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 .
Priority
This application filed 04/13/2023 is a Divisional of 16213677, filed 12/07/2018, now U.S. Patent # 11627710, and claims priority from Provisional Application 62596907, filed 12/10/2017. The claims are therefore examined as filed on 12/10/2017, the effective filing date. In future actions, the effective filing date of one or more claims may change, due to amendments to the claims, or further review of the priority application(s).
Claim Status
Claims 1-11 are pending.
Claims 1-11 are examined.
Claims 1-11 are rejected.
Information Disclosure Statement
The Information Disclosure Statements are in compliance with the provisions of 37 CFR 1.97. Accordingly, all references have been considered.
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.
Claims 5, 9-11 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 5 is unclear as many of the variables are not clearly defined, including λdm, λdf, 1Tθm, 1Tθf, λhm, λhf, 1Tϒm, and 1Tϒf in the first equation. It is also unclear if T is a separate term or if, for example, 1Tθm is one term or two separate terms. Therefore, this claim is indefinite due to lack of clarity.
Claim 9 is unclear with respect to the limitations “comprising the plant breeding pipeline coupled in communication with the computing device” and “wherein a plant derived from at least one hybrid of the set of hybrids is planted in a growing space of the validation phase of the plant breeding pipeline…” It is unclear how the pipeline is coupled to the computing device, and it is unclear what the structural limitations of the pipeline are. It is also unclear if the pipeline is directed to the system, or rather to actions intended to be performed outside of the system/an intended use of the data provided by the system outside the metes and bounds of the claim; if the pipeline is part of the system, it is unclear what components of the system are performing the actions of the pipeline. Therefore, this claim is indefinite due to lack of clarity.
Claim 10 is similarly unclear with respect to the phrase “wherein a plant derived from at least one hybrid of the set of hybrids is planted in a growing space of the plant breeding pipeline…” As with claim 9, it is also unclear how the plant breeding pipeline or growing space fits into the system of claim 1, and what components of the system are performing the planting. Therefore, this claim is also indefinite due to lack of clarity.
Claim 11 is also unclear, as it claims the system further comprising a growing space including one or more of the plants, where the plants are based on the identified set of hybrids. It is unclear how the system can comprise a growing space of plants with the identified hybrids before the analysis to identify the hybrids has occurred. Therefore, this claim is also indefinite due to lack of clarity.
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 1-11 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea of mental processes and mathematical concepts, without significantly more.
The MPEP at MPEP 2106 sets forth steps for identifying eligible subject matter:
(1) Are the claims directed to a process, machine, manufacture or composition of matter?
(2A)(1) Do the claims recite a judicially recognized exception, i.e. a law of nature, a natural phenomenon, or an abstract idea?
(2A)(2) Do the claims recite additional elements that integrate the judicial exception into a practical application?
(2B) If the claims recite a judicial exception and do not integrate the judicial exception, do the claims recite additional elements that provide an inventive concept and amount to significantly more than the judicial exception?
With regard to step (1) (Are the claims directed to a process, machine, manufacture or composition of matter?): Yes/No/Some of. The claims are directed to one of the statutory classes. Claims 1-11 are directed to a product (a system comprising a data structure and computing device).
With regard to step (2A)(1) (Do the claims recite a judicially recognized exception?): Yes. The claims recite elements that constitute one or more judicial exceptions:
Claims 1-11 recite the abstract ideas of processing data using mental steps and mathematical concepts. Claims that recite nothing more than abstract ideas, natural phenomena, or laws of nature are not eligible for patent protection (see MPEP 2106.04).
Abstract ideas include mathematical concepts, (mathematical formulas or equations, mathematical relationships and mathematical calculations), certain methods of organizing human activity, and mental processes (including procedures for collecting, observing, evaluating, and organizing information (See MPEP 2106.04(a)(2)). In particular, these abstract ideas include but are not limited to:
Determining a prediction score for each of the hybrids in the pool of hybrids based on the accessed phenotypic data, the prediction score indicative of a probability of selection and/or a probability of success of the hybrid based on historical data (mental process/mathematical concept; the human mind is capable of determining a score from data, and determining a score from data is equivalent to performing a calculation; claim 1)
selecting a group of hybrids from the pool of hybrids based on the prediction score (mental process; the human mind is capable of making a selection based on a score; claim 1)
identifying a set of hybrids, from the selected group of hybrids, based on one or more factors associated with the hybrids (mental process; the human mind is capable of identifying a set of data based on factors associated with that data; claim 1)
directing the set of hybrids to a validation phase of the plant breeding pipeline for planting and/or testing (mental process; the human mind is capable of directing/giving an order for a set of hybrids to be used in a validation phase/claim 1)
selecting the group of hybrids based on the prediction score of each of the hybrids in the selected group of hybrids satisfying one or more thresholds (mental process/mathematical concept; the human mind is capable of comparing a value against a threshold and making a selection based on the comparison, comparing two values is a mathematical concept; claim 2)
identifying, based on a user input, the pool of hybrids, prior to determining a prediction score for each of the hybrids in the pool of hybrids (mental process; the human mind is capable of identifying a set of data based on user input; claim 3)
identifying the set of hybrids based, at least in part, on a deviation of the identified set of hybrids from a desired profile for both male and female line distributions (mental process; the human mind is capable of identifying a set of data based on a deviation; claim 4)
Identify the set of hybrids based on a set identification algorithm (mental process/mathematical concept; the human mind is capable of identifying a set of data based on an algorithm, and performing a calculation using a set algorithm is a mathematical concept; claim 5)
Generating a prediction model based on historical phenotype data and historical selections for each hybrid, and determining a prediction score based on the prediction model (mental process/mathematical concept; the human mind is capable of creating a prediction model based on data and determining a score using the model, and doing so is equivalent to performing a calculation; claim 8)
Dependent claims 6-7 further limit the abstract ideas recited in the independent claims, and do not change their characterization as abstract ideas.
Claim 11 further recites the judicial exception of a natural product, as it recites a “growing space” component as part of the system. Under the broadest reasonable interpretation, a “growing space” of plants can be a plot of land that is naturally occurring, and therefore this limitation is considered to be a natural product (see MPEP 2106.04(c)).
MPEP 2106.04.II.B states that if multiple judicial exceptions that are distinct from each other in a claim are recited, then examiners should select one of the exceptions and conduct an eligibility analysis for that selected exception. If the claim does not recite any additional element or combination of elements that integrate the selected exception into a practical application and also does not recite any additional elements or combination of additional elements that amount to significantly more than the judicial exception, then the claim should be considered ineligible. In view of this and for the purposes of examination, the abstract idea judicial exception is selected.
With regard to step (2A)(2) (Do the claims recite additional elements that integrate the judicial exception into a practical application?): No. The claims recite the additional element of a system comprising a data structure and a computing device for performing the steps of the claims. Claim 1 also recites the additional element of accessing data, and claim 9 recites the additional element of receiving a portion of data. Claims 9-10 recite planting hybrids in a growing area, but it is unclear if these are considered additional elements within the metes and bounds of the claims (see 112b rejection above).
While the claims recite the additional element of receiving or accessing data, such steps that only amount to necessary data gathering , without any technical details of how the data is obtained that integrate the judicial exception, are insignificant extrasolution activities that do not add a meaningful limitation to the claims (see MPEP 2106.05(g)). As a result, the judicial exception is not integrated into a practical application. In addition, while the claims recite additional elements related to the use of computers, they do not provide any specific details by which the data structure or computing device performs or carries out the judicial exception listed in step (2A)(1), nor do they provide any details of how specific structures of the computer are used to implement these functions. The judicial exception is therefore not integrated into a practical application because the generically recited computer elements do not add a meaningful limitation to the abstract idea, as they amount to simply implementing the abstract idea on a computer (see MPEP 2106.05(f)). Because the claims do not recite any additional elements that integrate the judicial exception into a practical application, the claims as a whole are directed to an abstract idea.
With regard to step (2B) (Do the claims recite additional elements that provide an inventive concept and amount to significantly more than the judicial exception?): No. The claims recite an abstract idea with additional elements; however, these additional elements are general computer elements added to abstract ideas, and non-particular instructions to apply the abstract idea by linking it to a field of use or extrasolution activity (see MPEP 2106.05(f-h)). General computer elements used to perform an abstract idea do not provide an inventive concept, and similarly, non-particular instructions to gather or produce data do not provide an inventive concept. Non-particular instructions to gather data are also considered well-understood, routine and conventional activities (see MPEP 2106.05(d), which indicates that limitations such as “Receiving or transmitting data over a network” from Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362, and “Storing and retrieving information in memory” from Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93, are recognized as conventional activities). The claims therefore do not include additional elements that are sufficient to amount to significantly more than the judicial exception. As a result, the claims as a whole do not provide an inventive concept.
Claims Without an Art Rejection
No art rejection is applied to claims 1-11. Close art, for example CHARCOSETT 1998 (as cited on the IDS filed 05/19/2023), while teaching a prediction model for a hybrid plant phenotype, does not teach at least a data structure of phenotypic data for a pool of hybrids, with each hybrid including one male and one female line, or a prediction score indicative of a probability of selection or success of the hybrid based on historical phenotype data. No combinable art before the effective filing date could be found to render the claims as obvious.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARY C LEVERETT whose telephone number is (571)272-5494. The examiner can normally be reached 8:00am - 5:00pm M-Th.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Karlheinz R. Skowronek can be reached at (571) 272-9047. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MARY C LEVERETT/ Examiner, Art Unit 1687
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