DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 18,20,24,28-33 are rejected under 35 U.S.C. 103 as being unpatentable over Cordova et al. (US 20220287245 A1) in view of Coufal et al. (DE 19815916 A1), Von Mehesz (GB 2159390 A), and Dissing et al. (US 6561968 B1).
For claim 18, Cordova et al. teach a method for increasing dry matter content of plants or stimulating flower formation (para. 0006,0057,0122 discuss the treatment to stimulate flower formation), the method comprising applying radio wave energy with a frequency in the range from 1 MHz to 15 MHz (para. 0139) to a plant from a device comprising a power supply (150,152) and a casing (316), the casing housing a module (110,116) for radio wave transmission, the module comprising: a means for frequency input (para. 0114, 0115,0125 user input with wireless communication or the like), an integrated antenna (para. 0119, antenna where wire 320 is connected to and connected to ref. 316 as shown in fig. 3A) for emitting radio waves with a frequency in the range of 1 MHz to 15 MHz (para. 0139), and a transmitter (para. 0119,0127,0129) for applying the frequency in the range of 1 MHz to 15 MHz (para. 0139) to the integrated antenna (para. 0119).
Cordova et al. mentioned in para. 0119 that structure such as a chip antenna can be used, which chip antenna would imply that it is inside the casing. However, this is an assumption; thus, Cordova et al. appear to be silent about wherein the entirety of the integrated antenna is located inside the casing.
Coufal et al. teaches in the same field of endeavor of a device for plant development comprising an integrated antenna (3) is located inside the casing (6) in its entirety. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the entirety of the integrated antenna in the method of Cordova et al. be located inside the casing as taught by Coufal et al. in order to prevent the antenna from being damage from the surrounding environment by placing the antenna inside the casing.
Cordova et al. teach the waveform from the transmitter can be continuously during application since it can be sine waveform, which is considered continuous waves (para. 0137).
However, in the event that applicant disagrees with the examiner’s interpretation of Cordova et al. teaching the radio waves being continuously during application, Von Mehesz teaches in the same field of endeavor of a device for generating radio waves for plant growing, the device of Von Mehesz produces radio waves continuously during application and not in pulses (page 2, lines 55-60, page 4, lines 35-52, page 6, lines 1-2 on left and right columns). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the transmitter in the method of Cordova et al. be configured to apply the radio waves continuously during application and not in pulses as taught by Von Mehesz, depending on the type of plants being grown and the amount of electrical stimulation or field necessary to stimulate growth of the plants.
Cordova et al. teach the device with the same features as claimed by applicant, thus, can be configured to generate an electric field in the range of 0.5 to 1.5 V/m, measured within 10 cm from the device as functionally claimed by applicant. However, in the event that applicant disagrees with the examiner’s interpretation of Cordova et al. teaching the device configured to generate an electric field in the range of 0.5 to 1.5 V/m, measured within 10 cm from the device, Dissing et al. teach in the same field of endeavor of a device for generating radio waves for plant growing, wherein the device can be configured to generate an electric field in the range of 0.5 to 1.5 V/m, measured within 10 cm from the device (col. 14, lines 30-31). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to configure the device used in the method of Cordova et al. to generate an electric field in the range of 0.5 to 1.5 V/m, measured within 10 cm from the device as taught by Dissing et al., depending on the type of plants being grown and the amount of electrical stimulation or field necessary to stimulate growth of the plants.
For claim 20, Cordova et al. as modified by Coufal et al., Von Mehesz, and Dissing et al. teach the method according to claim 18, and further teach wherein the frequency is in the range from 3 MHz to 8 MHz or 10 MHz to 14 MHz (para. 0139 of Cordova).
For claim 24, Cordova et al. as modified by Coufal et al., Von Mehesz, and Dissing et al. teach the method according to claim 18, and further teach wherein one or more frequencies in the range of 3.500 MHz to 3.750 MHz, from 3.750 MHz to 4.500 MHz, from 4.500 MHz to 5.000 MHz, from 5.500 MHz to 7.000 MHz or 7.500 MHz to 14.000 MHz are applied (para. 0139 of Cordova).
For claim 28, Cordova et al. as modified by Coufal et al., Von Mehesz, and Dissing et al. teach the method according to claim 18, and further teach wherein the device is mounted to an upright of a greenhouse at plant level (para. 0164 of Cordova teaches using the method in a greenhouse, which implies that the device has to be somehow mounted somewhere in the greenhouse and at a plant level as shown in the figures).
For claim 29, Cordova et al. as modified by Coufal et al., Von Mehesz, and Dissing et al. teach the method according to claim 18, and further teach for increasing dry matter content of plants (since the method of Cordova et al. as modified by Coufal et al., Von Mehesz, and Dissing et al. is the same as applicant’s invention, the treatment in the method will not only stimulate flower formation but also increase dry matter content of the plants, for it is the same method applied).
For claim 30, Cordova et al. as modified by Coufal et al., Von Mehesz, and Dissing et al. teach the method according to claim 18, and further teach for stimulating flower formation (para. 0006,0057,0122 of Cordova discuss the treatment to stimulate flower formation).
For claim 31, Cordova et al. as modified by Coufal et al., Von Mehesz, and Dissing et al. teach the method according to claim 18, but are silent about wherein the plant is a member of the Araceae family or Bromeliaceae family. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to select a member of the Araceae family or Bromeliaceae family for the plant being treated in the method of Cordova et al. as modified by Coufal et al., Von Mehesz, and Dissing et al., depending on the user’s preference to grow any types of plant desired because Cordova et al. listed a variety of types of plant for the treatment as desired by the user.
For claim 32, Cordova et al. as modified by Coufal et al., Von Mehesz, and Dissing et al. teach the method according to claim 18, but are silent about wherein the plant is a member of the Araceae family. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to select a member of the Araceae family for the plant being treated in the method of Cordova et al. as modified by Coufal et al., Von Mehesz, and Dissing et al., depending on the user’s preference to grow any types of plant desired because Cordova et al. listed a variety of types of plant for the treatment as desired by the user.
For claim 33, Cordova et al. as modified by Coufal et al., Von Mehesz, and Dissing et al. teach the method according to claim 32, but are silent about wherein the plant is a member of the Anthurium genus. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to select a member of the Anthurium genus for the plant being treated in the method of Cordova et al. as modified by Coufal et al., Von Mehesz, and Dissing et al., depending on the user’s preference to grow any types of plant desired because Cordova et al. listed a variety of types of plant for the treatment as desired by the user.
Response to Arguments
Applicant's arguments filed 5/26/2026 have been fully considered but they are not persuasive. Applicant argued the following:
Cordova fails to instruct what characteristic of their EMF treatments will result in an increase or decrease. Therefore, the effect of any EMF treatment on
the dry matter content or flower formation of any plant, unless specifically disclosed in Table 1 of Cordova, is not predictable on the basis of Cordova' s disclosure.
The examiner respectfully disagrees because Table 1 is merely one example that Cordova provided and not the whole inventive concept. Clearly from para. 0006,0057,0122, Cordova et al. teach their method enhances numerous plant parameters such as increasing dry matter content of plants and stimulating flower formation.
In addition, table 1 on the right-most column clearly indicate an increase in biological effect on the plants such as germination rate increase, fruit mass increased, plant vegetative mass increased, etc., all of which influence increase in dry matter content of plants.
Furthermore, while applicant indicated a method for increasing dry matter content of plants or stimulating flower formation, the body of the method is taught by the prior art of record, thus, performing the steps in the method would and can result in the same as claimed in the preamble of “increasing dry matter content of plants or stimulating flower formation”.
Coufal does not repair this deficiency, as it only discusses the effect of its systems on insects and "geopathically induced growth disorders", without offering any data. Therefore, the disclosure of Coufal, alone or in combination with Cordova cannot allow one of skill in the art to predict the effect of any EMF treatment on the dry matter content or flower formation of any plant.
Coufal was not relied on for EMF treatment on the dry matter content or flower formation of any plant. From the rejection, Coufal was relied on for a device for plant development comprising an integrated antenna (3) is located inside the casing (6) in its entirety.
Von Mehesz also does not repair this deficiency, as some of their treatments resulted in an increased germination rate or height while others caused a decrease. Von Mehesz at page 5, table between lines 18 and 19 and table on page 6. Von Mehesz fails to instruct what characteristic of their treatments will result in an increase or decrease. Therefore, the effect of any treatment on the dry matter content or flower formation of any plant, unless specifically disclosed in Von Mehesz, is not predictable on the basis of the disclosure of the cited art.
Von Mehesz was not relied on for EMF treatment on the dry matter content or flower formation of any plant. From the rejection, Von Mehesz was relied on for a device for generating radio waves for plant growing, the device of Von Mehesz produces radio waves continuously during application and not in pulses (page 2, lines 55-60, page 4, lines 35-52, page 6, lines 1-2 on left and right columns).
Dissing also does not repair this deficiency, as it only discusses the effect of its systems on germination. Therefore, cannot allow one of skill in the art to predict the effect of any treatment on the dry matter content or flower formation of any plant.
Dissing was not relied on for EMF treatment on the dry matter content or flower formation of any plant. From the rejection, Dissing was relied on for a device for generating radio waves for plant growing, wherein the device can be configured to generate an electric field in the range of 0.5 to 1.5 V/m, measured within 10 cm from the device (col. 14, lines 30-31).
Applicant directs the Office to the Weerheim Report submitted herewith. The Weerheim Report details a test of the instantly claimed method, which provides stronger and more consistently substantiated effects than those described in Cordova (e.g., Cordova's Table 1).
The examiner it is unclear as to why applicant provided the Weerheim Report because this does not overcome the prior art of record. The prior art of record teaches the method as claimed so providing this Weerheim Report does not disprove that the prior art of record does not work the same. Under some circumstances, however, changes such as these may impart patentability to a process if the particular ranges claimed produce a new and unexpected result which is different in kind and not merely in degree from the results of the prior art. In re Dreyfus, 22 CCPA (Patents) 830, 73 F.2d 931, 24 USPQ 52; In re Waite et al., 35 CCPA (Patents) 1117, 168 F.2d 104, 77 USPQ 586. Such ranges are termed "critical" ranges, and the applicant has the burden of proving such criticality. In re Swenson et al., 30 CCPA (Patents) 809, 132 F.2d 1020, 56 USPQ 372; In re Scherl, 33 CCPA (Patents) 1193, 156 F.2d 72, 70 USPQ 204. However, even though applicant's modification results in great improvement and utility over the prior art, it may still not be patentable if the modification was within the capabilities of one skilled in the art. In re Sola, 22 CCPA (Patents) 1313, 77 F.2d 627, 25 USPQ 433; In re Normann et al., 32 CCPA (Patents) 1248, 150 F.2d 627, 66 USPQ 308; In re Irmscher, 32 CCPA (Patents) 1259, 150 F.2d 705, 66 USPQ 314. More particularly, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Swain et al., 33 CCPA (Patents) 1250, 156 F.2d 239, 70 USPQ 412; Minnesota Mining and Mfg. Co. v. Coe, 69 App. D.C. 217, 99 F.2d 986, 38 USPQ 213; Allen et al. v. Coe, 77 App. D.C. 324, 135 F.2d 11, 57 USPQ 136.
Applicant has not shown the numerical ranges as claimed to be critical over the prior art because the prior art employs the same numerical ranges. Providing the Weerheim Report, which uses applicant’s method but has no comparison to that of the prior art used in the rejection, thus, how would one know that applicant’s invention is better or unexpected over that of the prior art? Applicant is guided to MPEP 716.02 for unexpected results and what testing and date that applicant needs to prove to overcome the prior art of record, and not merely providing the Weerheim Report, which report only has data or result from applicant’s method and not the closest prior art within the scope of the claims or commensurate in scope with the claims.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SON T NGUYEN whose telephone number is (571)272-6889. The examiner can normally be reached 9:00 to 4:00.
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/Son T Nguyen/Primary Examiner, Art Unit 3643
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