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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 February 2026 has been entered.
The cancelation of claims 20, 21 and 27 has overcome the rejections over these claims. The amendment to claim 1 made 12 January 2026 has overcome the rejections based on WO 2004/041963. Applicant's arguments have been fully considered but they are not persuasive.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim Rejections - 35 USC § 112
Claims 18, 22-26, are 28-35 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 was amended to include the limitation that the film has a light transmission of 80% or more. It is unclear what wavelengths have this light transmission; all light wavelengths, visible wavelength only, UV wavelength only, IR wavelengths only, UV and visible wavelengths or visible and IR wavelengths. The specification, teaches on page 23, the transmission may be measured the standard method ASRM D1003 which measures the transmission of visible light. The statement indicates that this method is not the only method that can be used to measure transmission and it is known in the greenhouse art that it is sometimes desirable to control IR and/or UV transmission as well as visible light. In view of these facts, this limitation is indefinite. Since all the dependent claims implicitly include this limitation, they are also indefinite.
Claim Interpretation
The Examiner is interpreting the wavelengths of light which is transmitted through the film at 80% or greater as being visible light, due to the disclosed method. It is noted that this type of light transmission is also referred to as transparency in terms of percentage.
Claim Rejections - 35 USC § 103
Claim 18, 22-26, 28, 31, 32, 34 and 35 are rejected under 35 U.S.C. 103 as being unpatentable over FR 2846663.
This reference teaches light transforming greenhouse walls comprising a matrix that contains Ba3-3xEu3xMg1-yMnySi2O8 wherein x and y are 0<x<0.3 and 0<y<0.3. The taught silicate, which can be rewritten as 3-3xBaO∙3xEuO∙1-yMgO∙yMnO∙2SiO, has a formula where the amounts of SiO2, MgO and BaO fall within the ranges of claims 18, 22-23, the amount of MgO falls within the ranges of claim 18 and overlaps that of claims 22 and 23 and the amount of EuO overlaps that of claims 18, 22 and 23. The taught silicate formula meets the requirements of claim 24 and overlaps and includes the compounds of claims 25 and 26. Product claims with numerical ranges which overlap prior art ranges were held to have been obvious under 35 USC 103. In re Wertheim 191 USPQ 90 (CCPA 1976); In re Malagari 182 USPQ 549 (CCPA 1974); In re Fields 134 USPQ 242 (CCPA 1962); In re Nehrenberg 126 USPQ 383 (CCPA 1960). Also see MPEP 2144.05. The silicate of example 1 has the same composition as that of claim 26. Figure 1 shows that the taught silicate has a light emission with a first peak wavelength in the range from 400-500 nm and figure 3 shows that the silicate has an absorption of a wavelength greater than 440 nm of 20% or less. Thus the taught silicate has an optical emission and absorption spectrum that meets the requirements of claim 18.
The taught matrix can be a polymer, such as LDPE, LLDPE, PVC, polyethylenes obtained via metallocene synthesis, PET, EVA, polymethylmethacrylate, polycarbonate, ethylene vinyl alcohol copolymers (which are also known as EVOH) and copolyolefins. Thus the taught matrix are several of the polymers taught of claim 32. The amount of silicate in the taught material is 0.1-10 wt%, which is the amount of claim 28. Since the taught compositions are the same as that claimed, the taught composition must inherently have a transmission of 80% or greater; absent any showing to the contrary. "Products of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id. See MPEP 2112.01(II). In addition, it is well known in the greenhouse/agricultural film art, as shown by the art of record, that the light transmission of the materials used as greenhouse walls and/or agricultural films should have a light transmission of greater than 80%. Given this and the fact that the taught and suggested composition is used as greenhouse wall material and has a composition that meets the claimed compositional requirements, one ordinary skill in the art would expect the taught and suggested greenhouse wall material of the reference to inherently have a transmission of 80% or greater; absent any showing to the contrary.
The reference teaches the greenhouse walls transforms UV light, especially solar energy in the UV range, into light that is more easily assimilated or used by plants, so as to promote the development of plants. Given this teaching, one of ordinary skill in the art would have found it obvious to build a greenhouse where the walls are those taught by the reference, to place plants in this greenhouse and to stimulate the plants with the light emitted by the taught silicate, so as to promote the development of plants. While the reference does not state that the taught development of plants includes increased fruit development; one of ordinary skill in the art would expect that since the taught process of placing the plants in the suggested greenhouse and stimulating the plants with the light emitted by the taught silicate, is the same processes as those in claim 18 and the taught process improves the development of plants; the taught improvement of the development of plants would inherently include an increased fruit development of the plants, absent any showing to the contrary. This is because one of ordinary skill in the art would expect that preforming the same process using the same material as claimed would necessarily give the same outcome. The reference suggest the claimed method of increasing fruit development.
Claims 29 and 33 are rejected under 35 U.S.C. 103 as being unpatentable over FR 2846663 as applied to claim 18 above, and further in view of U.S. 6,153,665.
While FR 2846663 suggests the claimed methods for increasing fruit development of plants, they do not teach the types of plants to place in the taught greenhouses nor the particle size of the silicates in the taught greenhouse walls. U.S. 6,153,665 teaches the types of plants that are conventionally grown in greenhouses and they include fruits and vegetables such as tomatoes, strawberries, cucumbers and red peppers. Given that tomatoes, strawberries, cucumbers and red peppers are conventionally grown in greenhouses, one of ordinary skill in the art would have found it obvious to grown these crops in the greenhouses taught by FR 2846663. This suggests the method of claim 33.
U.S. 6,153,665 also teaches the conventional particle size of the light-transforming materials, which reads upon the taught silicates, in greenhouse walls is 4-20 microns. The D50 size range for these materials would fall within this size range since all of the particles have a size within the range of 4-20 microns. This size range falls within that of claim 29. One of ordinary skill in the art would have found it obvious to obvious to adjust the size of the silicates taught in FR 2846663 so that they fall within the conventional size range of 4-20 microns of light-transforming materials in greenhouse walls. This suggests the methods of claim 29.
Claim 30 is rejected under 35 U.S.C. 103 as being unpatentable over FR 2846663 as applied to claim 18 above, and further in view of US 2009/0152494.
While FR 2846663 suggests the claimed methods for increasing fruit development of plants, they do not teach the particle size of the silicates in the taught greenhouse walls. US 2009/0152494 teaches, in paragraph [0037] which when the walls are thin agricultural films having a thickness of about 30 microns, the light transforming, or luminescent, materials therein, which is the taught silicates, should have an average size of 0.4-1 microns. The walls of FR 2846663 are taught to include all agricultural films, which means they include the known thin agricultural films having a thickness of about 30 microns. Therefore one of ordinary skill in the art would have found it obvious to adjust the size of the silicates taught in FR 2846663 so that they have an average size of 0.4-1 microns, which is the art desired size range for the luminescent materials in known thin agricultural films having a thickness of about 30 microns. The table in paragraph [0036] implies that the D50 size is slight less than the average particles size and thus the D50 size of the suggested average size of 0.4-1 microns would be expected to fall within or overlaps the claimed D40 size range, absent any showing to the contrary. The references suggest the claimed method.
Response to Arguments
Applicants’ arguments have been considered but are not convincing. The arguments with respect to the newly added light transmission limitation are addressed above. Applicants have not presented any evidence that the taught and suggested composition comprising 0.1-10 wt% Ba3-3xEu3xMg1-yMnySi2O8 wherein x and y are 0<x<0.3 and 0<y<0.3 in a polymer matrix, where the polymer is selected from LDPE, LLDPE, PVC, polyethylenes obtained via metallocene synthesis, PET, EVA, polymethylmethacrylate, polycarbonate, ethylene vinyl alcohol copolymers (which are also known as EVOH) and copolyolefins would not inherently have a light transmission of 80% or greater.
Applicants’ argue that table 1 shows that the claimed composition has unexpected advantageous results. Films 1 and 2 respectfully contains in an ethylene/vinyl acetate copolymer matrix either 0.5 wt% of Ba2.7Eu0.3Mg0.9Mn0.1Si2O8 or 1.5 wt% of Ba2.94Eu0.06Mg0.95Mn0.05Si2O8. These two examples are not commensurate in scope with the claimed composition and thus do not show that the argued and claimed increase in fruit development is unexpected.
Applicants’ argue that the taught improving plant development does not inherently result in an increase in fruit development. This argument is not convincing since the stages of plant development are seed germination, followed by a seedling phase, vegetative growth, and then reproductive stages like flowering, pollination, and fruit development. Thus the taught improving plant development would include improving fruit development. Applicants have not provided any evidence to the contrary nor have they shown that the claimed increase in fruit development is unexpected and not inherent in the taught processes which are identical to the process of claim 18 using compositions which overlaps and include the materials as in claims 22-26, 28, 31 and 32. Applicants’ remaining argument as to fruit development are a repeat of those made previously and are not convincing for the reasons of record.
In response to applicant's arguments against the references U.S. 6,153,665 and WO 2004/041963 individually for the rejections of FR 2846663 as applied to claim 18, and further in view of U.S. 6,153,665 and FR 2846663 as applied to claim 18, and further in view of US 2009/0152494, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
U.S. 6,153,665 was only cited to show that types of plant that are conventionally grown in a greenhouse and a conventional particle size range of phosphors used greenhouse films. It should be noted that column 1, lines 45-60 shows that at time of invention it was known that exposing plants to light in the wavelength range of 450-600 nm affect the productivity of crop plant such as the flowering, growth, yield and quality of produced. i.e. fruit development. The rejection over claims 29 and 33 is maintained.
US 2009/0152494 was only cited to another conventional particle size range of phosphors used greenhouse films. The statement in US 2009/0152494 that the applicants of US 2009/0152494 could not find any strict proof in the literature of the use of the agriculture films taught in WO 00/24243 does not overcome the rejection based on the combination of references since the teaching in an agriculture film in FR 2846663 is sufficient to make the claimed method obvious. Furthermore, the fact that applicants of US 2009/0152494 could not find any strict proof in the literature of the use of the agriculture films taught in WO 00/24243 does not prove that the greenhouse films of FR 2846663 would not improve the fruit development of the plants therein nor does this statement teach away from the greenhouse films of FR 2846663. The rejection over claim 30 is maintained.
Conclusion
FR 2522669, EP 2742797, WO 2015/090548 and WO 2017/207568 are cited as of interest since they show it was well known in the art at the time of invention that the light transmission of the materials used as greenhouse walls and/or agricultural films should have a light transmission of greater than 80%.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to C. MELISSA KOSLOW whose telephone number is (571)272-1371. The examiner can normally be reached Mon-Tues:7:45-3:45 EST;Thurs-Fri:6:30-2:00EST; and Wed:7:45-2:00EST.
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, Jonathan Johnson can be reached at 571-272-1177. 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.
/C Melissa Koslow/Primary Examiner, Art Unit 1734
cmk
3/27/26
Prosecution Insights