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).
For claim 1, Samadpour teaches a consumer-ready-to-be-consumed spinach plant in a closed container that the consumer-ready-to-be-consumed spinach plant was grown in, or a consumer-ready-to-be-consumed 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 lettuce plant was grown in, said consumer-ready-to-be-consumed spinach plant in the closed container or said consumer-ready-to-be-consumed 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 spinach plant in the closed container or the consumer-ready-to-be-consumed 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 spinach plant in the closed container or the consumer-ready-to-be-consumed 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 spinach plant in the closed container or the consumer-ready-to-be-consumed 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 spinach plant in the closed container or the consumer-ready-to-be-consumed 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 spinach plant in the closed container or the consumer-ready-to-be-consumed lettuce plant in the closed container is produced, whereby the consumer-ready-to-be-consumed spinach plant in the closed container or the consumer-ready-to-be-consumed 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 spinach plant in the closed container or the consumer-ready-to-be-consumed 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 spinach plant in the closed container or the consumer-ready-to-be-consumed lettuce plant in the closed container.
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.
For claim 3, Samadpour as modified by Fok et al. teaches the consumer-ready-to-be-consumed spinach plant or the consumer-ready-to-be-consumed lettuce plant of claim 1, wherein the method for producing the consumer-ready-to-be-consumed spinach plant or the consumer-ready-to-be-consumed lettuce plant further comprises:
b2) transferring the closed container containing the materials for producing the consumer-ready-to-be-consumed spinach plant in the closed container or the consumer-ready-to-be-consumed 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. teaches the consumer-ready-to-be-consumed spinach plant or the consumer-ready-to-be-consumed 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. teaches the consumer-ready-to-be-consumed spinach plant or the consumer-ready-to-be-consumed lettuce plant of claim 1, but is silent about wherein the consumer-ready-to-be-consumed 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., 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. teaches the consumer-ready-to-be-consumed spinach plant or the consumer-ready-to-be-consumed lettuce plant of claim 1, but is silent about wherein the consumer-ready-to-be-consumed 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., 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. teaches the consumer-ready-to-be-consumed spinach plant or the consumer-ready-to-be-consumed lettuce plant of claim 1, but is silent about wherein the consumer-ready-to-be-consumed 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., 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. 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. teaches the consumer-ready-to-be-consumed spinach plant or the consumer-ready-to-be-consumed lettuce plant of claim 1, but is silent about wherein the method for producing the consumer-ready-to-be-consumed spinach plant or the consumer-ready-to-be-consumed lettuce plant further comprises: b1) applying a label or wrap with information regarding the consumer-ready-to-be-consumed spinach plant in the closed container or the consumer-ready-to-be-consumed 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 spinach plant in the closed container or the consumer-ready-to-be-consumed 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., in order to provide information to the customer about the consumer-ready product being bought.
Claim 8 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Samadpour as modified by Fok et al. as applied to claim 1 above, and further in view of Smith (US 20060207170 A1).
For claim 8, Samadpour as modified by Fok et al. teaches the consumer-ready-to-be-consumed spinach plant or the consumer-ready-to-be-consumed lettuce plant of claim 1, but is silent about wherein the seed for producing the consumer-ready-to-be-consumed spinach plant or the consumer-ready-to-be-consumed lettuce plant in steps a) i), ii), and iii) and c), is provided in the form of a seed mat or seed band.
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 spinach plant or the consumer-ready-to-be-consumed 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.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure is the same as in the parent case 13/792022, for the claimed subject matters are similar.
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