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 .
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 38-54 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 of U.S. Patent No. 11,457,568. Although the claims at issue are not identical, they are not patentably distinct from each other because both teach a method of providing PAR to a plant independently delivering to a plant in diurnal cycle at least three different spectra of PAR selected from the same group wavelengths of ultraviolet, ultra blue, aqua blue, green, gold orange, red, ultra red, and far red. The claims of the instant application are coextensive in scope to the claims of the patented application. Merely substituting flux (visible brightness) with bandwidth (width of wavelength range) is an obvious known shared parameter of light and a simple substitution of one known shared parameter for another to obtain predictable results lending to an obvious engineering design choice. The modification between the claim sets does not provide a patentable distinction.
Claim Objections
Claims 38 and 47 are objected to because of the following informalities:
Claim 38 and 47 preambles, “PAR” should be --Photosynthetically Active Radiation (PAR)--
Applicant is advised that should claims 38-41 and 43-46 be found allowable, claims 47-54 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
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.
Claim 39, 40, 46, 48, 49 and 54 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.
Independent claims 38 and 47 use the limiting term of “consisting of” to outline a series of PAR wavelengths and specific boundaries of the invention. Claims 39, 46, 48 and 54 try to introduce an addition wavelength of white light; however, the additional wavelength cannot be added to a closed range of wavelengths that is outside the establish boundaries of the independent claims. Additional wavelengths are excluded by the consisting of language of the independent claims.
Independent claims 38 and 47 establish bandwidths for each spectra and are part of a closed ended claim because of the “consisting of” limitation. However, dependent claims 40, section m) and section p) and dependent claims 49 section m) and section p) introduce new bandwidths that weren’t originally associated with the corresponding spectra. This is outside the established boundary of the independent claims.
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.
Claim(s) 38, 39, 41-48, 50-54 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 9,185,852 to Aikala et al in view of U.S. Patent No. 8,847,514 to Reynoso.
Regarding Claims 38 and 47, Aikala teaches a method of providing artificial PAR to a plant for growing, the method comprising: independently delivering to a plant in at least two different spectra of PAR drawn from the group consisting of, far red, ultra red, red, gold orange, green, aqua blue, ultra blue, ultraviolet. Aikala teaches that PAR is the known wavelength region of 300nm and 800nm of the electromagnetic spectrum (Aikala Col. 1 lines 15-17). All of applicant’s claimed wavelengths are “within” this known range. Thus, the known range taught by Aikala consists of far red, ultra red, red, gold orange, green, aqua blue, ultra blue, ultraviolet and covers the corresponding claimed wavelengths for each claimed spectra. Furhtermore, Aikala teaches “at least two” different spectra which would include more than two and cover the limitation of providing three but is silent on the exact claim language of “at least three different spectra of PAR drawn from the group consisting of.” Aikala teaches at least one emission has a Full Width at Half Maximum of at least 50nm or more and a second at maximum 50nm (Aikala Col. 5 lines 33-38; claims 1-10) which cover the claimed ranges of 70nm, 75nm, 95nm, and 60nm. Aikala teaches values for the spectra and bandwidths that encompass, overlap, are within the range of, but is silent on specifically teaching exact upper and lower limits of each range:
a) a spectra called "ultraviolet" containing light within the band of wavelengths from
340 to 410 nanometers from which PAR colors are chosen with bandwidths not broader
than 70 nanometers Full Width Half Maximum (FWHM),
b) a spectra called "ultra blue" containing light within the band of wavelengths from
390 to 465 nanometers from which PAR colors are chosen with bandwidths not broader
than 75 nanometers Full Width Half Maximum (FWHM),
c) a spectra called "aqua blue" containing light within the band of wavelengths from
430 to 500 nanometers from which PAR colors are chosen with bandwidths not broader
than 70 nanometers Full Width Half Maximum (FWHM),
d) a spectra called "green" containing light within a band of wavelengths from 500 to
550 nanometers from which PAR colors are chosen with bandwidths not broader than 50
nanometers Full Width Half Maximum (FWHM),
e) a spectra called "gold orange" containing light within a band of wavelengths from
565 to 650 nanometers from which PAR colors are chosen with bandwidths not broader
than 95 nanometers Full Width Half Maximum (FWHM),
f) a spectra called "red" containing light within a band of wavelengths from 620 to 680
nanometers from which PAR colors are chosen with bandwidths not broader than 60
nanometers Full Width Half Maximum (FWHM),
g) a spectra called "ultra red" containing light within a band of wavelengths from 640
to 670 nanometers from which PAR colors are chosen with bandwidths not broader than
60 nanometers Full Width Half Maximum (FWHM), and
h) a spectra called "far red" containing light within a band of wavelengths from 705 to
755 nanometers from which PAR colors are chosen with bandwidths not broader than 50
nanometers Full Width Half Maximum (FWHM).
However, Aikala teaches that adjustment of the bandwidth for each spectral range and the upper and lower limits for each spectral range is merely a known spectral tuning improvement in the photomorphogenetic control of plant growth, and for further improvements in plant production (Aikala abstract). It would have been obvious to one of ordinary skill in the art to modify the teachings of Aikala before the effective filing date of the claimed invention with a reasonable expectation of success to treat plant specific species. The modification is merely “obvious to try” choosing from a finite number of identified, predictable solutions with a reasonable expectation of success and/or merely an obvious engineering design choice derived through routine tests and experimentation to derived efficient treatments and does not present a patentable distinction over the prior art of record.
Aikala as modified is silent on explicitly teaching a diurnal cycle. However, Reynoso teaches the general knowledge of one of ordinary skill in the art that it is known to apply programmable LED on a diurnal cycle to plants (Reynoso abstract; Fig. 8 shows over the course of a day). It would have been obvious to one of ordinary skill in the art to further modify the teachings of Aikala with the teachings of Reynoso before the effective filing date of the claimed invention with a reasonable expectation of success to improve target results as taught by Reynoso. The modification is merely the application of a known technique to a known device ready for improvement to yield predictable results.
Regarding Claims 39 and 48, Aikala as modified teaches wherein light is independently delivered diurnally at and during at least three different time periods at least three different spectra of PAR (Reynoso Fig. 8 diurnally at 6am, 12pm, and 6pm, at least three different spectra of PAR), the group further consisting of i) a spectra called "white" containing broadband light used for base level plant illumination or plant inspection and maintenance (Aikala “daylight” Col. 13 line 46; “sunlight” Col. 6 lines 60-67; Reynoso Col. 1 lines 20-21, sunlight is white light and Col. 14 lines 31-35).
Regarding Claims 41 and 50, Aikala as modified teaches independently delivering the at least three spectra at at least three different intensity, and flux, levels for each wavelength within each of the at least three spectra (Aikala Fig. 1A and Fig. 8; Col. 1 line 3, claim 7).
Regarding Claims 42, 43, 44, 45, 51, 52, 53, Aikala as modified teaches the method utilizes a wireless device to control the providing of the artificial PAR to a plant; wherein the method is controlled by a smartphone or a computer (Reynoso Col. 4 lines 38-41; Col. 8 line 20-21) with one or more sensors and controls (Reynoso Col. 8 line 5 “controls”). It would have been obvious to one of ordinary skill in the art to further modify the teachings of Aikala with the teachings of Reynoso before the effective filing date of the claimed invention with a reasonable expectation of success to control the system from a remote location as taught by Reynoso. The modification is merely the application of a known technique to a known device ready for improvement to yield predictable results.
Regarding Claims 46 and 54, Aikala as modified teaches the additional one or more light fixtures supply a spectra called "white" containing broadband light used for plant inspection and maintenance (Aikala “daylight” Col. 13 line 46; “sunlight” Col. 6 lines 60-67; Reynoso Col. 1 lines 20-21, sunlight is white light and Col. 14 lines 31-35).
Response to Arguments
Applicant’s arguments with respect to claim(s) 38-54 have been considered but are moot because the new ground of rejection does not rely on any combination of reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
During the interview on 09 December 2025 the examiner suggested a method format for the claims but indicated method steps similar to section 8.2 and 8.3 of the specification that outline the method steps of when the lights are turned on and in a particular sequence. The examiner didn’t intend for applicant to merely list known wavelengths of a known PAR range. Newly applied art of Aikala teaches providing narrowband PAR wavelength light to plants within the claimed PAR range.
The examiner maintains that applicant hasn’t patentably distinguished over the prior art of record.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREA M VALENTI whose telephone number is (571)272-6895. The examiner can normally be reached Available Monday and Tuesday only, eastern time.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Peter Poon can be reached at 571-272-6891. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREA M VALENTI/Primary Examiner, Art Unit 3643
13 October 2026
