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 .
Status of Claims
This action is in reply to the Amendment/Request for Reconsideration filed on September 30, 2025. Claims 1 and 7 have been amended and are hereby entered. Claim 6 has been canceled. Claims 10-11 have been withdrawn per the Response to Election/Restriction filed on June 04, 2025. Claims 1-5 and 7-11 are currently pending. This action is made FINAL.
Claim Objections
Claim 3 is objected to because of the following informalities: In claim 3, line 2, Applicant is suggested to remove the phrase “which is a liquid”, as this limitation appears redundant in light of claim 2, upon which claim 3 is dependent, which recites “wherein the transparent medium is a liquid”.
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.
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 1-5 and 7-9 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, lines 1-3 recites, “A method of cultivating a plant, comprising: seeding a seed of the plant…; and evaluating and sorting the plant…”. The term “sort” is generally understood to mean to “arrange systematically in groups” or to “separate in groups according to type” (emphasis added). No explicit definition for “sort” is provided in the specification, thus the claim language is interpreted under its plain meaning. Throughout the entirety of claim 1, only a single plant is recited; however, since the term “sort” appears to require a plurality of plants, it is unclear how the singular plant would be able to be “sorted”. For at least these reasons, it is unclear whether the method of claim 1 requires only a single plant or a plurality of plants in order to be performed, and the claim is thus rendered indefinite. Claims 2-5 and 7-9 are similarly rejected by virtue of dependency upon claim 1.
Claim 1, lines 5-10 further describes wherein a plant that meets certain conditions is “sorted”; however, the Examiner notes that this merely means that the plant is separated into a group in some manner. The claim does not recite what the groups are (e.g., viable plants, non-viable plants, plants to be discarded, plants to be cultivated, plants to be eaten, etc.). Furthermore, claim 1 describes wherein a plant that meets a predetermined condition for a seed/radicle length ratio is sorted and wherein a plant that meets a predetermined condition for radicle thickness is sorted; however, the series of steps in the sorting process is not clearly defined (e.g., Is the plant evaluated for seed/radicle length ratio, then subsequently evaluated for radicle thickness? What happens if a plant meets only one condition and not the other? How many groups could the plant be sorted into?). For at least these reasons, the process of evaluating and sorting the plant is unclear, and the claimed method is rendered indefinite.
Claim 1, line 6 recites “a length of a radicle”; however, it is unclear whether this refers to a radicle belonging to the previously recited plant or to a different radicle element. It is unclear what “radicle” is being described in the claim as the claim does not explicitly recite wherein the plant has a radicle. For at least these reasons, the process of evaluating and sorting the plant is unclear, and the claimed method is rendered indefinite.
Claim 1, lines 8-9 recites calculating an “average value of the thickness of the center portion of the radicle”. However, claim 1 recites only a single plant. It is unclear how an average value of thickness can be calculated with only a single plant involved. For at least these reasons, the process of evaluating and sorting the plant is unclear, and the claimed method is rendered indefinite.
Claim 4, lines 3-4 recites “a length of a radicle”. However, claim 1, line 6 previously recites “a length of a radicle”. It is unclear whether the radicle length recited in claim 4 refers to the same or a different dimension than that recited in claim 1.
Similarly, claim 5, line 4 recites “a length of a radicle”. However, claim 1, line 6 previously recites “a length of a radicle”. It is unclear whether the radicle length recited in claim 5 refers to the same or a different dimension than that recited in claim 1.
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.
Claim(s) 1-5 and 8-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Reinders (US 2019/0313572 A1), hereinafter Reinders, in view of Bruggink et al. (US 5,585,536 A), hereinafter Bruggink.
Regarding claim 1, as best understood based on the 35 U.S.C. §112(b) issues identified above, Reinders discloses a method of cultivating a plant (abstract), comprising:
seeding a seed of the plant on a transparent medium and germinating (para [0039], seeds on transparent tape are subjected to germination conditions); and
evaluating and sorting the plant after a start of the germinating according to a germinating state (para [0039], seeds on transparent tape that have germinated are sorted from seeds that have not germinated based on observation by a camera);
wherein evaluating and sorting the plant according to the germinating state comprises sorting the plant based on a length of a radicle (para [0029], “germinated seeds are selected based on the visibility and/or length of the radicle”).
Reinders does not appear to specifically disclose wherein evaluating and sorting the plant according to the germinating state comprises sorting the plant in which a ratio of a length of a radicle to a length of the seed is 1/4 to 1/1.
However, Bruggink is in the field of plant cultivation (title; abstract) and teaches wherein evaluating and sorting the plant according to the germinating state (col 6, lines 21-23, seeds are selected based on length of a radicle) comprises sorting the plant in which a ratio of a length of a radicle to a length of the seed is 1/4 to 1/1 (col 6, lines 23-24, “length of the radicles is preferably up to and including the length or diameter of the seed”; since Bruggink teaches sorting seeds having a length of a radicle the same as that of the seed, Bruggink at least teaches having a ratio of a length of radicle to a length of a seed of 1/1).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of cultivating a plant comprising sorting a plant according to a germinating state disclosed by Reinders to have sorted the plant in which a ratio of a length of a radicle to a length of a seed is 1/4 to 1/1 as taught by Bruggink with a reasonable expectation of success to select hardier germinated seedlings that are more resistant to damage, particularly should seeds undergo further treatments such as desiccation (see Bruggink, col 15, lines 33-35). It would have further been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have sorted plants in which a ratio of a length of a radicle to a length of a seed is 1/4 to 1/1, with the motivation of sorting out seeds of plants which have begun to develop but still have a short, durable radicle (see Reinders, para [0029]), since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. The Examiner further notes that plants of different of different species may have different radicle lengths or ratios at which planting would result in the most effective growth.
Reinders does not appear to specifically disclose measuring a thickness of a center portion of the radicle, wherein an average value of the thickness of the center portion of the radicle is calculated, and a plant having a thickness of a center portion of a radicle more than the average value is sorted.
However, Reinders does disclose observing a size of radicles of plants and selecting, or sorting, the plants accordingly (para [0029]) and further discloses utilizing imaging equipment in order to analyze radicle dimensions, such as length (para [0039]). It would have been obvious to one having ordinary skill in the art to take measurements such as thickness, width, or diameter in this same manner as doing so is well understood in the art of plant cultivation. Furthermore, it would be obvious to one having ordinary skill in the art to sort plants with an above average radicle thickness as such plants would have a hardier, more developed root structure that would be more likely to be successfully cultivated.
Regarding claim 2, as best understood based on the 35 U.S.C. §112(b) issues identified above, Reinders as modified discloses the method of cultivating a plant according to claim 1, and further discloses wherein the medium is a liquid (para [0040], “controlled climate chamber is arranged to receive seeds in a liquid”).
Although Reinders as modified does not appear to explicitly disclose wherein a transparent medium is a liquid, Reinders does disclose a method of utilizing a transparent solid medium (“transparent tape” para [0039]) and further discloses wherein the medium may instead be a liquid (para [0040], “controlled climate chamber is arranged to receive seeds in a liquid…or on tape, in particular transparent tape”). Reinders further emphasizes the importance of utilizing a medium which allows for visual inspection of an emerging radicle from a seed (para [0024], “Preferably, the medium allows for visual inspection of an emerging radicle from the seed”). Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention from the disclosure of Reinders that the disclosed liquid medium may, like the solid medium, also be transparent.
Regarding claim 3, as best understood based on the 35 U.S.C. §112(b) issues identified above, Reinders as modified discloses the method of cultivating a plant according to claim 2, and further discloses wherein a temperature of the medium, which is a liquid (para [0040]; see rejection for claims 1-2 above), is of a predetermined temperature (para [0025], “controlled climate chamber is a closed space wherein climate conditions, such as temperature…can be controlled”).
Although Reinders as modified does not appear to specifically disclosure wherein a temperature of the medium is 10°C to 40°C, Reinders does disclose a method of subjecting seeds on a medium to a controlled temperature (para [0025]). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have made the temperature of the medium between 10°C to 40°C, with the motivation of providing environmental conditions that stimulate seed development, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. The Examiner further notes that different types of seeds seeded onto media may have different requirements for environmental conditions, including temperature. For example, a seed of one species may be most likely to germinate at a temperature that is too cold for a seed of another species.
Regarding claim 4, as best understood based on the 35 U.S.C. §112(b) issues identified above, Reinders as modified discloses the method of cultivating a plant according to claim 1, and further discloses wherein the evaluating and sorting the plant according to the germinating state comprises evaluating growth of the plant and sorting the plant, based on a length of a radicle developed from the seed of the plant (para [0039], seeds that have germinated are sorted from seeds that have not germinated), based on a length of a radicle developed from the seed of the plant (para [0029], “germinated seeds are selected based on the visibility and/or length of the radicle”).
Regarding claim 5, as best understood based on the 35 U.S.C. §112(b) issues identified above, Reinders as modified discloses the method of cultivating a plant according to claim 1, and further discloses wherein the evaluating and sorting the plant according to the germinating state comprises acquiring an image of the plant in the germinating state and evaluating growth of the plant and sorting the plant (para [0039], seeds that have germinated are sorted from seeds that have not germinated based on observation by a camera), based on a length of a radicle measured from the image (para [0029], “germinated seeds are selected based on the visibility and/or length of the radicle”).
Regarding claim 8, as best understood based on the 35 U.S.C. §112(b) issues identified above, Reinders as modified discloses the method of cultivating a plant according to claim 1, and further discloses wherein the plant is a fruit vegetable plant (para [0031], seeds may be from the genus Solanum (e.g. tomatoes) or Cucurbita (e.g., melons)).
Regarding claim 9, as best understood based on the 35 U.S.C. §112(b) issues identified above, Reinders as modified discloses the method of cultivating a plant according to claim 1, and further discloses wherein the plant is a tomato or a melon (para [0031], seeds may be from the genus Solanum (e.g. tomatoes) or Cucurbita (e.g., melons)).
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being obvious over Reinders (US 2019/0313572 A1), hereinafter Reinders, in view of Bruggink et al. (US 5,585,536 A), hereinafter Bruggink, as applied to claim 1 above, and further in view of Miyahara et al. (US 2019/0150375 A1), hereinafter Miyahara.
Regarding claim 7, as best understood based on the 35 U.S.C. §112(b) issues identified above, Reinders as modified discloses the method of cultivating a plant according to claim 1, and further discloses further comprising: raising a seedling of a plant sorted by evaluating and sorting the plant according to the germinating state (para [0058]-[0062], sorted seeds may be sown and grown into plants) with artificial light.
Reinders as modified does not appear to specifically disclose further comprising: raising seedlings with artificial light.
However, Miyahara is in the field of plant cultivation (title; abstract) and teaches further comprising: raising seedlings with artificial light (para [0027], “multi-shelf seedling growing rack is provided with an artificial light source”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of cultivating a plant comprising raising seedlings of sorted plants disclosed by Reinders as modified to incorporate the teaching of raising seedlings with artificial light as taught by Miyahara with a reasonable expectation of success to allow seedlings to be grown in a more controlled environment such that seedling growth can be optimized (para [0021]).
Response to Arguments
Applicant’s arguments (Remarks, pages 2-4 of 5), filed September 30, 2025, regarding the rejection of claim(s) 1-9 under §102/103 have been fully considered, but they are not persuasive.
Applicant asserts that the combination of Reinders (US 2019/0313572 A1) and Bruggink et al. (US 5,585,536 A) to teach wherein “evaluating and sorting the plant according to the germinating state comprises sorting the plant in which a ratio of a length of a radicle to a length of a seed is 1/4 to 1/1” would not have been obvious as Reinders and Bruggink “pursue different objectives” (Remarks, page 2-3 of 5).
In response to Applicant’s arguments, the Examiner recognizes that references cannot be arbitrarily combined and that there must be some reason why one skilled in the art would be motivated to make the proposed combination of primary and secondary references. In re Nomiya, 184 USPQ 607 (CCPA 1975). However, there is no requirement that a motivation to make the modification be expressly articulated. The test for combining references is what the combination of disclosures taken as a whole would suggest to one of ordinary skill in the art. In re McLaughlin, 170 USPQ 209 (CCPA 1971). References are evaluated by what they suggest to one versed in the art, rather than by their specific disclosures. In re Bozek, 163 USPQ 545 (CCPA 1969).
In this case, although the prior art of Reinders appears to teach evaluating and sorting a plant for the purpose of germination observation, and the prior art of Bruggink appears to teach evaluating and sorting a plant for the purpose of transplantation and storage, both Reinders and Bruggink are generally directed towards evaluating and sorting a plant for eventual cultivation. Thus, it would still have been obvious to one having ordinary skill in the art to utilize the 1/1 ratio of a length of a radicle to a length of a seed taught by Bruggink to modify the plant cultivation method of Reinders in order to identify and select hardier germinated seedlings for later cultivation (see Bruggink, col 15, lines 33-35). Reinders mirrors this teaching by stating, “If the radicle of a germinated seed is too long, it is too fragile when such a germinated seed is…transferred for sowing” (see Reinders, para [0029]). Thus, it would be obvious to one having ordinary skill in the art to select germinated seedlings that have a radicle/seed length ratio of 1/1.
Applicant further asserts that none of the cited references disclose “measuring a thickness of a center portion of the radicle, where an average value of the thickness of the center portion of the radicle is calculated, and a plant having a thickness of a center portion of a radicle more than the average value is sorted” (Remarks, page 4 of 5).
In response to Applicant’s arguments, the Examiner notes that Reinders discloses observing a size of radicles of plants and selecting, or sorting, the plants accordingly (para [0029]). Reinders further discloses utilizing imaging equipment in order to analyze radicle dimensions, such as length (para [0039]). As is outlined in the rejection for claim 1 above, it is well understood in the art of plant cultivation to take measurements of various dimensions of the plant, such as thickness, width, or diameter of the radicle, and would further be obvious to one having ordinary skill in the art to sort plants with an above average radicle thickness as such plants would have a hardier, more developed root structure that would be more likely to be successfully cultivated.
Conclusion
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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/E.M.H./Examiner, Art Unit 3647
/KIMBERLY S BERONA/Supervisory Patent Examiner, Art Unit 3647