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 .
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-12 and 17-20 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 8, 9, 11-13, and 17-22 of U.S. Patent No. 11,960,049. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-12 and 17-20 are anticipated by claims 8, 9, 11-13, and 17-22 of the ‘049 patent as follows:
Claim 1 is anticipated by claim 11 of the ‘049 patent.
Claim 2 is anticipated by claim 11 of the ‘049 patent.
Claim 3 is anticipated by claim 12(11) of the ‘049 patent.
Claim 4 is anticipated by claim 13(12,11) of the ‘049 patent.
Claim 5 is anticipated by claim 15(11) of the ‘049 patent.
Claim 6 is anticipated by claim 16(15,11) of the ‘049 patent.
Claim 7 is anticipated by claim 17(15,11) of the ‘049 patent.
Claim 8 is anticipated by claim 18(17,15,11) of the ‘049 patent.
Claim 9 is anticipated by claim 19(11) of the ‘049 patent.
Claim 10 is anticipated by claim 20(19,11) of the ‘049 patent.
Claim 11 is anticipated by claim 21(20,19,11) of the ‘049 patent.
Claim 12 is anticipated by claim 22(21,20,19,11) of the ‘049 patent.
Claim 20 is anticipated by claim 11 of the ‘049 patent.
Claim 17 is anticipated by claim 8(1) of the ‘049 patent.
Claim 18 is anticipated by claim 8(1) of the ‘049 patent.
Claim 19 is anticipated by claim 9(8,1) of the ‘049 patent.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Specifically, representative Claim 1 recites:
A system configured to provide output indicative of crop spraying conditions in an agricultural region, the system including:
an input configured to receive data from at least one monitoring physical tower, wherein the physical tower extends from ground level in the agricultural region, wherein the tower includes one or more anemometers configured to measure respective wind speeds at one or more predetermined heights above the ground level (Note the monitoring physical tower and its sensors are not a positively recited elements of the claimed system and therefore does not carry patentable weight. This applies for claims 13 and 17 as well);
a processor which is configured to process periodic values of respective wind speeds at the one or more predetermined heights above the ground level, thereby to derive a real-time measure representative of a local vertical turbulence characteristic for the location of the monitoring tower, wherein the real-time measure representative of a local vertical turbulence characteristic for the location of the monitoring tower is based on a standard deviation of vertical wind speed; and
an output device which is configured to provide the output indicative of crop spraying conditions based on a comparison between: (i) the real-time measure representative of the local vertical turbulence characteristic; and (ii) one or more predetermined threshold values.
The claim limitations in the abstract idea have been highlighted in bold above; the remaining limitations are “additional elements”.
Under the Step 1 of the eligibility analysis, we determine whether the claims are to a statutory category by considering whether the claimed subject matter falls within the four statutory categories of patentable subject matter identified by 35 U.S.C. 101: Process, machine, manufacture, or composition of matter. The above claim is considered to be in a statutory category (machine).
Under the Step 2A, Prong One, we consider whether the claim recites a judicial exception (abstract idea). In the above claim, the highlighted portion constitutes an abstract idea because, under a broadest reasonable interpretation, it recites limitations that fall into/recite an abstract idea exceptions. Specifically, under the 2019 Revised Patent Subject matter Eligibility Guidance, it falls into the grouping of subject matter when recited as such in a claim limitation, that covers mathematical concepts (mathematical relationships, mathematical formulas or equations, mathematical calculations) and mental processes – concepts performed in the human mind including an observation, evaluation, judgement, and/or opinion.
For example, the step of “process periodic values of respective wind speeds at the one or more predetermined heights above the ground level, thereby to derive a real-time measure representative of a local vertical turbulence characteristic for the location of the monitoring tower, wherein the real-time measure representative of a local vertical turbulence characteristic for the location of the monitoring tower is based on a standard deviation of vertical wind speed (deriving standard deviation of data)” is treated by the Examiner as belonging to mathematical concept grouping, while the step of “provide the output indicative of crop spraying conditions based on a comparison between: (i) the real-time measure representative of the local vertical turbulence characteristic; and (ii) one or more predetermined threshold values (comparing values and sharing findings)” is treated as belonging to mental process grouping.
Similar limitations comprise the abstract ideas of Claims 13 and 17.
Next, under the Step 2A, Prong Two, we consider whether the claim that recites a judicial exception is integrated into a practical application.
In this step, we evaluate whether the claim recites additional elements that integrate the exception into a practical application of that exception.
The above claims comprise the following additional elements:
Claim 1: A system configured to provide output indicative of crop spraying conditions in an agricultural region, the system including: an input configured to receive data from at least one monitoring physical tower, wherein the physical tower extends from ground level in the agricultural region, wherein the tower includes one or more anemometers configured to measure respective wind speeds at one or more predetermined heights above the ground level; a processor; and an output;
Claim 13: A method of determining local atmospheric stability conditions, the method comprising: receiving local meteorological observation data from one or more sensors at a location, wherein the receiving local meteorological observation data includes from at least one monitoring physical tower, wherein the physical tower extends from ground level in the agricultural region, wherein the tower includes one or more anemometers configured to measure respective wind speeds at one or more predetermined heights above the ground level;
Claim 17: A computer implemented method of forecasting local atmospheric conditions at a location of interest.
The additional element in the preamble of “A system configured to provide output indicative of crop spraying conditions in an agricultural region/A method of determining local atmospheric stability conditions/A computer implemented method of forecasting local atmospheric conditions at a location of interest” is not qualified for a meaningful limitation because it only generally links the use of the judicial exception to a particular technological environment or field of use. To receive data from at least one monitoring physical tower, wherein the physical tower extends from ground level in the agricultural region, wherein the tower includes one or more anemometers configured to measure respective wind speeds at one or more predetermined heights above the ground level represents a mere data gathering step and only adds an insignificant extra-solution activity to the judicial exception. A computer or processor, input, and output (generic processor) are generally recited and are not qualified as particular machines.
In conclusion, the above additional elements, considered individually and in combination with the other claim elements do not reflect an improvement to other technology or technical field, and, therefore, do not integrate the judicial exception into a practical application. Therefore, the claims are directed to a judicial exception and require further analysis under the Step 2B.
However, as discussed in the previous office action, the above claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception (Step 2B analysis).
The claims, therefore, are not patent eligible.
With regards to the dependent claims, claims 2-12, 14-16, and 18-20 provide additional features/steps which are part of an expanded algorithm, so these limitations should be considered part of an expanded abstract idea of the independent claims.
Conclusion
The Examiner notes that there are currently no prior art rejections for claims 1-20.
Anderson et al. (US 20190246579 A1), hereinafter “Anderson”, is considered by the Examiner to be the closest prior art of record.
Regarding Claim 1, Anderson, considered analogous art teaches an alert indicative of spraying conditions in an agricultural region based on temperature inversion conditions by measuring temperature at different heights above ground. The instant application is directed toward indicating spraying conditions; however, the claimed invention measures vertical turbulence by measuring and comparing wind speeds at different heights above ground.
Therefore, Anderson does not fairly teach or suggest a system configured to provide output indicative of crop spraying conditions in an agricultural region, the system including:
an input configured to receive data from at least one monitoring physical tower, wherein the physical tower extends from ground level in the agricultural region, wherein the tower includes one or more anemometers configured to measure respective wind speeds at one or more predetermined heights above the ground level;
a processor which is configured to process periodic values of respective wind speeds at the one or more predetermined heights above the ground level, thereby to derive a real-time measure representative of a local vertical turbulence characteristic for the location of the monitoring tower, wherein the real-time measure representative of a local vertical turbulence characteristic for the location of the monitoring tower is based on a standard deviation of vertical wind speed; and
an output device which is configured to provide the output indicative of crop spraying conditions based on a comparison between:
(i) the real-time measure representative of the local vertical turbulence characteristic; and
(ii) one or more predetermined threshold values.
Claims 13 and 17 are analogous to claim 1, and are therefore not rejected under 35 U.S.C. 102/103 for similar reasoning.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTIAN T BRYANT whose telephone number is (571)272-4194. The examiner can normally be reached Monday-Thursday and Alternate Fridays 7:00-4:30.
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/CHRISTIAN T BRYANT/Examiner, Art Unit 2863