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 1-5, 7-11, 15, 18, 22, 25-28, 46 are currently pending.
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.
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Claims 1-5, 7-11, 15, 18, 22, 25-28, and 46 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10, 12-18, 20, 87-88 of copending Application No. 17/633,906 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-10, 12-18, 20, and 87-88 of Application No. 17/633,906 teach or render obvious each and every limitation of claims 1-5, 7-11, 15, 18, 22, 25-28, 46. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim Objections
Claim 27 is objected to because of the following informalities: “produced” should instead say “produces”. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claims 11 and 28 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 11 recites “wherein at least one radiating structure is positioned within 5 feet of a seed.” It is unclear whether or not the “one or more radiating structure(s)” of claim 1 encompasses the “at least one radiating structure” of claim 11. Because one of ordinary skill in the art could not reasonably ascertain the metes and bounds of the claimed subject matter, claim 11 is rejected under 35 U.S.C. 112(b).
Claim 28 is directed to a method, and it recites “wherein the treatment electromagnetic field is changed with watering cycles for the seed, set timing, an environmental change, and/or stage of the life of the seed.” It is unclear whether or not applicant is attempting to claim method steps. Because one of ordinary skill in the art could not reasonably ascertain the metes and bounds of the claimed subject matter, claim 28 is rejected under 35 U.S.C. 112(b).
Claim Rejections - 35 USC § 102
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)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-5, 9, 18, 22, and 26-28 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by WO 2003/002315 to Greyvensteyn (“Greyvensteyn”)1.
Regarding claim 1, Greyvensteyn discloses a seed treatment system configured to treat a seed with an electromagnetic field, the system comprising: a function generator configured to provide a voltage and/or current used to generate the electromagnetic field (pg. 4, lines 5-9); and one or more radiating structure(s) coupled to the function generator and configured to produce the electromagnetic field for applying to the seed (pg. 4, lines 32-34).
Regarding claim 2, Greyvensteyn discloses a computational system (2, 3) configured to receive an input specifying parameters for controlling the function generator and to control the function generator to provide a voltage and/or current used to generate the electromagnetic field according to the input (pg. 4, lines 21-26).
Regarding claim 3, Greyvensteyn discloses wherein the computational system is configured to receive a recipe comprising the parameters for controlling the function generator and the parameters specifying a voltage (pg. 4, lines 21-26).
Regarding claim 4, Greyvensteyn discloses wherein the computational system is configured to receive more than one recipe comprising the parameters for controlling the function generator and the parameters specifying a carrier wave, and control the function generator to generate any one or more of the more than one recipe (pg. 4, lines 18-26).
Regarding claim 5, Greyvensteyn discloses wherein the computational system is configured to receive a schedule for applying the electromagnetic field to the seed and is configured to change the electromagnetic field in accordance with the schedule (pg. 4, lines 24-26; pg. 7, lines 16-19).
Regarding claim 9, Greyvensteyn discloses wherein the function generator comprises a transformer (8, FIG. 2).
Regarding claim 18, Greyvensteyn discloses wherein the one or more radiating structure(s) comprises a coil, a spiral antenna, a loop, and/or a plate (pg. 5, lines 31-33).
Regarding claim 22, Greyvensteyn discloses a method of treating a seed, the method comprising: producing a treatment electromagnetic field using the seed treatment system of claim 1 (see analysis of claim 1 above); and applying the treatment electromagnetic field to a seed (Abstract).
Regarding claim 26, Greyvensteyn discloses wherein the treatment electromagnetic field is provided as a treatment that is turned on and/or off as part of the treatment (Abstract; note: the claim is broad).
Regarding claim 27, Greyvensteyn discloses wherein the amplitude of the treatment electromagnetic field produced an electromagnetic field configured to be dampened by tissue of the seed (Abstract; note: the claim is broad).
Regarding claim 28, Greyvensteyn discloses wherein the treatment electromagnetic field is changed with watering cycles for the seed, set timing, an environmental change, and/or stage of the life of the seed (Abstract; note: the claim is broad).
Claim Rejections - 35 USC § 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.
Claims 7-8 are rejected under 35 U.S.C. 103 as being unpatentable over Greyvensteyn, as applied to claim 2 above, in view of WO 2015/154798 to Vogel (“Vogel”).
Regarding claim 7, Greyvensteyn teaches each and every element of claim 2, as discussed above, but it does not explicitly teach wherein the computational system comprises a wireless communication component and is configured to wirelessly receive a recipe and/or schedule.
Vogel teaches a seed treatment system, wherein the computational system comprises a wireless communication component and is configured to wirelessly receive a recipe and/or schedule (pg. 8, lines 21-23; FIG. 2).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the system of Greyvensteyn so that the computational system comprises a wireless communication component and is configured to wirelessly receive a recipe, as taught by Vogel, in order to make it easier to receive a recipe and/or schedule.
Regarding claim 8, Greyvensteyn teaches each and every element of claim 7, as discussed above, but it does not explicitly teach wherein the recipe is encrypted.
Vogel teaches a seed treatment system, wherein the recipe is encrypted (pg. 9, lines 19-20).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the system of Greyvensteyn so that the recipe is encrypted, as taught by Vogel, in order to protect the data.
Claims 11, 15, 25, and 46 are rejected under 35 U.S.C. 103 as being unpatentable over Greyvensteyn, as applied to claims 1 and 22 above.
Regarding claim 11, Greyvensteyn teaches each and every element of claim 1, as discussed above, but it does not explicitly teach wherein at least one radiating structure is positioned within 5 feet of a seed.
It is well settled, however, that where the only difference between the prior art and the claimed device is a recitation of relative dimensions of the claimed device, and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device. (MPEP 2144.04, citing In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984)).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the system of Greyvensteyn so that at least one radiating structure is positioned within 5 feet of a seed, in order to improve effectiveness.
Regarding claim 15, Greyvensteyn teaches each and every element of claim 1, as discussed above, but it does not explicitly teach wherein the one or more radiating structure comprises a plurality of radiating structures.
Where the only difference between the prior art and claimed invention is a duplicated part, the claimed invention is not patentably distinct from the prior art unless a new and unexpected result is produced. MPEP 2144.04, citing In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the system of Greyvensteyn so that the one or more radiating structure comprises a plurality of radiating structures, in order to improve effectiveness.
Regarding claim 25, Greyvensteyn teaches each and every element of claim 22, as discussed above, but it does not explicitly teach wherein the treatment electromagnetic field matches an ion cyclotron resonance frequency of calcium, potassium, magnesium, iron, copper, phosphate, phosphorous, and/or nitrogen during at least a portion of the applying the treatment electromagnetic field for a magnetic field strength experienced by the seed during the at least a portion of the applying the treatment electromagnetic field to the seed.
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the system of Greyvensteyn so that the treatment electromagnetic field matches an ion cyclotron resonance frequency of calcium, potassium, magnesium, iron, copper, phosphate, phosphorous, and/or nitrogen during at least a portion of the applying the treatment electromagnetic field for a magnetic field strength experienced by the seed during the at least a portion of the applying the treatment electromagnetic field to the seed, in order to optimize effectiveness.
Regarding claim 46, Greyvensteyn teaches each and every element of claim 22, as discussed above, but it does not explicitly teach the treatment electromagnetic field has a field strength of 1 to 3 tesla.
It is well settled, however, that “a mere carrying forward of an original patented conception involving only change of form, proportions, or degree… is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions.” In re Williams, 36 F.2d 436, 438 (CCPA 1929); see also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). MPEP 2144.05.
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the system of Greyvensteyn so that the treatment electromagnetic field has a field strength of 1 to 3 tesla, in order to optimize effectiveness.
Conclusion
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/MARISA V CONLON/Examiner, Art Unit 3643
1 A copy of the foreign reference was provided by applicatnt on 01/08/2024.