DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
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 pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter 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 pre-AIA 35 U.S.C. 103(a) 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 1,3-7 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Samadpour (US 20140237895 A1, with reference to 61/548714 attached herein on PTO-892) in view of Fok et al. (US 20120054061 A1), and Smith (US 20060207170 A1).
For claim 1, Samadpour teaches a consumer-ready-to-be-consumed mature spinach plant in a closed container that the consumer-ready-to-be-consumed mature spinach plant was grown in, or a consumer-ready-to-be-consumed mature lettuce plant (page 17, the second phase which the sprouts are to be “mature product” and “the sprouts reach market size”; also, page 19 stated “small plants”) in a closed container (101) that the consumer-ready-to-be-consumed mature lettuce plant was grown in, said consumer-ready-to-be-consumed mature spinach plant in the closed container or said consumer-ready-to-be-consumed mature lettuce plant in the closed container produced by a method comprising the steps of:
a) assembling in a container (101), materials (beneficial microorganisms, nutrients, additives, etc. as stated throughout 61/548714) for producing the consumer-ready-to-be-consumed mature spinach plant in the closed container or the consumer-ready-to-be-consumed mature lettuce plant in the closed container comprising:
i) spinach or lettuce seed, spinach or lettuce germinated seed, spinach or lettuce seedling, or small spinach or lettuce plant (page 6),
ii) water (as stated throughout 61/548714 such as pages 3-6) for growth to the consumer-ready-to-be-consumed mature spinach plant in the closed container or the consumer-ready-to-be-consumed mature lettuce plant in the closed container of the spinach or lettuce seed, the spinach or lettuce germinated seed, the spinach or lettuce seedling, or the small spinach or lettuce plant under suitable growing conditions (as stated throughout 61/548714 such as page 4, control temperature, irrigation, etc.), and
iii) substrate (102) for growth to the consumer-ready-to-be-consumed mature spinach plant in the closed container or the consumer-ready-to-be-consumed mature lettuce plant in the closed container of the spinach or lettuce seed, the spinach or lettuce germinated seed, the spinach or lettuce seedling, or the small spinach or lettuce plant under suitable growing conditions (as stated throughout 61/548714 such as page 4, control temperature, irrigation, etc.);
b) sealing the container with a permeable membrane (104) to obtain a closed container containing the materials for producing the consumer-ready-to-be-consumed mature spinach plant in the closed container or the consumer-ready-to-be-consumed mature lettuce plant in the closed container, wherein said membrane is permeable to oxygen and carbon dioxide and impermeable to contamination and pathogens (page 6), and
c) growing in the closed container at the place for growth the spinach or lettuce seed, the spinach or lettuce germinated seed, the spinach or lettuce seedling, or the small spinach or lettuce plant under the suitable growing conditions until the consumer-ready-to-be-consumed mature spinach plant in the closed container or the consumer-ready-to-be-consumed mature lettuce plant in the closed container is produced, whereby the consumer-ready-to-be-consumed mature spinach plant in the closed container or the consumer-ready-to-be-consumed mature lettuce plant in the closed container is produced (page 15, “growth…until the sprouts reach maturity”, page 17, “second phase…shelf-life of the mature product…” and “the sprouts reach market size”).
However, Samadpour is silent about wherein, said suitable conditions for growth to the consumer-ready-to-be-consumed mature spinach plant in the closed container or the consumer-ready-to-be-consumed mature lettuce plant in the closed container of the spinach or lettuce seed, the spinach or lettuce germinated seed, the spinach or lettuce seedling, or the small spinach or lettuce plant comprise suitable light intensity and color for optimal growth to the consumer-ready-to-be-consumed mature spinach plant in the closed container or the consumer-ready-to-be-consumed mature lettuce plant in the closed container; and wherein the seed for producing the consumer-ready-to-be-consumed mature spinach plant or the consumer-ready-to-be-consumed mature lettuce plant in steps a) i), ii), and iii) and c), is provided in the form of a seed mat or seed band.
Fok et al. teach a method for growing plant to maturity (paras. 0024,0111) under suitable conditions for growth to the consumer ready mature leafy vegetable plant of the leafy vegetable seed, the leafy vegetable germinated seed, the leafy vegetable seedling, or the small leafy vegetable plant (such as mature lettuces and mature spinach as mentioned throughout, for example, para. 0024,0033,0164, and all paragraphs under “Lighting System” discussion) comprise suitable light intensity (various paragraphs such as 0034) and color for optimal growth to the consumer ready mature leafy vegetable plant. It would have been obvious to one having ordinary skill in the art at the time the invention was made to include consideration of light intensity and color as taught by Fok et al. in the method of Samadpour in order to meet the requirement of plant growth need and enhance plant growth.
Smith teaches a seed mat comprising seeds for delivering the plants such as lettuce or herbs to supermarkets (see abstract). It would have been obvious to one having ordinary skill in the art at the time the invention was made to have the seed for producing the consumer-ready-to-be-consumed mature spinach plant or the consumer-ready-to-be-consumed mature lettuce plant in steps a) i), ii), and iii) and c) of Samadpour as modified by Fok et al. be provided in the form of a seed mat or seed band as taught by Smith in order to provide ease of handling and shipment of the seeds due to the seed mat or band being able to hold in the seeds for ease of handling.
For claim 3, Samadpour as modified by Fok et al. and Smith teaches the consumer-ready-to-be-consumed mature spinach plant or the consumer-ready-to-be-consumed mature lettuce plant of claim 1, wherein the method for producing the consumer-ready-to-be-consumed mature spinach plant or the consumer-ready-to-be-consumed mature lettuce plant further comprises:
b2) transferring the closed container containing the materials for producing the consumer-ready-to-be-consumed mature spinach plant in the closed container or the consumer-ready-to-be-consumed mature lettuce plant in the closed container to a place for growth of the spinach or lettuce seed, the germinated spinach or lettuce seed, the spinach or lettuce seedling, or the small spinach or lettuce plant under the suitable growing conditions (as stated throughout 61/548714 such as pages 6,13, “a holding area”, “in transit”, “store shelves”,etc.).
For claim 4, Samadpour as modified by Fok et al. and Smith teaches the consumer-ready-to-be-consumed mature spinach plant or the consumer-ready-to-be-consumed mature lettuce plant of claim 1, wherein said consumer-ready-to-be-consumed spinach plant or said consumer-ready-to-be-consumed lettuce plant is grown at a retail outlet or a regional facility of the retail outlet (various places in Samadpour such as page 6, “holding area of a manufacturing facility”, “store shelves”; page 12, “display on store shelves”).
For claim 5, Samadpour as modified by Fok et al. and Smith teaches the consumer-ready-to-be-consumed mature spinach plant or the consumer-ready-to-be-consumed mature lettuce plant of claim 1, but is silent about wherein the consumer-ready-to-be-consumed mature lettuce plant is baby leaf lettuce. It would have been obvious to one having ordinary skill in the art at the time the invention was made to grow baby leaf lettuce in the method of Samadpour as modified by Fok et al. and Smith, depending on the user’s preference to select the variety of lettuce to grow in the closed container, for such practice is well-known in the art so as to provide to the consumer fresh produce as it is growing.
For claim 6, Samadpour as modified by Fok et al. and Smith teaches the consumer-ready-to-be-consumed mature spinach plant or the consumer-ready-to-be-consumed mature lettuce plant of claim 1, but is silent about wherein the consumer-ready-to-be-consumed mature lettuce plant is leaf lettuce. It would have been obvious to one having ordinary skill in the art at the time the invention was made to grow leaf lettuce in the method of Samadpour as modified by Fok et al. and Smith, depending on the user’s preference to select the variety of lettuce to grow in the closed container, for such practice is well-known in the art so as to provide to the consumer fresh produce as it is growing.
For claim 7, Samadpour as modified by Fok et al. and Smith teaches the consumer-ready-to-be-consumed mature spinach plant or the consumer-ready-to-be-consumed mature lettuce plant of claim 1, but is silent about wherein the consumer-ready-to-be-consumed mature lettuce plant is head lettuce. It would have been obvious to one having ordinary skill in the art at the time the invention was made to grow head lettuce in the method of Samadpour as modified by Fok et al. and Smith, depending on the user’s preference to select the variety of lettuce to grow in the closed container, for such practice is well-known in the art so as to provide to the consumer fresh produce as it is growing.
Claim 2 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Samadpour as modified by Fok et al. and Smith as applied to claim 1 above, and further in view of Nathan (US 5438796 A).
For claim 2, Samadpour as modified by Fok et al. and Smith teaches the consumer-ready-to-be-consumed mature spinach plant or the consumer-ready-to-be-consumed mature lettuce plant of claim 1, but is silent about wherein the method for producing the consumer-ready-to-be-consumed mature spinach plant or the consumer-ready-to-be-consumed mature lettuce plant further comprises: b1) applying a label or wrap with information regarding the consumer-ready-to-be-consumed mature spinach plant in the closed container or the consumer-ready-to-be-consumed mature lettuce plant in the closed container to the container, said applying occurring either prior to or after sealing the container with the partially self-adhesive membrane.
Nathan teaches a method of attaching a label to a plant container comprising applying a label or wrap (20,24) with information regarding the consumer-ready-to-be-consumed mature spinach plant in the closed container or the consumer-ready-to-be-consumed mature lettuce plant in the closed container to the container, said applying occurring either prior to or after sealing the container with the partially self-adhesive membrane (labels 20,24 “may comprise a self-adhesive”). It would have been obvious to one having ordinary skill in the art at the time the invention was made to include a self-adhesive label with information regarding the consumer-ready product as taught by Nathan in the method of Samadpour as modified by Fok et al. and Smith, in order to provide information to the customer about the consumer-ready product being bought.
Response to Arguments
Applicant's arguments filed 7/13/2026 have been fully considered but they are not persuasive. Applicant argued the following:
While the Examiner references a passage on pages 17 ("second phase... shelf life of the mature product..." and "the sprouts reach market size") and page 19 ("small plants") in Samadpour as to disclosing maturity, these recitations are all still restricted to sprouts, which are not the claimed mature plants. Samadpour specifically states that "edible small plant forms include...alfalfa, clover, mung bean, radish, mustard, broccoli, flax, green peas, sunflower, corn, wheat, soybeans, and others," which does not include nor otherwise suggest the claimed mature spinach or mature lettuce plants with mature leaves (Samadpour at [0003]).
First, page 17 of Samadpour clearly stated (emphasis on the bold and underlined), “An important aspect of this invention is the concept of two-phase growth of the product: A first phase for germination and development of the sprouts to marketable size, which is accomplished, generally at warm temperatures conducive to plant growth, and, a second phase, in which the sprouts are subjected to different, usually colder, temperature, so that the shelf-life of the mature product may be improved.”
Second, in the plant growing world, “maturity” depends on what stage of growth of the plant is being referred to, thus, by merely stating “maturity” does not necessarily mean that the plant is fully developed. In the instant case, applicant stated in the invention that the spinach or lettuce is “ready-to-be-consumed mature leaf spinach or lettuce”, thus, the user can consume the spinach or lettuce at any stage that the spinach or lettuce forms enough leaves to be consumed. The customer is not just going to eat sprouts that are still growing because there is nothing to eat due to leaves not forming. This is exactly what Samadpour is stating on pages 15,17, & 19 because the sprouts are being grown in the container and reach maturity for the customer to purchase. Sprouts are still plants and as stated on page 18 of Samadpour, the lettuce plant is chosen as the sprouts to be grown to maturity, even if it is an inch tall because at this height, it is mature enough to be “ready-to-be-consumed mature leaf spinach or lettuce”. Furthermore, page 19 clearly states that the term “sprouts” also mean small plants. Thus, Samadpour does teach producing a plant and not just sprouts.
Third, while applicant argues about Samadpour not teaching “mature” plant, applicant’s invention is the same because baby lettuce is not fully “mature” lettuce. Similar to applicant, the examiner searched on the Internet and baby leaf lettuce is defined as “immature leaves of lettuces”, thus, applicant’s argument against Samadpour appears to be contradictive because applicant is claiming an immature lettuce. The claimed limitation stated, “mature leaf lettuce, head lettuce or baby lettuce”, which the only “mature” pertains to the leaf lettuce and NOT the baby lettuce because of the “or”. Thus, again, applicant is not claiming fully mature leaf lettuce as argued, and Samadpour does teach at least baby lettuce, for these are microgreens or lettuces that are about an inch tall as stated on page 18 of Samadpour.
Lastly, while applicant uses the word “mature”, nowhere in applicant’s specification does it specify that the plant has to be fully mature leaf spinach or mature lettuce, especially when applicant claimed “baby lettuce” because baby lettuce is certainly NOT mature lettuce. In addition, para. 0010 of applicant’s specification stated that applicant is also growing sprouts in the method. Thus, the method as claimed can be applied to sprouts and not limited to fully spinach or lettuce. This paragraph clearly demonstrates that the level of maturity of the plant does not have to be fully grown and that sprouts can be consumed when they have enough leaves formation such as an inch or so, which is considered as microgreens or mesclun. Again, Samadpour teaches the same.
As an initial matter, growing a plant to maturity beyond the size of a small plant that is sized 1 inch is not taught, disclosed or hinted at in Samadpour. Fok relates to a hydroponics-like warehouse growing system which does not involve any kind of sterile or closed container.
1 inch in the microgreens world is considered a mature microgreen. Regardless, Samadpour clearly stated “the shelf-life of the mature product” as stated in the above comment; thus, Samadpour does teach a mature spinach or lettuce.
As for Fok, Fok was not relied on for sterile or closed container; thus, applicant’s argument is mooted. Please see the above rejection for what Fok was relied on for.
Firstly, application of Fok to Samadpour would contradict market mature size and definition of Samadpour's spouts.
It is unclear how relying on Fok for consideration of light intensity and color has anything to provide a contradiction of market mature size and definition of Samadpour’s sprouts? If anything, relying on light intensity and color would improve market value for Samadpour’s sprouts, and not the opposite because all plants need light to grow, and improving color of the plant would entice the consumer to buy the product. Thus, applicant’s argument is not persuasive.
Second, the Office Action fails to acknowledge that Fok does not grow plants in sterile individual boxes, so any growth conditions disclosed therein for leafy vegetables are not suitable to reasonably arrive at the claimed invention, which relates to covered boxes and therefore requires different light and air circulation requirements than those disclosed in Fok.
Fok was not relied on for sterile boxes, thus, applicant’s argument is mooted. Providing light intensity and color for the plants are nothing new in the art of growing plants; thus, Fok was relied on for these “required” factors for growing plants so it would not hinder the method in Samadpour whatsoever. The only reason Fok was relied on for these factors is because Samadpour did not mentioned them, and it is probably because these factors are so well-known in the plant growing world that it would be unnecessary to even described in detail about general provision of providing light intensity and color, which is broadly claimed as such by applicant.
Regarding claim 2, the Office relies on the combination of Samadpour in view of Fok et al., further in view of Nathan, which relates to the addition of the label to a container. The combination of Samadpour in view of Fok et al. does not teach or suggest the growing of mature leaf spinach or mature lettuce in a box, and therefore the addition Nathan does not cure the deficiencies of Samadpour and Fok. The claims are inventive over Samadpour in view of Fok further in view of Nathan.
Since applicant did not argue in detail regarding Nathan, the examiner’s response is the same as above.
The seed mat as recited in amended claim 1 provides additional beneficial technical effects not taught or suggested by Smith: (1) the seed mat allows for the fixation of seeds on the correct optimal distance from each other during growth and is especially practical when sowing mixes of vegetables and herbs in the container, providing further optimized growth conditions; (2) the seed mat also allows for the retailer to perform the sowing and determining the correct distance on the seed mat before placing the mat in the container rather than when the mat is already in the container, which helps to prevent contamination of the box before sealing; and (3) the seed mat may also be disinfected far more easily than potting soil or other substrates, making the seed mat or seed band a preferable choice to alternative substrates in a sterile environment. The aforementioned benefits facilitate providing the seeds with everything the seeds needs in sterile form before closing the box so contamination during growth is prevented and exemplify a synergistic effect is not taught or suggested by Samadpour in view of Fok and further in view of Smith. The claims are therefore inventive over Samadpour in view of Fok further in view of Smith.
Smith teaches a seed mat, thus, numbers (1), (2), and (3) as argued by applicant are performed by the seed mat. In addition, numbers (1), (2), and (3) are not claimed in the claim. Furthermore, using a seed mat as taught by Smith is nothing new in the art and is notoriously well-known in the art; thus, using the seed mat of Smith in the method of Samadpour does not make the method inoperable because, if anything, it would improve the method due to the seed mat holding the seeds therein from being damage or falling out or more organized or the like.
Conclusion
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 SON T NGUYEN whose telephone number is (571)272-6889. The examiner can normally be reached 9:00 to 4:00.
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/Son T Nguyen/Primary Examiner, Art Unit 3643
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