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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on September 15, 2026 has been entered.
Claims 1 and 7 are amended. Claims 5-6, and 8 are canceled. Claims 1, 7, 9, 13, 18-24, 27-29, 34-39, 59, and 62-64 remain pending and are examined herein.
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, 7, 9, 13, 18-24, 27-29, 34-39, 59, and 62-64 remain rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
The amended claims require the applicator position to between 0 and 15 centimeters taller than the average height; and wherein at least 98% of the corn plant are not damaged. The claims also require the corn plants to be at R1 stage or later. The claims define the average height as “measured as the distance between the soil and the ligule of the uppermost fully-expanded leaf”.
However, at R1 stage or later, corn plants have developed tassels (see below).
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Average tassel length is 20-40 centimeters. See for example, CV995128 (US 8,319,066 B2) has a tassel length of 31 cm; and CV760185 40 cm (US8581076B2).
Thus, setting applicator height at 0-15 cm above the height of the collar of the uppermost fully expanded leaf would be as much as 25 cm below the tip of tassel.
It is not predictable that setting applicator height at 30 cm below the tip of tassel would result in “at least 98% of the corn plant are not damaged.”
Therefore, the claims are not enabled.
Response to Applicant’s Remarks:
Applicant argued that the “claim now defines "not damaged" in structural terms drawn directly from the specification. Specifically, a com plant is "not damaged" by the applying if the applying does not result in torn, ripped, broken, or shredded leaves; torn, ripped, broken, or shredded tassels; torn, ripped, broken, or shredded stems; torn, ripped, broken, or shredded ears; killing of the corn plant; or lodging of the com plant. See Specification, para. [0248]”. Applicant argued that therefore “the specification provides guidance showing that applicator contact with the upper portion of the canopy can occur without structural injury. Accordingly, the claim is enabled across its full scope”.
These arguments have been fully considered but not deemed persuasive. If contact between equipment and the corn plant does not result in damage, as Applicant insisted, then what is the point of requiring a 0-15 cm clearance as the condition for not damaging the plants?
Furthermore, Applicant argued that tassel being “flexible, resilient”, without providing any quantifiable differences between the tassel and other parts of the corn plants, and that such quantifiable differences would lead to substantial damaging performances. There is no evidence that the forces asserted on tassel would not result in damaging the plants, i.e., via transferring of forces to other parts of the corn plants, which, as Applicant insisted, are less “flexible, resilient”.
Applicant argued that the specification provides guidance showing that applicator contact with the upper portion of the canopy can occur without structural injury. Accordingly, the claim is enabled across its full scope. It is precisely this “guidance” has been deemed insufficient. Applicant has not shown any evidence supporting the applying does not result in torn, ripped, broken, or shredded leaves; torn, ripped, broken, or shredded tassels; tom, ripped, broken, or shredded stems; torn, ripped, broken, or shredded ears; killing of the com plant; or lodging of the com plant.
At least for these reasons, the rejection is maintained.
Conclusion
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WEIHUA . FAN
Primary Examiner
Art Unit 1663
/WEIHUA FAN/Primary Examiner, Art Unit 1663
