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 .
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 1, 4, 6-9, 11-14, and 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Suntych (KR 20150125685 A) in view of Shetty et al. (US 20090265803 A1), hereinafter Shetty.
Regarding claim 1, Suntych discloses a method for treating a seed production plant of a day-neutral plant species (¶ 0078 discusses the method can be used for a wide range of organisms, including certain day neutral plant species) comprising subjecting said seed production plant to supplemental far-red light during fruit development (¶ 0053, lines 1-5, “The system of the present invention, as illustrated in FIGS. 1 and 2, can control and manipulate various responses by organisms through cycling of light of one or more colors or spectra, such as near-infrared, blue light and far-infrared, at different times, durations and intensities, thereby enabling a single pulse or multiple pulses of one spectrum prior to a pulse of another spectrum;” ¶ 0054, lines 4 and 5, “At this point, the protocol is changed for the group to allow for additional development through fruit production and support;” ¶ 0068, lines 5-8, “the MLC could be programmed to issue a signal to a specific emitter to modulate a pulse of far-infrared light for a predetermined period of time prior to a pulse of blue light combined with near-infrared light for control of seed germination in some higher plants”).
Suntych, however, fails to specifically disclose wherein the seed production plant is an F1 hybrid parental line plant.
Shetty is in the field of cultivation of day neutral plants and teaches wherein the seed production plant is an F1 hybrid parental line plant (¶ 0014, lines 7-9, “In one embodiment, the seed is an F1 hybrid seed. In another aspect, the invention provides an F1 hybrid plant produced by growing the seed”).
Therefore, it would have been obvious to one of ordinary skill in the art of plant cultivation before the effective filing date of the claimed invention to modify the method of Suntych such that the seed production plant is an F1 hybrid parental line plant, as taught by the grow method of Shetty. The growth of additional F1 plants would allow the user to grow additional products, which would expand the use case of the method. The modification would have a reasonable expectation of success.
Regarding claim 4, Suntych in view of Shetty discloses the method of claim 1.
Suntych discloses wherein the supplemental far-red light originates from an artificial far-red light source having a peak wavelength in a range of 700 to 800 nm (¶ 0044, lines 1-3, “Controlling seed germination of a given higher plant by modulating pulses of a specific far-infrared wavelength [e.g., 730 nm, an example of which may include a wavelength range of 710-850 nm] for a given period of time”).
Regarding claim 6, Suntych in view of Shetty discloses the method of claim 1.
Suntych discloses wherein the artificial far-red light source is a LED light source (¶ 0055, lines 1-5, “Photons can be provided using a variety of photon emitters, many of which are known in the art. 805 However, for the purposes of this discussion, an example of a suitable photon emitter is a light emitting diode [LED], which can be packaged within an LED array designed to produce the desired photon spectrum”).
Regarding claim 7, Suntych in view of Shetty discloses the method of claim 1.
Suntych discloses wherein the seed production plant is subjected to supplemental far-red light for 1-20 hrs per day (¶ 0079, lines 20-22, “The system of the present invention also enables other durations between photon pulses, including but not limited to 1 microsecond to 24 hours and all integers therebetween”).
Regarding claim 8, Suntych in view of Shetty discloses the method of claim 1.
Suntych discloses wherein the seed production plant is a vegetable plant (¶ 0078).
Regarding claim 9, Suntych in view of Shetty discloses the method of claim 1, and furthermore, the modified reference teaches the seed production plant is an inbred plant (¶ 0047, “The present invention provides for a seed of a cucumber plant capable of producing a plant having DM resistance. In one aspect, the cucumber plant can be an open-pollinated variety, a hybrid parent inbred line, or a male sterile line. In another aspect, the invention provides seed of a cucumber plant capable of producing a hybrid cucumber plant having DM resistance”).
Therefore, it would have been obvious to one of ordinary skill in the art of plant cultivation before the effective filing date of the claimed invention to modify the method of Suntych such that the seed production plant is an inbred plant, as taught by the growth method of Shetty. The growth of inbred plants would allow the user to grow additional products, which would expand the use case of the method. The modification would have a reasonable expectation of success.
Regarding claim 11, Suntych in view of Shetty discloses the method of claim 1, and furthermore, the modified reference teaches the seed production plant is a male sterile plant (¶ 0047).
Therefore, it would have been obvious to one of ordinary skill in the art of plant cultivation before the effective filing date of the claimed invention to modify the method of Suntych such that the seed production plant is a male sterile plant, as taught by the growth method of Shetty. The growth of male sterile plants would allow the user to grow additional products, which would expand the use case of the method. The modification would have a reasonable expectation of success.
Regarding claim 12, Suntych in view of Shetty discloses the method of claim 1, and furthermore, the modified reference teaches wherein the seed production plant produces F1 hybrid plant seeds (¶ 0014, lines 7-9).
Therefore, it would have been obvious to one of ordinary skill in the art of plant cultivation before the effective filing date of the claimed invention to modify the method of Suntych such that the seed production plant produces F1 hybrid plant seeds, as taught by the grow method of Shetty. The growth of additional F1 plants would allow the user to grow additional products, which would expand the use case of the method. The modification would have a reasonable expectation of success.
Regarding claim 13, Suntych in view of Shetty discloses the method of claim 1.
Suntych discloses wherein the seed production plant is additionally subjected to supplemental light having a shorter wavelength than the supplemental far-red light (¶ 0068, lines 5-8).
Regarding claim 14, Suntych in view of Shetty discloses the method of claim 13.
Suntych discloses wherein the supplemental light having a lower wavelength than the supplemental far-red light originates from an artificial light source emitting light having a wavelength in the range of 340 to 480 nm (¶ 0042, 9-12, “As will be appreciated by those skilled in the art, the present invention may comprise a color spectrum of specific, discrete wavelengths between 0.1 nm and 1.0 cm, or may comprise a wavelength range or band having a width of 0.1 to 200 nm, referred to herein as a ‘wavelength band.’;” ¶ 0044, lines 3-6, “followed by pulses of blue light [e.g., 660 nm, an example of which may include a wavelength range of 620-710 nm] in combination with near-infrared light [e.g., 660 nm, an example of which may include a wavelength range of 450-495 nm]”).
Regarding claim 16, Suntych in view of Shetty discloses a method for improving the quality of plant seeds produced by a seed production plant comprising growing said plant in the presence of an effective amount of supplemental far-red light, wherein said seed production plant is of a day-neutral plant species (¶ 0053, lines 1-5; ¶ 0054, lines 4 and 5; ¶ 0068, lines 5-8; ¶ 0078)
Regarding claim 17, Suntych in view of Shetty discloses the method of claim 1.
Suntych discloses wherein the seed production plant is a carrot, corn salad, cucumber, eggplant, melon, pepper, squash, tomato or watermelon plant (¶ 0078).
Regarding claim 18, Suntych in view of Shetty discloses the method of claim 1.
Suntych discloses wherein the seed production plant is a cucumber, pepper, or tomato plant (¶ 0078).
Regarding claim 19, Suntych in view of Shetty discloses the method of claim 16.
Suntych discloses wherein the supplemental far-red light is applied after fertilization and/or during fruit development of the seed production plant (¶ 0054, lines 4 and 5; ¶ 0068, lines 5-8).
Regarding claim 20, Suntych in view of Shetty discloses the method of claim 16.
Suntych discloses wherein improving the quality of seeds is an improvement in germination ratio and/or an improvement in usable transplant ratio compared to growing a day-neutral seed production plant not subjected to supplemental far-red light (¶ 0081, lines 24-30, “As previously discussed, this example can also be used to increase seed germination rates of various types of plants. In this description of a set of photon pulses including offset pulses of one color spectrum and two color spectra, it should be understood that this description can be applied to any such system using different emissions of photon pulses over a given time period, with various combinations of pulses in the color spectrum including, but not limited to, near infrared, far infrared”).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Suntych (KR 20150125685 A) and Shetty (US 20090265803 A1), as applied to claim 1, and further in view Mennink (WO 2020231267 A1).
Regarding claim 3, Suntych in view of Shetty discloses the method of claim 1 including the red light affecting the activation of phytochrome (¶ 0022), however, the modified reference fails to explicitly disclose wherein the seed production plant is exposed to supplemental far-red light resulting in a phytochrome stationary state [PSS] value of less than 0.88.
Minnink is in the field of light treatment for plants and teaches the seed production plant is exposed to supplemental far-red light resulting in a phytochrome stationary state [PSS] value of less than 0.88 (page 11, lines 29-31, “An assimilation light with blue, red and far-red lights as illustrated in Figure 6 has been designed to have approximately 4.5% blue light, and a PSS value of 0.74”).
Therefore, it would have been obvious to one of ordinary skill in the art of plant lighting before the effective filing date of the claimed invention to modify the method of Suntych in view of Shetty such that the seed production plant is exposed to supplemental far-red light resulting in a phytochrome stationary state value of less than 0.88, as taught by the illumination system of Minnink. The red light from the system would create a more desirable PSS value, which would lead to more beneficial plant development. The modification would have a reasonable expectation of success.
Claims 5 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Suntych (KR 20150125685 A) and Shetty (US 20090265803 A1), as applied to claims 1 and 13, and further in view of Bongartz et al. (US 20200184153 A1), hereinafter Bongartz.
Regarding claim 5, Suntych in view of Shetty discloses the method of claim 1, however, the modified reference fails to specifically disclose wherein the supplemental far-red light originates from an artificial far-red light source emitting far-red light with an intensity of 5-200 mol/m2/s.
Bongartz is in the field of plant lighting and teaches wherein the supplemental far-red light originates from an artificial far-red light source emitting far-red light with an intensity of 5-200 mol/m2/s (¶ 2354, lines 2-6, “A first group 1820 of agricultural light fixtures comprises the luminaire type SPYDR [LED Grow Light] of the company Fluence Bioengineering, Inc. This type delivers a light intensity of up to 250 μmol/m2/s and a specific spectrum [PhysioSpec]”).
Therefore, it would have been obvious to one of ordinary skill in the art of plant lighting before the effective filing date of the claimed invention to modify the method of Suntych in view of Shetty such that the supplemental far-red light originates from an artificial far-red light source emitting far-red light with an intensity of 5-200 mol/m2/s, as taught by the illumination system of Bongartz. The adjustment of intensity would tailor the illumination to a specific type of plant, which would improve plant growth. The modification would have a reasonable expectation of success.
Regarding claim 15, Suntych in view of Shetty discloses the method of claim 13, however, the modified reference fails to specifically disclose wherein the supplemental light having a lower wavelength than the supplemental far-red light originates from an artificial light source emitting light with an intensity of 5-200 mol/m2/s.
Bongartz teaches wherein the supplemental light having a lower wavelength than the supplemental far-red light originates from an artificial light source emitting light with an intensity of 5-200 mol/m2/s (¶ 2354).
Therefore, it would have been obvious to one of ordinary skill in the art of plant lighting before the effective filing date of the claimed invention to modify the method of Suntych in view of Shetty such that the supplemental light having a lower wavelength than the supplemental far-red light originates from an artificial light source emitting light with an intensity of 5-200 mol/m2/s, as taught by the illumination system of Bongartz. The adjustment of intensity would tailor the illumination to a specific type of plant, which would improve plant growth. The modification would have a reasonable expectation of success.
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Suntych (US 20230025970 A1) in view of Kadkade (US 4724633 A).
Regarding claim 21, Suntych discloses a method for improving seed yield of seeds produced by a seed production plant of a day-neutral plant species comprising subjecting the seed production plant to supplemental far-red light (¶ 0060 lists day neutral seed producing plants, ¶ 0160, “Examples of the ability to induce/excite and reset or regulate photoreceptor molecules for specific biological responses in an organism through the pulsing of individual color spectrums, specific color wavelength or a range of color wavelengths may include but are not limited to:,” ¶ 0171, “k. the control of seed germination in some higher plants through the modulation of pulses of a specific far-red wavelengths [such as 730 nm, an example wavelength range may include 710 nm to 850 nm] for a period of time and then pulses of blue light [an example range may include with a range of 450 nm to 495 nm] in combination with near red light [such as 660 nm, an example range may include with a range of 620 nm to 710 nm],” ¶ 0205, “The modulation of individual color spectrums, specific wavelength and a range of wavelengths of photons to a plant by providing a signal with at least one initiating component and at least one reset component allows for the control of plant responses such as root production, vegetative growth, flowering, seed and fruit production”), thereby increasing the number of seeds per fruit produced by the seed production plant compared to a seed production plant a day-neutral seed production plant not subjected to supplemental far-red light (¶ 0205).
Suntych, however, fails to specifically disclose subjecting the seed production plant to supplemental far-red light during fruit development.
Kadkade is in the field of cultivation of day neutral plants and teaches subjecting the seed production plant to supplemental far-red light during fruit development (Col. 2, lines 46-54, “In accordance with one embodiment of this invention, a method of accelerating dehiscence and of reducing ‘pull force’ of fruits of various crops includes the exposure of such crops to far-red night-break lighting treatments at certain stages of fruit growth and development. With certain features of the invention, the crops can be selected from the group consisting of almond, walnut, pistachio, pecan, grape, olive, citrus, and cherry”).
Therefore, it would have been obvious to one of ordinary skill in the art of plant cultivation before the effective filing date of the claimed invention to modify the method of Suntych to include subjecting the seed production plant to supplemental far-red light during fruit development, as taught by the grow method of Kadkade. The supplemental far-red light during fruit development would result in improvements to the method in accelerating dehiscence and reducing pull force of fruits. The modification would have a reasonable expectation of success.
Response to Arguments and Declaration
The affidavit or declaration under 37 CFR 1.132 filed 02/25/2026 is insufficient to overcome the rejection of claims 1, 3-9, and 11-19 as set forth in the last Office action because of at least the following:
On page 1, the Declarant has been identified as an inventor in the application, rather than a disinterested third party. While the Examiner is well aware that the content of the declaration cannot be disregarded for this reason alone, it is also recognized that the Declarant has an interest in the outcome (see MPEP 716.019(c)(III)) and is demonstrably not a disinterested party.
On pages 2 and 4, the Declarant asserts that Suntych and Shetty are unrelated as Shetty “relates to cucumber lines asserted to have increased resistance to Downy Mildew whereas Suntych relates to photon modulation management,” however, the Examiner recognizes that it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, Suntych and Shetty are in the field of the inventor’s endeavor, as Suntych and Shetty are both concerned with the cultivation of day neutral plants. Furthermore, the Examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, motivation is found in the references themselves, as both Suntych and Shetty disclose the cultivation of day neutral plants such as cucumbers, and Shetty teaches that the cucumber plants are F1 hybrid parental line plants. Therefore, with a reasonable expectation of success, it would have been obvious to modify the method of Suntych to incorporate the grow method of Shetty, as the growth of additional F1 plants would allow the user to grow additional products, which would expand the use case of the method.
On pages 2 and 3, the Declarant notes that Suntych is drawn to a photon modulation system that utilizes light pulses while the ‘378 application applies far-red light to a plant receiving continuous light. The Examiner asserts that the claims do not explicitly preclude the application of light pulses as the claimed supplemental far-red light, nor do the claims specifically require the supplemental far-red light to be continuous.
On page 3, the Declarant asserts that Suntych does not disclose treatment of “a seed production plant of a day-neutral plant species” as claimed, however, the Examiner submits that Suntych does disclose the claimed treatment, as Suntych discloses treatment of seed production plants of day-neutral plant species such as tomatoes, peppers, cucumbers, squash, and watermelons in ¶ 0078, which are exemplified in Applicant’s specification as being seed production plants of day-neutral plant species in ¶ 0076.
On page 3, the Declarant asserts that Suntych does not disclose “subjecting said seed production plant to supplemental far-red light during fruit development,” however, the Examiner submits that Suntych discloses the claimed treatment during fruit development in ¶ 0054, which details that the “protocol is changed for the group to allow for additional development through fruit production and support.” Although ¶ 0054 discusses the application of this step for soybeans specifically, the cited paragraph demonstrates that the existing method of plant treatment is configured to be extended to support the stage of fruit production.
On pages 4 and 5, the Declarant argues that the ‘378 application discloses unexpected results and that prior to the filing of the ‘378 application, “the skilled person understood that subjecting a seed production plant to supplemental far-red light leads to a reduced germination ratio under certain germination conditions,” noting a single reference that reported “that subjecting the seed production plants to supplemental far-red light leads to a dramatically reduced germination ratio under certain germination conditions.” The Examiner submits that the probative value of the objective evidence provided was insufficient for a determination of nonobviousness because: (1) it lacked factual support, (2) the expert opinion was from Applicant, (3) the evidence failed to establish significant differences between Applicant’s invention AS CLAIMED and the closest prior art (i.e. Suntych).
For rebuttal evidence to overcome a prima facie case of obviousness a nexus is required between the merits of the claimed invention and the evidence offered if that evidence is to be given substantial weight in route to a conclusion on the obviousness issue (Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 305 n.42, 227 USPQ 657, 673-674 n. 42 (Fed. Cir. 1985), cert. denied, 475 U.S. 1017 (1986)). The term “nexus” designates a factually and legally sufficient connection between the objective evidence of nonobviousness and the claimed invention so that the evidence is of probative value in the determination of nonobviousness. Demaco Corp. v. F. Von Langsdorff Licensing Ltd., 851 F.2d 1387, 7 USPQ2d 1222 (Fed. Cir.), cert. denied, 488 U.S. 956 (1988). The Declarant argued that there are unexpected results with respect to the issue Applicant’s invention is attempting to solve, but did not factually address the merits of the Suntych reference in the declaration beyond that of which has been addressed in the arguments above. The issue at hand pertains to the method of treating a seed production plant of a day-neutral plant species as disclosed by Suntych.
(1) Objective evidence which must be factually supported by an appropriate affidavit or declaration to be of probative value includes evidence of unexpected results, commercial success, solution of a long-felt need, inoperability of the prior art, invention before the date of the reference, and allegations that the author(s) of the prior art derived the disclosed subject matter from the applicant. See, for example, In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984) (“It is well settled that unexpected results must be established by factual evidence.” “[A]ppellants have not presented any experimental data showing that prior heat-shrinkable articles split. Due to the absence of tests comparing appellant’s heat shrinkable articles with those of the closest prior art, we conclude that appellant’s assertions of unexpected results constitute mere argument.”). See also In re Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972); Ex parte George, 21 USPQ2d 1058 (Bd. Pat. App. & Inter. 1991). (MPEP 716.01c). In the instant case, the expert is the Applicant and the interest of the Applicant is for a favorable consideration, and it is of the Applicant’s opinion in the declaration filed 02/25/2026, that that prior to the filing of the ‘378 application, the skilled person understood that subjecting a seed production plant to supplemental far-red light leads to a reduced germination ratio under certain germination conditions. The Examiner asserts, however, that Suntych discloses subjecting a seed production plant to supplemental far-red light as claimed.
(2) In assessing the probative value of an expert opinion, the examiner must consider the nature of the matter sought to be established, the strength of any opposing evidence, the interest of the expert in the outcome of the case, and the presence or absence of factual support for the expert’s opinion. Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 227 USPQ 657 (Fed. Cir. 1985), cert. denied, 475 U.S. 1017 (1986). In the instant case, the Declarant relies on a single study to traverse the Suntych reference, but does not address the disclosure of the Suntych reference of “subjecting said seed production plant to supplemental far-red light during fruit development,” beyond that of which has been addressed in the arguments above.
(3) The evidence relied upon should establish “that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance.” Ex parte Gelles, 22 USPQ2d 1318, 1319 (Bd. Pat. App. & Inter. 1992); Ex parte C, 27 USPQ2d 1492 (Bd. Pat. App. & Inter. 1992) See also In re Nolan, 553 F.2d 1261, 1267, 193 USPQ 641, 645 (CCPA 1977) and In re Eli Lilly, 902 F.2d 943, 14 USPQ2d 1741 (Fed. Cir. 1990) as discussed in MPEP § 716.02(c). In the instant case, and as noted above, the Declarant relies on a single study to demonstrate that the ‘378 application discloses unexpected results over that which a skilled person in the art would have understood prior to the filing of the ‘378 application, however, the Examiner maintains that Suntych discloses subjecting a seed production plant to supplemental far-red light as claimed.
Lastly, in view of the foregoing, when all the evidence is considered, Applicant’s declaration is a secondary consideration and the totality of the rebuttal evidence fails to outweigh the evidence of obviousness.
Applicant's remaining remarks filed 02/25/2026 overlap with the material and arguments of the declaration and have been addressed in full above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Krijn et al., US 20150223402 A1, discusses a method for enhancing the nutritional value in an edible plant part by light.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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/S.T.C./Examiner, Art Unit 3642
/JOSHUA D HUSON/Supervisory Patent Examiner, Art Unit 3642
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