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 .
Application Status
Claims 1-17 are currently pending in this application. Claims 14-17 have been removed from consideration based on the response to the election/restriction requirement filed 03 December 2025.
Drawings
The drawings are objected to because elements 520 and 530 are identical in figure 5; the examiner believes that the text of element 530 should be “Determining a kernel mass as a function of kernel size”. Corrected drawing sheets in compliance with 37 CFR 1.121(d) 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. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. 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.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “measurement unit” in claim 1.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
The analysis of “measurement unit” as invoking 35 U.S.C. 112(f):
the word “unit” is a general term that serves as a generic placeholder;
“unit” is modified by “measurement” – basically, “measurement unit” is the same as “means for measurement”;
there is no structure given more the unit.
Based on applicant’s specification, “measurement unit” is construed as being in the set consisting of simple optical measurement devices, sieves, scales, handheld optical cavities, and automated integrating optical cavities.
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 1-13 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
101 Analysis - Step 1:
Claims 1-4, 6, and 10 are directed to a method. Therefore, claims 1-10 fall within one of the four statutory categories. Claims 11-13 are directed to an apparatus where the apparatus includes a processing core and memory including computer program code; the examiner considers memory to be a computer-readable medium, which makes this statutory.
101 Analysis - Step 2A – Prong I:
Regarding Prong I of the Step 2A analysis in the 2019 PEG, the claims are to be analyzed to determine whether they recite subject mater that falls within one of the following groups of abstract ideas: a) mathematical concepts, b) certain methods of organizing human activity, and/or c) mental processes.
Independent claim 1 includes limitations that recite an abstract idea (emphasized below) and will used as a representative clam for the remainder of the 101 rejection. Claim 1 recites:
A method comprising:
- obtaining a sample of a lot of agricultural grain kernels;
- determining, from the sample by measurement by a measurement unit, a kernel protein concentration as a first function of kernel size;
- determining, from the sample by measurement by the measurement unit, a kernel mass as a second function of kernel size;
- determining, from the first function and the second function, a kernel protein mass as a third function of kernel size, and
- determining, from the second function and the third function, an effect of a sieving operation on a protein concentration of the lot of agricultural grain kernels, and displaying the determined effect of the result of the sieving operation.
The examiner submits that the foregoing bolded limitations constitute a “mental process” and/or “mathematical process” because under its broadest reasonable interpretation, the claim covers performance of the limitation in the human mind. Specifically, the “determining” steps can be done in the human mind since they are performed as a function, which is to say a logical process that transforms inputs into outputs. Specifically, the first function can be a known protein concentration based on a judgement of a kernel size, the second function can be a multiplication of kernel size by expected density, and the third function takes the inputs of protein concentration and kernel mass and outputs a protein mass, likely by multiplying the protein concentration by the kernel mass. The final determination again takes input data and algorithmically generates output data – if I put this mix of grains through a certain sized sieve, what does the math indicate will be the protein concentration of the divided portions. Accordingly, the claim recites at least one abstract idea.
101 Analysis – Step 2A, Prong II:
Regarding Prong II of Step 2A analysis in the 2019 PEG, the claims are to be analyzed to determine whether the claim, as a whole, integrates the abstract into a practical application. As noted in the 2019 PEG, it must be determined whether any additional elements in the claim beyond the abstract idea integrate the exception into a practical application in a manner that imposes a meaningful limit on the judicial exception. The courts have indicated that additional elements merely using a computer to implement an abstract idea, adding insignificant extra solution activity, or generally linking use of a judicial exception to a particular technological environment or field of use do not integrate a judicial exception into a “practical application.”
In the present case, the additional limitations beyond the above-noted abstract idea are as follows:
obtaining a sample of a lot of agricultural grain kernels;
a measurement unit; and
displaying the determined effect of the result of the sieving operation.
Regarding the additional limitations of “obtaining a sample of a lot of agricultural grain kernels”, the examiner submits that this limitation is a general step in data gathering and as such merely extra-solution activity.
Regarding the additional limitations of “a measurement unit” the examiner submits that this limitation is an attempt to generally link additional elements to a technological environment. In particular, the measuring by a measurement unit, is recited at a high level of generality and merely automates some of the determining steps, therefore acting as a generic machine to perform the abstract idea. The measurement unit is claimed generically and is operating in its ordinary capacity and does not use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the exception. The additional limitation is no more than mere instructions to apply the exception using a measurement unit.
Regarding the additional limitations of “displaying the determined effect of the result of the sieving operation”, the examiner submits that these limitations are general data display steps and as such merely extra-solution activity.
Thus, taken alone, the additional elements do not integrate the abstract idea into a practical application. Further, looking at the additional limitations as an ordered combination or as a whole, the limitations add nothing that is not already present when looking at the elements taken individually. For instance, there is no indication that the additional elements, when considered as a whole, reflect an improvement in the functioning of a computer or an improvement to another technology of technical field, apply or use the above-noted judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, implement/use the above-noted judicial exception with a particular machine or manufacture that is integral to the claim, effect a transformation or reduction of a particular article to a different state or thing or apply or use 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 not more than a drafting effort designed to monopolize the exception (MPEP 2106.05). The additional limitations do not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea.
101 Analysis – Step 2B
Regarding Step 2B of the Revised Guidance, representative independent claim 1 does not include additional elements (considered both individually and as an ordered combination) that are sufficient to amount to significantly more than the judicial exception for the same reasons to those discussed above with respect to determining that the claim does not integrate the abstract idea into a practical application, the additional element of “obtaining a sample of a lot of agricultural grain kernels” is well-understood, routine, and conventional, as evidenced by:
Phillips et al. (3829590) – in lines 25-33 of column 1, Phillips discloses sampling from a lot of grain;
Sjodin (US 2003/0063276) – in the abstract, Sjodin discloses extracting samples of product, where the product is grain;
Haiges et al. (US 2017/0045444) – in the abstract, Haiges et al. discloses a grain measurement device that receives a sample of grain.
The additional element “a measurement unit” is well-understood, routine, and conventional as evidenced by applicant’s disclosure in paragraph 18 of the instant application that says that simple optical measurement devices may already be in use at a farm.
The additional element “displaying the determined effect of the result of the sieving operation” is well-understood, routine, and conventional. The courts have decided that presenting generated data is well-understood, routine, conventional activity when claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity (MPEP § 2106.05(d)(II) other types of activities example iv. presenting offers and gathering statistics, OIP Techs., 788 F.3d at 1362-63, 115 USPQ2d at 1092-93).
Dependent claims 2-4, 6, and 10 do not recite any further limitations that cause the claims to be patent eligible. Rather, the limitations of dependent claims are directed toward additional aspects of the judicial exception and/or well-understood, routine, and conventional additional elements that do not integrate the judicial exception into a practical application.
Claim 2 merely extends the abstract idea by repeating one of the determining steps for different inputs.
Claim 3 merely extends the abstract idea by stipulating a specific output or threshold of the output by another determining step.
Claim 4 is extra-solution activity because it merely applies the output of the abstract idea to a well-understood, routine, and conventional system. In their abstracts, Phillips et al, Sjodin, and Haiges et al. all disclose sieving grain.
Claim 6 is extra-solution activity because it merely limits the abstract idea to a well-understood, routine, and conventional device. In their abstracts, Sjodin and Haiges et al. disclose optically analysis of grain, as does the abstract of Rosenthal et al. (US 6559655).
Claim 10 is extra-solution activity because it merely limits the abstract idea to a well-understood, routine, and conventional kernel, wheat specifically. In the title, Phillips et al. disclose wheat as the grain; in paragraph 3, Coffey et al. (US 2018/0259446) discloses wheat as a kernel to be measured; in the abstract and lines 9-10 of column 1, Mathews discloses wheat as the grain that is sieved, in this case by a combine harvester.
Therefore, dependent claims 2-4, 6, and 10 are not patent eligible under the same rationale as provided for in the rejection of claim 1.
Claims 11-13 are rejected under 35 USC 101 for substantially the same reasons as claims 1-3, respectively.
Therefore, claims 1-4, 6, and 10-13 are ineligible under 35 USC 101. The examiner and his supervisor welcome a discussion with applicant to look at options for overcoming this rejection.
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 1-13 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.
In claim 1, the phrases “first function of kernel size”, “second function of kernel size”, and “third function of kernel size” are not adequately described in the specification. In paragraph 26, the specification states that the functions are determined based on a representative sample. This section does not provide guidance on what the functions look like. Are the functions mappings between two values, or are the functions mathematical relationships that are embodies as equations, or are the functions algorithmic relationships? Figure 1 shows Protein, % as it relates to Kernel weight (g) with a best-fit line drawn on the graph. Based on paragraph 21, this best-fit line represents the kernel protein mass as a function of kernel size, correct?
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.
Claims 1-5 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Phillips et al. (US 3829590 hereinafter Phillips).
With respect to claim 1, Phillips discloses a method (in the abstract, Phillips discloses a method for upgrading wheat lots) comprising:
- obtaining a sample of a lot of agricultural grain kernels (in lines 11-15 of column 4, Phillips discloses a sample of grain);
- determining, from the sample by measurement by a measurement unit, a kernel protein concentration as a first function of kernel size (in Table I in column 4, Phillips discloses a Wt. Percent Protein, which anticipates a kernel protein concentration, as it relates to a sieve that the grain had passed through: the sieve aperture size anticipates kernel size; the relationship shown by the table is a function that relates the size of the kernel to the kernel’s protein concentration; see also Tables II and III);
- determining, from the sample by measurement by the measurement unit, a kernel mass as a second function of kernel size (in lines 37-53 of column 4, Phillips discloses how kernel size will lead to a mass – or weight which is mass times gravity– per bushel; the second function is the relation between sieve sizes and test weights – control is 62.3 lbs./bushel, No. 7 “thrus” are 60.7 lbs./bushel, etc.);
- determining a kernel protein mass percent as a third function of kernel size (in Table I in column 4, Phillips discloses kernel protein mass percent as a function of kernel size), and
- determining, from the second function and the third function, an effect of a sieving operation on a protein concentration of the lot of agricultural grain kernels, and displaying the determined effect of the result of the sieving operation (in Table I in column 4, Phillips discloses how a sieving operation impacts the protein concentration of the grain that stays on the sieve; the table anticipates displaying the determined effect; note that in lies 30-32 of column 10, Phillips discloses that the process of evaluating the effects of sieving on wheat protein concentration can be done on a dynamic basis, with a continuously flowing wheat stream).
While Phillips discloses kernel protein mass percent as a function of kernel size (which could be read to broadly include kernel protein mass because that mass is in the numerator), Phillips does not explicitly teach kernel protein mass as a function of kernel size that is determined by the first function and the second function. It is unclear if applicant sees kernel protein mass and kernel protein mass percentage as distinct: the description of element 120 in figure 1, given in paragraph 21, is representing “a kernel protein mass as a function of kernel size”; however, the axes on the graph are labelled “Kernel weight (g)” and “Protein, %”; here, applicant seems to be using the kernel protein mass interchangeably with “Protein, %”.
However, in Table VI in column 10, Phillips discloses weight of a sample and the weight percent protein of the sample; furthermore, in lines 33-41 of column 10, Phillips discloses using other methods for classification by kernel size. Also, claim 3 in column 11 teaches specifically protein content (as opposed to protein content percentage).
Therefore it would have been obvious to a person of ordinary skill in the art before the effective date of the instant invention to combine other methods of classification with the values given in Table VI of Phillips to classify kernels by protein weight which is a direct product of two entries because each element performs the same function that it does individually. The predictable result of this combination would be a value that provides data about a key component of the utility of wheat (see MPEP 2143(I)(A)).
With respect to claim 2, Phillips discloses the limitations of claim 1. Phillips further discloses the effect of the sieving operation is determined for more than one sieve opening size (in Table I in column 4, Phillips discloses the effect on protein concentration for multiple sieve sizes).
With respect to claim 3, Phillips discloses the limitations of claim 1. Phillips further discloses, based on the second function and the third function, sieving parameters which would increase protein concentration of the lot above a specific threshold (in lines 11-60 of column 4, Phillips discloses sieving material and reblending high protein kernels with lower protein kernels to maintain a protein content and avoid a lower grade).
With respect to claim 4, Phillips discloses the limitations of claim 1. Phillips further discloses performing the sieving operation (in lines 51-65 of column 3, Phillips discloses passing grain through sieves; note also that Phillips discloses carrying out this analysis continuously in lines 30-32 of column 10).
With respect to claim 5, Phillips discloses the limitations of claim 1. Phillips further discloses determining the second function comprises sieving the sample into at least three size bins, and measuring weights of each of the at least three size bins, and wherein determining the first function comprises measuring protein content of each of the at least three size bins (in Table VI in column 10, Phillips discloses sieving wheat into three size-based portion, which reads on sieving the sample into three size bins, where whatever is used to collect the different grains reads on the specific bin – note in lines 13-16 of column 10 that Phillips discloses collecting specific grains; in Table VI in column 10, Phillips discloses weights of differently sieved portions of a control – this reads on measuring weights – again, see lines 13-16 of column 10; in lines 13-16 of column 10, Phillips discloses analyzing for protein content, which reads on measuring protein content of each of the at least three size bins).
Phillips does not disclose that there are five size bins. However, in Table I in column 4, Phillips discloses using a third sieve resulting in a fourth fraction of a sample.
Therefore it would have been obvious to a person of ordinary skill in the art before the effective date of the instant invention to substitute a greater number of sieves, including 4 sieves which would result in five fractions or bins, as shown in Table 1 of Phillips for the two sieves shown in Table VI of Phillips because the substituted components and their functions were known in the art. The predictable result of this substitution would be a more precise control of the protein percentage of each fraction of the original sample (see MPEP 2143(I)(B)).
With respect to claim 10, Phillips discloses the limitations of claim 1. Phillips further discloses the kernels comprise kernels of wheat (in the abstract and title, Phillips discloses that the system works with wheat kernels to modify protein concentrations).
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Phillips as applied to claim 1 above, and further in view of Martin et al. (US 5005774 hereinafter Martin) and Rosenthal et al. (US 6559655).
With respect to claim 6, Phillips discloses the limitations of claim 1. Phillips does not disclose determining the first function and the second function comprises analyzing individual kernels one at a time in an optically integrating cavity.
However, Rosenthal discloses determining the first function and the second function comprises analyzing kernels in an optically integrating cavity (in the abstract, Rosenthal discloses a chamber that has a near-infrared spectrometer near it; the combination is used to measure product samples of agricultural product, like grain, discussed in lines 62-66 of column 4; in lines 13-25 of column 1, Rosenthal discloses that test chambers can be used to measure product weight; in lines 28-38 of column 7).
Therefore it would have been obvious to a person of ordinary skill in the art before the effective date of the instant invention to substitute the chamber of Rosenthal for the generalized measurement device shown by Phillips because the substituted components and their functions were known in the art. The predictable result of the substitution would be a system that uses the well-characterized measurement system to measure values of grain kernels (see MPEP 2143(I)(B)). Note that Phillips teaches performing these measurements in lines 13-17 without giving a specific machine that needs to be used to perform the analyses.
Martin discloses analyzing individual kernels one at a time (in lines 32-41 of column 1, Martin discloses testing individual kernels of grain for, among other attributes, grain size).
Therefore it would have been obvious to a person of ordinary skill in the art before the effective date of the instant invention to modify the evaluation of Phillips in view of Rosenthal so that it evaluates a single kernel of grain at a time as taught by Martin with the motivation to “permit accurate classification and quality grading of grain” (lines 35-36 of column 1). Note also that, in lines 27-29 of column 1, Martin teaches that bulk measurements – of hardness in this case – do not provide information about wheat mixing.
Claims 7 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Phillips in view of Rosenthal and Martin as applied to claim 6 above, and further in view of Bilde (WO 2016/096839).
With respect to claim 7, Phillips in view of Rosenthal and Martin discloses the limitations of claim 6. Phillips in view of Rosenthal and Martin does not disclose the individual kernels are propelled through the integrating cavity using pressurized air.
However, Bilde discloses the individual kernels are propelled in a combine harvester using pressurized air (in paragraph 33, Bilde discloses a nozzle that vents pressurized air to move crop, including grain-rich material).
Therefore it would have been obvious to a person of ordinary skill in the art before the effective date of the instant invention to use pressurized air to propel the kernels of wheat in Phillips in view of Rosenthal and Martin as taught by Bilde with the motivation to “[e]nhance grain cleaning . . . without increased loss” (Bilde, paragraph 33).
With respect to claim 8, Phillips in view of Rosenthal, Martin, and Bilde discloses the limitations of claim 7. Phillips in view of Rosenthal, Martin, and Bilde has yet to disclose the kernels are propelled through the integrating cavity from a sampling device attached to a combine harvester.
However, Rosenthal discloses the kernels are propelled through the integrating cavity from a sampling device attached to a combine harvester (in figure 1, Rosenthal discloses a combine harvester 10 on which the analytical equipment can be housed 28).
Therefore it would have been obvious to a person of ordinary skill in the art before the effective date of the instant invention to modify the system of Phillips in view of Rosenthal, Martin, and Bilde by housing it on a combine harvester as taught by Rosenthal with the motivation to avoid “the flow of product to be interrupted when the [prior art] test chamber is full” (Rosenthal, lines 35-40 of column 1).
Claims 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over Phillips in view of someone Rosenthal.
With respect to claim 11, Phillips discloses an apparatus (in lines 6-9 of column 1, Phillips discloses handling bulk wheat, which anticipates an apparatus) comprising:
- obtaining a sample of a lot of agricultural grain kernels (in lines 11-15 of column 4, Phillips discloses a sample of grain);
- determining, from the sample by measurement by a measurement unit, a kernel protein concentration as a first function of kernel size (in Table I in column 4, Phillips discloses a Wt. Percent Protein, which anticipates a kernel protein concentration, as it relates to a sieve that the grain had passed through: the sieve aperture size anticipates kernel size; the relationship shown by the table is a function that relates the size of the kernel to the kernel’s protein concentration; see also Tables II and III);
- determining, from the sample by measurement by the measurement unit, a kernel mass as a second function of kernel size (in lines 37-53 of column 4, Phillips discloses how kernel size will lead to a mass – or weight which is mass times gravity– per bushel; the second function is the relation between sieve sizes and test weights – control is 62.3 lbs./bushel, No. 7 “thrus” are 60.7 lbs./bushel, etc.);
- determining a kernel protein mass percent as a third function of kernel size (in Table I in column 4, Phillips discloses kernel protein mass percent as a function of kernel size), and
- determining, from the second function and the third function, an effect of a sieving operation on a protein concentration of the lot of agricultural grain kernels, and displaying the determined effect of the result of the sieving operation (in Table I in column 4, Phillips discloses how a sieving operation impacts the protein concentration of the grain that stays on the sieve; the table anticipates displaying the determined effect; note that in lies 30-32 of column 10, Phillips discloses that the process of evaluating the effects of sieving on wheat protein concentration can be done on a dynamic basis, with a continuously flowing wheat stream).
While Phillips discloses kernel protein mass percent as a function of kernel size (which could be read to broadly include kernel protein mass because that mass is in the numerator), Phillips does not explicitly teach kernel protein mass as a function of kernel size that is determined by the first function and the second function.
However, in Table VI in column 10, Phillips discloses weight of a sample and the weight percent protein of the sample; furthermore, in lines 33-41 of column 10, Phillips discloses using other methods for classification by kernel size.
Therefore it would have been obvious to a person of ordinary skill in the art before the effective date of the instant invention to combine other methods of classification with the values given in Table VI of Phillips to classify kernels by protein weight which is a direct product of two entries because each element performs the same function that it does individually. The predictable result of this combination would be a value that provides data about a key component of the utility of wheat (see MPEP 2143(I)(A)).
Phillips does not disclose that the apparatus includes at least one processing core, at least one memory including computer program code, the at least one memory and the computer program code being configured to, with the at least one processing core. However, Rosenthal discloses a combine harvester that analyzes grain for specific characteristics that includes at least one processing core, at least one memory including computer program code, the at least one memory and the computer program code being configured to, with the at least one processing core (in lines 28-35 of column 7, Rosenthal discloses a computer that processes the data that is meant to be analyzed in order to determine parameters of interest; a computer anticipates a processor, memory, and computer program code).
Therefore it would have been obvious to a person of ordinary skill in the art before the effective date of the instant invention to combine the computer of Rosenthal with the method of Phillips because each element merely performs the same function as it does separately. The predictable outcome of the combination is an automated analysis of crop (see MPEP 2143(I)(A)).
With respect to claim 12, Phillips in view of Rosenthal discloses the limitations of claim 11. Phillips in view of Rosenthal further discloses the effect of the sieving operation is determined for more than one sieve opening size (in Table I in column 4, Phillips discloses the effect on protein concentration for multiple sieve sizes).
With respect to claim 13, Phillips in view of Rosenthal discloses the limitations of claim 11. Phillips in view of Rosenthal further discloses, based on the second function and the third function, sieving parameters which would increase protein concentration of the lot above a specific threshold (in lines 11-60 of column 4, Phillips discloses sieving material and reblending high protein kernels with lower protein kernels to maintain a protein content and avoid a lower grade).
Allowable Subject Matter
Claim 9 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: the limitations in claim 9 of propelling more than 70 kernels per second individually through an integrating cavity is not shown by the prior art. Considering the limitations of the claims from which claim 9 depends, the limitations of claim 9 are also non-obvious.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Marbach (20150355083) in owned by assignee and has the same inventor: this reference teaches air pressure assisting with flow of material through an analysis chamber in paragraph 190.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DOUGLAS JAMES MEISLAHN whose telephone number is (703)756-1925. The examiner can normally be reached 8:30-5:30 EST M-Th, M-F.
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, Joseph Rocca can be reached at (571) 272-8971. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DOUGLAS J MEISLAHN/Examiner, Art Unit 3671
/JOSEPH M ROCCA/Supervisory Patent Examiner, Art Unit 3671