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 § 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.
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.
Claims 1-2,4,6-9,11,16-18,20,21,27-30 are rejected under 35 U.S.C. 103 as being unpatentable over Maxik et al. (US 20130139437 A1) in view of Widmayer (US 3930335 A as cited on form PTO-1449).
For claim 1, Maxik et al. teach a system for inducing a desired response in an organism, the system comprising:
at least one photon emission modulation controller (822,824,826), in communication with at least one photon emitter (810), wherein said at least one photon emitter produces a repetitive photon signal directed to said organism, and wherein said photon signal comprises two or more independent components (para. 0051-0056,0069; para. 0078-0084 explained repetitive signal on and off as desired), wherein said two or more independent components comprise:
a first independent component (NOTE that the first independent component is only functionally claimed, which the photon emitter in Maxik et al. can and does perform the function) comprising a repetitive first modulated photon pulse group (para. 0078-0084, the first pulse can be any of the pulse emitted for the individual plant as shown in figs.18A-D or para. 0084 because the controller can control individual color or pulse and/or a plurality of colors or pulses), wherein said first modulated photon pulse group has one or more photon pulse ON durations (para. 0078-0084 discuss duration of ON or OFF) with one or more intensities (para. 0053,0082-0084), has one or more photon pulse OFF durations (para. 0078-0084), and a wavelength color (para. 0042-0053,0069,0078-0084), and wherein said wavelength color of said first independent component is chosen from near-red, far- red, infra-red, green, blue, yellow, orange and ultraviolet (para. 0069); and
a second independent component (NOTE that the second independent component is only functionally claimed, which the photon emitter in Maxik et al. can and does perform the function) comprising a repetitive second modulated photon pulse group (para. 0078-0084, the second pulse can be any of the pulse emitted either after the first pulse or another individual plant as shown in figs.18A-D or para. 0084 because the controller can control individual color or pulse and/or a plurality of colors or pulses), wherein said second modulated photon pulse group has one or more photon pulse ON durations (para. 0078-0084 discuss duration of ON or OFF) between with one or more intensities (para. 0053,0082-0084), has one or more second photon pulse OFF durations (para. 0078-0084), and a wavelength color (para. 0042-0053,0069,0078-0084), and wherein wavelength color of each of said second independent components is chosen from near-red, far-red, infra-red, green, blue, yellow, orange and ultraviolet (para. 0069);
wherein the first independent component and the second independent component are produced within said signal simultaneously (the LEDs can signal at the same time or simultaneously for one or more plants as shown in figs. 18a-d, or the LEDs can signal non-simultaneously, for example, para. 0069,0084);
wherein each pulse ON duration within said repetitive first modulated photon pulse group is initiated independently and is off set from each pulse ON duration within said repetitive second modulated photon pulse group (para. 0069 for independent functionality, para. 0078-0082 for ON/OFF duration);
wherein the wavelength color of the second modulated photon pulse group is different from the wavelength color of the first modulated photon pulse group (para. 0069 states that the colors can be different for different groups; para. 0081 states each type of plant may have different saturation levels, thus, the photon color will be different among the groups; para. 0084 discuses different light color/intensity etc. for different plants);
a master logic controller (can be either 820 or the computer 610 shown in fig. 19 and in para. 0078-0079,0087-0093) in communication with said at least one photon emission modulation controller, wherein said master logic controller sends commands to said at least one photon emission modulation controller controlling the modulated pulse groups of said first independent component and said second independent component from said at least one photon emitters; and
at least one sensor (para. 0060,0083,0084), wherein said at least one sensor is capable of monitoring at least one condition associated with said organism, wherein said at least one condition associated with said organism is an environmental condition associated with said organism or a physiological condition associated with said organism;
wherein said at least one sensor is operably linked to a first communication device, wherein said first communication device sends data from said at least one sensor to said master logic controller (para. 0060,0083,0084); and
wherein said signal is emitted toward said organism from said at least one photon emitter, wherein the combined effect of first modulated photon pulse group and the second modulated photon pulse group of the signal produces a desired response from said organism.
However, Maxik et al. are silent about wherein said first modulated photon pulse group has one or more photon pulse ON durations between 0.01 microseconds and 2500 microseconds with one or more intensities, has one or more photon pulse OFF durations between 0.1 microseconds and 24 hours, wherein said ON durations and said OFF durations are different; wherein said second modulated photon pulse group has one or more photon pulse ON durations between 0.01 microseconds and 2500 microseconds with one or more intensities, has one or more second photon pulse OFF durations between is between 0.1 microseconds and 24 hours, wherein said ON durations and said OFF durations are different; wherein at least one of the one or more ON durations, one or more intensities, and one or more OFF durations of the second modulated photon pulse group are different from at least one of the one or more ON durations, one or more intensities, and one or more OFF durations of the first modulated photon pulse group.
Widmayer teaches in the same field of endeavor of a system for inducing a desired response in an organism comprising first and second pulses with OFF-ON ratio of various microseconds within the ranges as claimed (col. 4, lines 45-51). As stated in Maxik et al. per para. 0069,0078-0082, depending on the type of plants being grown and the requirement for each of the type of plants, the ON/OFF durations, intensities, and pulses, etc. of each of the photon pulse group (i.e. first or second or third, etc.) can be different. Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have said first modulated photon pulse group has one or more photon pulse ON durations between 0.01 microseconds and 2500 microseconds with one or more intensities as taught by Widmayer, has one or more photon pulse OFF durations between 0.1 microseconds and 24 hours, wherein said ON durations and said OFF durations are different as taught by Widmayer; wherein said second modulated photon pulse group has one or more photon pulse ON durations between 0.01 microseconds and 2500 microseconds with one or more intensities, has one or more second photon pulse OFF durations between is between 0.1 microseconds and 24 hours, wherein said ON durations and said OFF durations are different as taught by Widmayer; wherein at least one of the one or more ON durations, one or more intensities, and one or more OFF durations of the second modulated photon pulse group are different from at least one of the one or more ON durations, one or more intensities, and one or more OFF durations of the first modulated photon pulse group as taught by Widmayer in the system of Maxik et al., depending on the type of plants being grown and the amount of light absorption and saturation level that each plant requires.
For claim 2, Maxik et al. as modified by Widmayer teach the system of claim 1, and further teach (emphasis on Maxik et al.) a third or more independent component comprising a repetitive third or more modulated photon pulse group (para. 0078-0084, the first pulse can be any of the pulse emitted for the individual plant as shown in figs.18A-D or para. 0084 because the controller can control individual color or pulse and/or a plurality of colors or pulses), wherein said third or more modulated photon pulse group has one or more photon pulse ON durations (para. 0078-0084 discuss duration of ON or OFF) with one or more intensities (para. 0053,0082-0084), has one or more photon pulse OFF durations (para. 0078-0084), and one or more wavelength colors (para. 0042-0053,0069,0078-0084), wherein said ON durations and said OFF durations are different and wherein said one or more wavelength colors of said third independent component is chosen from near-red, far-red, infra-red, green, blue, yellow, orange and ultraviolet (para. 0069);
wherein the third or more independent component, the first independent component and the second independent component are produced within said signal simultaneously (the LEDs can signal at the same time or simultaneously for one or more plants as shown in figs. 18a-d, or the LEDs can signal non-simultaneously, for example, para. 0069,0084);
wherein the wavelength color of the third modulated photon pulse group is different from at least one of the wavelength colors of the first modulated photon pulse group and the second modulated photon pulse group (para. 0069 states that the colors can be different for different groups; para. 0081 states each type of plant may have different saturation levels, thus, the photon color will be different among the groups; para. 0084 discuses different light color/intensity etc. for different plants);
and wherein said signal is emitted toward said organism from said at least one photon emitter, wherein the combined effect of the repetitive third or more modulated photon pulse group, the first modulated photon pulse group and the second modulated photon pulse group of the signal produces a desired response from said organism.
However, Maxik et al. as modified by Widmayer are silent about wherein said third or more modulated photon pulse group has one or more photon pulse ON durations between 0.01 microseconds and 2500 microseconds with one or more intensities, has one or more photon pulse OFF durations between 0.1 microseconds and 24 hours, and one or more wavelength colors, wherein said ON durations and said OFF durations are different; wherein at least one of the one or more ON durations, one or more intensities, and one or more OFF durations of the repetitive third or more modulated photon pulse group is different from the at least one of the one or more ON durations, one or more intensities, and one or more OFF durations of second modulated photon pulse group and the first modulated photon pulse group.
As stated in the above, Widmayer teaches first and second pulses with OFF-ON ratio of various microseconds within the ranges as claimed (col. 4, lines 45-51). Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have said third or more modulated photon pulse group has one or more photon pulse ON durations between 0.01 microseconds and 2500 microseconds with one or more intensities, has one or more photon pulse OFF durations between 0.1 microseconds and 24 hours, and one or more wavelength colors, wherein said ON durations and said OFF durations are different as taught by Widmayer; wherein at least one of the one or more ON durations, one or more intensities, and one or more OFF durations of the repetitive third or more modulated photon pulse group is different from the at least one of the one or more ON durations, one or more intensities, and one or more OFF durations of second modulated photon pulse group and the first modulated photon pulse group as taught by Widmayer in the system of Maxik et al. as modified by Widmayer, depending on the type of plants being grown and the amount of light absorption and saturation level that each plant requires.
For claim 4, Maxik et al. as modified by Widmayer teach the system of claim 1, and further teach (emphasis on Maxik et al.) wherein said at least one photon emitter is selected from the group consisting of incandescent (Tungsten-halogen and Xenon), Fluorescent (CFL's), high intensity discharge (Metal Halide, High-Pressure Sodium, Low- Pressure Sodium, Mercury Vapor), and light emitting diode (LEDs as mentioned throughout, for example, para. 0069).
For claim 6, Maxik et al. as modified by Widmayer teach the system of claim 1, and further teach (emphasis on Maxik et al.) wherein said wavelength color of said first modulated photon pulse is chosen from the group consisting of near red, far-red, blue, infra-red, yellow, orange, and ultra-violet (para. 0052-0056,0069,0080-0082).
For claim 7, Maxik et al. as modified by Widmayer teach the system of claim 1, and further teach (emphasis on Maxik et al.) wherein said second wavelength color of said second wavelength band of said second modulated photon pulse is chosen from the group consisting of near red, far-red, blue, infra-red, yellow, orange, and ultra-violet (para. 0052-0056,0069,0080-0082).
For claim 8, Maxik et al. as modified by Widmayer teach the system of claim 1, and further teach (emphasis on Maxik et al.) that, depending on the type of plants being grown or in consideration, the wavelength selected can be as listed in para. 0043-0053. Thus,
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have wherein said first wavelength color of said first modulated photon pulse group has can have a wavelength between 0.1 nm and 900 nm, depending on the type of plants being grown and ; and wherein said second wavelength color of said second modulated photon pulse group has a wavelength between 0.1 nm and 900 nm in the system of Maxik et al. as modified by Widmayer, depending on the type of plants being grown and the amount of light absorption and saturation level that each plant requires per Maxik’s teaching.
For claim 9, Maxik et al. as modified by Widmayer teach the system of claim 1, and further teach (emphasis on Maxik et al.) that a variety of combinations of pulse groups, colors, intensities, durations, etc. can be set by the controller and the light emitter, depending on the type of plants being grown. In addition, Maxik et al. also teach that the controller can individually control the photon emitter for individual plant or a collective group of plants. Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have wherein at least two of the components of said second modulated photon pulse group is the same as at least two of the components of said first modulated photon pulse group in the system of Maxik et al. as modified by Widmayer, depending on the type of plants being grown and the amount of light absorption and saturation level that each plant requires per Maxik’s teaching.
For claim 11, Maxik et al. as modified by Widmayer teach the system of claim 1, and further teach (emphasis on Maxik et al.) wherein said master logic controller adjusts said components of second modulated photon pulse group and said first modulated photon pulse group based upon said data from said at least one sensor (para. 0058-0062,0077-0079).
For claim 16, Maxik et al. as modified by Widmayer teach the system of claim 1, and further teach (emphasis on Maxik et al.) wherein said at least one sensor is selected from the group comprising a stem diameter sensor, a fruit diameter sensor, a leaf temperature sensor, a relative-rate sap sensor, an infrared sensor, a gas sensor, a photorespiration sensor, a respiration sensor, a near-infrared sensor, camera, a pH sensor and combinations thereof (para. 0060,0083, 0084).
For claim 17, Maxik et al. as modified by Widmayer teach the system of claim 1, but are silent about wherein said first modulated photon pulse group has a change in light quantum of at least 5%. In addition to the above, Widmayer teaches a system for inducing a desired response in an organism comprising modulated photon pulse groups (L 1-L5) has a change in light quantum of at least 5% (col. 6, lines 22-34). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the first modulated photon pulse group of Maxik et al. as modified by Widmayer with a change in light quantum of at least 5% as taught by Widmayer in order to increase efficiency of the system.
For claim 18, Maxik et al. as modified by Widmayer teach the system of claim 1, but are silent about wherein said second modulated photon pulse group has a change in light quantum of at least 5%. In addition to the above, Widmayer teaches a system for inducing a desired response in an organism comprising modulated photon pulse groups (L 1-L5) having a change in light quantum of at least 5% (col. 6, lines 22-34). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the second modulated photon pulse group of Maxik et al. as modified by Widmayer with a change in light quantum of at least 5% as taught by Widmayer in order to increase efficiency of the system.
For claim 20, Maxik et al. as modified by Widmayer teach the system of claim 1, and further teach (emphasis on Maxik et al.) wherein said desired response from said organism is chosen from growth, repair and destruction (in various paragraphs such as para. 0045,0053,0055,0057 discuss plant growth).
For claim 21, Maxik et al. as modified by Widmayer teach the system of claim 1, and further teach (emphasis on Maxik et al.) wherein said desired response from said organism is chosen from the group consisting of photosynthetic response, a phototropic response and a photoperiodic response (para. 0077).
For claim 27, the limitations have been explained in the above, thus, please see above. Not explained are: wherein said first modulated photon pulse group has one or more photon pulse ON durations between 0.01 microseconds and 999 milliseconds with one or more intensities, has one or more photon pulse OFF durations between 0.1 microseconds and 999 milliseconds, wherein at least two of the one or more ON durations, one or more intensities, and one or more OFF durations of the second modulated photon pulse group is the same as the at least two of the one or more ON durations, one or more intensities, and one or more OFF durations of the first modulated photon pulse group.
As stated in the above, Widmayer teaches first and second pulses with OFF-ON ratio of various microseconds within the ranges as claimed (col. 4, lines 45-51). Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have said first modulated photon pulse group has one or more photon pulse ON durations between 0.01 microseconds and 999 milliseconds with one or more intensities, has one or more photon pulse OFF durations between 0.1 microseconds and 999 milliseconds, wherein at least two of the one or more ON durations, one or more intensities, and one or more OFF durations of the second modulated photon pulse group is the same as the at least two of the one or more ON durations, one or more intensities, and one or more OFF durations of the first modulated photon pulse group as taught by Widmayer in the system of Maxik et al. as modified by Widmayer, depending on the type of plants being grown and the amount of light absorption and saturation level that each plant requires.
For claim 28, Maxik et al. as modified by Widmayer teach the system of claim 1, but are silent about wherein said first modulated pulse group has one or more photon pulse ON durations between 0.01 microseconds and 999 microseconds; and said second modulated pulse group has one or more photon pulse ON durations between 0.01 microseconds and 999 microseconds. As stated in the above, Widmayer teaches first and second pulses with OFF-ON ratio of various microseconds within the ranges as claimed (col. 4, lines 45-51). Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have said first modulated pulse group has one or more photon pulse ON durations between 0.01 microseconds and 999 microseconds as taught by Widmayer; and said second modulated pulse group has one or more photon pulse ON durations between 0.01 microseconds and 999 microseconds as taught by Widmayer in the system of Maxik et al. as modified by Widmayer, depending on the type of plants being grown and the amount of light absorption and saturation level that each plant requires.
For claim 29, Maxik et al. as modified by Widmayer teach the system of claim 1, but are silent about wherein said first modulated pulse group has one or more photon pulse ON durations between 999 microseconds and 1750 microseconds; and said second modulated pulse group has one or more photon pulse ON durations between 999 microseconds and 1750 microseconds. As stated in the above, Widmayer teaches first and second pulses with OFF-ON ratio of various microseconds within the ranges as claimed (col. 4, lines 45-51). Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have said first modulated pulse group has one or more photon pulse ON durations between 999 microseconds and 1750 microseconds as taught by Widmayer; and said second modulated pulse group has one or more photon pulse ON durations between 999 microseconds and 1750 microseconds as taught by Widmayer in the system of Maxik et al. as modified by Widmayer, depending on the type of plants being grown and the amount of light absorption and saturation level that each plant requires.
For claim 30, Maxik et al. as modified by Widmayer teach the system of claim 1, but are silent about wherein said first modulated pulse group has one or more photon pulse ON durations between 1750 microseconds and 2500 microseconds; and said second modulated pulse group has one or more photon pulse ON durations between 1750 microseconds and 2500 microseconds. As stated in the above, Widmayer teaches first and second pulses with OFF-ON ratio of various microseconds within the ranges as claimed (col. 4, lines 45-51). Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have said first modulated pulse group has one or more photon pulse ON durations between 1750 microseconds and 2500 microseconds as taught by Widmayer; and said second modulated pulse group has one or more photon pulse ON durations between 1750 microseconds and 2500 microseconds as taught by Widmayer in the system of Maxik et al. as modified by Widmayer, depending on the type of plants being grown and the amount of light absorption and saturation level that each plant requires.
Claims 12-15 are rejected under 35 U.S.C. 103 as being unpatentable over Maxik et al. as modified by Widmayer as applied to claim 1 above, and further in view of Wolfe (US 20030150394 A1).
For claim 12, Maxik et al. as modified by Widmayer teach the system of claim 1, but are silent about said master logic controller in communication with an irrigation source, wherein said irrigation source provides irrigation events to said organism.
Wolfe teaches a system for inducing a desired response in an organism, comprising a master logic controller (the computer as mentioned in various paragraphs, for example, para. 0027,0033) in communication with an irrigation source (para. 0031-0037, for example), wherein said irrigation source provides irrigation events to said organism. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the master logic controller Maxik et al. as modified by Widmayer be in communication with an irrigation source as taught by Wolfe, wherein said irrigation source provides irrigation events to said organism to water the organism.
For claim 13, Maxik et al. as modified by Widmayer teach the system of claim 12, but are silent about wherein said master logic controller is capable of adjusting the timing and duration of an irrigation event to said organism based upon said data from said at least one sensor.
Wolfe teaches a system for inducing a desired response in an organism, comprising a master logic controller (the computer as mentioned in various paragraphs, for example, para. 0027,0033) is capable of adjusting the timing and duration of an irrigation event (para. 0033,0086) to said organism based upon said data from said at least one sensor (para. 0027,0028,0098). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have said master logic controller of Maxik et al. as modified by Widmayer be capable of adjusting the timing and duration of an irrigation event as taught by Wolfe to said organism based upon said data from said at least one sensor, in order to provide water or irrigation for the organism.
For claim 14, Maxik et al. as modified by Widmayer teach the system of claim 1, but are silent about said master logic controller in communication with a nutrient source, wherein said nutrient source is capable of providing nutrient events to said organism.
As stated in the above, Wolfe teaches the master logic controller in communication with a nutrient source, wherein said nutrient source is capable of providing nutrient events to said organism (para. 0027,0063,0098). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have said master logic controller of Maxik et al. as modified by Widmayer be in communication with a nutrient source as taught by Wolfe, wherein said nutrient source is capable of providing nutrient events to said organism.
For claim 15, Maxik et al. as modified by Widmayer and Wolfe teach the system of claim 14, and further teach wherein said master logic controller of Maxik et al. is capable of adjusting the timing and duration of a nutrient event as modified with Wolfe to said organism based upon said data from said at least one sensor thereof.
Claims 5,22 are rejected under 35 U.S.C. 103 as being unpatentable over Maxik et al. as modified by Widmayer as applied to claim 1 above, and further in view of Grajcar (US 20110101883 A1).
For claim 5, Maxik et al. as modified by Widmayer teach the system of claim 1, but are silent about wherein said at least one photon emission modulation controller is selected from the group consisting of a solid-state relay, a metal-oxide-semiconductor field-effect transistor, a field-effect transistor, a Zener diode, optical chopper and a device that induces modulation of said first modulated photon pulse group or said second modulated photon pulse group.
Grajcar teaches a system for inducing a desired response in an organism (para. 0009-0011), the system comprising at least one photon emission modulation controller para. 0053,0087, the solid state, the Zener diode, and/or the main controller discussed throughout the publication) is selected from the group consisting of a solid-state relay, a metal-oxide-semiconductor field-effect transistor, a field-effect transistor, a Zener diode, optical chopper and a device that induces modulation of said first modulated photon pulse group or said second modulated photon pulse group. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to select from the group consisting of a solid-state relay, a metal-oxide-semiconductor field-effect transistor, a field-effect transistor, a Zener diode, optical chopper and a device that induces modulation of said first modulated photon pulse group or said second modulated photon pulse group as taught by Grajcar for the at least one photon emission modulation controller in the system of Maxik et al. as modified by Widmayer in order to provide a smooth continuous adjustment of AC excitation voltage for the light emitter (para. 0087 of Grajcar).
For claim 22, Maxik et al. as modified by Widmayer teach the system of claim 1, but are silent about wherein said organism is selected from the group consisting of bacteria, basidiomycetes, ascomycetes, sacchromycetes, angiosperms, pteridophytes, gymnosperms, cyanobacteria, diatoms, photosynthetic unicells, eukaryotic green algae, organisms within the kingdom Animalia and tissues thereof.
In addition to the above, Grajcar teaches the organism of interest is selected from the group consisting of bacteria, basidiomycetes, ascomycetes, sacchromycetes, angiosperms, pteridophytes, gymnosperms, cyanobacteria, diatoms, photosynthetic unicells, eukaryotic green algae, organisms within the kingdom Animalia and tissues thereof (para. 0009-0011,0088). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to select bacteria, basidiomycetes, ascomycetes, sacchromycetes, angiosperms, pteridophytes, gymnosperms, cyanobacteria, diatoms, photosynthetic unicells, eukaryotic green algae, organisms within the kingdom Animalia and tissues thereof as taught by Grajcar to be of interest in the system of Maxik et al. as modified by Widmayer, depending on the user’s preference as to the type of organism desired for the light treatment.
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Maxik et al. as modified by Widmayer as applied to claim 1 above, and further in view of
Yoneda et al. (US 20030009933 A1).
For claim 19, Maxik et al. as modified by Widmayer teach the system of claim 1, but are silent about wherein said first modulated photon pulse group and second modulated photon pulse group have a duty cycle that ranges between 0.1% to 93%.
Yoneda et al. teach wherein the duty cycle of said first modulated photon pulse group and second modulated photon pulse group ranges between 0.1 % to 93% (para. 0034 of Yoneda et al.). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the duty cycle of said first modulated photon pulse group and second modulated photon pulse group in the system of Maxik et al. as modified by Widmayer be in ranges between 0.1 % to 93% as taught by Yoneda et al., depending on the organism's need for light to enhance growth, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
Claims 23,24,26 are rejected under 35 U.S.C. 103 as being unpatentable over Maxik et al. as modified by Widmayer as applied to claim 1 above, and further in view of Palsson et al. (US 8401263 B2).
For claim 23, Maxik et al. as modified by Widmayer teach the system of claim 1, but are silent about wherein said master logic controller is in communication with a power consumption sensor that monitors the power usage of said at least one photon emitter and wherein said power consumption sensor is in communication with a host that is external to said master logic controller.
Palsson et al. teach a system for inducing a desired response in an organism comprising a master logic controller (225) is in communication with a power consumption sensor (col. 11, lines 20-30) that monitors the power usage of said at least one photon emitter (the LEDs, for example, col. 10, lines 35-40) and wherein said power consumption sensor is in communication with a host (the computer per col. 16, lines 44-60) that is external to said master logic controller). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include a power consumption sensor as taught by Palsson et al. in communication with the master logic controller of Maxik et al. as modified by Widmayer that monitors the power usage of said at least one photon emitter and wherein said power consumption sensor is in communication with a host that is external to said master logic controller in order to monitor power usage.
For claim 24, Maxik et al. as modified by Widmayer and Palsson et al. teach the system of claim 23, but are silent about wherein said system has a power savings of at least 50%. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have said system of Maxik et al. as modified by Widmayer and Palsson et al. with a power savings of at least 50%, in order to save energy and cost, which are common sense factors in power saving calculation.
For claim 26, Maxik et al. as modified by Widmayer and Palsson et al. teach the system of claim 25, further comprising: wherein said master logic controller (of Maxik et al.) is in communication with said at least one photon emission modulation controller, wherein said master logic controller is capable of sending commands to said at least one photon emission modulation controller controlling the components of said third or more modulated photon pulse group (the controller in Maxik et al. controls all aspect of the lighting or photon emission).
Response to Arguments
Applicant's arguments filed 5/17/2024 and in the pre-appeal brief on 11/7/2025 have been fully considered but they are not persuasive. Applicant argued the following:
However, Applicant respectfully submits that a thorough review of the Maxik reference and in particular paragraphs 0069, 0078-0082 provides no teaching or suggestion of any timing of the pulsing of photons, not to mention ON durations between 0.01 microseconds and 2500 microseconds. The Examiner appears to be applying her own knowledge and experience to the Maxik reference without providing any references to support the examiner's assertion that the timing of the ON durations as provided in claim 1, would be obvious in view of Maxik.
As stated in the above rejection, Widmayer teaches in the same field of endeavor of a system for inducing a desired response in an organism comprising first and second pulses with OFF-ON ratio of various microseconds within the ranges as claimed (col. 4, lines 45-51). Thus, one skill in the art would rely on Widmayer to adjust the duration time for ON/OFF of the pulses in the system of Maxik et al., depending on the type of plants being grown and the amount of light absorption and saturation level that each plant requires.
In addition, while applicant claimed these ranges or values for the ON/OFF durations, intensities, and pulses, etc. of each of the photon pulse group, the applicant bears the burden of proving that allegedly unexpected results are, in fact, unexpected See Tn re Geisler, 116 E 3d 1465, 1470 (Fed Cir 1997). In order to meet this burden, the applicant must assert, either in the Specification or in a declaration under 37 C.F.R. § 1.132, that the results are unexpected; and then back up that assertion with evidence. See id. at 14 71. Under some circumstances, however, changes such as these may impart patentability to a process if the particular ranges claimed produce a new and unexpected result which is different in kind and not merely in degree from the results of the prior art. In re Dreyfus, 22 CCPA (Patents) 830, 73 F.2d 931, 24 USPQ 52; In re Waite et al., 35 CCPA (Patents) 1117, 168 F.2d 104, 77 USPQ 586. Such ranges are termed "critical" ranges, and the applicant has the burden of proving such criticality. In re Swenson et al., 30 CCPA (Patents) 809, 132 F.2d 1020, 56 USPQ 372; In re Scherl, 33 CCPA (Patents) 1193, 156 F.2d 72, 70 USPQ 204. However, even though applicant's modification results in great improvement and utility over the prior art, it may still not be patentable if the modification was within the capabilities of one skilled in the art. In re Sola, 22 CCPA (Patents) 1313, 77 F.2d 627, 25 USPQ 433; In re Normann et al., 32 CCPA (Patents) 1248, 150 F.2d 627, 66 USPQ 308; In re Irmscher, 32 CCPA (Patents) 1259, 150 F.2d 705, 66 USPQ 314. More particularly, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Swain et al., 33 CCPA (Patents) 1250, 156 F.2d 239, 70 USPQ 412; Minnesota Mining and Mfg. Co. v. Coe, 69 App. D.C. 217, 99 F.2d 986, 38 USPQ 213; Allen et al. v. Coe, 77 App. D.C. 324, 135 F.2d 11, 57 USPQ 136.
In applicant’s specification, these ranges or values are listed but without any criticality or unexpected results. As a matter of fact, applicant stated, for example, in para. 0096-0098 that the pulses can vary and not limited to the ranges as claimed. Thus, it is clear that while Maxik may not states the exact pulse ranges or values as claimed by applicant, it would be obvious through routine testing and experimentation to obtain various pulse ranges or values, depending on the plant that is being grown due to each plant having different requirement for growth.
Regarding Claims 2,4-9,11-26,28-30 Applicant argued that these claims depend upon claim 1. Applicant respectfully submits that each and every element of claim 1 is not found in the Maxik et al reference.
Since applicant did not argue the limitation in detail for these claims, the examiner’s response is as stated in the above.
However, Applicant respectfully submits that a thorough review of the Maxik reference provides no teaching or suggestion of any timing of the pulsing of photons, not to mention ON durations between 0.01 microseconds and 999 milliseconds. The Examiner appears to be applying her own knowledge and experience to the Maxik reference without providing any references to support the examiner's assertion that the timing of the ON durations as provided in
claim 27, would be obvious in view of Maxik.
Applicant argued the same for claim 27 as claim 1 above, thus, please see the examiner’s response above.
Conclusion
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/Son T Nguyen/Primary Examiner, Art Unit 3643