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 Status
Claims 1-16 are pending.
Claims 1, 3, 8-9, 14, and 16 are objected to.
Claims 1-16 are rejected.
Priority
The instant application claims priority to US Provisional Application 63/091433 , filed 10/14/2020. As such, the effective filing date assigned to each of claims 1-16 is 10/14/2020.
Information Disclosure Statement
The Information Disclosure Statements filed 03/10/2022 and 06/14/2023 are in compliance with the provisions of 37 CFR 1.97 and have therefore been considered. A signed copy of the IDS is included with this Office Action.
The information disclosure statement filed 02/11/2022 fails 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. It has been placed in the application file, but the information referred to therein which is lined through has not been considered.
The listing of references in the specification is not a proper information disclosure statement. 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609.04(a) states, "the list may not be incorporated into the specification but must be submitted in a separate paper." Therefore, unless the references have been cited by the examiner on form PTO-892, they have not been considered.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description: 405 (fig 4). Corrected drawing sheets in compliance with 37 CFR 1.121(d), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.121(b) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The disclosure is objected to because it contains an embedded hyperlink and/or other form of browser-executable code (e.g. para 0043). Applicant is required to delete the embedded hyperlink and/or other form of browser-executable code; references to websites should be limited to the top-level domain name without any prefix such as http:// or other browser-executable code. See MPEP § 608.01.
The abstract of the disclosure is objected to because it exceed 150 words in length and contains phrases that can be implied (e.g. “methods of the present invention include”). A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
Claim Objections
Claims 1, 3, 8-9, 14, and 16 are objected to because of the following informalities:
Steps and sub-steps within the claim should begin with a lower case letter.
Furthermore, each claim should begin with a capital letter and end with a period. Periods may not be used elsewhere in the claims except for abbreviations.
For example, in claim 1, “a. Ingesting…” should be “(a) ingesting…”. Appropriate correction is required.
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 2-12 and 14 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 2 recites the limitation "the availability of pollen" in line 1. There is insufficient antecedent basis for this limitation in the claim, as claim 1, on which claim 2 depends, does not recite an availability of pollen.
Claims 3-12 and 14 are also indefinite for failing to remedy the indefiniteness of claim 2, on which they depend.
Claim 2, and claims 3-8, 10 and 12-13 which are dependent thereon, is also incomplete for omitting essential steps, such omission amounting to a gap between the steps. See MPEP § 2172.01. The omitted steps are: ingesting data related to pollen shed.
Claim 3, and all claims dependent thereon, recites the limitation "the amount of available pollen” in step a and “the number of stigmas that are naturally pollinated” in step b. There is insufficient antecedent basis for this limitation in the claim, as neither claims 1 or 2, on which claim 3 depends, recites these limitations.
Claim 8 recites the limitation "the amount of time” in step a, “the amount of heat units” in step b, “the number of stigmas per plant” in step c, and “the rate at which said crop exserts stigmas that are receptive too pollen”. There is insufficient antecedent basis for this limitation in the claim, as none of claims 1-5, on which claim 8 depends, recites these limitations.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 15 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends, because it only recites an intended result of the method in claim 1, on which it depends. As discussed in MPEP 2111.04, a wherein clause in a method claim is not given weight when it simply expresses the intended result of a process step positively recited.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 101
Claims 1-16 are found to be free from a rejection under 35 U.S.C. 101. The claims recite statutory subject matter, specifically a process (Step 1: YES). Under Step 2A, while the claims recite abstract ideas, such as modelling data, (Step 2A, Prong 1: YES), the steps of intentionally pollinating said population of said crop plant during at least one of said time steps during which intentional pollination is modeled to provide a greater harvest of said seed, grain, or fruit of interest than other of said time steps, which integrate the recited judicial exceptions into practical application by applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception (Step 2A,Prong 2: Yes). Therefore the claims are patent eligible.
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.
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.
Claims 1-6, 8-12 and 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Lizaso et al. (Crop Science 2003, 43: 892-903; hereafter referred to as a Lizaso) in view of Cárcova et al. (Crop Science 2000, 40: 1056-1061; hereafter referred to as Cárcova).
With respect to claims 1 and 15-16, Lizaso discloses model prediction of kernel number per plant for yield simulation in maize (Zea mays L.) and that the procedure for estimating kernel number per hectare is based on a quantitative description of maize flowering characteristics on a field scale. (abstract; p 893, col 1, para 4).
Lizaso discloses mathematical functions were fit to temporal profiles of plant population dynamics for pollen shed and silk exsertion measured in the field (i.e. ingesting, as input data, reproductive maturity data) (p 893, col 1, para 4).
Lizaso further discloses modeling the data by determining the amount and temporal distribution of receptive silks, a percentage of kernel formed by flowers with exposed silks from the daily rate of pollen shed, and calculating kernel number per hectare as a measure of the dynamics of silk numbers available and receptive to pollination (p 893, col 2, para 4-p 894, col 2, para 1; p 898, col 1, para 2-col 2, para 1; fig 1). Lizaso notes that procedures used to document the daily rate of pollen shed and daily progress of silk exsertion included preventing pollination at all other times by covering the ears with a glassine bag, and that each exposed silk translated mathematically into a potential kernel, depending on its timely pollination (i.e. modeling included the effect of intentionally applied pollen), thereby generating one or more time steps during which intentional pollination is modeled to provide a greater harvest of kernels (p 894, col 2, para 4; p 898, col 2, para 2; fig 4-6).
With respect to claim 1, although Lizaso does not disclose the modeling steps are computer implemented, the court held that broadly providing an automatic or mechanical means to replace a manual activity which accomplished the same result is not sufficient to distinguish over the prior art (In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958)).((See MPEP 2144.04 (III).) Therefore, it would have been 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 have used a computer to automate the modeling steps of Lizaso.
However, with respect to claims 1 and 6, Lizaso does not appear to disclose intentionally pollinating the population of corn during which pollination is modeled to provide a greater harvest of kernels than at other time steps.
The prior art to Cárcova, in the same field of endeavor, discloses synchronous pollination through hand pollination with fresh pollen of all exposed silks on apical and sub-apical ears improved kernel number per plant and the floret fertility index (FFI = number of kernels/number of pollinated silks) (title; abstract; p 1057, col 2, para 3).
Therefore, 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 the steps for modeling pollen and silk exsertion dynamics to predict kernel set as disclosed by Lizaso, by hand-pollinating the silk, as disclosed by Cárcova, when the model predicts greatest silk exsertion because synchronous pollination through hand pollination of all exposed silks on apical and sub-apical ears improved kernel number per plant and the number of kernels per number of pollinated silks as disclosed by Cárcova. There would be a reasonable expectation of success because using the results of the model to inform artificial pollination for greater harvest would not impede the analysis of Lizaso.
With respect to claim 2, Lizaso discloses modelling pollen shed per day (p 893, col 1, para 5-col 2, para 3; fig 2).
With respect to claims 3 and 4, Lizaso discloses modelling the amount and temporal distribution of pollen and modeling the relationship between kernel set/total number of silks and daily pollen shed rate for each day (p 893, col 1, para 5; fig 7) .
With respect to claim 5, Lizaso discloses the crop is maize (title).
With respect to claim 8, Lizaso discloses the daily percentage of plant population that has started silking and daily number of silks exserted from the apical ear, as well as the seasonal dynamics of silk exsertion (i.e. the rate at which crop exserts stigmas that are receptive to pollen) (fig 4-5).
With respect to claim 9, Lizaso discloses silks are receptive to pollen for 6 days (p 894, col 2, para 1).
With respect to claims 9, Lizaso discloses modeling pollen shed includes using daily values for pollen shed were normalized to daily pollen shed per fertile plant (i.e. rate at which plant sheds pollen) (p 893, col 1, para 5).
With respect to claims 10 and 11, Lizaso discloses patterns and timing of pollen shed and silk appearance also can be modified readily to predict kernel set under stress conditions, such as high temperature from tassel initiation to kernel set, which shortens the duration of pollen shedding, drought at or before tasseling, which delays silk emergence, and flooding during the early vegetative growth which delays silking more than tasseling (i.e. stresses that can result from differences in growing environments, such as fields in different location), and that these environmental responses can be simulated by altering parameters in equations 1 and 4 (p 901, col 1, para 3-col 2, para 1).
With respect to claim 12, since Lizaso produces seasonal dynamics for days of the year (i.e. a calendar), and states patterns and timing of pollen shed and silk appearance also can be modified readily to predict kernel set under stress conditions and environmental responses can be simulated by altering parameters in equations 1 and 4, it would be possible for Lizaso to generate a calendar for each growing environment to model intentional pollination to provide a greater harvest than at other time steps (fig 2-7; p 901, col 1, para 3-col 2, para 1.
With respect to claim 14, while Lizaso does not appear to explicitly disclose gathering weather data, Lizaso does disclose that patterns and timing of pollen shed and silk appearance also can be modified readily to predict kernel set under stress conditions, such as high temperature from tassel initiation to kernel set, which shortens the duration of pollen shedding, drought at or before tasseling, which delays silk emergence, and flooding during the early vegetative growth which delays silking more than tasseling, and that these environmental responses can be simulated by altering parameters in equations 1 and 4 (p 901, col 1, para 3-col 2, para 1). Therefore, 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 gather weather data in order to make predictions under those weather conditions that affect the environmental stress responses of the modeled crops of Lizaso, as Lizaso discloses accounting for environmental stress contentions in the equations, indicating that the input data could include weather data.
Therefore, the invention is prima facie obvious.
Claims 7 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Lizaso et al. (Crop Science 2003, 43: 892-903; hereafter referred to as a Lizaso) in view of Cárcova et al. (Crop Science 2000, 40: 1056-1061; hereafter referred to as Cárcova), as applied to claims 1-5 above, and further in view of Etter et al. (US20190008144A1; hereafter referred to as Etter).
With respect to claims 7 and 13, Lizaso in view of Cárcova discloses the limitations of claims 1-5, as applied above.
With respect to claims 7, neither Lizaso nor Cárcova appear to disclose the use of preserved pollen.
With respect to claims 13, neither Lizaso nor Cárcova appear to disclose the cross pollination.
However, with respect to claim 7, the prior art to Etter, in the same field of endeavor discloses pollen preservation methods such that the pollen has improved viability as compared to pollen that is left in ambient conditions because methods to improve pollen viability and extend duration of viability of pollen for economically important crops such as maize is of significant value to the agricultural industry (abstract; [para 0003). Etter further discloses that utilizing stored pollen allows for pollination which is not dependent on active pollen shed, temporal synchrony with pistil (female flower) receptivity, use of male sterility, and/or physical isolation from other pollen sources.
With respect to claim 13, Etter discloses many species rely on self-pollination or cross pollination by neighboring plants to produce fertile seed or grain and that typically, in the agricultural hybrid seed industry, mechanical, physical, and/or genetic interventions are required to ensure female plants are cross pollinated, and not self-pollinated, so that pollen of a specific genetic constitution is employed to produce hybrid seed, such as to produce hybrid corn (para 0004).
Therefore, 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 the steps of Lizaso and Cárcova, as applied to claim 1 above, with the use of stored pollen for artificial pollination, including for intentional cross pollination, as disclosed by Etter, as utilizing stored pollen allows for pollination which is not dependent on active pollen shed, temporal synchrony with pistil (female flower) receptivity, use of male sterility, and/or physical isolation from other pollen sources and methods to improve pollen viability, can produce hybrid seed, and extend duration of viability of pollen for economically important crops such as maize is of significant value to the agricultural industry. There would be a reasonable expectation of success because using preserved pollen, including for cross pollination, would not impede the hand pollination of Cárcova or the analysis steps of Lizaso. Therefore, the invention is prima facie obvious.
Conclusion
No claims allowed.
Inquiries
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NIDHI DHARITHREESAN whose telephone number is (571)272-5486. The examiner can normally be reached Monday - Friday 9:00 - 5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Larry D Riggs II can be reached at (571) 270-3062. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/N.D./
Examiner, Art Unit 1686
/Karlheinz R. Skowronek/Supervisory Patent Examiner, Art Unit 1687