DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . The response filed 06/03/2026 has been received and considered. Claims 15 and 19 are canceled. Claims 1-5, 7-14, 16-18, 24, and 26 are pending.
Claim Interpretation
Office personnel are to give claims their "broadest reasonable interpretation" in light of the supporting disclosure. In re Morris, 127 F.3d 1048, 1054-55, 44 USPQ2d 1023, 1027-28 (Fed. Cir. 1997). Limitations appearing in the specification but not recited in the claim are not read into the claim. In re Prater, 415 F.2d 1393, 1404-05, 162 USPQ 541,550-551(CCPA 1969). See *also In re Zletz, 893 F.2d 319,321-22, 13 USPQ2d 1320, 1322(Fed. Cir. 1989) ("During patent examination the pending claims must be interpreted as broadly as their terms reasonably allow").... The reason is simply that during patent prosecution when claims can be amended, ambiguities should be recognized, scope and breadth of language explored, and clarification imposed.... An essential purpose of patent examination is to fashion claims that are precise, clear, correct, and unambiguous. Only in this way can uncertainties of claim scope be removed, as much as possible, during the administrative process.
Claims recite "and/or". The claims reciting "and/or" were interpreted as “or”.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-5, 7-14, 16-18, 24, and 26 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Independent claim 1, Step 1: a method (process = 2019 PEG Step 1 = yes)
Independent claim 1, Step 2A, Prong One: claim recites:
for determining a plant protection treatment plan of an agricultural plant…
predicting, by a computational model executed by the data processing unit, based on input data at least comprising the obtained plant observation data and the obtained weather data, a time-related disease probability of the agricultural plant, wherein the plant observation data is weighted for or classified into different leaf layers of the agricultural plant or the reference plant, based on the different leaf layer's effect to the yield of the agricultural plant, and wherein the disease probability is predicted based on the weighted or classified plant observation data, and determining, by the computational model, based on at least the predicted disease probability, at least one plant protection treatment parameter to be included into the plant protection treatment plan
These limitations are substantially drawn to mental concepts: observation, evaluation, judgment, opinion, but for the recitation of generic computer components. Information and/or data also fall within the realm of abstract ideas because information and data are intangible. See Electric Power Group1 (Electric Power hereinafter): “Information… is an intangible”.
As to the predicting limitations, predicting under its broadest reasonable interpretation, is a mental concept. See for example in the Specification (underline emphasis added):
“the disease probability may be predicted in quantitative value. In other words, the computational model may predict a value that is assigned to a certain probability value or range with which the disease may occur at the plant at all or the course of the disease may have spread beyond a certain threshold. The quantitative value may be between e.g. 0 to 1, 0 to 100, etc., for indicating the disease probability” (see page 7, lines 21-25),
and “a weighted sum technique may be used to sum the different leaf layer specific disease severity values based on their effect to the final yield. This results in a more understandable, simplified, smoother curve of disease progression over time” (see page 13, lines 29-32)
As to the determining limitations, these limitations, as drafted and under a broadest reasonable interpretation, can be characterized as entailing a user analyzing (observations, evaluations) and deciding/determining (judgments), i.e., processing information and/or data, that can be performed in the human mind or by a human using a pen and paper. As to these limitations, the terms "determining… at least one plant protection treatment parameter" are not elaborated but merely repeated in the Application description.
If a claim limitation, under its broadest reasonable interpretation, covers mental processes, then it falls within the "(c) Mental processes" grouping of abstract ideas (2019 PEG Step 2A, Prong One: Abstract Idea Grouping? = Yes, (c) Mental processes).
Independent claim 1, Step 2A, Prong Two: The claim recites the additional elements a data processing unit and a terminal, which provide conventional computer implementation.
As to the limitations “obtaining, by the data processing unit, plant observation data indicative for a current state of health of the agricultural plant or of a reference plant” and "obtaining, by the data processing unit, weather data associated with a location at which the agricultural plant is cultivated", these limitations describe the concept of “mere data gathering”, which corresponds to the concepts identified as abstract ideas by the courts. Data gathering, including when limited to particular content does not change its character as information, is also within the realm of abstract ideas. Data gathering has not been held by the courts to be enough to qualify as “significantly more”. See Electric Power. See also MPEP § 2106.05(g).
As to the limitations “generating, by the data processing unit, a control data set comprising the at least one plant protection treatment parameter and/or the plant protection treatment plan, wherein the control data set is adapted to be provided to a terminal
As to the limitations "or robotic device" (underline emphasis added). "Or" is disjunctive not conjunctive.
This judicial exception is not integrated into a practical application (2019 PEG Step 2A, Prong Two: Additional elements that integrate the Judicial exception/Abstract idea into a practical application? = NO).
Independent claim 1, Step 2B: As discussed with respect to Step 2A, Prong two, the claim recites the additional elements a data processing unit and a terminal, at a high level of generality and as performing generic computer functions routinely used in computer applications. Generic computer components recited as performing generic computer functions that are well-understood, routine and conventional activities amount to no more than implementing the abstract idea with a computerized system. The use of a computer to implement the abstract idea of a mathematical algorithm has not been held by the courts to be enough to qualify as “significantly more”. The conventional computer implementation is described in the specification (underline emphasis added):
"… a terminal, such as a smartphone, or any other suitable computer device” (see page 11, lines 35-36),
“system 100 comprises a first device 110 adapted for determining a plant protection treatment plan of the agricultural plant, as will be described in more detail below. The first device 110 may be a suitable type of computer… the first device 110 may form or may be part of a computing cloud, a server, or the like. In other embodiments, the first device 110 may be a local computer device" (see page 17, lines 16-18),
and “a terminal, such as a smartphone” (see page 17, lines 38-39)
As discussed with respect to Step 2A, Prong two, claim 1 recites data gathering, these limitations are recited at a high level of generality; and therefore, remain insignificant extra-solution activity even upon reconsideration.
As discussed with respect to Step 2A, Prong two, the limitations identified as data outputting are insignificant extra-solution activity. See MPEP 2106.05(g)(3). The data outputting is described in the specification (underline emphasis added):
“plant protection treatment parameter and/or the plant protection treatment plan may be provided as a computer-readable dataset adapted to be executed by a data processing device" (see page 11, lines 32-34)
and "The plant protection treatment parameter and/or the plant protection treatment plan is provided as a computer-readable dataset adapted to be executed by a data processing device, e.g. by the second device" (see page 19, lines 4-6)
As discussed with respect to Step 2A, Prong two, the limitations identified as just “apply it” because transformation of information or data is not statutory, these limitations invoke computers or other machinery merely as a tool to perform an existing process. See MPEP 2106.05(f)(2). Information and/or data also fall within the realm of abstract ideas because information and data are intangible. See Electric Power.
Thus, taken alone the individual additional elements do not amount to significantly more than the above-identified judicial exception (the abstract idea). Looking at the additional elements as an ordered combination adds nothing that is not already present when looking at the additional elements taken individually. There is no indication that their combination improves the functioning of a computer itself or improves any other technology (underline emphasis added). Therefore, the claim does not amount to significantly more than the abstract idea itself (2019 PEG Step 2B: NO).
Independent claim 24, Step 1: a system (system = 2019 PEG Step 1 = yes)
Independent claim 24, Step 2A, Prong One: claim recites:
predict, by use of a computational model executed by the first data processing unit, based on
These limitations are substantially drawn to mental concepts but for the recitation of generic computer components. (See Independent claim 1, Step 2A, Prong One above). If a claim limitation, under its broadest reasonable interpretation, covers mental processes, then it falls within the "(c) Mental processes" grouping of abstract ideas (2019 PEG Step 2A, Prong One: Abstract Idea Grouping? = Yes, (c) Mental processes).
Independent claim 24, Step 2A, Prong Two: As to the limitations “for treating an agricultural plant based on a plant protection treatment plan assigned to the agricultural plant", they are no more than intended use.
The claim recites the additional elements a system and a first data processing unit, which provide conventional computer implementation.
As to the limitations “obtained observation data and obtained weather data… wherein the obtained observation data is weighted for or classified into different leaf layers of the agricultural plant or a reference plant, based on the different leaf layer's effect to the yield of the agricultural plant”, these limitations describe the concept of “mere data gathering”, which corresponds to the concepts identified as abstract ideas by the courts. Data gathering, including when limited to particular content does not change its character as information, is also within the realm of abstract ideas. Data gathering has not been held by the courts to be enough to qualify as “significantly more”. (See Independent claim 1, Step 2A, Prong Two above).
As to the limitations “provide output data comprising a control data set including the at least one plant protection treatment parameter and/or the plant protection treatment plan, wherein the control data set is adapted to be provided to a terminal or robotic device" (underline emphasis added). "Or" is disjunctive not conjunctive.
As to the limitations "
This judicial exception is not integrated into a practical application (2019 PEG Step 2A, Prong Two: Additional elements that integrate the Judicial exception/Abstract idea into a practical application? = NO).
Independent claim 24, Step 2B: As discussed with respect to Step 2A, Prong two, the intended use limitations remain intended use even upon reconsideration, because no actual treating of an agricultural plant is ever performed in the body of the claim.
As discussed with respect to Step 2A, Prong two, the claim recites the additional elements a system and a first data processing unit, at a high level of generality and are recited as performing generic computer functions routinely used in computer applications. (See Independent claim 1, Step 2B above).
As discussed with respect to Step 2A, Prong two, claim 24 recites data gathering, these limitations are recited at a high level of generality; and therefore, remain insignificant extra-solution activity even upon reconsideration.
As discussed with respect to Step 2A, Prong two, the limitations identified as data outputting are insignificant extra-solution activity. (See Independent claim 1, Step 2B above).
As discussed with respect to Step 2A, Prong two, the limitations identified as just “apply it” because transformation of information or data is not statutory, these limitations invoke computers or other machinery merely as a tool to perform an existing process. (See Independent claim 1, Step 2B above).
Thus, taken alone the individual additional elements do not amount to significantly more than the above-identified judicial exception (the abstract idea). Looking at the additional elements as an ordered combination adds nothing that is not already present when looking at the additional elements taken individually. There is no indication that their combination improves the functioning of a computer itself or improves any other technology (underline emphasis added). Therefore, the claim does not amount to significantly more than the abstract idea itself (2019 PEG Step 2B: NO).
Dependent claims, Step 2A, Prong One: The claim limitations further the mental concepts of their independent claims. (See Independent claim 1, Step 2A, Prong One above). If a claim limitation, under its broadest reasonable interpretation, covers mental processes, then it falls within the "(c) Mental processes" grouping of abstract ideas (2019 PEG Step 2A, Prong One: Abstract Idea Grouping? = Yes, (c) Mental processes).
Dependent claims, Step 2A Prong two:
As to the limitations “12… obtaining a biomass indicator associated with the location at which the agricultural plant is cultivated, wherein the biomass indicator is additionally provided to the computational model as additional input data for predicting the disease probability”, "14… wherein the plant observation data is obtained and/or processed”, and "26… obtaining, by the data processing unit, scouting information and/or user feedback collected during a cultivation season of the agricultural plant", these limitations describe the concept of “mere data gathering”, which corresponds to the concepts identified as abstract ideas by the courts. (See Independent claim 1, Step 2A, Prong Two above).
As to the limitations "18… wherein the computational model utilizes a neural network adapted to output data in response to the input plant observation data and weather data" and "26… wherein the computational model is adapted to changed conditions of cultivation of the agricultural plant for determining the plant protection treatment plan, wherein the adapting comprises… calibrating an output of the computational model during the cultivation season based on the obtained scouting information and/or user feedback, wherein the calibrating excludes adjusting, by using backpropagation, parameters or weights of the computational model", they represent no more than just “apply it” limitations, because they recite only the idea of a solution or outcome, i.e., they fail to recite details of how a solution to a problem is accomplished.
This judicial exception is not integrated into a practical application of the exception (2019 PEG Step 2A, Prong Two: Additional elements that integrate the Judicial exception/Abstract idea into a practical application? = NO).
Dependent claims Step 2B:
As discussed with respect to Step 2A, Prong two, the data gathering limitations are recited at a high level of generality; and therefore, remain insignificant extra-solution activity even upon reconsideration.
As discussed with respect to Step 2A, Prong two, limitations reciting only the idea of a solution or outcome are just “apply it” limitations, because they fail to recite details of how a solution to a problem is accomplished. See MPEP 2106.05(f)(1). As to the limitations "18… wherein the computational model utilizes a neural network adapted to output data in response to the input plant observation data and weather data", the specification reads:
'the computational model may comprise or may be formed as a recurrent neural network (RNN), where connections between nodes form a directed graph along a temporal sequence. This can further improve the learning and/or prediction abilities of the computational model.
Alternatively or additionally, the computational model may comprise or may be formed as an Long short-term memory (LSTM) architecture, which is an artificial recurrent neural network (RNN) architecture'
As to the limitations "26… calibrating an output of the computational model during the cultivation season based on the obtained scouting information and/or user feedback, wherein the calibrating excludes adjusting, by using backpropagation, parameters or weights of the computational model", the specification merely reads:
'the obtained scouting information and/or user feedback may be used to adapt and/or calibrate the computational model during cultivation season of the plant. This can further improve the learning and/or prediction abilities of the computational model'
Therefore, the claims do not amount to significantly more than the abstract idea itself (2019 PEG Step 2B: NO).
Allowable Subject Matter
Claims 1-5, 7-14, 16-18, 24, and 26 are allowable over prior art of record. They will be allowed once all outstanding rejections/objections are traversed.
The following is a statement of reasons for the indication of allowable subject matter:
No reference cited taken either alone or in combination and with the prior art of record discloses
claims 1 and 24, "… predicting… based on… plant observation data and the obtained weather data, a time-related disease probability of the agricultural plant, wherein the plant observation data is weighted for or classified into different leaf layers of the agricultural plant or the reference plant, based on the different leaf layer's effect to the yield of the agricultural plant, and wherein the disease probability is predicted based on the weighted or classified plant observation data, and determining, by the computational model, based on… the predicted disease probability… plant protection treatment…",
in combination with the remaining steps, elements, and features of the claimed invention. Also, there is no motivation to combine any references to meet these limitations. It is for these reasons that Applicant's invention defines over the prior art of record.
As allowable subject matter has been indicated, applicant's reply must either comply with all formal requirements or specifically traverse each requirement not complied with. See 37 CFR 1.111(b) and MPEP § 707.07(a).
Response to Arguments
Regarding the drawing objections, the amendment corrected all deficiencies, and the objections are withdrawn.
Regarding the specification objections, the amendment corrected all deficiencies, and the objections are withdrawn.
Regarding the claim objections, the amendment corrected all deficiencies, and the objections are withdrawn.
Regarding the Claim Rejections - 35 USC § 112, the amendment corrected all deficiencies, and the objections are withdrawn.
Regarding the rejections under 101, Applicant's arguments have been considered, but they are not persuasive. Applicant argues, (see page 11, 1st -2nd paragraphs; page 11, last paragraph to page 12, 1st paragraph):
‘… claims recite a specific data-processing technique that goes well beyond generic prediction: the plant observation data must be "weighted for or classified into different leaf layers of the agricultural plant or the reference plant, based on the different leaf layer's effect to the yield of the agricultural plant," and the disease probability must be "predicted based on the weighted or classified plant observation data." The prediction thus depends on a prior structuring step in which observational inputs are differentiated by leaf layer and calibrated to each layer's yield impact, which is a computational approach that constrains both the input and the predictive operation…
… None of these steps, individually or in combination, is practically performable in the human mind. A person cannot mentally weight multi-layer plant observation data by yield effect, run a computational prediction on that structured input, and then produce machine-executable robotic control instructions. Therefore, claim 1 is eligible under Step 2A, Prong One’
The MPEP reads (underline emphasis added):
‘2106.04(b) Laws of Nature, Natural Phenomena & Products of Nature [R-07.2022], III. MENTAL PROCESSES… A. A Claim With Limitation(s) That Cannot Practically be Performed in the Human Mind Does Not Recite a Mental Process… Examples of claims that do not recite mental processes because they cannot be practically performed in the human mind include: • a claim to a method for calculating an absolute position of a GPS receiver and an absolute time of reception of satellite signals, where the claimed GPS receiver calculated pseudoranges that estimated the distance from the GPS receiver to a plurality of satellites, SiRF… B. A Claim That Encompasses a Human Performing the Step(s) Mentally With or Without a Physical Aid Recites a Mental Process. If a claim recites a limitation that can practically be performed in the human mind, with or without the use of a physical aid such as pen and paper, the limitation falls within the mental processes grouping, and the claim recites an abstract idea. See, e.g., Benson… (noting that the claimed "conversion of [binary-coded decimal] numerals to pure binary numerals can be done mentally," i.e., "as a person would do it by head and hand."); Synopsys… (holding that claims to the mental process of "translating a functional description of a logic circuit into a hardware component description of the logic circuit" are directed to an abstract idea, because the claims "read on an individual performing the claimed steps mentally or with pencil and paper")'.
SiRF2 Tech. reads (bold emphasis added):
‘A GPS receiver is a machine and is integral to each of the claims at issue. Claim 1 of the ’801 patent is expressly directed in its preamble to “calculating an absolute position of a GPS receiver.” ’801 patent col.12 ll.28-29. It also refers to “computing absolute position” by updating an “estimate of position of the GPS receiver,” providing an estimate of the time at which a GPS receiver receives a plurality of satellite signals, and computing the position “of the GPS receiver.” Id. col.12 ll. 28-40. Further, claim 1 requires “pseudoranges” that estimate the distance from “the GPS receiver to a plurality of GPS satellites.” Id. col.12 ll.31-32. Pseudoranges, which are the distances or estimated distances between satellites and a GPS receiver, can exist only with respect to a particular GPS receiver that receives the satellite signals. Claim 1 of the ’187 patent is similarly tied to a GPS receiver. It requires the estimation of “states” that are “associated with a satellite signal receiver,” and the formation of a “dynamic model… to compute [the] position of the satellite signal receiver.” See ’187 patent col.20 ll.46-54. It is clear that the methods at issue could not be performed without the use of a GPS receiver; indeed without a GPS receiver it would be impossible to generate pseudoranges or to determine the position of the GPS receiver whose position is the precise goal of the claims… there is no evidence here that the calculations here can be performed entirely in the human mind. Here, as described, the use of a GPS receiver is essential to the operation of the claimed methods. In conclusion, we hold that the claims at issue are properly directed to patentable subject matter as they explicitly require the use of a particular machine (a GPS receiver) and could not be performed without the use of such a receiver’.
Examiner's response: Applicant's argument is not persuasive, because Applicant presents no evidence that the claim limitations (see Claim Rejections - 35 USC § 101… Step 2A, Prong One above) cannot practically be performed in the human mind, with or without the use of a physical aid such as pen and paper, or that the claim limitations explicitly require the use of a particular machine, a GPS receiver as in SIRF for example (see MPEP 2106.04(b) or SIRF supra).
Applicant further argues, (see page 11, next to last paragraph; page 12, 2nd-last paragraphs):
‘… claims recite generating a machine-executable output tied to physical treatment. Specifically, claim 1 recites: "generating, by the data processing unit, a control data set comprising the at least one plant protection treatment parameter and/or the plant protection treatment plan, wherein the control data set is adapted to be provided to a terminal or robotic device and is adapted to be executed by a data processing device of the terminal or robotic device to apply a plant protection agent at a specific date or time." Claim 1 does not stop at determining a treatment parameter or displaying a result, but further includes generating a control data set that is structured for robotic execution. Claim 24 goes further still, providing the terminal or robotic device's second data processing unit to "process the obtained output data by executing the control data set to apply the plant protection agent at the specific date or time," which includes actual execution of the control instructions to apply the agent…
… claim 1 is materially distinct by generating a control data set that is "adapted to be executed by a data processing device of the terminal or robotic device to apply a plant protection agent at a specific date or time." This is not informational output but is the production of machine-executable instructions for automated physical treatment. Claim 1 imposes a meaningful characterization on any alleged exception by requiring that the computational result be reduced to a format for terminal or robotic device execution, tying the analysis to a concrete physical outcome. See Diamond v. Diehr… (process applying a mathematical formula to control physical transformation of an article is patent-eligible); McRO… (claims using specific rules to achieve an improved technological result are not abstract). Therefore, claim 1 is eligible under Step 2A, Prong Two.
Regarding claim 24, the Office Action addressed "for treating" as intended use. See Office Action at 8. However, claim 24 positively recites that the second data processing unit processes output data "by executing the control data set to apply the plant protection agent at the specific date or time." Treatment is claimed, not aspirational.
Under Step 2B, the Office Action does not address, much less establish, that the amended ordered combination (leaf-layer yield-effect weighting, prediction from weighted data, and generation of a control data set for robotic application of a plant protection agent) is well-understood, routine, or conventional in the field. The burden is on the Office to make that showing. See Berkheimer v. HP… No such showing has been made…’
The MPEP reads (underline emphasis added):
‘2106.05(f) [R-10.2019]… (2) Whether the claim invokes computers or other machinery merely as a tool to perform an existing process. Use of a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not provide significantly more'.
‘2106.05(g) Insignificant Extra-Solution Activity [R-10.2019] When determining whether an additional element is insignificant extra-solution activity, examiners may consider the following… (3) Whether the limitation amounts to necessary data gathering and outputting, (i.e., all uses of the recited judicial exception require such data gathering or data output)… Selecting a particular data source or type of data to be manipulated… iii. Selecting information, based on types of information and availability of information in a power-grid environment, for collection, analysis and display, Electric Power’
Examiner's response: Applicant's argument is not persuasive, because the argued additional elements “1… generating, by the data processing unit, a control data set comprising the at least one plant protection treatment parameter and/or the plant protection treatment plan, wherein the control data set is adapted to be provided to a terminal Independent claim 1, Step 2B and MPEP 2106.05(g)(3) supra.
As to Applicant's arguments about executing by the “robotic device”, because claims do not read "a robotic device” or “the robotic device” by itself, as argued; no such details have to be executed by “the robotic device”. Claims do read "a terminal or robotic device" (underline emphasis added). "Or" is disjunctive not conjunctive. No skilled artisan would interpret these argued features as claimed features, because the claims themselves are mute about executing such argued features by “the robotic device”.
As to the “apply it” limitations (see Independent claims 1 and 24, Step 2B above) invoking computers or other machinery merely as a tool to perform an existing process, use of a computer or other machinery in its ordinary capacity does not integrate the exception into a practical application or provide significantly more. See MPEP 2106.05(f)(2) supra.
Therefore, the rejections are maintained.
Regarding the rejections under 103, the rejections are rendered moot by the amendment.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Examiner would like to point out that any reference to specific figures, columns and lines should not be considered limiting in any way, the entire reference is considered to provide disclosure relating to the claimed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JUAN CARLOS OCHOA whose telephone number is (571)272-2625. The examiner can normally be reached Mondays, Tuesdays, Thursdays, and Fridays 9:30AM - 7:00 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Renee Chavez can be reached at 571-270-1104. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JUAN C OCHOA/Primary Examiner, Art Unit 2186
1 Electric Power Group, LLC v. Alstom S.A., 119 USPQ2d 1739 Fed. Cir. 2016
2 SiRF Tech., 601 F.3d at 1331-33, 94 USPQ2d at 1616-17
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