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
Claim 7 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 6/29/2026.
Claim Objections
Claims 1, 3 and 6 are objected to because of the following informalities:
Regarding claim 1, in line 11 insert “the” before “sensor control comprising”.
Regarding claim 3, insert “ppm” after “substantially 0” to place the claim in better form.
Regarding claim 6, in line 2 insert “a” before “number”.
In line 3, insert “the” before “crop store”.
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 1-6 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.
Regarding claim 1, in line 5 the limitation “including repeating” renders the claim indefinite since it is unclear exactly which step(s) of the “pump control” is/are repeated. It is unclear if the “repeating” requires repeating any one of the “applying,” “waiting,” or “increasing” steps, any two of said steps, or all of said steps. Since the language of the claim is ambiguous, it is unclear if the “next dosage” is actually required to be applied.
Regarding claim 5, the limitation “a ramped or stepped concentration” renders the claim indefinite since it is unclear what the difference is between the terms “ramped” and “stepped.” The specification does not provide clarifying detail regarding feature(s) that distinguish the two terms and instead appears to suggest the terms are interchangeable i.e., “a ramped / stepped continual application of ethylene” (page 3 lines 28-29). Thus, it is unclear if the claim recites two separate and distinct processes for ethylene concentration during “sensor control” or a single process that is described by the limitation “ramped or stepped.”
Regarding claim 6, the limitation “one or more parameters selected from a set including” renders the claim indefinite. The limitation “selected from” suggests a Markush claim, see MPEP 2117 I. However, the limitation “a set including” is ambiguous as to whether the recited alternatives are selected from a closed group. MPEP 2173.05 (h) I. recites a “Markush grouping is a closed group of alternatives, i.e., the selection is made from a group "consisting of" (rather than "comprising" or "including") the alternative members” and a “Markush grouping requires a material selected from an open list of alternatives (e.g., selected from the group "comprising" or "consisting essentially of" the recited alternatives), the claim should generally be rejected under 35 U.S.C. 112(b) as indefinite because it is unclear what other alternatives are intended to be encompassed by the claim.” The rejection may be overcome by amending “a set including” to instead recite “a group consisting of” such that the alternatives are selected from a closed group.
In lines 2-3, the limitation “peak output of ethylene” renders the claim indefinite since it is unclear how the limitation “peak output” should be interpreted. It is unclear if the “peak” refers to cumulative dosage over the duration of pump control, maximum acclimatization dosage value use during said pump control, or some other feature. The specification does not provide clarifying detail regarding how to interpret the limitation “peak output.”
Claims 2-4 are rejected by virtue of their dependence on a rejected base claim.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1 and 3-6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Colgan et al. “Reducing energy usage and wastage by improving ethylene control of potato sprouting,” hereon referred to as “Colgan”.
Regarding claim 1, Colgan teaches method for providing an ethylene environment in a crop store (page 6 section 1) comprising monitoring ethylene concentration in the crop store (page 15 section 3.1; page 17 section 3.5; page 18 section 3.6.2; page 66 section 4.7 and figure 4.30), ramping ethylene concentration over a duration to attain and maintain a constant 10 ppm in the crop store (page 19 section 3.7), setting an ethylene acclimatization dosage to an initial value, performing pump control including repeating steps of applying an ethylene dosage to the crop store according to the acclimatization dosage, waiting for a predetermined period, and increasing the acclimatization dosage value for a next dosage (page 66 section 4.7 and figure 4.30), upon the monitoring detecting an ethylene concentration for a qualification period changing to sensor control, using an ethylene management unit, comprising monitoring ethylene concentration in the crop store and upon the ethylene concentration falling below a predetermined threshold, triggering addition of ethylene to the crop store and maintaining the desired 10 ppm concentration (page 19 section 3.7).
It is noted the “pump control” process does not positively recite the presence of a pump device per se, and therefore the manual adding of ethylene during the ramping phase is construed to read on the claimed features. Further, the limitations of “waiting for a predetermined period” and “a qualification period” are not particularly limited. Therefore, any period of time reads on said periods.
Regarding claim 3, Colgan teaches ethylene concentration in the crop store is substantially 0 ppm by the end of predetermined time periods 1-5 (page 66 figure 4.30 “CER25 6oC”).
Regarding claim 4, the pump control includes metering dosage from an ethylene dispensing system such as an air-line that doses the ethylene according to the acclimatization dosage (page 18 section 3.6.2).
Regarding claim 5, Colgan teaches addition of ethylene into the crop store over a number of repeated cycles (days), where the concentration increases in a ramping manner after day 5 (page 66 figure 4.30 “CER25 6oC”).
Since claim 1 recites switching to sensor control simply based monitored ethylene concentration for “a qualification period”, where said period is not particularly limited, said period is arbitrarily selected to be 5 days. Therefore, the ramping concentration starting at day 6 shown by Colgan “CER25 6oC” is construed to read on the claim.
Regarding claim 6, the pump control necessarily “operates in dependence on” a “number of repetitions to be performed” since said pump control is performed for a set number of repetitions (page 66 figure 4.30).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Colgan as applied to claim 1 above.
Regarding claim 2, Colgan does not teach the initial value of the ethylene dosage is 0.001-0.099 ppm. However, the reference teaches supplying ethylene at 10 µL/L (page 18 section 3.6.2), and that ethylene has varying effects on sprout inhibition according to the type of potato being treated (page 64 section 4.6.4).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the initial value of the ethylene dosage to the claimed range since there is no evidence of record indicating criticality or unexpected results, and since the values would have been used during routine experimentation and optimization procedures due to factors such as the particular type of crop being treated and degree of sprout suppression.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRYAN KIM whose telephone number is (571)270-0338. The examiner can normally be reached 9:30-6.
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/BRYAN KIM/Examiner, Art Unit 1792
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