DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 154-173 are presented for examination based on the amended claims in the application filed on May 04, 2023. Claims 1-153 have been cancelled by the applicant.
Claims 154-172 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 144-161 of copending Application No. 18/860291.
Claim 173 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 144 of copending Application No. 18/860291, as applied to instant claim 154, and in further view of Umetsu, Noriharu, and Yuichi Shirai. "Development of novel pesticides in the 21st century." Journal of Pesticide Science 45, no. 2 (2020): 54-74 [herein “Umetsu”].
Claims 154-173 are rejected under 35 U.S.C. § 101 because the claimed invention is directed to judicial exception, an abstract idea which has not been integrated into practical application nor recite significantly more.
Claims 154-158, 160-163, 167-168, and 172 are rejected under 35 U.S.C. § 102(a)(2) as being anticipated by US 2021/0035473 A1 Al-Dilaimi, Arwa et al. [herein “Al-Dilaimi”].
Claims 159 and 164-166 are rejected under 35 U.S.C. § 103 as being unpatentable over Al-Dilaimi, as applied to claim 154, and in view of US 2017/0089761 A1 McQuilkin, Gary et al.
Claim 169 is rejected under 35 U.S.C. § 103 as being unpatentable over Al-Dilaimi, as applied to claim 168, and in view of US 2019/0191617 A1 Hoffmann, Holger et al.
Claim 170-171 are rejected under 35 U.S.C. § 103 as being unpatentable over Al-Dilaimi, as applied to claim 154, and in view of Malandrakis, Anastasios et al. "Biological and molecular characterization of field isolates of Alternaria alternata with single or double resistance to respiratory complex II and III inhibitors." European Journal of Plant Pathology 152, no. 1 (2018): 199-211 [herein “Malandrakis”], and in further view of Miao, Jianqiang et al. "Resistance assessment for oxathiapiprolin in Phytophthora capsici and the detection of a point mutation (G769W) in PcORP1 that confers resistance." Frontiers in Microbiology 7 (2016): 615 [herein Miao].
Claim 173 is rejected under 35 U.S.C. § 103 as being unpatentable over Al-Dilaimi, as applied to claim 154, and in view of Umetsu.
This action is made non-Final.
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 .
Information Disclosure Statement
The information disclosure statements (IDSs) submitted on May 4, 2023 and January 3, 2025 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
The listing of references in the specification is not a proper information disclosure statement. 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609.04(a) states, “the list may not be incorporated into the specification but must be submitted in a separate paper.” Therefore, unless the references have been cited by the examiner on form PTO-892, they have not been considered.
Specification
The use of the terms “RapidEye”, “WorldView”, and “Planet Labs, Inc.”, which are trade names or a marks used in commerce, has been noted in this application. The terms should be accompanied by the generic terminology; furthermore, the terms should be capitalized wherever they appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
Claim Objections
Claims 154-173 are objected to because of the following informality: recitations of elements with no previous recitations. For example, claim 154, “the frequency of one or more genotypes” in Ln. 5, is improper because there has been no previous recitation of “the frequency of one or more genotypes”. For the purpose of examination, “the frequency of one or more genotypes” will be interpreted as “a frequency of one or more genotypes”. Similarly, the following are objected under similar rationale:
Claim 154, “the genotypes” in Ln. 5 should be “the frequency of one or more genotypes”.
Claim 155, “the assays” in Ln. 4 should be “assays” or alternatively “the validating assays”.
Claim 160, “the assays” in Ln. 1 should be “assays” or alternatively “the validating assays” if the claim were to be dependent on claim 155.
Claim 163, “the location” in Ln. 3 should be “the field location”.
Claim 163, “the results of the comparison” in Ln. 4-5 should be “results of the comparison” or simply “the comparison”.
Claim 163, “the validated pesticide application protocol” in Ln. 6 should be “a validated pesticide application protocol”. Alternatively, if claim 163 were to be written to be dependent on claim 155, then the objection would be overcome.
Claim 168, “the air” in Ln. 2 should be “air”.
Claim 169, “the group” in Ln. 2 should be “a group”. Claims 172-173, having similar limitations of claim 169, are also objected.
Claim 170, “the CYP51” in Ln. 3 should be “CYP51”.
All claims dependent on an objected base claim are objected based on their dependency.
Appropriate correction is required.
Claims 154-173 are objected to because of the following informality: recitations of elements with a previous recitations. For example, claim 154, “a pesticide resistance map” in Ln. 11, is improper because there has been a previous recitation of “a pesticide resistance map” in Ln. 1. For the purpose of examination, “a pesticide resistance map” in Ln. 11 will be interpreted as “the pesticide resistance map”. Similarly, the following are objected under similar rationale:
Claim 154, “a pesticide application protocol” in Ln. 15 should be “the pesticide application protocol”.
Claim 165, “a plurality of spectral images” in Ln. 1 should be “the plurality of spectral images”.
All claims dependent on an objected base claim are objected based on their dependency.
Appropriate correction is required.
Claims 170 is objected to because the acronyms of “CYP51”, “SDHC”, “SDHB”, “SDHD”, “CYTB”, and “OSBP” which are not spelled out. The first time the acronyms appear in the claim set, the acronyms should be spelled out. All claims dependent on an objected base claim are objected based on their dependency.
Appropriate correction is required.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 154-172 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 144-161 of copending Application No. 18/860291. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented. Although the claims at issue are not identical, they are not patentably distinct from each other because:
154. “A method of generating a pesticide resistance map of a target pest, the method comprising: (a) obtaining genotypic information from a plurality of pest samples obtained from a plurality of field locations” (Claim 144, A method of generating a pesticide resistance map of a target pest, the method comprising: (a) obtaining genotypic information from a plurality of pest samples obtained from a plurality of soy field locations, wherein the pest samples comprise fungal material obtained from either Phakopsora pacyrizi or Septoria glycines);
“(b) generating the frequency of one or more genotypes based on the genotypic information, wherein a correlation exists between the genotypes and resistance to at least one pesticide, wherein the correlation is quantified as at least one pesticide resistance factor to at least one pesticide” (Claim 144, (b) generating a frequency of one or more genotypes based on the genotypic information, wherein a correlation exists between the one or more genotypes and resistance to at least one pesticide, wherein the correlation is quantified as at least one pesticide resistance factor to at least one pesticide);
“(c) correlating the one or more genotypes to the plurality of field locations to generate a genotype frequency map” (Claim 144, (c) correlating the one or more genotypes to the plurality of soy field locations to generate a genotype frequency map);
“(d) generating a pesticide resistance map based on the genotype frequency map and the pesticide resistance factor of each genotype”;
“(e) identifying candidate pesticides for use in a pesticide application protocol based on the pesticide resistance map” (Claim 144, (e) identifying candidate pesticides for use in a pesticide application protocol based on the pesticide resistance map); and
“(f) generating a pesticide application protocol for a field location using the pesticide resistance map” (Claim 144, (f) generating the pesticide application protocol for a target soy field location using the pesticide resistance map).
155. The method of claim 154, “additionally comprising: (g) selecting, based on the pesticide resistance map, a plurality of validating assays for the pesticide application protocol” (Claim 145, additionally comprising: (g) selecting, based on the pesticide resistance map, a plurality of validating assays for the pesticide application protocol); and
“(h) performing the assays to generate a validated pesticide application protocol” (Claim 145, (h) performing the validating assays to generate a validated pesticide application protocol).
156. The method of claim 154, “wherein the genotypic information is obtained at a location remote from the plurality of field locations” (Claim 146, wherein the genotypic information is obtained at a location remote from the plurality of soy field locations).
157. The method of claim 154, “wherein the genotypic information is obtained in the plurality of field locations” (Claim 147, wherein the genotypic information is obtained in the plurality of soy field locations).
158. The method of claim 154, “wherein obtaining genotypic information is conducted contemporaneously with collecting pest samples” (Claim 148, wherein obtaining genotypic information is conducted contemporaneously with obtaining pest samples).
159. The method of claim 154, “wherein the field location is selected from wheat fields, soy fields, potato fields, canola fields, and grape vineyards.” (Claim 144, (a) obtaining genotypic information from a plurality of pest samples obtained from a plurality of soy field locations).
160. The method of claim 154, “wherein the assays are performed in the plurality of field locations” (Claim 149, wherein the validating assays are performed in the plurality of soy field locations.)
161. The method of claim 154, “wherein the correlation between the genotypes and resistance to at least one pesticide is based on data from at least one previous season” (Claim 150, wherein the correlation between the one or more genotypes and resistance to at least one pesticide is based on data from at least one previous season).
162. The method of claim 154, “wherein pre-existing data for the plurality of field locations are employed in generating the pesticide application protocol” (Claim 151, wherein pre-existing data for the plurality of soy field locations are employed in generating the pesticide application protocol).
163. The method of claim 162, “additionally comprising: (f.i) comparing the obtained genotypic information to historic or pre-existing genotypic information for the location” (Claim 151, additionally comprising: (fi) comparing the obtained genotypic information to historic or pre-existing genotypic information for the location); and
“(f.ii) identifying changes in pesticide resistance based on the results of the comparison; wherein providing the validated pesticide application protocol is based on the pesticide resistance factors and the changes in pesticide resistance” (Claim 152, (f.ii) identifying changes in pesticide resistance based on the results of the comparison; wherein generating the validated pesticide application protocol is based on the pesticide resistance factors and the changes in pesticide resistance).
164. The method of claim 154, “additionally comprising, before step (e): (d.i) obtaining a plurality of spectral images of the plurality of field locations” (Claim 153, additionally comprising, before step (e): (d.i) obtaining a plurality of spectral images of the plurality of soy field locations); and
“(d.ii) identifying a plurality of localized disease states based on the plurality of spectral images; wherein generating the pesticide resistance map additionally comprises correlating the plurality of localized disease states with the genotype frequency map” (Claim 153, (d.ii) identifying a plurality of localized disease states based on the plurality of spectral images; and wherein generating the pesticide resistance map additionally comprises correlating the plurality of localized disease states with the genotype frequency map).
165. The method of claim 164, “wherein: obtaining a plurality of spectral images of the plurality of field locations comprises monitoring an unmanned aerial vehicle (UAV) as the UAV flies along a flight path above the plurality of locations and as the UAV performs: (i) capturing a plurality of images of the plurality of locations as the UAV flies along the flight path; and (ii) transmitting the plurality of images to an image recipient” (Claim 154, wherein: obtaining a plurality of spectral images of the plurality of soy field locations comprises monitoring an unmanned aerial vehicle (UAV) as the UAV flies along a flight path above the plurality of soy field locations and as the UAV performs:(i) capturing a plurality of images of the plurality of soy field locations as the UAV flies along the flight path; and(ii) transmitting the plurality of images to an image recipient).
166. The method of claim 164, “wherein: obtaining a plurality of spectral images of the plurality of field locations comprises obtaining a plurality of satellite-generated images of the field locations” (Claim 155, wherein: obtaining a plurality of spectral images of the plurality of soy field locations comprises obtaining a plurality of satellite-generated images of the soy field locations).
167. The method of claim 154, “wherein the pesticide application protocol comprises a recommended pesticide and a recommended application timing” (Claim 156, wherein the pesticide application protocol comprises a recommended pesticide and a recommended application timing).
168. The method of claim 154, “wherein the pest samples are obtained from the air, soil, water, plant part or a combination thereof” (Claim 157, wherein the plurality of pest samples are obtained from the air, soil, water, plant part or a combination thereof.).
169. The method of claim 168, “wherein the pest samples are fungal material selected from the group consisting of mycelium or spores” (Claim 158, wherein the plurality of pest samples are fungal material selected from the group consisting of mycelium or spores).
170. The method of claim 154, “wherein the genotypes are generated by testing for alleles of genes involved in resistance to pesticides, and wherein the alleles are alleles of the CYP51, SDHC, SDHB, SDHD, CYTB, OSBP and multi- drug resistance genes” (Claim 159, wherein the one or more genotypes are generated by testing for alleles of genes involved in resistance to pesticides, and wherein the alleles are alleles selected from the group consisting of the CYP51, SDHC, SDHB, SDHD, CYTB, OSBP and multi-drug resistance genes).
171. The method of claim 170, “wherein the alleles of the CYP51, SDHC, SDHB, SDHD, CYTB, OSBP and multi-drug resistance genes are correlated with resistance to at least one pesticide to develop the pesticide resistance factors” (Claim 160, wherein the alleles selected from the group consisting of the CYP51, SDHC, SDHB, SDHD, CYTB, OSBP and multi-drug resistance genes are correlated with the resistance to at least one pesticide to develop the at least one pesticide resistance factor to at least one pesticide).
172. The method of claim 154, “wherein the at least one pesticide belongs to a class of pesticides selected from the group consisting of fungicides, nematicides, bactericides, and insecticides” (Claim 161, wherein the at least one pesticide belongs to a class of pesticides selected from the group consisting of fungicides, nematicides, bactericides, and insecticides).
Claim 173 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 144 of copending Application No. 18/860291, as applied to instant claim 154, and in further view of Umetsu, Noriharu, and Yuichi Shirai. "Development of novel pesticides in the 21st century." Journal of Pesticide Science 45, no. 2 (2020): 54-74 [herein “Umetsu”]. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claim 173, copending Application No. 18/860291 fails to distinctly point out “wherein the at least one pesticide comprises a picolinamide fungicide selected from the group consisting of fenpicoxamid and florylpicoxamid”.
However, in the same field of endeavor namely managing resistance to fungicides in crops, Umetsu teaches “wherein the at least one pesticide comprises a picolinamide fungicide selected from the group consisting of fenpicoxamid and florylpicoxamid.” (Pg. 59, “Fenpicoxamid (Inatreq™, Meiji Seika Pharma, Dow; currently Corteva Agriscience), whose structure is shown in Fig. 4, is a conversion product of UK-2A isolated from the culture broth of Streptomyces spp. by Ueki et al. at Osaka City University, and its action is inhibition of the mitochondrial electron transport system complex III. Meiji Seika Pharma introduced UK-2A from the university and subjected it to joint development with Dow after converting its structure into fenpicoxamid. It is currently under development as an innovative fungicide for controlling key diseases in cereals, such as Septoria tritici and rust. It shows no cross-resistance to existing cereal fungicides. Fenpicoxamid is a propesticide, since it is converted to UK-2A in crops. Florylpicoxamid (Adavelt™, Corteva Agriscience) is a neopicolinamide fungicide under development and presumed to be a QiI, having the same mode of action as fenpicoxamid. Florylpicoxamid controls a wide range of pathogens including Septoria spp., powdery mildew, Botrytis spp., Anthracnose, Alternaria, scab, Monilinia, and others” [e.g., wherein the at least one pesticide comprises a picolinamide fungicide selected from the group consisting of fenpicoxamid and florylpicoxamid].)
Therefore, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to add “wherein the at least one pesticide comprises a picolinamide fungicide selected from the group consisting of fenpicoxamid and florylpicoxamid” as conceptually seen from the teaching of Umetsu, into that of copending Application No. 18/860291 because this modification of using a pesticide of fenpicoxamid and florylpicoxamid for the advantageous purpose of controlling a wide range of pathogens and disease using fungicides show no resistance (Umetsu, Pg. 59). Further motivation to combine be that copending Application No. 18/860291 and Umetsu are analogous art to the current claim directed to managing resistance to fungicides in crops.
Claim Rejections - 35 U.S.C. § 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 154-173 are rejected under 35 U.S.C. § 101 because the claimed invention is directed to judicial exception, an abstract idea, and it has not been integrated into practical application. The claims further do not recite significantly more than the judicial exception. Examiner has evaluated the claims under the framework provided in the 2019 Patent Eligibility Guidance published in the Federal Register 01/07/2019 and has provided such analysis below.
Step 1:
Claims 154-173 are directed to a method and fall within the statutory category of a process. Therefore, “Are the claims to a process, machine, manufacture or composition of matter?” Yes.
In order to evaluate the Step 2A inquiry “Is the claim directed to a law of nature, a natural phenomenon or an abstract idea?” we must determine, at Step 2A Prong 1, whether the claim recites a law of nature, a natural phenomenon or an abstract idea and further whether the claim recites additional elements that integrate the judicial exception into a practical application.
Step 2A Prong 1:
Claim 154: The limitations of:
“(b) generating the frequency of one or more genotypes based on the genotypic information, wherein a correlation exists between the genotypes and resistance to at least one pesticide, wherein the correlation is quantified as at least one pesticide resistance factor to at least one pesticide”,
“(c) correlating the one or more genotypes to the plurality of field locations to generate a genotype frequency map”,
“(d) generating a pesticide resistance map based on the genotype frequency map and the pesticide resistance factor of each genotype”,
“(e) identifying candidate pesticides for use in a pesticide application protocol based on the pesticide resistance map”, and
“(f) generating a pesticide application protocol for a field location using the pesticide resistance map”, as drafted, is a process that, but for the recitation of generic computing components, under its broadest reasonable interpretation, covers performance of the limitation in the mind or with pen and paper. For example, the limitations can be performed as the following:
a person can mentally determine or draw with a pen and paper how often a genotype occurs in a field based on the number of obtained genotypic sampling information and also determine that based on how often the genotype occurs where the genotype is resistant to applied pesticide on the field,
a person can mentally determine or draw with a pen and paper a map of a field showing where the genotype occurs,
a person can mentally determine or draw with a pen and paper a map of a field showing where the genotype occurs and how often it occurs,
a person can mentally determine or draw with a pen and paper a list of different pesticides to be applied that were not used on the field in the determined map of a field showing where the genotype occurs and how often it occurs, and
a person can mentally determine or draw with a pen and paper a plan of action to apply a certain pesticide that does not have any resistance to genotype shown in the map of a field showing where the genotype occurs and how often it occurs.
If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind or with pen and paper but for the recitation of generic computer components, then it falls within the “Mental Processes” grouping of abstract ideas. Accordingly, the claim recites an abstract idea under Prong I step 2A.
Therefore, yes, claim 154 recites judicial exceptions. The claim has been identified to recite judicial exceptions, Step 2A Prong 2 will evaluate whether the claim is directed to the judicial exception.
Step 2A Prong 2:
Claim 154: The judicial exception is not integrated into a practical application. In particular, the claims recite the following additional element of “(a) obtaining genotypic information from a plurality of pest samples obtained from a plurality of field locations” which is merely a recitation of insignificant extra-solution data gathering activity (see MPEP § 2106.05(g)) which does not integrate a judicial exception into practical application. The insignificant extra-solution activities are further addressed below under step 2B as also being Well-Understood, Routine, and Conventional (WURC).
Therefore, “Do the claims recite additional elements that integrate the judicial exception into a practical application?” No, these additional elements do not integrate the abstract idea into a practical application and they do not impose any meaningful limits on practicing the abstract idea. The claim is directed to an abstract idea.
After having evaluated the inquires set forth in Steps 2A Prong 1 and 2, it has been concluded that claim 154 not only recites a judicial exception but that the claim is directed to the judicial exception as the judicial exception has not been integrated into practical application.
Step 2B:
Claim 154: The claim does not include additional elements, alone or in combination, that are sufficient to amount to significantly more than the judicial exception. As discussed above with respect to integration of the abstract idea into a practical application, the insignificant extra-solution data gathering, record update, and data transmission activities are Well-Understood, Routine and Conventional. MPEP § 2106.05(d)(II) recites “The courts have recognized the following computer functions as well understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. i. Receiving or transmitting data over a network, ii. Performing repetitive calculations, iii. Electronic recordkeeping, iv. Storing and retrieving information in memory”. MPEP § 2106.05(g) recites “Below are examples of activities that the courts have found to be insignificant extra-solution activity: Mere Data Gathering: Performing clinical tests on individuals to obtain input for an equation, In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989); Testing a system for a response, the response being used to determine system malfunction, In re Meyers, 688 F.2d 789, 794; 215 USPQ 193, 196-97 (CCPA 1982)” (emphasis added). With regards to claim 154, this additional element has been interpreted as receiving data regarding pest information, i.e., gathering data, which has been defined by MPEP § 2106.05(d)(II) as well-understood, routine, or conventional. Therefore, this additional element is an insignificant extra-solution activity as defined and as such evidence is provide in MPEP § 2106.05(d)(II).
Therefore, “Do the claims recite additional elements that amount to significantly more than the judicial exception?” No, these additional elements, alone or in combination, do not amount to significantly more than the judicial exception. Having concluded the analysis within the provided framework, claim 154 does not recite patent eligible subject matter under 35 U.S.C. § 101.
Regarding claim 155, it recites an additional limitation of “(g) selecting, based on the pesticide resistance map, a plurality of validating assays for the pesticide application protocol”, as drafted, is a process that, but for the recitation of generic computing components, under its broadest reasonable interpretation, covers performance of the limitation in the mind or with pen and paper. For example, a person can mentally choose or draw with a pen and paper multiple types of assays to test the plan of action such as gas or liquid applications of the pesticides.
If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind or with pen and paper but for the recitation of generic computer components, then it falls within the “Mental Processes” grouping of abstract ideas. Accordingly, the claim recites an abstract idea under Prong I step 2A.
Furthermore, regarding claim 155, it recites an additional element recitation of “(h) performing the assays to generate a validated pesticide application protocol” is merely an insignificant extra-solution activity (see MPEP § 2106.05(g)) and a recitation of generic computing components and functions being used as a tool to implement the judicial exception (see MPEP § 2106.05(f)) which does not integrate a judicial exception into practical application. As discussed above, the insignificant extra-solution data gathering, record update, and data transmission activities are Well-Understood, Routine and Conventional. MPEP § 2106.05(d)(II) recites “The courts have recognized the following computer functions as well understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. i. Receiving or transmitting data over a network, ii. Performing repetitive calculations, iii. Electronic recordkeeping, iv. Storing and retrieving information in memory”. MPEP § 2106.05(g) recites “Below are examples of activities that the courts have found to be insignificant extra-solution activity: Mere Data Gathering: Performing clinical tests on individuals to obtain input for an equation, In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989); Testing a system for a response, the response being used to determine system malfunction, In re Meyers, 688 F.2d 789, 794; 215 USPQ 193, 196-97 (CCPA 1982)” (emphasis added). With regards to claim 155, this additional element has been interpreted as performing testing to validate the plan, i.e., gathering data, which has been defined by MPEP § 2106.05(d)(II) as well-understood, routine, or conventional. Therefore, this additional element is an insignificant extra-solution activity as defined and as such evidence is provide in MPEP § 2106.05(d)(II). Furthermore, this additional element is also merely a recitation of instructions to apply the abstract idea as it only recites the idea of a solution or outcome and fails to recite details of how a solution to a problem is accomplished or the mechanism to accomplish the solution (see MPEP § 2106.05(f)) which does not integrate a judicial exception into practical application. Additionally, achieving an instance of a design after determining the design has also been found to be mere instructions to apply the abstract idea. Thus, the additional element is merely a recitation of instructions apply the abstract idea which does not integrate the judicial exception into a practical application (see MPEP § 2106.05(f), “(1) Whether the claim recites only the idea of a solution or outcome i.e., the claim fails to recite details of how a solution to a problem is accomplished. The recitation of claim limitations that attempt to cover any solution to an identified problem with no restriction on how the result is accomplished and no description of the mechanism for accomplishing the result, does not integrate a judicial exception into a practical application or provide significantly more because this type of recitation is equivalent to the words "apply it"… Other examples where the courts have found the additional elements to be mere instructions to apply an exception, because they do no more than merely invoke computers or machinery as a tool to perform an existing process include: A method of assigning hair designs to balance head shape with a final step of using a tool (scissors) to cut the hair, In re Brown, 645 Fed. App'x 1014, 1017 (Fed. Cir. 2016)”). Further, this claim does not recite any further additional elements and for the same reasons as above with regard to integration into practical application and whether additional element amounts to significantly more, this claim also fails both Step 2A prong 2, thus this claim is directed to the judicial exception as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more. Therefore, claim 155 does not recite patent eligible subject matter under 35 U.S.C. § 101.
Regarding claim 156, it recites an additional limitation of “wherein the genotypic information is obtained at a location remote from the plurality of field locations” is merely an insignificant extra-solution activity (see MPEP § 2106.05(g)) which does not integrate a judicial exception into practical application. As discussed above, the insignificant extra-solution data gathering, record update, and data transmission activities are Well-Understood, Routine and Conventional. MPEP § 2106.05(d)(II) recites “The courts have recognized the following computer functions as well understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. i. Receiving or transmitting data over a network, ii. Performing repetitive calculations, iii. Electronic recordkeeping, iv. Storing and retrieving information in memory”. MPEP § 2106.05(g) recites “Below are examples of activities that the courts have found to be insignificant extra-solution activity: Mere Data Gathering: Performing clinical tests on individuals to obtain input for an equation, In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989); Testing a system for a response, the response being used to determine system malfunction, In re Meyers, 688 F.2d 789, 794; 215 USPQ 193, 196-97 (CCPA 1982)” (emphasis added). With regards to claim 156, this additional element of has been interpreted as receiving data regarding pest information, i.e., gathering data, which has been defined by MPEP § 2106.05(d)(II) as well-understood, routine, or conventional. Therefore, this additional element is an insignificant extra-solution activity as defined and as such evidence is provide in MPEP § 2106.05(d)(II). Further, this claim does not recite any further additional elements and for the same reasons as above with regard to integration into practical application and whether additional element amounts to significantly more, this claim also fails both Step 2A prong 2, thus this claim is directed to the judicial exception as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more. Therefore, claim 156 does not recite patent eligible subject matter under 35 U.S.C. § 101.
Regarding claim 157, it recites an additional limitation of “wherein the genotypic information is obtained in the plurality of field locations” is merely an insignificant extra-solution activity (see MPEP § 2106.05(g)) which does not integrate a judicial exception into practical application. As discussed above, the insignificant extra-solution data gathering, record update, and data transmission activities are Well-Understood, Routine and Conventional. MPEP § 2106.05(d)(II) recites “The courts have recognized the following computer functions as well understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. i. Receiving or transmitting data over a network, ii. Performing repetitive calculations, iii. Electronic recordkeeping, iv. Storing and retrieving information in memory”. MPEP § 2106.05(g) recites “Below are examples of activities that the courts have found to be insignificant extra-solution activity: Mere Data Gathering: Performing clinical tests on individuals to obtain input for an equation, In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989); Testing a system for a response, the response being used to determine system malfunction, In re Meyers, 688 F.2d 789, 794; 215 USPQ 193, 196-97 (CCPA 1982)” (emphasis added). With regards to claim 157, this additional element of has been interpreted as receiving data regarding pest information, i.e., gathering data, which has been defined by MPEP § 2106.05(d)(II) as well-understood, routine, or conventional. Therefore, this additional element is an insignificant extra-solution activity as defined and as such evidence is provide in MPEP § 2106.05(d)(II). Further, this claim does not recite any further additional elements and for the same reasons as above with regard to integration into practical application and whether additional element amounts to significantly more, this claim also fails both Step 2A prong 2, thus this claim is directed to the judicial exception as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more. Therefore, claim 157 does not recite patent eligible subject matter under 35 U.S.C. § 101.
Regarding claim 158, it recites an additional limitation of “wherein obtaining genotypic information is conducted contemporaneously with collecting pest samples” is merely an insignificant extra-solution activity (see MPEP § 2106.05(g)) which does not integrate a judicial exception into practical application. As discussed above, the insignificant extra-solution data gathering, record update, and data transmission activities are Well-Understood, Routine and Conventional. MPEP § 2106.05(d)(II) recites “The courts have recognized the following computer functions as well understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. i. Receiving or transmitting data over a network, ii. Performing repetitive calculations, iii. Electronic recordkeeping, iv. Storing and retrieving information in memory”. MPEP § 2106.05(g) recites “Below are examples of activities that the courts have found to be insignificant extra-solution activity: Mere Data Gathering: Performing clinical tests on individuals to obtain input for an equation, In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989); Testing a system for a response, the response being used to determine system malfunction, In re Meyers, 688 F.2d 789, 794; 215 USPQ 193, 196-97 (CCPA 1982)” (emphasis added). With regards to claim 158, this additional element of has been interpreted as receiving data regarding pest information, i.e., gathering data, which has been defined by MPEP § 2106.05(d)(II) as well-understood, routine, or conventional. Therefore, this additional element is an insignificant extra-solution activity as defined and as such evidence is provide in MPEP § 2106.05(d)(II). Further, this claim does not recite any further additional elements and for the same reasons as above with regard to integration into practical application and whether additional element amounts to significantly more, this claim also fails both Step 2A prong 2, thus this claim is directed to the judicial exception as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more. Therefore, claim 158 does not recite patent eligible subject matter under 35 U.S.C. § 101.
Regarding claim 159, it recites an additional limitation of “wherein the field location is selected from wheat fields, soy fields, potato fields, canola fields, and grape vineyards” is merely an insignificant extra-solution activity (see MPEP § 2106.05(g)) and a field of use/technological environment (see MPEP § 2106.05(h)) which does not integrate a judicial exception into practical application. As discussed above, the insignificant extra-solution data gathering, record update, and data transmission activities are Well-Understood, Routine and Conventional. MPEP § 2106.05(d)(II) recites “The courts have recognized the following computer functions as well understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. i. Receiving or transmitting data over a network, ii. Performing repetitive calculations, iii. Electronic recordkeeping, iv. Storing and retrieving information in memory”. MPEP § 2106.05(g) recites “Below are examples of activities that the courts have found to be insignificant extra-solution activity: Mere Data Gathering: Performing clinical tests on individuals to obtain input for an equation, In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989); Testing a system for a response, the response being used to determine system malfunction, In re Meyers, 688 F.2d 789, 794; 215 USPQ 193, 196-97 (CCPA 1982)” (emphasis added). With regards to claim 159, this additional element of has been interpreted as receiving data regarding pest information from certain fields, i.e., gathering data, which has been defined by MPEP § 2106.05(d)(II) as well-understood, routine, or conventional. Therefore, this additional element is an insignificant extra-solution activity as defined and as such evidence is provide in MPEP § 2106.05(d)(II). Further, this claim does not recite any further additional elements and for the same reasons as above with regard to integration into practical application and whether additional element amounts to significantly more, this claim also fails both Step 2A prong 2, thus this claim is directed to the judicial exception as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more. Therefore, claim 159 does not recite patent eligible subject matter under 35 U.S.C. § 101.
Furthermore, regarding claim 160, it recites an additional element recitation of “wherein the assays are performed in the plurality of field locations” is merely an insignificant extra-solution activity (see MPEP § 2106.05(g)) and a recitation of generic computing components and functions being used as a tool to implement the judicial exception (see MPEP § 2106.05(f)) which does not integrate a judicial exception into practical application. As discussed above, the insignificant extra-solution data gathering, record update, and data transmission activities are Well-Understood, Routine and Conventional. MPEP § 2106.05(d)(II) recites “The courts have recognized the following computer functions as well understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. i. Receiving or transmitting data over a network, ii. Performing repetitive calculations, iii. Electronic recordkeeping, iv. Storing and retrieving information in memory”. MPEP § 2106.05(g) recites “Below are examples of activities that the courts have found to be insignificant extra-solution activity: Mere Data Gathering: Performing clinical tests on individuals to obtain input for an equation, In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989); Testing a system for a response, the response being used to determine system malfunction, In re Meyers, 688 F.2d 789, 794; 215 USPQ 193, 196-97 (CCPA 1982)” (emphasis added). With regards to claim 160, this additional element of has been interpreted as performing testing to validate the plan, i.e., gathering data, which has been defined by MPEP § 2106.05(d)(II) as well-understood, routine, or conventional. Therefore, this additional element is an insignificant extra-solution activity as defined and as such evidence is provide in MPEP § 2106.05(d)(II). Furthermore, this additional element is also merely a recitation of instructions to apply the abstract idea as it only recites the idea of a solution or outcome and fails to recite details of how a solution to a problem is accomplished or the mechanism to accomplish the solution (see MPEP § 2106.05(f)) which does not integrate a judicial exception into practical application. Additionally, achieving an instance of a design after determining the design has also been found to be mere instructions to apply the abstract idea. Thus, the additional element is merely a recitation of instructions apply the abstract idea which does not integrate the judicial exception into a practical application (see MPEP § 2106.05(f), “(1) Whether the claim recites only the idea of a solution or outcome i.e., the claim fails to recite details of how a solution to a problem is accomplished. The recitation of claim limitations that attempt to cover any solution to an identified problem with no restriction on how the result is accomplished and no description of the mechanism for accomplishing the result, does not integrate a judicial exception into a practical application or provide significantly more because this type of recitation is equivalent to the words "apply it"… Other examples where the courts have found the additional elements to be mere instructions to apply an exception, because they do no more than merely invoke computers or machinery as a tool to perform an existing process include: A method of assigning hair designs to balance head shape with a final step of using a tool (scissors) to cut the hair, In re Brown, 645 Fed. App'x 1014, 1017 (Fed. Cir. 2016)”). Further, this claim does not recite any further additional elements and for the same reasons as above with regard to integration into practical application and whether additional element amounts to significantly more, this claim also fails both Step 2A prong 2, thus this claim is directed to the judicial exception as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more. Therefore, claim 160 does not recite patent eligible subject matter under 35 U.S.C. § 101.
Regarding claim 161, it recites an additional limitation of “wherein the correlation between the genotypes and resistance to at least one pesticide is based on data from at least one previous season”, as drafted, is a process that, but for the recitation of generic computing components, under its broadest reasonable interpretation, covers performance of the limitation in the mind or with pen and paper. For example, a person can mentally determine or draw with a pen and paper based on how often the genotype occurs where the genotype is resistant to applied pesticide on the field if the frequency of occurrence increased from last year.
If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind or with pen and paper but for the recitation of generic computer components, then it falls within the “Mental Processes” grouping of abstract ideas. Accordingly, the claim recites an abstract idea under Prong I step 2A.
Regarding claim 162, it recites an additional limitation of “wherein pre-existing data for the plurality of field locations are employed in generating the pesticide application protocol”, as drafted, is a process that, but for the recitation of generic computing components, under its broadest reasonable interpretation, covers performance of the limitation in the mind or with pen and paper. For example, a person can mentally determine or draw with a pen and paper a plan of action to apply a certain pesticide that does not have any resistance to genotype shown in the map of a field showing where the genotype occurs and how often it occurs in the current map or previous maps.
If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind or with pen and paper but for the recitation of generic computer components, then it falls within the “Mental Processes” grouping of abstract ideas. Accordingly, the claim recites an abstract idea under Prong I step 2A.
Regarding claim 163, it recites additional limitations of “(f.i) comparing the obtained genotypic information to historic or pre-existing genotypic information for the location” and “(f.ii) identifying changes in pesticide resistance based on the results of the comparison; wherein providing the validated pesticide application protocol is based on the pesticide resistance factors and the changes in pesticide resistance”, as drafted, is a process that, but for the recitation of generic computing components, under its broadest reasonable interpretation, covers performance of the limitation in the mind or with pen and paper. For example, a person can mentally determine or draw with a pen and paper based on how often the genotype occurs where the genotype is resistant to applied pesticide on the field if the frequency of occurrence increased from last year showing an increase resistance to the pesticide.
If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind or with pen and paper but for the recitation of generic computer components, then it falls within the “Mental Processes” grouping of abstract ideas. Accordingly, the claim recites an abstract idea under Prong I step 2A.
Regarding claim 164, it recites additional limitations of “(d.ii) identifying a plurality of localized disease states based on the plurality of spectral images” and “wherein generating the pesticide resistance map additionally comprises correlating the plurality of localized disease states with the genotype frequency map”, as drafted, is a process that, but for the recitation of generic computing components, under its broadest reasonable interpretation, covers performance of the limitation in the mind or with pen and paper. For example, a person can mentally determine or draw with a pen and paper fungal, viral, bacterial, and structural plant diseases based on the high reflectance levels provided in spectral images of the plant samples, and a person can mentally determine or draw with a pen and paper a map of a field showing where the genotype occurs and how often it occurs when the diseases determined from the spectral images of the plant samples.
If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind or with pen and paper but for the recitation of generic computer components, then it falls within the “Mental Processes” grouping of abstract ideas. Accordingly, the claim recites an abstract idea under Prong I step 2A.
Furthermore, regarding claim 164, it recites an additional limitation of “(d.i) obtaining a plurality of spectral images of the plurality of field locations” is merely an insignificant extra-solution activity (see MPEP § 2106.05(g)) which does not integrate a judicial exception into practical application. As discussed above, the insignificant extra-solution data gathering, record update, and data transmission activities are Well-Understood, Routine and Conventional. MPEP § 2106.05(d)(II) recites “The courts have recognized the following computer functions as well understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. i. Receiving or transmitting data over a network, ii. Performing repetitive calculations, iii. Electronic recordkeeping, iv. Storing and retrieving information in memory”. MPEP § 2106.05(g) recites “Below are examples of activities that the courts have found to be insignificant extra-solution activity: Mere Data Gathering: Performing clinical tests on individuals to obtain input for an equation, In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989); Testing a system for a response, the response being used to determine system malfunction, In re Meyers, 688 F.2d 789, 794; 215 USPQ 193, 196-97 (CCPA 1982)” (emphasis added). With regards to claim 164, this additional element of has been interpreted as receiving data regarding pest information, i.e., gathering data, which has been defined by MPEP § 2106.05(d)(II) as well-understood, routine, or conventional. Therefore, this additional element is an insignificant extra-solution activity as defined and as such evidence is provide in MPEP § 2106.05(d)(II). Further, this claim does not recite any further additional elements and for the same reasons as above with regard to integration into practical application and whether additional element amounts to significantly more, this claim also fails both Step 2A prong 2, thus this claim is directed to the judicial exception as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more. Therefore, claim 164 does not recite patent eligible subject matter under 35 U.S.C. § 101.
Regarding claim 165, it recites an additional limitation of “obtaining a plurality of spectral images of the plurality of field locations comprises monitoring an unmanned aerial vehicle (UAV) as the UAV flies along a flight path above the plurality of locations and as the UAV performs: (i) capturing a plurality of images of the plurality of locations as the UAV flies along the flight path, and (ii) transmitting the plurality of images to an image recipient”, as drafted, is a process that, but for the recitation of generic computing components, under its broadest reasonable interpretation, covers performance of the limitation in the mind or with pen and paper. For example, a person can mentally take notes or draw with a pen and paper as a UAV performs tasks of obtaining and transmitting pictures of the field such as when certain pictures are captured over certain locations of the field.
If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind or with pen and paper but for the recitation of generic computer components, then it falls within the “Mental Processes” grouping of abstract ideas. Accordingly, the claim recites an abstract idea under Prong I step 2A.
Regarding claim 166, it recites an additional limitation of “obtaining a plurality of spectral images of the plurality of field locations comprises obtaining a plurality of satellite-generated images of the field locations” is merely an insignificant extra-solution activity (see MPEP § 2106.05(g)) which does not integrate a judicial exception into practical application. As discussed above, the insignificant extra-solution data gathering, record update, and data transmission activities are Well-Understood, Routine and Conventional. MPEP § 2106.05(d)(II) recites “The courts have recognized the following computer functions as well understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. i. Receiving or transmitting data over a network, ii. Performing repetitive calculations, iii. Electronic recordkeeping, iv. Storing and retrieving information in memory”. MPEP § 2106.05(g) recites “Below are examples of activities that the courts have found to be insignificant extra-solution activity: Mere Data Gathering: Performing clinical tests on individuals to obtain input for an equation, In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989); Testing a system for a response, the response being used to determine system malfunction, In re Meyers, 688 F.2d 789, 794; 215 USPQ 193, 196-97 (CCPA 1982)” (emphasis added). With regards to claim 166, this additional element of has been interpreted as receiving data regarding pest information, i.e., gathering data, which has been defined by MPEP § 2106.05(d)(II) as well-understood, routine, or conventional. Therefore, this additional element is an insignificant extra-solution activity as defined and as such evidence is provide in MPEP § 2106.05(d)(II). Further, this claim does not recite any further additional elements and for the same reasons as above with regard to integration into practical application and whether additional element amounts to significantly more, this claim also fails both Step 2A prong 2, thus this claim is directed to the judicial exception as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more. Therefore, claim 166 does not recite patent eligible subject matter under 35 U.S.C. § 101.
Regarding claim 167, it recites an additional limitation of “wherein the pesticide application protocol comprises a recommended pesticide and a recommended application timing”, as drafted, is a process that, but for the recitation of generic computing components, under its broadest reasonable interpretation, covers performance of the limitation in the mind or with pen and paper. For example, a person can mentally determine or draw with a pen and paper a plan of action to apply a certain pesticide immediately that does not have any resistance to genotype shown in the map of a field showing where the genotype occurs and how often it occurs.
If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind or with pen and paper but for the recitation of generic computer components, then it falls within the “Mental Processes” grouping of abstract ideas. Accordingly, the claim recites an abstract idea under Prong I step 2A.
Regarding claim 168, it recites an additional limitation of “wherein the pest samples are obtained from the air, soil, water, plant part or a combination thereof” is merely an insignificant extra-solution activity (see MPEP § 2106.05(g)) which does not integrate a judicial exception into practical application. As discussed above, the insignificant extra-solution data gathering, record update, and data transmission activities are Well-Understood, Routine and Conventional. MPEP § 2106.05(d)(II) recites “The courts have recognized the following computer functions as well understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. i. Receiving or transmitting data over a network, ii. Performing repetitive calculations, iii. Electronic recordkeeping, iv. Storing and retrieving information in memory”. MPEP § 2106.05(g) recites “Below are examples of activities that the courts have found to be insignificant extra-solution activity: Mere Data Gathering: Performing clinical tests on individuals to obtain input for an equation, In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989); Testing a system for a response, the response being used to determine system malfunction, In re Meyers, 688 F.2d 789, 794; 215 USPQ 193, 196-97 (CCPA 1982)” (emphasis added). With regards to claim 168, this additional element of has been interpreted as receiving data regarding pest information, i.e., gathering data, which has been defined by MPEP § 2106.05(d)(II) as well-understood, routine, or conventional. Therefore, this additional element is an insignificant extra-solution activity as defined and as such evidence is provide in MPEP § 2106.05(d)(II). Further, this claim does not recite any further additional elements and for the same reasons as above with regard to integration into practical application and whether additional element amounts to significantly more, this claim also fails both Step 2A prong 2, thus this claim is directed to the judicial exception as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more. Therefore, claim 168 does not recite patent eligible subject matter under 35 U.S.C. § 101.
Regarding claim 169, it recites an additional limitation of “wherein the pest samples are fungal material selected from the group consisting of mycelium or spores” is merely an insignificant extra-solution activity (see MPEP § 2106.05(g)) and a field of use/technological environment (see MPEP § 2106.05(h)) which does not integrate a judicial exception into practical application. As discussed above, the insignificant extra-solution data gathering, record update, and data transmission activities are Well-Understood, Routine and Conventional. MPEP § 2106.05(d)(II) recites “The courts have recognized the following computer functions as well understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. i. Receiving or transmitting data over a network, ii. Performing repetitive calculations, iii. Electronic recordkeeping, iv. Storing and retrieving information in memory”. MPEP § 2106.05(g) recites “Below are examples of activities that the courts have found to be insignificant extra-solution activity: Mere Data Gathering: Performing clinical tests on individuals to obtain input for an equation, In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989); Testing a system for a response, the response being used to determine system malfunction, In re Meyers, 688 F.2d 789, 794; 215 USPQ 193, 196-97 (CCPA 1982)” (emphasis added). With regards to claim 169, this additional element of has been interpreted as receiving data regarding pest information, i.e., gathering data, which has been defined by MPEP § 2106.05(d)(II) as well-understood, routine, or conventional. Therefore, this additional element is an insignificant extra-solution activity as defined and as such evidence is provide in MPEP § 2106.05(d)(II). Further, this claim does not recite any further additional elements and for the same reasons as above with regard to integration into practical application and whether additional element amounts to significantly more, this claim also fails both Step 2A prong 2, thus this claim is directed to the judicial exception as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more. Therefore, claim 169 does not recite patent eligible subject matter under 35 U.S.C. § 101.
Regarding claim 170, it recites an additional limitation of “wherein the genotypes are generated by testing for alleles of genes involved in resistance to pesticides, and wherein the alleles are alleles of the CYP51, SDHC, SDHB, SDHD, CYTB, OSBP and multi- drug resistance genes” is merely an insignificant extra-solution activity (see MPEP § 2106.05(g)) and a field of use/technological environment (see MPEP § 2106.05(h)) which does not integrate a judicial exception into practical application. As discussed above, the insignificant extra-solution data gathering, record update, and data transmission activities are Well-Understood, Routine and Conventional. MPEP § 2106.05(d)(II) recites “The courts have recognized the following computer functions as well understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. i. Receiving or transmitting data over a network, ii. Performing repetitive calculations, iii. Electronic recordkeeping, iv. Storing and retrieving information in memory”. MPEP § 2106.05(g) recites “Below are examples of activities that the courts have found to be insignificant extra-solution activity: Mere Data Gathering: Performing clinical tests on individuals to obtain input for an equation, In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989); Testing a system for a response, the response being used to determine system malfunction, In re Meyers, 688 F.2d 789, 794; 215 USPQ 193, 196-97 (CCPA 1982)” (emphasis added). With regards to claim 170, this additional element of has been interpreted as receiving data regarding pest information, i.e., gathering data, which has been defined by MPEP § 2106.05(d)(II) as well-understood, routine, or conventional. Therefore, this additional element is an insignificant extra-solution activity as defined and as such evidence is provide in MPEP § 2106.05(d)(II). Further, this claim does not recite any further additional elements and for the same reasons as above with regard to integration into practical application and whether additional element amounts to significantly more, this claim also fails both Step 2A prong 2, thus this claim is directed to the judicial exception as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more. Therefore, claim 170 does not recite patent eligible subject matter under 35 U.S.C. § 101.
Regarding claim 171, it recites an additional limitation of “wherein the alleles of the CYP51, SDHC, SDHB, SDHD, CYTB, OSBP and multi-drug resistance genes are correlated with resistance to at least one pesticide to develop the pesticide resistance factors”, as drafted, is a process that, but for the recitation of generic computing components, under its broadest reasonable interpretation, covers performance of the limitation in the mind or with pen and paper. For example, a person can mentally determine or draw with a pen and paper a map of a field showing where the alleles occurs and how often it occurs to show its resistance to a pesticide.
If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind or with pen and paper but for the recitation of generic computer components, then it falls within the “Mental Processes” grouping of abstract ideas. Accordingly, the claim recites an abstract idea under Prong I step 2A.
Regarding claim 172, it recites an additional limitation of “wherein the at least one pesticide belongs to a class of pesticides selected from the group consisting of fungicides, nematicides, bactericides, and insecticides”, as drafted, is a process that, but for the recitation of generic computing components, under its broadest reasonable interpretation, covers performance of the limitation in the mind or with pen and paper. For example, a person can mentally determine or draw with a pen and paper a plan of action to apply a certain fungicides that does not have any resistance to genotype shown in the map of a field showing where the genotype occurs and how often it occurs based on pest being a fungus.
If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind or with pen and paper but for the recitation of generic computer components, then it falls within the “Mental Processes” grouping of abstract ideas. Accordingly, the claim recites an abstract idea under Prong I step 2A.
Regarding claim 173, it recites an additional limitation of “wherein the at least one pesticide comprises a picolinamide fungicide selected from the group consisting of fenpicoxamid and florylpicoxamid”, as drafted, is a process that, but for the recitation of generic computing components, under its broadest reasonable interpretation, covers performance of the limitation in the mind or with pen and paper. For example, a person can mentally determine or draw with a pen and paper a plan of action to apply a certain fungicides such as a fenpicoxamid which does not have any resistance to genotype shown in the map of a field showing where the genotype occurs and how often it occurs.
If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind or with pen and paper but for the recitation of generic computer components, then it falls within the “Mental Processes” grouping of abstract ideas. Accordingly, the claim recites an abstract idea under Prong I step 2A.
Therefore, having concluded the analysis within the provided framework, claim 154-173 do not recite patent eligible subject matter and are rejected under 35 U.S.C. § 101 because the claimed invention is directed to judicial exception, an abstract idea, that has not been integrated into a practical application. The claims further do not recite significantly more than the judicial exception. Claims 155-173 are also rejected for incorporating the deficiency of their dependent claim 154.
Claim Rejections - 35 U.S.C. § 102
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 the appropriate paragraphs of 35 U.S.C. § 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 154-158, 160-163, 167-168, and 172 are rejected under 35 U.S.C. § 102(a)(2) as being anticipated by US 2021/0035473 A1 Al-Dilaimi, Arwa et al. [herein “Al-Dilaimi”].
As per claim 154, Al-Dilaimi teaches “A method of generating a pesticide resistance map of a target pest, the method comprising: (a) obtaining genotypic information from a plurality of pest samples obtained from a plurality of field locations” (Para. 0002, “The methods and systems relate to creating a resistance map in which information on the resistance of one or more harmful organisms to one or more control agents is listed for a field or a plurality of fields for the growing of crop plants” [A method of generating a pesticide resistance map of a target pest]. Para. 0037, “One or more samples are taken at a single location or at a plurality of locations” [a plurality of pest samples obtained from a plurality of field locations]. Para. 0068, “the steps of collecting a sample comprising at least part of a harmful organism at a location, processing the sample, and sequencing DNA and/or RNA of the harmful organism and ascertaining one or more DNA and/or RNA sequences may be carried out at the same location” [obtaining genotypic information from a plurality of pest samples]. Further see Para. 0002, 0037, 0046-0052, and 0068. The examiner has interpreted that a method to create a resistance map of harm organisms to control agents by collecting samples at a plurality of field locations and processing the sample by sequencing the DNA and RNA of the harmful organism as a method of generating a pesticide resistance map of a target pest, the method comprising: (a) obtaining genotypic information from a plurality of pest samples obtained from a plurality of field locations.)
Al-Dilaimi teaches “(b) generating the frequency of one or more genotypes based on the genotypic information, wherein a correlation exists between the genotypes and resistance to at least one pesticide, wherein the correlation is quantified as at least one pesticide resistance factor to at least one pesticide”. (Para. 0052, “The analysis looks at whether there are defined DNA and/or RNA sequences present quantitatively and/or qualitatively in the sample which indicate that the harmful organism might develop, is developing, or has developed resistance to a control agent. In the identification of resistance markers, it is possible to look at whether there are DNA sequences and/or RNA sequences in the sample that are known to be responsible for resistance. In the case of metabolic resistances, moreover, it is possible to use the quantity of the corresponding RNA in the organism as a resistance marker” [generating the frequency of one or more genotypes based on the genotypic information, wherein a correlation exists between the genotypes and resistance to at least one pesticide, wherein the correlation is quantified as at least one pesticide resistance factor to at least one pesticide]. Further see Para.0052-0053. The examiner has interpreted that determining that DNA and RNA sequences are present quantitatively in the sample known to be responsible for resistance which indicates that the harmful organism has developed resistance to a control agent and is used as a resistance marker as (b) generating the frequency of one or more genotypes based on the genotypic information, wherein a correlation exists between the genotypes and resistance to at least one pesticide, wherein the correlation is quantified as at least one pesticide resistance factor to at least one pesticide.)
Al-Dilaimi teaches “(c) correlating the one or more genotypes to the plurality of field locations to generate a genotype frequency map; (d) generating a pesticide resistance map based on the genotype frequency map and the pesticide resistance factor of each genotype”. (Para. 0037-0038, “One or more samples are taken at a single location or at a plurality of locations. For those locations at which one or more samples are/have been taken, the geocoordinates associated with the location are ascertained. This is important to enable information concerning a resistance to be associated with the corresponding location and entered in a resistance map” [correlating the one or more genotypes to the plurality of field locations to generate a genotype frequency map]. Para. 0097-0098, “The data analysis device (20) further comprises a resistance map creation unit (22), which is configured in such a way that it links the result of the sequence analysis for resistance markers with the geocoordinates and files the result for the sampling location in a digital representation of a region. A resistance map created and/or supplemented by the resistance map creation unit” [generating a pesticide resistance map based on the genotype frequency map and the pesticide resistance factor of each genotype]. Further see 0037-0038, 0064-0072, and 0090-0098. The examiner has interpreted that taking samples at a plurality of locations where the geocoordinates used for the sample location and the sequence analysis for resistance marks of the sample are used to create a resistance map as (c) correlating the one or more genotypes to the plurality of field locations to generate a genotype frequency map and (d) generating a pesticide resistance map based on the genotype frequency map and the pesticide resistance factor of each genotype.)
Al-Dilaimi teaches “(e) identifying candidate pesticides for use in a pesticide application protocol based on the pesticide resistance map; and (f) generating a pesticide application protocol for a field location using the pesticide resistance map”. (Para. 0073, “Furthermore, relatively detailed digital resistance maps generated almost in real time, in combination with additional data, such as insolation, temperature, air humidity, and wind direction, for example, permit a more precise prediction of the spread of resistant and nonresistant harmful organisms. This allows targeted control, and/or prophylactic treatment of bordering territories, and also a more targeted deployment of control agents” and Para. 0075, “a measure is carried out for controlling a harmful organism and/or a (developing) resistance on the basis of the reference map. It is conceivable, for example, for those areas affected by a resistant harmful organism (resistant areas), and preferably also areas adjoining the resistant areas, to be treated with a control agent for which no resistance has been identified” [identifying candidate pesticides for use in a pesticide application protocol based on the pesticide resistance map and generating a pesticide application protocol for a field location using the pesticide resistance map]. Further see Para. 0072-0075. The examiner has interpreted that treating areas affected by a resistant organism with a control agent for which no resistance which has been identified to allow for targeted control using targeted deployment of control agents on the basis of the reference resistance map as (e) identifying candidate pesticides for use in a pesticide application protocol based on the pesticide resistance map; and (f) generating a pesticide application protocol for a field location using the pesticide resistance map.)
As per claim 155, Al-Dilaimi teaches “(g) selecting, based on the pesticide resistance map, a plurality of validating assays for the pesticide application protocol; and (h) performing the assays to generate a validated pesticide application protocol.” (Para. 0073, “Furthermore, relatively detailed digital resistance maps generated almost in real time, in combination with additional data, such as insolation, temperature, air humidity, and wind direction, for example, permit a more precise prediction of the spread of resistant and nonresistant harmful organisms. This allows targeted control, and/or prophylactic treatment of bordering territories, and also a more targeted deployment of control agents” and Para. 0075, “a measure is carried out for controlling a harmful organism and/or a (developing) resistance on the basis of the reference map. It is conceivable, for example, for those areas affected by a resistant harmful organism (resistant areas), and preferably also areas adjoining the resistant areas, to be treated with a control agent for which no resistance has been identified. Also conceivable is the control of resistant harmful organisms using mechanical and/or physical techniques such as, for example: complete removal, burning, destruction by cold, destruction by electrical energy, destruction by electromagnetic energy (e.g., using UV light, laser light), and the like” [selecting, based on the pesticide resistance map, a plurality of validating assays for the pesticide application protocol; and performing the assays to generate a validated pesticide application protocol]. Further see Para. 0072-0075. The examiner has interpreted that treating areas affected by a resistant organism with a control agent for which no resistance has been identified and using additional techniques to allow for targeted control on the basis of the reference resistance map as (g) selecting, based on the pesticide resistance map, a plurality of validating assays for the pesticide application protocol; and (h) performing the assays to generate a validated pesticide application protocol.)
As per claim 156, Al-Dilaimi teaches, “wherein the genotypic information is obtained at a location remote from the plurality of field locations.” (Para. 0025, “Sampling may take place with the aid of a mobile device or by means of a mobile device which, for example, moves or is moved in a field for crop plants and/or moves or is moved over the field. Conceivable, for example, is the use of a (preferably unmanned) land machine and/or of a (preferably unmanned) aircraft (e.g., a drone) and/or of a robot. Sampling may alternatively be accomplished by one or more devices which are constructed in stationary form at a location. It is conceivable, furthermore, for a user to carry with them a mobile device, to carry out sampling themselves, and to supply the sample to the device” [e.g., wherein the genotypic information is obtained at a location remote from the plurality of field locations]. Further see Para. 0025. The examiner has interpreted that collecting the samples for processing with the use of aircraft as wherein the genotypic information is obtained at a location remote from the plurality of field locations.)
As per claim 157, Al-Dilaimi teaches “wherein the genotypic information is obtained in the plurality of field locations.” Para. 0037, “One or more samples are taken at a single location or at a plurality of locations” [obtained in the plurality of field locations]. Para. 0068, “the steps of collecting a sample comprising at least part of a harmful organism at a location, processing the sample, and sequencing DNA and/or RNA of the harmful organism and ascertaining one or more DNA and/or RNA sequences may be carried out at the same location” [wherein the genotypic information is obtained in the plurality of field locations]. Further see Para. 0037, 0046-0052, and 0068. The examiner has interpreted that collecting samples at a plurality of field locations and processing the sample by sequencing the DNA and RNA of the harmful organism as wherein the genotypic information is obtained in the plurality of field locations.)
As per claim 158, Al-Dilaimi teaches “wherein obtaining genotypic information is conducted contemporaneously with collecting pest samples.” (Para. 0047, “Processing takes place at the same location at which the sample was taken. This means that the sample, immediately after having been collected, is passed on for further processing and sequencing. It is therefore not sent to a laboratory to be studied there, but is instead studied on site. This may also mean that a sample is taken by a moving device and the sample is subsequently processed on the still-moving device and passed on for sequencing” [e.g., wherein obtaining genotypic information is conducted contemporaneously with collecting pest samples]. Further see Para. 0047. The examiner has interpreted that processing at the same location where the sampling took place by immediately processing and sequencing the sample as wherein obtaining genotypic information is conducted contemporaneously with collecting pest samples.)
As per claim 160, Al-Dilaimi teaches “wherein the assays are performed in the plurality of field locations.” (Para. 0073, “Furthermore, relatively detailed digital resistance maps generated almost in real time, in combination with additional data, such as insolation, temperature, air humidity, and wind direction, for example, permit a more precise prediction of the spread of resistant and nonresistant harmful organisms. This allows targeted control, and/or prophylactic treatment of bordering territories, and also a more targeted deployment of control agents” and Para. 0075, “a measure is carried out for controlling a harmful organism and/or a (developing) resistance on the basis of the reference map. It is conceivable, for example, for those areas affected by a resistant harmful organism (resistant areas), and preferably also areas adjoining the resistant areas, to be treated with a control agent for which no resistance has been identified. Also conceivable is the control of resistant harmful organisms using mechanical and/or physical techniques such as, for example: complete removal, burning, destruction by cold, destruction by electrical energy, destruction by electromagnetic energy (e.g., using UV light, laser light), and the like” [wherein the assays are performed in the plurality of field locations]. Further see Para. 0072-0075. The examiner has interpreted that treating resistant areas and adjoining areas affected by a resistant organism with a control agent as wherein the assays are performed in the plurality of field locations.)
As per claim 161, Al-Dilaimi teaches “wherein the correlation between the genotypes and resistance to at least one pesticide is based on data from at least one previous season.” (Para. 0067, “It is possible, preferably, for digital resistance maps to be combined with other digital maps; for example, with digital maps relating to … past infestations with one or more harmful organisms” and Para. 0072, “A reference map may provide a farmer, for example, with valuable information as to the presence or genesis of resistances in particular areas of his field (or fields). Patterns of spread can be analyzed in order to find out the causes of the genesis and/or spread of resistances. With a number of temporally sequential analyses, the farmer gains insight into the spread of resistances. He can then take measures to combat the resistances. In a reference map, a farmer is also able to recognize whether infestation by resistant harmful organisms has been observed in adjacent fields. The information may help him to take preventive measures for his fields” [e.g., wherein the correlation between the genotypes and resistance to at least one pesticide is based on data from at least one previous season]. Further see Para. 0035, 0066-0067, 0072, 0085, 0090, and 0098. The examiner has interpreted that analyzing the cause of genesis and spread of resistances using temporally sequential analysis over past infestations to gain insight into the spread of resistances as wherein the correlation between the genotypes and resistance to at least one pesticide is based on data from at least one previous season.)
As per claim 162, Al-Dilaimi teaches “wherein pre-existing data for the plurality of field locations are employed in generating the pesticide application protocol.” (Para. 0066, “a plurality of digital resistance maps are linked with one another in such a way as to show the development of one or more resistances over time”, Para. 0067, “It is possible, preferably, for digital resistance maps to be combined with other digital maps; for example, with digital maps relating to … past infestations with one or more harmful organisms” and Para. 0072, “A reference map may provide a farmer, for example, with valuable information as to the presence or genesis of resistances in particular areas of his field (or fields). Patterns of spread can be analyzed in order to find out the causes of the genesis and/or spread of resistances. With a number of temporally sequential analyses, the farmer gains insight into the spread of resistances. He can then take measures to combat the resistances. In a reference map, a farmer is also able to recognize whether infestation by resistant harmful organisms has been observed in adjacent fields. The information may help him to take preventive measures for his fields” [e.g., wherein pre-existing data for the plurality of field locations are employed in generating the pesticide application protocol]. Further see Para. 0035, 0066-0067, 0072, 0085, 0090, and 0098. The examiner has interpreted that determining development of resistance over time with temporally sequential analyses to take preventive measures for crop fields dealing with past infestations as wherein pre-existing data for the plurality of field locations are employed in generating the pesticide application protocol.)
As per claim 163, Al-Dilaimi teaches “(f.i) comparing the obtained genotypic information to historic or pre-existing genotypic information for the location; and (f.ii) identifying changes in pesticide resistance based on the results of the comparison; wherein providing the validated pesticide application protocol is based on the pesticide resistance factors and the changes in pesticide resistance”. (Para. 0067, “It is possible, preferably, for digital resistance maps to be combined with other digital maps; for example, with digital maps relating to … past infestations with one or more harmful organisms” and Para. 0066, “a plurality of digital resistance maps are linked with one another in such a way as to show the development of one or more resistances over time” and Para. 0072, “A reference map may provide a farmer, for example, with valuable information as to the presence or genesis of resistances in particular areas of his field (or fields). Patterns of spread can be analyzed in order to find out the causes of the genesis and/or spread of resistances. With a number of temporally sequential analyses, the farmer gains insight into the spread of resistances. He can then take measures to combat the resistances. In a reference map, a farmer is also able to recognize whether infestation by resistant harmful organisms has been observed in adjacent fields. The information may help him to take preventive measures for his fields” [e.g., comparing the obtained genotypic information to historic or pre-existing genotypic information for the location and identifying changes in pesticide resistance based on the results of the comparison, wherein providing the validated pesticide application protocol is based on the pesticide resistance factors and the changes in pesticide resistance]. Further see Para. 0035, 0066-0067, 0072, 0085, 0090, and 0098. The examiner has interpreted that analyzing the cause of genesis and spread of resistances using temporally sequential analysis over past infestations to gain insight into the spread of resistances and to take preventive measures for crop fields as (f.i) comparing the obtained genotypic information to historic or pre-existing genotypic information for the location; and (f.ii) identifying changes in pesticide resistance based on the results of the comparison; wherein providing the validated pesticide application protocol is based on the pesticide resistance factors and the changes in pesticide resistance.)
As per claim 167, Al-Dilaimi teaches “wherein the pesticide application protocol comprises a recommended pesticide and a recommended application timing.” (Para. 0099, “Based on the possible resistance mechanism or mechanisms found at this location and on the surroundings, recommendations for a crop protection product are communicated to the farmer” [wherein the pesticide application protocol comprises a recommended pesticide]. Para. 0071 “By virtue of the fact that the analyses are carried out in situ, the results are available very quickly, and information concerning any resistance and its spread can be obtained almost in real time. As a result it is possible to respond very rapidly to developing and/or spreading resistances” and Para. 0073, “Furthermore, relatively detailed digital resistance maps generated almost in real time, in combination with additional data, such as insolation, temperature, air humidity, and wind direction, for example, permit a more precise prediction of the spread of resistant and nonresistant harmful organisms. This allows targeted control, and/or prophylactic treatment of bordering territories, and also a more targeted deployment of control agents” [wherein the pesticide application protocol comprises a recommended application timing]. Further see Para. 0070-0076 and 0099. The examiner has interpreted that communicating recommendations for a crop protection product to respond very rapidly to spreading resistances and treating with control agents based on resistance maps generated almost in real time with temperature, air humidity, and wind direction data for targeted control as wherein the pesticide application protocol comprises a recommended pesticide and a recommended application timing.)
As per claim 168, Al-Dilaimi teaches “wherein the pest samples are obtained from the air, soil, water, plant part or a combination thereof.” (Para. 0032, “It is also conceivable to take air, water and/or soil samples in which harmful organisms are located” [wherein the pest samples are obtained from the air, soil, water]. Para. 0093, “It is, however, also conceivable for the plant to be infested with bacteria, viruses, fungi, or harmful animal organisms, and for a sample of the infested plant that comprises the harmful organism to be taken” [wherein the pest samples are obtained from plant part]. Further see Para. 0027-0035 and 0093. The examiner has interpreted that taking air, water, soil, and plant samples that contain the harmful organisms as wherein the pest samples are obtained from the air, soil, water, plant part or a combination thereof.)
As per claim 172, Al-Dilaimi teaches “wherein the at least one pesticide belongs to a class of pesticides selected from the group consisting of fungicides, nematicides, bactericides, and insecticides.” (Para. 0021, “Examples of harmful organisms are vectors, broadleaf weeds, gramineous weeds, animal pests such as beetles, caterpillars, and worms, for example, fungi, and pathogens (e.g., bacteria and viruses)” and Para. 0022, “The term “control agent” refers to an agent with which harmful organisms can be effectively controlled and/or their spread prevented. Examples of control agents are herbicides, insecticides, nematicides, acaricides, and fungicides” [wherein the at least one pesticide belongs to a class of pesticides selected from the group consisting of fungicides, nematicides, bactericides, and insecticides]. Further see Para. 0004, 0021-0022, and 0030-0031. The examiner has interpreted that control agents that control harmful organisms such as bacteria and include insecticides, nematicides, and fungicides as wherein the at least one pesticide belongs to a class of pesticides selected from the group consisting of fungicides, nematicides, bactericides, and insecticides.)
Claim Rejections - 35 U.S.C. § 103
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. § 102(b)(2)(C) for any potential 35 U.S.C. § 102(a)(2) prior art against the later invention.
Claims 159 and 164-166 are rejected under 35 U.S.C. § 103 as being unpatentable over Al-Dilaimi, as applied to claim 154, and in view of US 2017/0089761 A1 McQuilkin, Gary et al. [herein “McQuilkin”].
As per claim 159, Al-Dilaimi does not specifically teach “wherein the field location is selected from wheat fields, soy fields, potato fields, canola fields, and grape vineyards.”
However, in the same field of endeavor namely vegetation mapping and infestation tracking of pests, McQuilkin teaches “wherein the field location is selected from wheat fields, soy fields, potato fields, canola fields, and grape vineyards”. (Para. 0277, “Many crops may benefit from the use of the present invention. This invention may be applied to any crop that exhibits a spectral response that can be characterized by the spectral amplitudes at a discrete number of wavelengths. Examples of such crops include corn, soybean, wheat, rice, cotton, cranberries, grapes, rye, sorghum, canola, rape seed, peas, sugar beets, oats, alfalfa, sugar cane, tomatoes, potatoes, edible beans, coffee, oranges, grapefruits, apples, nuts, peanuts, legumes, strawberries, blueberries, blackberries, onions, tobacco, peppers, spinach, broccoli, carrots, grass, brome, lupines, and avocado” [wherein the field location is selected from wheat fields, soy fields, potato fields, canola fields, and grape vineyards]. Further see Para. 0283-0285.)
Therefore, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to add “wherein the field location is selected from wheat fields, soy fields, potato fields, canola fields, and grape vineyards” as conceptually seen from the teaching of McQuilkin, into that of Al-Dilaimi because this modification of analyzing crop fields for the advantageous purpose of determining cause of condition for crop plants due to pest infestation (McQuilkin, Para. 0271). Further motivation to combine be that Al-Dilaimi and McQuilkin are analogous art to the current claim directed to vegetation mapping and infestation tracking of pests.
As per claim 164, Al-Dilaimi teaches “before step (e): (d.i) obtaining a plurality of images of the plurality of field locations, and (d.ii) identifying a plurality of localized disease states based on the plurality of images; wherein generating the pesticide resistance map additionally comprises correlating the plurality of localized disease states with the genotype frequency map.” (Para. 0033, “It may be the case that the reason for the sampling is that a harmful organism has been observed—for example, by inspection or automatically by means of image recognition techniques” [during sampling, e.g., before step (e): and obtaining a plurality of images of the plurality of field locations]. Para. 0016, “the system may be configured for creating a resistance map in which information on the resistance of one or more harmful organisms to one or more control agents is listed for a field or a plurality of fields for the growing of crop plants” and Para. 0030, “Where the harmful organism is a fungus or a virus or a bacterium, a sample is preferably taken from the infested organism (in/on which the fungus or the virus or the bacterium is located). The infested organism may be identified, for example, by image recognition techniques; for example, the company Peat GmbH offers, on a commercial basis, a software application (“app”) for identifying plant diseases on the basis of image recognition techniques” [identifying a plurality of localized disease states based on the plurality of images, wherein generating the pesticide resistance map additionally comprises correlating the plurality of localized disease states with the genotype frequency map]. Further see Para. 0008-0016 and 0030-0035. The examiner has interpreted that sampling and identifying harmful organisms in infested locations by an image recognition techniques to identify plant diseases to provide information of the resistance of the harmful organisms in the creating of a resistance map as (d.i) obtaining a plurality of images of the plurality of field locations and (d.ii) identifying a plurality of localized disease states based on the plurality of images; wherein generating the pesticide resistance map additionally comprises correlating the plurality of localized disease states with the genotype frequency map.)
Al-Dilaimi does not specifically teach “spectral images”.
However, McQuilkin teaches “spectral images”. (Para. 0199, “System 200 includes camera body 202 incorporating a plurality of spectral imaging elements 204 that capture, encode, and store filtered images captured by system 200.” [obtaining a plurality of spectral images]. Further See Para. 0199 and 0274.)
Therefore, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to add “spectral images” as conceptually seen from the teaching of McQuilkin, into that of Al-Dilaimi because this modification of using spectral images for the advantageous purpose of providing data of chemical composition of a surface that extends beyond the visible spectrum (McQuilkin Para. 0006). Further motivation to combine be that Al-Dilaimi and McQuilkin are analogous art to the current claim directed to vegetation mapping and infestation tracking of pests.
As per claim 165, Al-Dilaimi teaches “monitoring an unmanned aerial vehicle (UAV) as the UAV flies along a flight path above the plurality of locations and as the UAV performs: (i) capturing a plurality of images of the plurality of locations as the UAV flies along the flight path; and (ii) transmitting the plurality of images to an image recipient”. (Para. 0033, “It may be the case that the reason for the sampling is that a harmful organism has been observed—for example, by inspection or automatically by means of image recognition techniques” [capturing a plurality of images of the plurality of locations]. Para. 0025, “Sampling may take place with the aid of a mobile device or by means of a mobile device which, for example, moves or is moved in a field for crop plants and/or moves or is moved over the field. Conceivable, for example, is the use of a (preferably unmanned) land machine and/or of a (preferably unmanned) aircraft (e.g., a drone) and/or of a robot. Sampling may alternatively be accomplished by one or more devices which are constructed in stationary form at a location. It is conceivable, furthermore, for a user to carry with them a mobile device, to carry out sampling themselves, and to supply the sample to the device” [e.g., monitoring an unmanned aerial vehicle (UAV) as the UAV flies along a flight path above the plurality of locations and as the UAV performs: (i) capturing a plurality of images of the plurality of locations as the UAV flies along the flight path; and (ii) transmitting the plurality of images to an image recipient]. Further see Para. 0025 and 0033. The examiner has interpreted that a user that collects the samples for processing with the use of an unmanned aircraft drone and supply the sample to a device where sampling is captured automatically by the image recognition as monitoring an unmanned aerial vehicle (UAV) as the UAV flies along a flight path above the plurality of locations and as the UAV performs: (i) capturing a plurality of images of the plurality of locations as the UAV flies along the flight path; and (ii) transmitting the plurality of images to an image recipient.)
As per claim 166, Al-Dilaimi does not specifically teach “obtaining a plurality of satellite-generated images of the field locations.”
However, McQuilkin teaches “obtaining a plurality of satellite-generated images of the field locations.” (Para. 0199, “System 200 includes camera body 202 incorporating a plurality of spectral imaging elements 204 that capture, encode, and store filtered images captured by system 200.” [obtaining a plurality of images]. Para. 0274, “Positioning and aiming the system 400 at the crop 402 may be accomplished in a variety of ways, including one or more of securing the invention within or on an aerial apparatus such as a commercial aircraft, private aircraft, glider, satellite” [e.g., obtaining a plurality of satellite-generated images of the field locations]. Further See Para. 0199 and 0274.)
Therefore, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to add “obtaining a plurality of satellite-generated images of the field locations” as conceptually seen from the teaching of McQuilkin, into that of Al-Dilaimi because this modification of satellite to generate images for the advantageous purpose of capturing an sufficient elevated field of view of the crop (McQuilkin Para. 0272-0275). Further motivation to combine be that Al-Dilaimi and McQuilkin are analogous art to the current claim directed to vegetation mapping and infestation tracking of pests.
Claim 169 is rejected under 35 U.S.C. § 103 as being unpatentable over Al-Dilaimi, as applied to claim 168, and in view of US 2019/0191617 A1 Hoffmann, Holger et al. [herein “Hoffmann”].
As per claim 169, Al-Dilaimi teaches “wherein the pest samples are fungal material [selected from the group consisting of mycelium or spores].” (Para. 0021, “Examples of harmful organisms are vectors, broadleaf weeds, gramineous weeds, animal pests such as beetles, caterpillars, and worms, for example, fungi, and pathogens (e.g., bacteria and viruses). Although viruses, biologically speaking, are not counted as organisms, they are nevertheless intended presently to come under the heading of harmful organisms” [wherein the pest samples are fungal material].)
Al-Dilaimi does not specifically teach “fungal material selected from the group consisting of mycelium or spores”.
However, in the same field of endeavor namely controlling harmful organism in crops, Hoffman teaches “fungal material selected from the group consisting of mycelium or spores”. (Para. 0054, “An example that may be mentioned is Septoria leaf blotch, which arises under favourable conditions for infection by fungal spores of Septoria tritici” [fungal material selected from the group consisting of mycelium or spores].)’
Therefore, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to add “fungal material selected from the group consisting of mycelium or spores” as conceptually seen from the teaching of Hoffman, into that of Al-Dilaimi because this modification of analyzing sporous fungi for the advantageous purpose of determining fungal diseases and causes in cultivated plants (Hoffman, Para. 0036-0037). Further motivation to combine be that Al-Dilaimi and Hoffman are analogous art to the current claim directed to controlling harmful organism in crops.
Claim 170-171 are rejected under 35 U.S.C. § 103 as being unpatentable over Al-Dilaimi, as applied to claim 154, and in view of Malandrakis, Anastasios A., Zoi A. Apostolidou, Dimitra Louka, Anastasios Markoglou, and Fotini Flouri. "Biological and molecular characterization of field isolates of Alternaria alternata with single or double resistance to respiratory complex II and III inhibitors." European Journal of Plant Pathology 152, no. 1 (2018): 199-211 [herein “Malandrakis”], and in further view of Miao, Jianqiang, Meng Cai, Xue Dong, Li Liu, Dong Lin, Can Zhang, Zhili Pang, and Xili Liu. "Resistance assessment for oxathiapiprolin in Phytophthora capsici and the detection of a point mutation (G769W) in PcORP1 that confers resistance." Frontiers in Microbiology 7 (2016): 615 [herein Miao].
As per claim 170, Al-Dilaimi teaches “wherein the genotypes are generated by testing for alleles of genes involved in resistance to pesticides, and wherein the alleles are alleles of the CYP51, [SDHC, SDHB, SDHD, CYTB, OSBP] and multi-drug resistance genes.” (Para. 0053, “Which DNA sequences and/or RNA sequences indicate that the harmful organisms have or are developing resistance to a control agent are known for a multiplicity of harmful organisms. A DNA sequence and/or RNA sequence of this kind and/or the quantity thereof is a reference marker in the sense of the present invention. A number of examples are set out below …” Para. 0060, “a resistance to DMI fungicides in the case of the fungus Blumeriella jaapii is mediated by overexpression of the CYP51 gene… An overexpression of the CYP51 gene is a resistance marker in the sense of the present invention” [e.g., wherein the genotypes are generated by testing for alleles of genes involved in resistance to pesticides, and wherein the alleles are alleles of the CYP51]. Para. 0054, “It was found that in three multiply resistant populations, six amino acids were exchanged. The gene sequences correspondent with the amino acids are resistance markers in the sense of the present invention” [multi-drug resistance genes]. Further see Para. 0053-0061. The examiner has interpreted that determine reference resistance markers in DNA and RNA sequences such as CYP51 and multiply resistant populations of gene sequences as wherein the genotypes are generated by testing for alleles of genes involved in resistance to pesticides, and wherein the alleles are alleles of the CYP51 and multi-drug resistance genes.)
Al-Dilaimi does not specifically teach “wherein the alleles are alleles of SDHC, SDHB, SDHD, CYTB”.
However, in the same field of endeavor namely determining genes of crop field population samples that resist fungicides, Malandrakis teaches “wherein the alleles are alleles of SDHC, SDHB, SDHD, CYTB”. (Pg. 203 “Amplification and sequence analysis of cytb, sdhB, sdhC and sdhD gene fragments… The primers DTRcytb2 and DTRcytb2r (Vega et al. 2012;Table2) were used to amplify the 337 bp fragment (amino acid positions 120 to160) encoding the cytochrome b gene from the QoI-sensitive and resistant strains… The B, C and D subunit fragments of the succinate dehodrogenase gene (SDH) were amplified using primer pairs AaSDHB-F/ AaSDHB-R, SdhC SeqS1/ SdhC SeqR2 and AaSDHD-F/AaSDHD-R, respectively”. Further Tables 2 and 3 show that SDHC, SDHB, SDHD, CYTB are the target gene for fungicide resistance.)
Therefore, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to add “wherein the field location is selected from wheat fields, soy fields, potato fields, canola fields, and grape vineyards” as conceptually seen from the teaching of Malandrakis, into that of Al-Dilaimi because this modification of analyzing different alleles for the advantageous purpose of determining mutations and cross-resistance patterns in isolates of different mixture samples (Malandrakis Pg. 208-209). Further motivation to combine be that Al-Dilaimi and Malandrakis are analogous art to the current claim directed to determining genes of crop field population samples that resist fungicides.
Neither Al-Dilaimi nor Malandrakis specifically teach “wherein the alleles are alleles of OSBP”.
However, in the same field of endeavor namely determining genes of crop field population samples that resist fungicides, Miao teaches “wherein the alleles are alleles of OSBP”. (Pg. 2, “oxathiapiprolin is the oxysterol binding protein” and Pg. 4, “The RNA used to investigate the expression levels of the PcORP1 gene in oxathiapiprolin-sensitive and-resistant strains was prepared by inoculating 60 ml PDB media with 10 mycelial plugs” [wherein the genotypes are generated by testing for alleles of genes involved in resistance to pesticides, and wherein the alleles are alleles of OSBP]. Further see Pg. 2-4. The examiner has interpreted that investigating RNA for expression level of a gene that is oxathiapiprolin-sensitive and-resistant strains in a oxysterol binding protein as wherein the alleles are alleles of OSBP.)
Therefore, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to add “wherein the alleles are alleles of OSBP” as conceptually seen from the teaching of Miao, into that of Al-Dilaimi and Malandrakis because this modification of analyzing different alleles for the advantageous purpose of determining mutations and cross-resistance patterns in isolates of different mixture samples (Miao Pg. 11-12). Further motivation to combine be that Al-Dilaimi, Malandrakis, and Miao are analogous art to the current claim directed to determining genes of crop field population samples that resist fungicides.
Re Claim 171, it is a system claim, having similar limitations of claim 170. Thus, claim 171 is also rejected under the similar rationale as cited in the rejection of claim 170.
Claim 173 is rejected under 35 U.S.C. § 103 as being unpatentable over Al-Dilaimi, as applied to claim 154, and in view of Umetsu, Noriharu, and Yuichi Shirai. "Development of novel pesticides in the 21st century." Journal of Pesticide Science 45, no. 2 (2020): 54-74 [herein “Umetsu”].
As per claim 173, Al-Dilaimi does not specifically teach “wherein the at least one pesticide comprises a picolinamide fungicide selected from the group consisting of fenpicoxamid and florylpicoxamid.”
However, in the same field of endeavor namely managing resistance to fungicides in crops, Umetsu teaches “wherein the at least one pesticide comprises a picolinamide fungicide selected from the group consisting of fenpicoxamid and florylpicoxamid.” (Pg. 59, “Fenpicoxamid (Inatreq™, Meiji Seika Pharma, Dow; currently Corteva Agriscience), whose structure is shown in Fig. 4, is a conversion product of UK-2A isolated from the culture broth of Streptomyces spp. by Ueki et al. at Osaka City University, and its action is inhibition of the mitochondrial electron transport system complex III. Meiji Seika Pharma introduced UK-2A from the university and subjected it to joint development with Dow after converting its structure into fenpicoxamid. It is currently under development as an innovative fungicide for controlling key diseases in cereals, such as Septoria tritici and rust. It shows no cross-resistance to existing cereal fungicides. Fenpicoxamid is a propesticide, since it is converted to UK-2A in crops. Florylpicoxamid (Adavelt™, Corteva Agriscience) is a neopicolinamide fungicide under development and presumed to be a QiI, having the same mode of action as fenpicoxamid. Florylpicoxamid controls a wide range of pathogens including Septoria spp., powdery mildew, Botrytis spp., Anthracnose, Alternaria, scab, Monilinia, and others” [e.g., wherein the at least one pesticide comprises a picolinamide fungicide selected from the group consisting of fenpicoxamid and florylpicoxamid].)
Therefore, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to add “wherein the at least one pesticide comprises a picolinamide fungicide selected from the group consisting of fenpicoxamid and florylpicoxamid” as conceptually seen from the teaching of Umetsu, into that of Al-Dilaimi because this modification of using a pesticide of fenpicoxamid and florylpicoxamid for the advantageous purpose of controlling a wide range of pathogens and disease using fungicides show no resistance (Umetsu, Pg. 59). Further motivation to combine be that Al-Dilaimi and Umetsu are analogous art to the current claim directed to managing resistance to fungicides in crops.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Coleman, Michael et al. "Developing global maps of insecticide resistance risk to improve vector control." Malaria journal 16, no. 1 (2017): 86 teaches mapping allele frequency data to track diseases.
Moyes, Catherine et al. "Evaluating insecticide resistance across African districts to aid malaria control decisions." Proceedings of the National Academy of Sciences 117, no. 36 (2020): 22042-22050 teaches tracking insecticide resistance across a map using frequencies of allele.
Examiner’s Note: The examiner has cited particular columns and line numbers in the reference that applied to the claims above for the convenience of the applicant. Although the specified citations are representative of the art and are applied to specific limitations within the individual claim, other passages and figures may apply as well. It is respectfully requested from the applicant, to fully consider the references in their entirety as potentially teaching all or part of the claimed invention, as well as the context of the passage as taught by the prior art or disclosed by the examiner. In the case of amending the claimed invention, the applicant is respectfully requested to indicate the portion(s) of the specification which dictate(s) the structure relied on for the proper interpretation and also to verify and ascertain the metes and bound of the claimed invention.
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/SIMEON P DRAPEAU/Examiner, Art Unit 2188
/RYAN F PITARO/Supervisory Patent Examiner, Art Unit 2188
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