DETAILED ACTION
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office 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 .
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.
Response to Amendment
The amendment filed 11/26/2025 has been entered. Claims 1-14 and 16-17 remain pending. Claim 15 remains canceled. Claims 1 and 13 are amended. Claims 16-17 are newly added.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “a device adapted for generating microwave radiation” in claim 1.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. In this case, “the device comprises a magnetron, a solid- state microwave generator or a Radio Frequency (RF) generator” from Para. [0026] of Applicant’s Specification.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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) 1-14 and 16-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Clark et al. (US 2003/0215354 A1) in view of Barel et al. (WO2021152594A1) and Li et al. (CN 102487930 A).
Regarding claim 1, Clark teaches a method for reducing a population of invasive alien plants, pests, weeds and/or grass located in frozen soil (“According to another aspect of the present invention, a method is provided for removing pests from soil to a specified depth, in situ.”, Para. [0013]), wherein the method comprising:
a. providing a device adapted for generating microwave radiation (Figs. 1-2, “treatment device” 10; “FIGS. 1 and 2 illustrate side and front views, respectively, of a treatment device 10 according to one embodiment. Treatment device 10, as shown includes an array of twenty microwave frequency electromagnetic radiation element 15 arranged in five rows of four each row.”, Para. [0025]); and
b. irradiating frozen soil comprising invasive alien plants, pests, weeds and/or grass (“The method typically includes exposing an area of soil to a sufficient energy flux, within a sufficiently short exposure time, of microwave frequency electromagnetic radiation at a frequency tuned to sufficiently damage all nucleic sequence information and biomacromolecules having information content Such that substantially all organisms are rendered non-viable in the area to the specified depth.”, Para. [0013]); wherein the method does not thaw the soil (Implicitly disclosed as the method of Clark discloses that heat based treatments are undesirable, see Paras. [0007]-[0009]; further discloses that any heat is quickly dissipated and the soil is left undisturbed: “Other advantages of the present invention include the absence of toxic residue or after-effects of the treatment other than quickly dissipated dry heating of the soil. Hence, no ground water or soil contamination, or chemical odors are possible using the present invention. … As an additional advantage, the soil preferably is not tilled prior to treatment, avoiding undesirable mixing of the topsoil with underlying strata and reducing costs from repetitive working of the soil.”, Para. [0023]; lastly, discloses that one may target molecules other than water: “With sufficient energy flux as described herein such frequencies will easily break or destroy the single C-C bonds. Such frequencies also advantageously microfracture soil elements and assist with soil ionization and release of greenhouse gases. The source(s) may be tuned to other frequencies to target other chemical bonds and structures as desired. For example, a source can be tuned to about 2.45 GHz to interact with water molecules (e.g., heat), or a source can be tuned or configured to generate a frequency capable of interacting with higher level carbon bonds, e.g., triple carbon bond at 2800 GHz. Additionally, sources in an array of sources may be tuned to different frequencies.”, Para. [0021]), and the microwave radiation is in the range from about 915 MHz to about 24 GHz (“A metal cover on the array can be used to help redirect energy into the ground. The frequency of microwave radiation employed in the device is in a range appropriate for sterilization of the soil to which it is delivered. Thus the microwave frequency electromagnetic radiation is preferably at a frequency between about 2.4 GHz to about 2.6 GHz, more preferably between about 2.45 GHz to 2.55 GHz, and even more preferably at a frequency between about 2.48 GHz to 2.52 GHz.”, Para. [0025]).
Clark is silent on the temperature of the soil before carrying out the method using the device.
However, in an analogous soil disinfecting art, Barel teaches wherein temperature of the frozen soil is below 0°C (“Outdoor soil temperature can vary between about -20 C and about 50 C”, p. 21, lines 5-6).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the method of Clark wherein temperature of the frozen soil is below 0°C, as taught by Barel, with a reasonable expectation for success, such that the device may be used on typical outdoor soil temperatures including temperatures below 0°C.
Clark as modified by Barel does not expressly disclose wherein the method prevents destruction of beneficial bacteria in the soil.
However, in an analogous crop microwave treatment art, Li (“This invention relates to agricultural pest control method, which is a kind of crop whole growth microwave method for killing root-knot nematode”, Para. [0001]) teaches wherein the method prevents destruction of beneficial bacteria in the soil (“by the upper table it can be seen that the total irradiation time 4 min to achieve complete killing root-knot nematode desired total irradiation time 3 min long by 33%, at this time, the temperature is 63 degrees centigrade. According to the method for killing root-knot nematode after irradiation temperature is generally about 48 degrees centigrade, at this time, the beneficial microorganisms in the soil will not generate bad effect. when the temperature reaches 63 degrees centigrade the killing rate of soil beneficial microorganism is also only 4%.”, Para. [0030]; note, Paras. [0027]-[0028] discusses “microbial community detecting method” disclosing “microorganisms” include culturing for beneficial bacteria and fungus).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the method of Clark as modified by Barel wherein the method prevents destruction of beneficial bacteria in the soil, as taught by Li, with a reasonable expectation for success, “to provide a desired soil microbial balance by inoculating the area of treated soil with one or more microbes to produce an inoculated area of treated soil”, as discussed by Clark, Para. [0011].
Regarding claim 2, Clark as modified by Barel and Li teaches the method according to claim 1. Further, Clark teaches wherein the device comprises a magnetron (Fig. 3, “magnetron”, 25), a solid-state microwave generator or a Radio Frequency (RF) generator (“FIG. 3 illustrates a schematic of a microwave frequency electromagnetic radiation element 15 according to one embodiment. Microwave frequency electromagnetic radiation element 15 is coupled via a high voltage relay to a high voltage power source 40, such as a gas powered generator, including a transformer and full wave bridge as is well known. Radiation element 15 includes a magnetron 25 designed and tuned to emit microwave radiation of a desired frequency, or frequency range.”, Para. [0026]).
Regarding claim 3, Clark as modified by Barel and Li teaches the method according to claim 2. Further, Clark teaches wherein the device comprises a magnetron (Fig. 3, “magnetron”, 25; “FIG. 3 illustrates a schematic of a microwave frequency electromagnetic radiation element 15 according to one embodiment. Microwave frequency electromagnetic radiation element 15 is coupled via a high voltage relay to a high voltage power source 40, such as a gas powered generator, including a transformer and full wave bridge as is well known. Radiation element 15 includes a magnetron 25 designed and tuned to emit microwave radiation of a desired frequency, or frequency range.”, Para. [0026]).
Regarding claim 4, Clark as modified by Barel and Li teaches the method according to claim 1. Further, Clark teaches wherein the method reduces the invasive alien plants, pests, weeds and/or grass by at least about 30% (“substantially all biological material, including eukaryotic, prokaryotic and viral microbes, weeds, undesirable seeds, fungal spores, nematodes, and even insects are killed with a single treatment.”, Para. [0022]; note, “substantially all” is at least 30%).
Regarding claim 5, Clark as modified by Barel and Li teaches the method according to claim 1. Further, Clark teaches wherein the effect generated by the device is from about 1 kW to about 300 kW (“The scale of the device may be relatively small, for example utilizing a single 30 kW element as a microwave source”, Para. [0024]).
Regarding claim 6, Clark as modified by Barel and Li teaches the method according to claim 1. Further, Clark teaches wherein the pests are selected from invasive alien plants, fungus, fungal spores, nematodes, nematode eggs, and any combination thereof (“substantially all biological material, including eukaryotic, prokaryotic and viral microbes, weeds, undesirable seeds, fungal spores, nematodes, and even insects are killed with a single treatment.”, Para. [0022]).
Regarding claim 7, Clark as modified by Barel and Li teaches the method according to claim 1. Further, Clark teaches wherein weeds comprises weed seeds and weed roots and wherein invasive alien plants comprises seeds and roots of the plant (“substantially all biological material, including eukaryotic, prokaryotic and viral microbes, weeds, undesirable seeds, fungal spores, nematodes, and even insects are killed with a single treatment.”, Para. [0022]; note, “weeds” and “undesirable seeds” would include both undesirable native and invasive plants).
Regarding claim 8, Clark as modified by Barel and Li teaches the method according to claim 1. Further, Clark teaches wherein the microwave irradiation penetrates at least 10 cm into the ground (“The depth of soil sterilization depends at least in part upon the specific desired outcome of treatment of the soil. When the purpose primarily is to remove pests such as seeds for weeds and other undesirable plants, then generally the specified soil depth for sterilization is at least about 0.50 feet, preferably about at least 0.5 to 1.5 feet.”, Para. [0033]; note, 0.5 - 1.5 ft = 15.24 - 45.72 cm).
Regarding claim 9, Clark as modified by Barel and Li teaches the method according to claim 1. Further, Clark teaches wherein the device is moved over the soil at a speed of from about 20 meter/hour to about 20 km/hour (“This flux could be provided over a large area, for example, after remaining stationary for 1.9 seconds, by traveling at about 6.5 ft/s, or about 4.4 miles per hour”, Para. [0035]; note, 4.4 mph = 7.08 km/h).
Regarding claim 10, Clark as modified by Barel and Li teaches the method according to claim 9. Further, Clark teaches wherein an effect generated by the device is varied depending on the speed of the device (Implicitly disclosed as an inherent effect: “The device used therefore should deliver a soil surface radiation power flux of between at least about 1800 watts per square foot (W/ft.sup.2) and preferably at least about 3600 watts per square foot to a specified location for an adequate time to yield a soil surface radiation energy flux of between at least about 9000 joules per square foot, and preferably about 18,000 joules per square foot. For various soils, surface radiation energy flux magnitudes of at least about 1800 joules per square foot (J/ft.sup.2) to a soil surface radiation energy flux of at least about 18,000 joules per square foot may be obtained in between (e.g., the adequate time to yield a radiation energy flux of at least about 9000 joules per square foot,) about 0.5 seconds and about 5 seconds, preferably between about 1.5 seconds and about 3 seconds, more preferably between about 2 seconds and about 2.5 seconds. It should be noted that in actual practice these values may be increased or decreased depending on the soil moisture, chemistry, density, target depth of control, organic molecule target and other parameters specific to the treatment site. It should be further noted that as the power flux is increased (e.g., to about 4000 watts per square foot or more) the total energy input is decreased because the target molecules are more rapidly overloaded with energy and have significantly less time to dissipate the energy before destruction…For example, returning to FIGS. 1 and 2, for a 10 foot by 12.5 foot array source with twenty 30 kW elements delivery of a surface energy flux of 9000 joules/ft.sup.2 at surface power flux of 4800 watts/ft.sup.2 can be achieved with an exposure or dwell time of about 1.9 seconds. This flux could be provided over a large area, for example, after remaining stationary for 1.9 seconds, by traveling at about 6.5 ft/s, or about 4.4 miles per hour.”, Paras. [0033]-[0035]; therefore, the effect inherently varies depending on the time of the radiation energy flux to the soil).
Regarding claim 11, Clark as modified by Barel and Li teaches a microwave generating device adapted for use in the method according to claim 1 (see claim 1 rejection above). Further, Clark teaches wherein the device generates microwave radiation in the range from about 915 MHz to about 24 GHz (“A metal cover on the array can be used to help redirect energy into the ground. The frequency of microwave radiation employed in the device is in a range appropriate for sterilization of the soil to which it is delivered. Thus the microwave frequency electromagnetic radiation is preferably at a frequency between about 2.4 GHz to about 2.6 GHz, more preferably between about 2.45 GHz to 2.55 GHz, and even more preferably at a frequency between about 2.48 GHz to 2.52 GHz.”, Para. [0025]).
Regarding claim 12, Clark as modified by Barel and Li teaches the device according to claim 11. Further, Clark teaches wherein the device comprises a magnetron (Fig. 3, “magnetron”, 25), a solid-state microwave generator or a Radio Frequency (RF) generator (“FIG. 3 illustrates a schematic of a microwave frequency electromagnetic radiation element 15 according to one embodiment. Microwave frequency electromagnetic radiation element 15 is coupled via a high voltage relay to a high voltage power source 40, such as a gas powered generator, including a transformer and full wave bridge as is well known. Radiation element 15 includes a magnetron 25 designed and tuned to emit microwave radiation of a desired frequency, or frequency range.”, Para. [0026]).
Regarding claim 13, Clark as modified by Barel and Li teaches the device according to claim 11. Clark is silent on wherein components of the device are able to operate at air temperatures below 0°C.
However, Barel further teaches wherein components of the device are able to operate at air temperatures below 0°C (“Outdoor soil temperature can vary between about -20 C and about 50 C”, p. 21, lines 5-6; therefore, implicitly disclosing that the outdoor ground and air above it may typically be below 0°C).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the method of Clark wherein components of the device are able to operate at air temperatures below 0°C, as further taught by Barel, with a reasonable expectation for success, such that the device may be used on typical outdoor soil temperatures including temperatures below 0°C.
Regarding claim 14, Clark as modified by Barel and Li teaches a system adapted for use in the method according to claim 1 (see claim 1 rejection above). Further, Clark teaches wherein the system comprises at least one microwave generating device (Figs. 1-2, “treatment device” 10; “FIGS. 1 and 2 illustrate side and front views, respectively, of a treatment device 10 according to one embodiment. Treatment device 10, as shown includes an array of twenty microwave frequency electromagnetic radiation element 15 arranged in five rows of four each row.”, Para. [0025]), wherein the device generates microwave radiation in the range from about 915 MHz to about 24 GHz (“A metal cover on the array can be used to help redirect energy into the ground. The frequency of microwave radiation employed in the device is in a range appropriate for sterilization of the soil to which it is delivered. Thus the microwave frequency electromagnetic radiation is preferably at a frequency between about 2.4 GHz to about 2.6 GHz, more preferably between about 2.45 GHz to 2.55 GHz, and even more preferably at a frequency between about 2.48 GHz to 2.52 GHz.”, Para. [0025]).
Regarding claim 16, Clark as modified by Barel and Li teaches the method according to claim 1. Further, Clark teaches wherein the microwave radiation is in the range from about 1 Ghz to about 10 Ghz (“A metal cover on the array can be used to help redirect energy into the ground. The frequency of microwave radiation employed in the device is in a range appropriate for sterilization of the soil to which it is delivered. Thus the microwave frequency electromagnetic radiation is preferably at a frequency between about 2.4 GHz to about 2.6 GHz, more preferably between about 2.45 GHz to 2.55 GHz, and even more preferably at a frequency between about 2.48 GHz to 2.52 GHz.”, Para. [0025]).
Regarding claim 17, Clark as modified by Barel teaches the device according to claim 13. Further, Barel teaches wherein components of the device are able to operate at air temperatures from about 0°C to about -25°C (“Outdoor soil temperature can vary between about -20 C and about 50 C”, p. 21, lines 5-6; therefore, implicitly disclosing that the outdoor ground and air above it may typically be below 0°C, to about -20 C).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the method of Clark wherein components of the device are able to operate at air temperatures from about 0°C to about -25°C, as further taught by Barel, with a reasonable expectation for success, such that the device may be used on typical outdoor soil temperatures including temperatures below 0°C.
Response to Arguments
Applicant’s arguments with respect to amended claim(s) 1 has been considered but are moot because the new ground of rejection relies upon Li et al. (CN 102487930 A) for the amended limitations of the claims.
Conclusion
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/S.J.S./Examiner, Art Unit 3647
/KIMBERLY S BERONA/Supervisory Patent Examiner, Art Unit 3647