DETAILED ACTION
This action is in response to the response to election/restriction filed December 10 2024. Claims 1-20 are pending. Claims 8-20 are withdrawn. Claims 1-7 are currently examined.
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 Objections
Claim 1 is objected to because of the following informalities: “NPK-deficiency” should read “NPK deficiency”.
Claims 4 and 5 are objected to because of the following informalities: “wherein the set of spectral bands comprise spectral bands centered at” should read “wherein the set of spectral bands comprises spectral bands centered at”.
Appropriate correction is required.
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 1-7 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Specifically, representative claim 1 recites:
A method of identifying NPK-deficiency comprising:
measuring intensities of light reflected from a cannabis plant to produce intensities at a set of spectral bands, wherein the cannabis plant is one variety of a plurality of varieties of cannabis;
applying the intensities to a classifier so that the classifier provides one of an indication that the cannabis plant is NPK-deficient or an indication that the cannabis plant is NPK-sufficient, wherein the classifier has been trained using plants that include each of the plurality of varieties of cannabis.
The claim limitations that represent abstract ideas have been highlighted in bold above; the remaining limitations are “additional elements”.
Under Step 1 of the eligibility analysis [see flowchart of MPEP 2106. III.], we determine whether the claim is to a statutory category by considering whether the claimed subject matter falls within the four statutory categories of patentable subject matter identified by 35 U.S.C. 101: process, machine, manufacture, or composition of matter.
The above claims are considered to be in a statutory category (process).
Under Step 2A, Prong One, we consider whether the claim recites a judicial excpetion (abstract idea, mental process; see MPEP 2106.04 I.). The above claim constitutes a mental process because, under a broadest reasonable interpretation, it could be performed by a human being using only a pen and paper [The courts consider a mental process (thinking) that "can be performed in the human mind, or by a human using a pen and paper" to be an abstract idea. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372, 99 USPQ2d 1690, 1695 (Fed. Cir. 2011). see MPEP 2106.04 III. Mental Processes].
The limitation of the classifier, wherein the classifier has been trained, in its broadest reasonable interpretation could be met by a human being who has learned the indications of NPK deficiency as apparent by looking at a cannabis plant.
Next, under Step 2A, Prong Two, we consider whether the claim that recites a judicial exception is integrated into a practical application.
In this step, we evaluate whether the claim recites additional elements that integrate the exception into a practical application of that exception.
The above claim recites the following additional elements: “measuring intensities of light reflected from a cannabis plant to produce intensities at a set of spectral bands”.
Therefore, the claim requires further analysis under Step 2B.
Under Step 2B, we consider whether the claim recites additional elements that amount to significantly more than the judicial exception.
The additional elements are considered to be mere data gathering and thus insignificant extra-solution activity. See MPEP 2106.05(g).
Claim 1, therefore, is not patent eligible.
Claims 2 and 4-5 are similarly not patent eligible. The additional recitations of claims 2 and 4-5 are further details but not method steps.
Claim 3 recites “placing a light sensor within a meter of a top of the cannabis plant”.
As in the analysis of claim 1, this limitation amounts to mere data gathering.
Claim 6 is not patent eligible because it merely recites further details of the timing of a measurement.
Claim 7 recites applying nutrients but this is broadly recited. In its broadest reasonable interpretation, it does not provide any information about how the nutrients are to be applied or what the nutrients are. It amounts to insignificant application [see MPEP 2106.05(g) Insignificant Extra-Solution Activity: examples of insignificant application include “i. Cutting hair after first determining the hair style, In re Brown, 645 Fed. App'x 1014, 1016-1017 (Fed. Cir. 2016) (non-precedential); and ii. Printing or downloading generated menus, Ameranth, 842 F.3d at 1241-42, 120 USPQ2d at 1854-55.”] and thus it is not a practical application. Therefore, claim 7 is not patent eligible.
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.
Claims 1 and 6-7 are rejected under 35 U.S.C. 103 as being unpatentable over Zelkind [Zelkind et al, US 20210137028 A1] in view of Shimshoni [WO 2024003908 A1, priority to US provisional 63367257 filed 2022] in view of Takkar [Takkar, Sakshi, et al. "Recognition of image-based plant leaf diseases using deep learning classification models." Nature Environment & Pollution Technology 20 (2021).]
Regarding claim 1, Zelkind discloses a method of identifying NPK deficiency [Fig. 7; 0095-0096 AI system including vision system 616; 0104 identifying potassium deficiency, 0112 nitrogen deficiency, 0117 phosphorous deficiency] comprising:
measuring intensities of light reflected from a plant to produce intensities at a set of spectral bands [0097 images of plants; measure plant characteristics; “In some embodiments, the image sensors can be based on at least one of the following technologies, including… hyperspectral imaging”, thus, producing intensities at a set of spectral bands],
applying the intensities to a classifier so that the classifier provides one of an indication that the plant is NPK-deficient or an indication that the plant is NPK-sufficient [0143 “utilize a trained machine learning model 820 to determine the deficiencies that may occur during the growing process of plants in the growing modules 606.”; thus classifying if deficiencies exist, therefore classifier providing indication that plant is NPK-deficient], wherein the classifier has been trained using plants 0107 “The farming engine 808 can include, for example, one or more trained machine learning models 820 that are trained using plant characteristic data 814. The plant characteristic data 814 can include historical data and information that can be used to characterize various aspects of the plants that are growing in the farming modules 606.”].
Zelkind does not disclose wherein the plant is a cannabis plant, wherein the cannabis plant is one variety of a plurality of varieties of cannabis.
Zelkind does teach a generic plant [0097].
Shimshoni teaches training a machine learning module using data measured from a cannabis plant [“According to some embodiments, said trained machine learning system may be trained on a labeled data set comprising a plurality of cannabis inflorescence of a plurality of cannabis cultivar/ varieties labeled by respective chemovar of said plurality of cannabis inflorescence.”].
Courts have held that simple substitution of one known element for another would have been obvious to one of ordinary skill in the art if it would yield predictable results [MPEP 2141 III. B.].
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have in Zelkind wherein the plant is a cannabis plant, wherein the cannabis plant is one variety of a plurality of varieties of cannabis to achieve the predictable results of determining NPK deficiency in cannabis.
Zelkind does not disclose wherein the classifier has been trained using plants that include each of the plurality of varieties of cannabis.
Takkar teaches wherein a classifier has been trained using plants that include each of a variety of plants [p. 2141 “The classification of the diseases was done by using a Multi-SVM classifier… In this proposed system, a dataset of 54,343 images of different plant species was taken that involves diseased plants or healthy plants images of various fruits and vegetable crops. The dataset was split into three sets: training set, validation set, and testing set. Training is done by using the pre-trained model Inception V3 by fine-tuning the last layers of the network.”].
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have in Zelkind in view of Shimshoni wherein the classifier has been trained using plants that include each of the plurality of varieties of cannabis in order to aid in identification [Takkar 2142 “The database is used to train the dataset using the Inception V3 model and it further helps to identify the test image and the disease of the test image.”].
Regarding claim 6, Zelkind in view of Shimshoni in view of Takkar discloses the method of claim 1 wherein measuring the intensities of reflected light comprises measuring the intensities before there is any visible indication of a nutrient deficiency in the cannabis plant [Zelkind 0129 avoid potential errors inherent in human operation; 0157 “Furthermore, the methods and functionality described cannot be performed under traditional farming methods because the machine learning models can identify relationships among the data that are otherwise unrecognizable by traditional farming methods”].
Regarding claim 7, Zelkind in view of Shimshoni in view of Takkar discloses the method of claim 1 further comprising:
determining a nutrient application value based on the indication that the cannabis plant is NPK-deficient [0112 determine nitrogen deficiency; 0115 determine phosphorous deficiency]; and
using the nutrient application value to apply nutrients to the plant [0114 apply nitrogen fertilizer; 0117 apply phosphorous fertilizer].
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Zelkind in view of Shimshoni in view of Takkar, further in view of Smart [US 20150015692 A1].
Regarding claim 2, Zelkind in view of Shimshoni in view of Takkar discloses the method of claim 1 but does not explicitly disclose wherein the set of spectral bands is selected before measuring the intensities and is independent of the variety of the cannabis plant.
Zelkind discloses hyperspectral imaging [0097].
Smart teaches that ideal illumination for hyperspectral imaging should be spatially and spectrally uniform [0017].
In view of this, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have in Zelkind in view of Shimshoni in view of Takkar wherein the set of spectral bands is selected before measuring the intensities and is independent of the variety of the cannabis plant.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Zelkind in view of Shimshoni in view of Takkar, further in view of Raveh [Raveh et al, US 20170131200 A1].
Regarding claim 3, Zelkind in view of Shimshoni in view of Takkar discloses the method of claim 1 but not wherein measuring the intensities of reflected light comprises placing a light sensor within a meter of a top of the cannabis plant.
Raveh discloses wherein measuring the intensities of reflected light comprises placing a light sensor within a meter of a top of the plant [0209 vision sensor from a distance of 80 cm; 0183 distance of 80 cm].
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have wherein measuring the intensities of reflected light comprises placing a light sensor within a meter of a top of the cannabis plant in order to maximize the range of image contrast [Raveh 0183 “The maximum range of the gray values ({max(i|h(i)≠0)−min(i|h(i)≠0)}) was obtained at the distance of 80 cm”].
Claims 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over Zelkind in view of Shimshoni in view of Takkar, further in view of Kocer [US 20160044862 A1].
Regarding claim 4, Zelkind in view of Shimshoni in view of Takkar discloses the method of claim 1 but not wherein the set of spectral bands comprises spectral bands in the near infrared range.
Kocer teaches analyzing plants using near-infrared light “from 0.7 to 1.1 micrometers” [0026].
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have wherein the set of spectral bands comprises spectral bands in the near infrared range in order to determine an amount of agricultural product (such as fertilizer) for delivery to the plant [Kocer 0026].
Regarding claim 5, Zelkind in view of Shimshoni in view of Takkar in view of Kocer discloses the method of claim 4 wherein the set of spectral bands comprises spectral bands centered at 725.57, 732.05, 992.83, 854.39, 792.9, and 712.62 nm [Kocer 0026 near-infrared light (from 0.7 to 1.1 μm].
Conclusion
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/ADRIAN IGNACIO SILVA/ Examiner, Art Unit 2877
/UZMA ALAM/ Supervisory Patent Examiner, Art Unit 2877
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