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 .
Election/Restrictions
Newly submitted claims 13-29 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons:
Applicant has added 17 new claims that recite new limitations with respect to previously recited claim elements and newly added claim elements. The new limitations are directed to almost every aspect of the claimed combination – nutrient systems, light conditions, photoperiods, temperature, etc. Had these limitations been included in the original claim set, they would have been subjected to several election of species requirements, as the newly claimed limitations represent several new separate species of the central claimed invention, which was and remains not-allowed.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 13-29 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Status of the Claims
Claims 1, 2, 4, 13-29 are pending.
Claims 13-29 are withdrawn.
Claims 1, 2 and 4 are examined herein.
The rejection to Claims 5-6 under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement, is withdrawn in view of Applicant’s cancelation of the claims.
The rejection to Claims 7-12 under 35 U.S.C. 112(b) is withdrawn in view of Applicant’s cancelation of the claims.
The rejection to Claims 5-6 as being anticipated by Ammerlaan (US 20180199527 A1) is withdrawn in view of Applicant’s cancelation of the claims.
The objection to the Specification is withdrawn in view of Applicant’s amendments.
Priority
Should applicant desire to obtain the benefit of foreign priority under 35 U.S.C. 119(a)-(d) prior to declaration of an interference, a certified English translation of the foreign application must be submitted in reply to this action. 37 CFR 41.154(b) and 41.202(e).
Failure to provide a certified translation may result in no benefit being accorded for the non-English application. As such the Application currently is not afforded a foreign priority date.
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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-2 and 4 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites in part: “wherein the light source irradiates a planting surface of the tomato plant with an artificial light from a side direction of the tomato plant”. It is unclear how this claim language limits the light orientation. Tomato plants have different “sides” relative to their basic morphology – “side” could be relative to the stem of the plant or the surface of the leaves (adaxial or adaxial “sides”). Even if “side” is interpreted to mean relative to the general direction of growth, many tomato varieties are indeterminate and vining in growth habit and the “side” of the plant would change from a vertical to horizontal orientation throughout its growth. As such, the metes and bounds of the claims are unclear. For purposes of examination, “side direction” is interpreted to mean that the light is provided from a vertical or at least angled light source such that the light shines onto a vertical surface. This interpretation does not relieve Applicant of the duty to amend the claims so that they address the cited deficiency.
Claim Rejections - 35 USC § 103
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 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.
Claims 1, 2 and 4 are rejected under 35 U.S.C. 102(a)(1) as being over Vegetable Gardening Encyclopedia: Tomatoes (2nd Ed.) 2004 in view of Jiang, Chengyao, et al. "Photosynthesis, plant growth, and fruit production of single-truss tomato improves with supplemental lighting provided from underneath or within the inner canopy." Scientia Horticulturae 222 (2017): 221-229.
Applicant broadly claims a combination of a cultivation device wherein the device comprises artificial lighting from a side direction of the tomato plant and any tomato plant that satisfies Formula (1):
6.0 ≤ L/X ≤ 30.0 ... (1)
wherein in the formula,
in a case where the tomato plant does not have a side branch, L represents a length in cm unit from a planting surface to a growth point of a main branch, and X represents a sum of the number of flower clusters and fruit clusters of the main branch,
and in a case where the tomato plant has a side branch, L represents a length in cm unit from the planting surface to the growth point of one main branch or side branch, and X represents a sum of the number of flower clusters and fruit clusters of the one main branch or side branch,
where, X is an integer of 2 -5 (Claim 1).
The tomato plant according to claim 1, wherein in Formula (1), L is 100 or less (Claim 2),
The tomato plant according to claim 1, which satisfies Formula (2):11.0 ≤ L/X ≤ 22.0 (Claim 4),
The product claims are silent as to how the tomato plants are cultivated and whether the plants are mechanically manipulated (pruning or pinching, for example). Indeed the specification explicitly provides for such manipulation (See para. 58, process description set forth previously herein). As such, virtually any tomato cultivar can be pruned or pinched to grow in such a way as to satisfy the limitations of the claims.
Vegetable Gardening Encyclopedia: Tomatoes (2nd Ed.) 2004 teaches a tomato plant having a main stem length of 150cm and six or seven flower clusters – 150/6= 25 and 150/7= 21.4. (Figure 2) and another tomato plant having a main stem length of 40-50cm and three flower clusters for a L/X value of 13.3 or 16.7 (Figure 4).
However, the Encyclopedia does not teach that the tomato plant is grown in a growth chamber with artificial lighting from a side direction of the tomato plant.
Jiang teaches tomato plants grown in growth chambers to test the effects of supplemental lighting from vertically oriented LED lights (ISL orientation) and lighting from below the plants (USL orientation) on a variety of physiological parameters and yield. (See figures 1-6 and Table 3). Jiang teaches that both ISL and USL lighting orientations increased yield. (Table 3).
It would have been prima facie obvious at the time of filing to modify the tomato plant taught by the Vegetable Gardening Encyclopedia to be combined with the ISL type growth chamber of Jiang. One having ordinary skill in the art would have been motivated to do so because Jiang teaches that tomato plants grown in a growth chamber provided with ISL-orientation supplemental lighting had increased yield and growth. Because the primary purpose of tomato cultivation is to obtain the yielded fruit, one would have been motivated to grow the tomato in a growth chamber that produces higher yield such as that taught by Jiang. As such the claims are obvious in view of the teachings of the prior art.
Conclusion
No claims are allowed.
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 CHARLES A LOGSDON whose telephone number is (571)270-0282. The examiner can normally be reached M-F 8:30 - 5:00 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bratislav Stankovic can be reached at (571) 270-0305. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHARLES LOGSDON/Primary Examiner, Art Unit 1662
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