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 § 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.
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Claims 1-7, 9-12 and 14-16 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e. “mathematical relationships” which the court has identified as abstract) without significantly more. Claim 1 is directed to the abstract idea of for multiple origins, accessing a data structure including data representative of the multiple origins, the data including, for each of the multiple origins, a trait performance expression and/or genotypic components, determining, by at least one computing device, a resource allocation, which allocates n resources among the multiple origins, based on a probability associated with the trait performance expressions and/or genotypic components for the origins, as defined by:
wherein the resources include doubled haploid units (DHUs). These limitations fall under mathematical concepts. The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception because the only additional element is, physically implementing, through pollination of flowers of plants consistent with the multiple origins, one or more of the genotypic component of the multiple origins into DHU’s of the n resources in a breeding pipeline for the multiple origins, based on the determined resource allocation, which is mere instructions to apply the exception and a computing device, which is a conventional or generic equipment which does not add anything significant to the judicial exception because this element is needed in order to determine the resource allocation. The claim as a whole does not amount to significantly more than the abstract idea itself.
The generic data processing is recited generically (no details whatsoever are provided other than e.g., “implementing one or more of the genotypic component of the multiple origins into DHU’s the n resources in a breeding pipeline for the multiple origins, based on the determined resource allocation”) that it represents no more than mere instructions to apply the judicial exceptions on a computer. It can also be viewed as nothing more than an attempt to generally link the use of the judicial exceptions to the technological environment of a computer. Noting MPEP 2106.04(d)(I): “It is notable that mere physicality or tangibility of an additional element or elements is not a relevant consideration in Step 2A Prong Two. As the Supreme Court explained in Alice Corp., mere physical or tangible implementation of an exception does not guarantee eligibility. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 224, 110 USPQ2d 1976, 1983-84 (2014) ("The fact that a computer ‘necessarily exist[s] in the physical, rather than purely conceptual, realm,’ is beside the point")”.
Thus, under Step 2A, prong 2 of the analysis, even when viewed in combination, these additional elements do not integrate the recited judicial exception into a practical application and the claims are directed to the judicial exception.
Under Step 2B, the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements, as described above, merely amount to a general purpose computer system that attempts to apply the abstract idea in a technological environment, limiting the abstract idea to a particular field of use, and/or instructions to apply the exception such as physically implementing one or more of the genotypic component of the multiple origins into DHU’s the n resources in a breeding pipeline for the multiple origins which is considered a human activity. Claims 9 and 17 are rejected similarly and are described bellow.
Claim 9 is directed to the abstract idea of a data structure including data representative of multiple selected origins, the data including a trait performance expression and/or genotypic components for each of the multiple selected origins; a computing device coupled in communication with the data structure and configured to: access data in the data structure for each of the multiple selected origins; and determine a resource allocation, which allocates resources among the multiple selected origins, based on a probability associated with the trait performance expression and/or the genotypic components for the origins, wherein 7 is an integer; and a breeding pipeline including a plurality of doubled haploid units (DHUs) as the n resources, wherein the plurality of DHUs includes one or more of the genotypic components of the multiple origins as defined by said determined resource allocation. These limitations fall under mathematical concepts and human activity such as accessing data. The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception because the only additional elements are a data structure and a computing device, which are conventional or generic equipment which do not add anything significant to the judicial exception because these instruments are needed in order to determine the resource allocation. The claim as a whole does not amount to significantly more than the abstract idea itself.
Dependent claims 2-7 and 10-16 merely expand upon the abstract idea further defining the abstract steps of claims 1 and 9 respectively, and therefore stand rejected under 35 USC 101 as being directed to non-statutory subject matter.
Response to Arguments
Applicant's arguments filed 6/27/2025 have been fully considered but they are not persuasive.
Applicant argues that the claims do not recite a judicial exception and are providing a technological improvement.
In response the Examiner respectfully disagrees and points to the fact that that claim recite mathematical concepts without claiming something significantly more as explained above. The only recited additional element is "physically implementing, through pollination of flowers of plants consistent with the multiple origins, one or more of the genotypic component of the multiple origins into DHU’s of the n resources in a breeding pipeline for the multiple origins, based on the determined resource allocation", but this is considered a manual human activity and mere instructions to apply the exception. A human can pollinate a flower by manually putting pollen into it.
Applicant argues that the claims recites a practical application and references example 41 of the 2019 Revised Patent Subject Matter Eligibility Guidance.
In response the Examiner points out that in the example 41 of the 2019 guidance, the claim was patent eligible because there was a transformation of word signals to and from different computers, there was encoding of the word signal and a new ciphertext word signal was produced. This process made it patentable under 101. The current application merely amounts to a general purpose computer system that attempts to apply the abstract idea in a technological environment and therefore not patent eligible under 101.
Regarding the Diamond v. Diehr arguments, even though a mathematical equation and a digital computer were used (which are elements considered abstract without significantly more limitations), the Supreme Court found the claims to be patent eligible because the claims recited an improved process for molding rubber articles by solving a practical problem which had arisen in the molding of rubber products by opening the mold during manufacturing at a very specific time. This allowed for the product to be fully cured and not overly or under cured and went through a transformation step. Therefore, the claim as a whole had additional limitations that were considered to be significantly more and therefore patent eligible under 35 USC section 101.
In Diamond v. Diehr the claims presented an improvement to the technological field, however in the instant application the claims do not correspond to a technology improvement since the method recited in the claims do not show specific steps as to be considered an improvement. The argued improvements appear to be conclusory statements since the claim language does not reflect the argued improved technological result, nor provides sections in the original disclosure of the invention where the improvement resides.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MANUEL A RIVERA VARGAS whose telephone number is (571)270-7870. The examiner can normally be reached M-F 9:00-6:00.
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/MANUEL A RIVERA VARGAS/Primary Examiner, Art Unit 2857