DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Arguments
Applicant’s arguments, see pages 8-9, filed November 27, 2025, with respect to the rejection under 35 USC 102 have been fully considered and are persuasive. The rejection of the claims under 35 USC 102 has been withdrawn.
In particular, the examiner finds persuasive applicant’s comments that none of the cited references taken alone or in combination, disclose the step of: generating a hyperspectral image comprising a number n of hyperspectral channels based on the multispectral image and a plurality of spectral bases, the number n of hyperspectral channels greater than the number m of multispectral channels; and generating a determination for the at least the portion of at least one plant based on the hyperspectral image, as is recited in claim 1.
Applicant’s arguments, see pages 10-12, filed November 27, 2025, with respect to the rejection under 35 USC 101 have been fully considered and are persuasive. The rejection of the claims under 35 USC 101 has been withdrawn.
In particular, the examiner finds persuasive applicant’s comments that the claimed “generating a hyperspectral image comprising a number n of hyperspectral channels based on the multispectral image and a plurality of spectral bases wherein n is greater than m” means transforming or converting the multispectral image and a plurality of spectral bases into a hyperspectral image having n hyperspectral channels. And the “step is analogous to the transforming of the gray scale image into a halftoned image in Research Corporation. Much like in Research Corporation, this claim 1 step adds meaningful limitations and therefore adds significantly more to the alleged abstract idea than mere computer implementation.” The examiner also finds persuasive applicant’s comments that the claimed “generating a determination for the at least the portion of the at least one plan based on the hyperspectral image” improves the functioning of the claimed processor itself as well as the technology of imaging of plants, and therefore “reflects both an improvement to the functioning of the processor and an improvement in another technology.”
Applicant’s amendment overcomes the prior rejections under 35 USC 112. The rejections under 35 USC 112 are withdrawn.
Claim Objections
Claims 1 and 11 are objected to because of the following informalities: the variables m and n are not defined. It is suggested to amend the claim to include, wherein “m and an are positive integers”.
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 1-8, 10-12, 14-17, 20, and 22-25 are provisionally rejected on the ground of nonstatutory double patenting as 3. being unpatentable over claims 1-3, 5, 6, 8, 9, 11, 13, 15, 16, 19, 21, 22, 24, 25, 30, 31, 34 of copending Application No. 18/268127, claims amended December 17, 2025, in view of Windham et al (US 6587575 B1), hereinafter "Windham". The pending claim is rendered obvious by the copending application in view of Windham.
This is a provisional nonstatutory double patenting rejection.
Regarding claim 1, copending Application No. 18/268127 claims a method for spectral imaging of plants, the method performed by a processor and comprising (claim 1, lines 1-2):
receiving a multispectral image comprising a number m of multispectral channels, at least one multispectral channel comprising an infrared wavelength, the multispectral image representing at least a portion of at least one plant (lines 3-6);
generating a hyperspectral image comprising a number n of spectral channels based on the multispectral image and a plurality of spectral bases, the number n of channels greater than the number m of multispectral channels (lines 7-10); and
generating a determination for the at least the portion of at least one plant based on the image (lines 11-12).
Copending Application No. 18/268127 does not claim hyperspectral imaging, and a hyperspectral image.
However, Windham teaches a method of spectral imaging of a food product (abstract) including hyperspectral imaging, and a hyperspectral image (col. 5, line 49-col. 6, line 11).
It would have been obvious to one having ordinary skill in the art before the effective
filing date of the claimed invention to claim hyperspectral imaging, and a hyperspectral image as Windham teaches that hyperspectral imaging is an extension of multispectral imaging that merely uses more measured wavelengths in order to provide an absolute radiometric measurement over a contiguous spectral range for each and every pixel of an image.
Pending claim 2 corresponds to co-pending claim 2.
Pending claim 3 corresponds to co-pending claim 2.
Pending claim 4 corresponds to co-pending claim 2.
Pending claim 5 corresponds to co-pending claim 3.
Pending claim 6 corresponds to co-pending claim 3.
Pending claim 7 corresponds to co-pending claim 5.
Pending claim 8 corresponds to co-pending claim 6.
Pending claim 10 corresponds to co-pending claim 8.
Pending claim 11 corresponds to co-pending claims 1 and 9.
Pending claim 12 corresponds to co-pending claim 11.
Pending claim 14 corresponds to co-pending claim 13.
Pending claim 15 corresponds to co-pending claim 13.
Pending claim 16 corresponds to co-pending claim 15.
Pending claim 17 corresponds to co-pending claim 16.
Pending claim 20 corresponds to co-pending claim 19.
Pending claim 22 corresponds to co-pending claim 21.
Pending claim 23 corresponds to co-pending claim 22.
Pending claim 24 corresponds to co-pending claim 22.
Pending claim 25 corresponds to co-pending claim 34.
Allowable Subject Matter
Claims 1-8, 10-12, 14-17, 20, and 22-25 would be allowable upon the filing of a Terminal Disclaimer or if rewritten or amended to overcome the double patenting rejection(s) set forth in this Office action.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 1, the prior art of record, taken either alone or in combination, fails to disclose or render obvious a method for hyperspectral imaging of plants, the method comprising, among other essential elements, generating a hyperspectral image comprising a number n of hyperspectral channels based on the multispectral image and a plurality of spectral bases, the number n of hyperspectral channels greater than the number m of multispectral channels; and generating a determination for the at least the portion of at least one plant based on the hyperspectral image, in combination with the rest of the limitations of the above claim. Claims 2-8, 11, 12, 14-17, 20, and 22-25 are dependent from claim 1 and therefore are also included in the allowed subject matter.
The examiner’s reasons for allowance of claim 11 can be found in the Office Action dated May 29, 2025.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Glaser (US 2007/0065857) teaches an optical system for plant characterization including using a hyperspectral sensing system, but does not include the above claimed limitations regarding both a hyperspectral and multispectral image.
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DOMINIC J BOLOGNA whose telephone number is (571)272-9282. The examiner can normally be reached Monday - Friday 7:30am-3:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kara E Geisel can be reached at (571) 272-2416. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DOMINIC J BOLOGNA/Primary Examiner, Art Unit 2877