation zones, each maturity zone comprising two subplots, each subplot containing at least 60 distinct sections, each distinct section containing a single hybrid variety; two or more nitrogen zones within each of the maturity zones wherein at least one of the two or more nitrogen exposure zones is exposed to non-limited nitrogen levels; two or more population zones within the maturity zones; or that each field plot comprises between 45 and 240 distinct hybrid varieties.
However, the prior art to Arjal discloses a study considering the effects fertilizer rates (i.e., nitrogen exposure zone), planting dates (i.e., maturity zone), and the number of corn plants per acre (i.e., population zone) on yield (p. 14, col. 1, par. 2 through col. 3, par. 1; Table 1).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine, in the course of routine experimentation and with a reasonable expectation of success, the methods of Meese in view of Arjal because both references disclose methods for examining the effects of farming management practices on corn yield. The motivation to examine multiple maturity and population zones, as taught by Arjal, in the method of Meese would have been to consider other factors known to influence corn yields, as taught by Arjal (p. 14, col. 1, par. 2).
Neither Meese nor Arjal teach: that each maturity zone comprising two subplots, each subplot containing at least 60 distinct sections, each distinct section containing a single hybrid variety; at least one of the two or more nitrogen exposure zones exposed to non-limited nitrogen levels; that each field plot comprises between 45 and 240 distinct hybrid varieties; or the exact nested configuration as instantly claimed.
However, the prior art to Rutan discloses a study to investigate multiple nitrogen placement and timing strategies on corn growth, yield, and profitability (abstract). Rutan teaches applying ten treatments, including a non-fertilized control and non-limiting nitrogen reference of 280 kg N/Ha, arranged in a randomized complete block with variations in the timing and type of nitrogen applied (p. 2061, col. 1, par. 2).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine, in the course of routine experimentation and with a reasonable expectation of success, the methods of Meese in view of Arjal with Rutan because each reference discloses methods for examining the effects of farming management practices on crop yield using multifactorial experimental designs. As Meese, Arjal, and Rutan each teach methods for examining the effect of nitrogen on corn yield, it would have been obvious to one of ordinary skill in the art with a reasonable expectation of success to substitute the examined nitrogen rates, including non-limiting nitrogen, of Rutan in the method of Meese in view of Arjal.
Neither Meese, Arjal, nor Rutan teach: that each maturity zone comprises two subplots, each subplot containing at least 60 distinct sections, each distinct section containing a single hybrid variety; that each field plot comprises between 45 and 240 distinct hybrid varieties; or the exact nested configuration as instantly claimed.
However, the prior art to Gaffney discloses an industry-scale evaluation of maize hybrids selected for increased yield in drought-stress conditions (title). Gaffney teaches that 78 AQUAmax hybrids have been examined at over 10,000 locations, and that this information can be compared to 4287 industry-leading hybrids (abstract; p. 1610, col. 2, par. 2 through p. 1612, col. 1, par. 1). Gaffney also teaches examining hybrids at different population densities (p. 1612, col. 1, par. 1). As Gaffney teaches an example of examining 78 AQUAmax hybrids, it is considered that this example anticipates the instantly claimed range of between 45 and 240 distinct hybrid varieties being examined.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine, in the course of routine experimentation and with a reasonable expectation of success, the methods of Meese in view of Arjal, and Rutan with Gaffney because each reference disclose methods for conducting field trials. The motivation to evaluate more plant varieties than disclosed by Meese in view of Arjal and Rutan would have been to evaluate resistance to certain environmental impacts, like drought, as taught by Gaffney (abstract).
Neither Meese, Arjal, Rutan, nor Gaffney teach the exact nested configuration as instantly claimed, with each maturity zone comprising two subplots, each subplot containing at least 60 distinct sections, each distinct section containing a single hybrid variety.
However, the prior art to Piepho discloses the basis for the statistical analysis of factorial designed experiments in agricultural field trials (abstract). Piepho teaches that plots are the experimental units of a field experiments, where plots are grouped into blocks and treatments are randomized within each set of blocks (p. 431, col. 1, par. 2). Piepho teaches that fully crossed factorial designs examine all combinations of the levels of a set of factors (p. 431, col. 2, par. 3). Piepho teaches the analysis of experimental data collected from two level factor and split-plot designs (abstract), including examples of experiments with three factors laid out as a split-split-plot: three management practices, five different amounts of nitrogen fertilizer, and three varieties (Section 3); and fertilizer as the main-plot factor, management practice as the sub-plot factor, and variety as the sub-sub-plot (Section 6). Piepho teaches that the treatment factor levels were randomly applied (p. 432, col. 1, par. 4).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine, in the course of routine experimentation and with a reasonable expectation of success, the methods of Meese in view of Arjal, Rutan, and Gaffney with Piepho because each reference discloses methods for examining the effects of farming management practices on crop yield using multifactorial experimental designs. It would have been obvious to one of ordinary skill in the art to examine each of the factors taught by Meese in view of Arjal. Rutan, and Gaffney (crop rotation, maturity, nitrogen exposure, population, hybrids) in a nested configuration with the factors in any position within the nested configuration because each of the factors are known types of subplots examined in factorial or split plot experiments. One of ordinary skill in the art would understand that these factors could be examined in any arrangement in a split plot field experiment, including with the main plot being two or more crop rotation zones, the subplot being two or more maturity zones with their own subplots of different hybrids, the sub-subplot being two or more nitrogen exposure zones and population zones, and the sub-sub-subplot being two or more population zones, as instantly claimed, because Piepho makes obvious any experimental design for factorial design of two or more treatments in the same experiment (abstract). Such a modification in the design of a split plot field trial is considered obvious because it represents a mere rearrangement of parts known in the art which would not modify the operation of the method. The courts have held that the rearrangement of parts is not sufficient to distinguish over the prior art (see In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950), MPEP 2144.04(VI)(C)).
Regarding claim 2, Meese in view of Arjal, Rutan, Gaffney, and Piepho teaches the method of claim 1 as described above. Claim 2 further limits the crop rotation zones to the continuous planting zone in each field plot.
Meese teaches that each plot has subplots of corn and soybeans in continuous monoculture (i.e., a continuous planting zone) or rotating either every year (p. 74, col. 2, par. 4 through p. 75, col. 1, par. 1), which reads on each field plot having a continuous planting zone and a rotating zone as instantly claimed.
Regarding claim 4, Meese in view of Arjal, Rutan, Gaffney, and Piepho teaches the method of claim 1 as described above. Claim 4 furthers add that the maturity zones each include plants having a distinct age-to-maturity ranging from 80 to 120 days, the plants comprising one or more varieties of corn, soybeans, alfalfa, barley, rice, wheat, or combinations thereof.
Meese teaches planting two corn hybrids, Pioneer brand 3737 and Dekalb-Pfizer Genetics brand DK524, or two soybean cultivars (i.e., one or more varieties of corn and soybeans) (p. 74, col. 2, par. 4 through p. 75, col. 1, par. 1). Meese does not describe the age-to-maturity rating of these cultivars.
However, Rutan teaches planting Dekalb DKC48-12 RIB with 98 day relative maturity (p. 2061, col. 1, par. 2). As Rutan teaches an example of a corn variety with a relative maturity of 98 days, it is considered that this examples anticipates the instantly claimed range of age-to-maturity ranging from 80 to 120 days.
Regarding claim 5, Meese in view of Arjal, Rutan, Gaffney, and Piepho teaches the method of claim 1 as described above. Claim 5 further adds that the nitrogen exposure zones include at least a first nitrogen zone and a second nitrogen zone, the second nitrogen zone exposed to less nitrogen than the first nitrogen zone.
Meese teaches using sub-subplots with different nitrogen levels (i.e., nitrogen exposure zones) of 100 or 200 lb/acre for corn and 0 or 30 lb/acre for soybeans (p. 74, col. 2, par. 4 through p. 75, col. 1, par. 1), which reads on a second nitrogen zone exposed to less nitrogen than the first nitrogen zone as instantly claimed. It is noted that both Arjal (0, 200, and 400 pounds/acre of nitrogen applied; Table 1) and Rutan (non-fertilized control and non-limiting nitrogen reference treatments; p. 2016, col. 1, par. 2) teach this limitation as well.
Regarding claims 6-7, Meese in view of Arjal, Rutan, Gaffney, and Piepho teaches the method of claim 1 as described above. The claims further add that the population zones include at least a first population zone and a second population zone, the second population zone having a lower plant population than the first population zone (claim 6), wherein the high population zone includes about 35,000 to about 40,000 plants per acre and the low population zone includes about 20,000 to about 30,000 plants per acre, the plants comprising one or more varieties of corn, soybeans, alfalfa, barley, rice, wheat, or combinations thereof (claim 7).
Meese teaches planting corn at 31,000 seeds/acre (i.e., one population zone) (p. 75, col. 1, par. 2-3). Meese teaches planting two corn hybrids or two soybean cultivars (i.e., one or more varieties of corn and soybeans) (p. 74, col. 2, par. 4 through p. 75, col. 1, par. 1). Meese does not teach a second population zone having a lower plant population than the first population zone, or a high population zone includes about 35,000 to about 40,000 plants per acre and a low population zone includes about 20,000 to about 30,000 plants per acre.
However, Arjal teaches planting three different population levels, with 18,000, 26,000, and 34,000 plants per acre (Table 1). As Arjal teaches an example of 26,000 plants per acre, it is considered that this example anticipates the instantly claimed range of 20,000-30,000 plants per acre. Arjal also teaches an example of 34,000 plants per acre, which makes obvious the instantly claimed range of 35,000-40,000 plants. It would have been prima facie obvious to one of ordinary skill in the art to extend the range of plants examined to include the instantly claimed ranges from the example disclosed in the prior art references, particularly in view of the fact that: "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). See also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Regarding claim 13, Meese in view of Arjal, Rutan, Gaffney, and Piepho teaches the method of claim 1 as described above. Claim 13 further adds that the field plots are duplicated by re-planting in two or more distinct geographical locations.
Meese teaches planting only at one geographical location.
However, Rutan teaches conducting the field trials at two different sites (p. 2060, col. 2, par. 3).
Regarding claim 13, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify, in the course of routine experimentation and with a reasonable expectation of success, the methods of Meese in view of Arjal, Rutan, and Piepho because each reference discloses methods for examining the effects of farming management practices on crop yield using multifactorial experimental designs. The motivation to duplicate the experiment in a distinct geographical location would have been to examine the effect of weather on nitrogen uptake, as taught by Rutan (p. 20160, col. 2, par. 2).
Regarding claim 14, Meese in view of Arjal, Rutan, Gaffney, and Piepho teaches the method of claim 1 as described above. Claim 14 further adds that the growth data comprises average yield data.
Meese teaches measuring the average yield of each split plot field (p. 76, col. 2, par. 2; p. 77, col. 2, par. 4; Fig. 1-4).
Regarding claim 22, Meese in view of Arjal, Rutan, Gaffney, and Piepho teaches the method of claim 1 as described above. Claim 22 further adds applying nitrogen at least twice to the at least one of the two or more nitrogen exposure zones.
Meese does not teach these claims.
However, Rutan teaches different nitrogen treatments, including pre-plant incorporation, which is a one-pass nitrogen strategy where 100% of the nitrogen inputs are applied before planting time (p. 2059, col. 2, par. 2), and multi-pass or split applications of sidedress nitrogen applied at one or two later dates (i.e., repeated application) (p. 2059, col. 2, par. 1; p. 2061, col. 1, par. 2).
Regarding claim 24, Meese in view of Arjal, Rutan, and Piepho teaches the method of claim 1 as described above. Claim 24 further adds a single replicate of each hybrid variety is included in each subplot.
Meese teaches planting 4 separate replicates of their overall split-split-split plot (p. 74, col. 2, par. 4). It is therefore considered that within each plot, there is only a single replicate of each factor, including the hybrid varieties.
B. Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Meese in view of Aral, Rutan, Gaffney, and Piepho, as applied to claim 1 above, and in further view of Chisanga et al. (African Journal of Plant Science, 13(8), p. 221-230; cited on the Jul 6 2021 IDS). The instant rejection is newly stated and is necessitated by claim amendment.
Regarding claim 8, Meese in view of Arjal, Rutan, Gaffney, and Piepho teaches the method of claim 1 and the system of claim 15 as described above. Claim 8 further adds that each field plot includes 9 maturity zones.
Meese teaches a split-split-split plot experimental design with subplots of rotation sequences, sub-sub plots of different nitrogen levels, and sub-sub-sub plots of plant variety, as described above (p. 74, col. 2, par. 4 through p. 75, col. 1, par. 1). Meese does not teach 9 maturity zones or a population zone in each maturity zone as instantly claimed.
However, the prior art to Chisanga discloses a study on the effects of sowing date and fertilizer rates on maize yield (abstract). Chisanga teaches using a split-split plot design for planting three different maize cultivars on three different sowing dates (i.e., maturity zones) (abstract; p. 223, col. 2, par. 1). Chisanga also teaches that two of the cultivars mature from 120-130 days while another matures from 125-130 days (p. 223, col. 2, par. 2). As “the maturity zone” is not limited in claims 1 or 8, both the different sowing dates and maturity time lines are considered to encompass maturity zones. As Chisanga teaches planting each of the three cultivars at each of the different sowing dates, it is considered that Chisanga teaches 9 maturity zones. Chisanga teaches using a split-split plot design with exposures to nitrogen and a constant planting density as described above (abstract; p. 223, col. 2, par. 1), it is considered that Chisanga also fairly teaches the limitation “each maturity zone comprising 2 subplots, each subplot comprising a nitrogen exposure zone and a population zone”, in addition to Meese in view of Arjal, Rutan, and Piepho as described above.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine, in the course of routine experimentation and with a reasonable expectation of success, the methods of Meese in view of Arjal, Rutan, Gaffney, and Piepho with Chisanga because each reference discloses split plot methods for field trials. As described in the above rejections, it is considered that Meese and Chisanga teach each of the claimed “zones” as different sub plots within a split plot field experiment design. It is therefore considered that each of the maturity zones, the nitrogen exposure zone, and the population zone are known types of subplots to examine in a split plot field experiment design, and it would be obvious to one of ordinary skill in the art to examine each of these zones in any arrangement in a split plot field experiment, including with each maturity zone comprising 2 subplots, each subplot comprising a nitrogen exposure zone and a population zone, as instantly claimed. Thus, it would have been obvious to one of ordinary skill in the art to replace the part of the field plot design of Meese with the field plot design of Chisanga, because one of ordinary skill in the art would have been able to carry out such a substitution, and the results would be reasonably predictable.
Response to Applicant Arguments
With respect to Applicant’s arguments under 35 USC 103 at p. 5-7, the arguments have been fully considered but are moot in view of the new grounds of rejection set forth above as necessitated by claim amendment herein.
Conclusion
No claims are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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Any inquiry concerning this communication or earlier communications from the examiner should be directed to JANNA NICOLE SCHULTZHAUS whose telephone number is (571)272-0812. The examiner can normally be reached on Monday - Friday 8-4.
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/J.N.S./Examiner, Art Unit 1685
/OLIVIA M. WISE/Supervisory Patent Examiner, Art Unit 1685