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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 12/20/2024 has been entered.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 12/20/2024 have been considered in part by the examiner. Those references struck through on the annotated IDSs are not considered due to failure of the applicant to comply with 37 CFR 1.98(a)(2), which requires a legible copy of each cited foreign patent document; each non-patent literature publication or that portion which caused it to be listed; and all other information or that portion which caused it to be listed.
Drawings
The drawings were received on 12/20/2024. These drawings are unacceptable. The amendment to Figure 8 will not be entered as it contains subject matter extending beyond the application as filed. The embodiment shown, which includes transparent/lens regions of the curtain in combination with the location of the lights as being mounted on an inner wall of the reflective curtain represents an embodiment of the invention not adequately described in the original disclosure as filed. As explained in depth in relation to the 112(a) rejections of claims 18 and 19 below, although the two features are described individually, in relation to their respective embodiments, there is a disclosure deficiency in regard to the combination of elements.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 18-19 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 18 requires “at least one light source disposed on the reflective curtain,” and “wherein at least one location of the reflective curtain, where the at least one light source is disposed, is more transparent than a rest of the reflective curtain.” The examiner contends that the specification does not provide adequate support for an embodiment where the light source is on the reflective curtain and at a location that is more transparent than a rest of the reflective curtain. The specification does discuss an embodiment where a light source is on the reflective curtain (mounted to inner surface in Fig 9; ¶00100), and it does discuss an embodiment where a light source is disposed at a location on the reflective curtain that is more transparent than the rest (¶00103-00104). However, these embodiments clearly alternatives, with the light source in the embodiment with the transparent regions being sandwiched between layers of the reflective curtain, the transparent regions allowing light from the source within the curtain to pass through the curtain (¶000103-000104). The examiner contends, as in Hyatt v. Dudas, 492 F.3d 1365, 1371, 83 USPQ2d 1373, 1376-1377 (Fed. Cir. 2007), that although the applicant’s individual claimed elements (i.e. transparent regions at a location of a light source, and a light source on the curtain) are described, a deficiency exists in the lack of adequate description of their combination. It is concluded that such deficiency would cause a person having ordinary skill in the art to call into question whether the inventor was in possession of the full scope of the claimed invention at the time of filing.
Claim 19 is similarly rejected, not only for its dependence on claim 18, but because it requires “at least one light source disposed on the reflective curtain,” (from claim 18), and “wherein the at least one location forms a lens”. As with the ‘transparent region disclosure’, the disclosure of the regions forming a lens is clearly linked to the embodiment where the light source is sandwiched between layers of the reflective curtain, the lens changing the angles at which the light is directed from the LED as the light passes through the lens (¶00103-00104). As above, the examiner contends that, as in Hyatt v. Dudas, 492 F.3d 1365, 1371, 83 USPQ2d 1373, 1376-1377 (Fed. Cir. 2007), although the applicant’s individual claimed elements (i.e. lens at a location of a light source, and a light source on the curtain) are described, a deficiency exists in the lack of adequate description of their combination. It is concluded that such deficiency would cause a person having ordinary skill in the art to call into question whether the inventor was in possession of the full scope of the claimed invention at the time of filing.
Claim Rejections - 35 USC § 112
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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-19 & 36 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites “the reflective curtain forming a compliant and flexible sidewall supported in a draped arrangement for positioning relative to a photosynthetic organism, the draped arrangement being positionable such that ambient positive pressure air flow causes the reflective curtain to deform and modify a surface angle of the reflective curtain relative to the photosynthetic organism.” This limitation is unclear for several reasons. First, it is unclear whether the applicant is positively requiring the photosynthetic organism and positively requiring that the curtain be located ‘relative’ to the organism, or whether the claim only requires that the curtain be capable of being positioned relative to a photosynthetic organism (i.e. functional language). If the prior, this needs to be clarified. If the latter, it is unclear what structure this functional language is requiring, or generally how this capability is limiting to the claim or if it is purely intended use with no significance to the claimed structure. Secondly, by saying that the curtain is supported in a draped arrangement, the applicant is claiming a specific configuration of the curtain, this is clear. However, the applicant goes on to say that ‘the draped arrangement’ is ‘positionable such that ambient positive pressure air flow causes the reflective curtain to deform and modify a surface angle of the reflective curtain relative to the photosynthetic organism’. The use of the word ‘causes’ calls into question whether the applicant is attempting to positively claim a step of curtain deformation, or only the possibility of deformation when subject to the conditions listed. Further this limitation seems to imply with ‘such that’, that the position of the curtain is a determinative factor in the deformative capability of the curtain under a certain air flow, though it is not clear what positions, in the applicant’s mind, would provide the curtain with the deformative capability claimed, and which would not. Further, given that the claim only requires that the curtain be ‘positionable’, it is overall unclear how a curtain that is capable of being positioned to allow the claimed deformative functionality would differ from a curtain that is capable of being positioned but would not allow the claimed deformative functionality; in other words, how does this functional language serve to limit the structure of the claimed curtain, is this requiring a specific drape coefficient as in claim 14, a specific thickness of the curtain as in claim 13, a configuration more limiting than ‘draped’?
Claim 36 is unclear as it appears to be dependent on cancelled claim 35. For examination purposes, claim 36 will be understood as being dependent on claim 2, as in past correspondence.
Claims 2-19 and 36 are rejected by virtue of dependence on claim 1.
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.
Claim 1-6, 9-12, 17 and 36 are rejected under 35 U.S.C. 103 as being unpatentable over Duncan (US 2015/0173302 A1) in view of HowToHydroponics (NPL: Cheap DIY $2 Grow Tent!), hereinafter referred to as Duncan and HTH, respectively, as best understood in light of the 112 issues addressed above.
Regarding claim 1:
Duncan discloses a controlled environment agriculture system (Figs 1A-B), the system comprising:
a reflective curtain (reflective article 10; Para [0136]: can be a curtain) including a porous membrane (Para [0018] - diffuse reflecting material 20 and retro reflecting material 22 having particles 26 and 28; ¶0096 – “permeable to gas transfer” ), the reflective curtain forming a compliant and flexible sidewall for positioning relative to a photosynthetic organism(¶0088 & ¶0093 discuss flexibility of reflective article; ¶0136 says “the reflective article can be incorporated into any device that can be placed in the proximity of a plant…the reflective article is a film, foil or a sheet, billboard, screen, mesh, curtain, or a covering for a scaffold or for a pre-existing structure such as the side of a building”; ¶0145 discusses placing the reflective article “beside” a plant; the reflective article being a curtain or a covering for a scaffold, placed beside a plant, would form a wall on one side of the plant, hence sidewall; see also ¶0064 discussing placing reflective article around plant to reflect light towards the plant), the compliant and flexible sidewall having an inner surface (surface of diffuse reflecting layer Fig 1B.20; ¶0018) of reflective article 10 with a reflectance value of at least 80% that is maintained between wavelengths 400 nm and 750 nm (Para [0115]: reflective article exhibits 75%-100% diffuse reflectance of wavelengths 400-750 nm).
As best understood, although Duncan discloses the use of the article as a curtain and mentions placing the article around a plant to reflect light towards the plant, Duncan fails to specifically disclose that the curtain is supported in a draped arrangement, the draped arrangement being positionable such that ambient positive pressure air flow causes the reflective curtain to deform and modify a surface angle of the reflective curtain relative to the photosynthetic organism.
HTH discloses a flexible reflective curtain supported in a draped arrangement over a support structure (see 3:30-3:50), the draped arrangement placed around a plant to reflect light towards the plant, and being positionable such that ambient positive pressure air flow causes the reflective curtain to deform and modify a surface angle of the reflective curtain relative to the photosynthetic organism (functional language: draped configuration alongside flexibility provide this capability, as best understood).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the instant application to have specifically provided the reflective curtain of Duncan in a supported draped arrangement, as in HTH, the result having a reasonable expectation of success. One would have been motivated to make such a modification so as to allow for a specifically tailorable configuration of the curtain about a plant so as to best reflect light and so as to allow for a specifically tailorable configuration of the curtain about a plant so as to best reflect light and improve lighting efficiency thereby improve lighting/energy efficiency.
Regarding claim 2:
Duncan as modified discloses the limitations of claim 1 above and further discloses a light source, wherein the photosynthetic organism is arranged to receive light from the light source that is diffused by the reflective curtain ¶0018; “substantially all of the sunlight that is photosynthetically active 16 is diffuse reflected by the diffuse reflecting material 20 of article 10 towards the leaves of the trees 12”; ¶0027 – “light may be sunlight or artificial light”; ¶0064 discusses placing reflective article around plant to reflect light towards the plant).
Regarding claim 3:
Duncan as modified discloses the limitations of claim 1 above and further discloses wherein the porous membrane is permeable to air at an atmospheric pressure from about 980 mbar to about 1040 mbar (Para [0096]: permeable to gas from atmosphere, atmospheric pressure at sea level is about 1013 mbar which falls within range).
Regarding claim 4:
Duncan as modified discloses the limitations of claim 1 above and further discloses Duncan discloses wherein a reflectance value of the membrane at a wavelength range from 400 nm to 750 nm ranging from 5%-100% (¶0115) and
Duncan fails to explicitly disclose wherein a first average reflectance value of the membrane at a first wavelength range from 400 nm to 450 nm is lower than a second average reflectance value at a second wavelength range from 450 nm to 750 nm.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the membrane be more reflective to certain wavelengths of light than others (like 450-750nm vs 400-450nm), the result having a reasonable expectation of success, in order to better reflect more desirable wavelength ranges of light to the plant, or prevent certain undesirable wavelengths of light from being reflected unto the plant; a range of 400-450nm being reflected less than a range of 450-750nm may be desired by a cultivator based on the plant type, desired effect, etc.. For example, one may choose these values in order to affect only plant proteins with absorption that peaks between 450-750nm. It has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
Regarding claim 5:
Duncan as modified discloses the limitations of claim 1 above and further discloses wherein the reflectance value of the porous membrane is at least 95% (Para [0115]; 75%-100%, which includes 95% and up).
Regarding claim 6:
Duncan as modified discloses the limitations of claim 5 above and further discloses wherein the reflectance value of the porous membrane is at least 98% (Para [0115]; 75%-100%, which includes 98% and up).
Regarding claim 9:
Duncan as modified discloses the limitations of claim 1 above and further discloses at least one light source operably arranged proximate the reflective curtain such that light is reflected by the reflective curtain (Para [0018]; sunlight from sun reflected off of reflective article 10 to trees 12; ¶0027 – “light may be sunlight or artificial light”; ¶0064 discusses placing reflective article around plant to reflect light towards the plant).
Regarding claim 10:
The modified reference discloses the limitations of claim 1 above and HTH further discloses wherein the reflective curtain forms an enclosure configured to cover the photosynthetic organism (see screen capture of HTH at 3:56 below showing the enclosure, covering, draped configuration adopted by the curtain of Duncan in the rejection of claim 1; cover is being interpreted under BRI as based on its Merriam Webster definition, as something that protects, shelters, or guards; or something that is placed over or about another thing).
PNG
media_image1.png
597
1069
media_image1.png
Greyscale
Regarding claim 11:
Duncan as modified discloses the limitations of claim 3 above and further teaches wherein the membrane is also permeable to at least one other gas (Para [0096]; permeable to gas in atmosphere; the atmosphere includes gases besides Nitrogen, oxygen, and Argon, for example, carbon dioxide; see also potential materials of the reflective article in ¶0094 – take for example, LDPE, which is permeable to ethylene).
Regarding claim 12:
Duncan as modified discloses the limitations of claim 11 above and further teaches wherein the membrane is also permeable to at least one other gas (Para [0096]; permeable to gas in atmosphere; ambient air naturally includes ethylene gas; see also potential materials of the reflective article in ¶0094 – take for example, LDPE, which is permeable to ethylene).
Regarding claim 17:
Duncan as modified discloses the limitations of claim 9 above and further discloses wherein the reflective curtain comprises two porous membranes at least partially bonded to each other (Duncan: ¶0018 – diffuse reflecting material 20 and retro reflecting material 22; ¶0093; see Fig 1B).
Regarding claim 36:
Duncan as modified discloses the limitations of claim 2 above and further discloses wherein the photosynthetic organism is configured to change a position of the reflective curtain when the photosynthetic organism grows past a predetermined height or size (functional language: the plant would be capable of changing a position of the reflective curtain should it outgrow the surrounding curtain, based on the draped arrangement and flexibility of the curtain).
Claims 7-8 & 13 are rejected under 35 U.S.C. 103 as being unpatentable over Duncan and HTH, as applied to claims 1&11, in view of Minor (US 6015610 A), hereinafter referred to as Minor, as best understood in light of the 112 issues addressed above.
Regarding claim 7:
Duncan as modified discloses the limitations of claim 1 above and further discloses that the membrane may comprise fluoropolymers, or copolymers with tetrafluoroethylene (¶0090; ¶0094).
Duncan as modified fails to explicitly disclose wherein the membrane comprises an expanded fluoropolymer.
Minor discloses the use of an expanded polytetrafluoroethylene as a material for providing exceptional diffuse reflectivity of light (Abstract).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to specifically use an expanded fluoropolymer, like ePTFE as in Minor, for a material for the membrane of Duncan, the result having a reasonable expectation of success. One would have been motivated to make this modification because, as disclosed in Minor, the porous microstructure of ePTFE allows for its exceptional diffuse light reflective properties that exceed other known materials (Col 1, line 62- Col 2, line 33). Moreover, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Regarding claim 8:
The modified reference discloses the limitations of claim 7 above and Minor further discloses wherein the expanded fluoropolymer is an expanded polytetrafluoroethylene (Abstract).
Regarding claim 13:
Duncan as modified teaches the limitations of claim 1 above.
Duncan as modified fails to explicitly disclose wherein the reflective curtain has a thickness from 0.100 mm to 0.400 mm.
Minor teaches a light reflecting material with a thickness from 0.100 mm to 0.400 mm (claim 1: thickness no more than .3 mm).
It would have been obvious to a person having ordinary skill in the art before the effective filing date to have modified Duncan to have a thickness between .1mm and .4mm, as in Minor, the result having a reasonable expectation of success. One would have been motivated to make this modification because, as disclosed in Minor, a thinner material allows for greater design flexibility and decreases the cost and weight of the material (Col 13, lines 23-28). Moreover, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Claims 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Duncan and HTH, as applied to claim 1, in view of Kubo (US 2013/0021797), hereinafter referred to as Kubo, as best understood in light of the 112(a) issues addressed above.
Regarding claim 18:
Duncan as modified discloses the limitations of claim 1 above and further discloses that the reflectance/transmissivity of the reflective layers may be altered as desired (¶0082; ¶0115; ¶0108) and discloses a light source may be artificial light (¶0027 – “light may be sunlight or artificial light”).
Duncan as modified fails to explicitly disclose wherein the at least one light source is disposed on the reflective curtain, such that light is reflected by the reflective curtain, wherein at least one location of the reflective curtain where the at least one light source is disposed is more transparent than a rest of the reflective curtain.
Kubo, however, discloses a reflective curtain (Fig 1.12; ¶0058) with at least one light source (Fig 1.23) wherein the at least one light source is disposed in at least one location on the reflective curtain, such that light is reflected by the reflective curtain (capable of reflecting light due to reflective property) that is more transparent than the rest of the reflective curtain (¶0052 – lens Fig 1.25 is transparent; location of light source 23 aligned with 25 - see Fig 1).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have provided a light source on the reflective curtain of Duncan in a location more transparent than the rest of the reflective curtain, as in Kubo, the result having a reasonable expectation of success. One would have been motivated to make this modification in order to effectively provide lighting in close proximity to the plants being grown and to better control the lighting levels reflected and delivered to the plant to optimize growth, and direct the light in a more precise direction, for example towards a specific plant structure. Moreover, it has been held that rearranging parts of an invention involves only routine skill in the art. See MPEP § 2144.04(VI)(C); In re Japikse, 86 USPQ 70 (CCPA 1950); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975).
Regarding claim 19:
The modified reference discloses the limitations of claim 18 above, and Kubo further discloses wherein the at least one location forms a lens (¶0049: Fig 1.25 is a lens; as seen in Fig 1, the light source 23 is aligned with lens 25).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have provided a light source with lens on/in the reflective curtain (as best understood) of Duncan, as in Kubo, the result having a reasonable expectation of success. One would have been motivated to make this modification because a light source on the curtain would provide lighting in close proximity to the plants being grown and allow for better control of the lighting levels reflected and delivered to the plant to optimize growth and, as disclosed in Kubo, a lens would allow directional control of the light distribution of the LEDS (¶0051).
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Duncan and HTH, as applied to claim 1, in view of McGregor (US 2019/0374375), hereinafter referred to as McGregor, as best understood in light of the 112 issues addressed above.
Duncan as modified discloses the limitations of claim 1 above and further discloses wherein the reflective curtain is made of a flexible material (¶0088; ¶0093).
Duncan as modified fails to specifically disclose wherein the reflective curtain has a drape coefficient of less than 0.4.
McGregor discloses a reflective flexible sheet Fig 1B.150 with a drape coefficient of less than .4 (¶0036 – “no greater than 0.3”).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have formed the reflective curtain of Duncan with a drape coefficient of less than 0.4, as in McGregor, the result having a reasonable expectation of success. One would have been motivated to make this modification in order to allow for improved flexibility to allow the curtain to be used in a number of configurations without excessive user manipulation. Moreover, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Duncan and HTH, as applied to claim 1, in view of Yamauchi (JP 7336237), hereinafter referred to as Yamauchi, as best understood in light of the 112 issues addressed above.
Duncan as modified discloses the limitations of claim 1 above and further teaches wherein the density of the diffuse reflecting material may be varied (¶0134-0135).
Duncan as modified fails to explicitly disclose wherein the reflective curtain has a density of less than 0.50 g/cc.
Yamauchi discloses a reflective sheet with a density of less than 0.50 g/cc (“The density of the modified porous body of this embodiment is preferably 0.01 to 0.30 g/cm^3”).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the density of Duncan to be less than 0.50 g/cc, as in Yamauchi, the result having a reasonable expectation of success. One would have been motivated to make this modification because, as disclosed in Yamauchi, setting the density to a value less than .5 g/cc, “it is possible to achieve both excellent flexibility and strength in a well-balanced manner. Moreover, it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Duncan and HTH, as applied to claims 1&9, in view of Goto (US 2021/0351328), hereinafter referred to as Goto, as best understood in light of the 112 issues addressed above.
Duncan as modified discloses the limitations of claim 9 above and further discloses that the light source may be artificial light (¶0027 – “light may be sunlight or artificial light”).
Duncan as modified fails to disclose wherein the at least one light source is disposed on the inner surface of reflective curtain, the reflective curtain further comprising at least one conductive trace array disposed on an outer surface of the reflective curtain and operatively coupled with the at least one light source.
Goto discloses a reflective sheet (Fig 6H.34) placed beside a plant (see Fig 9A) with at least one light source (Fig 6B.21) disposed on an inner surface of reflective sheet (see Fig 6H, LED mounted to top, ‘inner surface’ of sheet 34 via solder 36), the reflective sheet further comprising at least one conductive trace array (metal wiring portion, Fig 6H.32) disposed on an outer surface of the reflective curtain (as seen in Fig 6H, metal wiring portion 32 is disposed on the bottom ‘outer’ surface of the reflective sheet 34) and is operatively coupled with the at least one light source (see Fig 6H; ¶0152).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have provided a light source and corresponding conductive trace array on opposite sides of the reflective curtain of Duncan, as in Goto, the result having a reasonable expectation of success. One would have been motivated to make this modification because a light source on the curtain would provide lighting in close proximity to the plants being grown and allow for better control of the lighting levels reflected and delivered to the plant to optimize growth and providing the conductive trace array on the opposite side as that which reflects light towards the plant would be ideal, so as to not limit the reflective area by putting trace on top of it. Moreover, it has been held that rearranging parts of an invention involves only routine skill in the art. See MPEP § 2144.04(VI)(C); In re Japikse, 86 USPQ 70 (CCPA 1950); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975).
Response to Arguments
Applicant's arguments filed on 12/20/2024 have been fully considered but they are not persuasive.
In regard to the 112(a) rejections of claim 18 and 19, the examiner does not find the amendments sufficient in overcoming the 112(a) rejection presented, as the claims still involve an unsupported combination of features from distinct embodiments. See the rejections of claims 18 and 19 under 112(a) above for a detailed description of the examiner’s reasoning for rejection.
On pages 12-13 the applicant argues that McGregor does not pertain to the field of controlled environment agriculture, let alone one involving reflective curtains, the technology of McGregor pertaining to patient warming devices for warming patients during surgery, and therefore not being analogous art.
The examiner respectfully disagrees. In response to applicant's argument that McGregor is nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, the examiner contends that McGregor is in the field of the inventor’s endeavor. MPEP 2141.01(a)(I) states that, when determining whether a piece of art is from a relevant field of endeavor to the applicant’s invention, the examiner should consider "explanations of the invention’s subject matter in the patent application, including the embodiments, function, and structure of the claimed invention." Airbus S.A.S. v. Firepass Corp., 941 F.3d 1374, 1380, 2019 USPQ2d 430083 (Fed. Cir. 2019) (quoting Bigio, 381 F.3d at 1325, 72 USPQ2d at 1212). The applicant’s specification describes the invention’s structure as including a multilayered flexible reflective curtain and a light source. The specification also discloses an embodiment where the flexible reflective curtain is draped around an organism so as to reflect light back to the organism. McGregor, although intended for humans rather than plants, also discloses that the structure of their invention includes a multilayer flexible reflective curtain (flexible sheet 150; Fig 1B)and a light source (light devices 120,130; Fig 1B). Further, McGregor discusses draping the curtain around an organism so as to reflect light back to the organism (¶0032). The applicant’s specification also contemplates allowing selective wavelengths to pass through (not reflect off of) the reflective curtain, contemplating pass through ranges from 280 nm to 1mm, leaving the applicant’s disclosed invention broad enough to encompass a curtain where all light except infrared, as in McGregor, may pass through the curtain. McGregor is also reasonably pertinent to this concept as it contemplates selective reflectivity of certain wavelengths (¶0036). The examiner notes that per MPEP 2141.01(a) “The field of endeavor is ‘not limited to the specific point of novelty, the narrowest possible conception of the field, or the particular focus within a given field.’”) (quoting Unwired Planet, LLC v. Google Inc., 841 F.3d 995, 1001, 120 USPQ2d 1593, 1597 (Fed. Cir. 2016)) and that the Federal Circuit reads KSR as “direct[ing] us to construe the scope of analogous art broadly” because “familiar items may have obvious uses beyond their primary purposes, and a person of ordinary skill often will be able to fit the teachings of multiple patents together like pieces of a puzzle.” Wyers v. Master Lock Co., 616 F.3d 1231, 1238, 95 USPQ2d 1525, 1530 (Fed. Cir. 2010) (quoting KSR, 550 U.S. at 402, 127 S. Ct. at 1727). Further, per Stevenson v. Int'l Trade Comm., 612 F.2d 546, 550, 204 USPQ 276, 280 (CCPA 1979), "In a simple mechanical invention a broad spectrum of prior art must be explored and it is reasonable to permit inquiry into other areas where one of ordinary skill in the art would be aware that similar problems exist." The examiner thusly asserts that McGregor is in fact considered analogous art and thus the rejection is sound.
Applicant’s arguments with respect to claim(s) 1-19 & 36 have been considered but are moot because the new ground of rejection, except where traversed above, does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Kajiyama (JP 2002176863) teaches an agricultural net with a drape coefficient of .6 or less.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BROOK V SCHMID whose telephone number is (571)270-0141. The examiner can normally be reached M-F 8:30-5:30ish.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joshua Huson, can be reached on 571-270-5301. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/B.V.S./Examiner, Art Unit 3642
/JOSHUA D HUSON/ Supervisory Patent Examiner, Art Unit 3642
Prosecution Insights