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 .
Claim Objections
Claims 6, 13, and 19 are objected to because of the following informalities:
Claims 6, 13, and 19 recites “IR light emitter”, perhaps - - infrared (IR) light emitter - -, was meant.
Appropriate correction is required.
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, 4-6, 10-13, and 16-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 4, 5, and 6 of U.S. Patent No. 12078302. Although the claims at issue are not identical, they are not patentably distinct from each other.
With respect to claims 1, 10, and 16, US12078302 discloses a plant cultivation light device comprising: a substrate (Claim 1, line 2); and a plurality of light emitters disposed on the substrate, each of the plurality of light emitters comprising a light emitting layer including a first semiconductor layer, an active layer, and a second semiconductor layer (Claim 1, lines 3+), wherein the plurality of light emitters include: a first light emitter configured to emit first light having an area of at least about 55% compared with an area of a normalized solar spectrum (Claim 1, lines 8+); a second light emitter configured to emit second light having a wavelength for cryptochrome (Claim 1, lines 10+); and a third light emitter configured to emit third light having a wavelength for phytochrome, wherein a first light spectrum of the first light includes a peak having a deviation equal to or less than about 0.14 compared with the normalized solar spectrum (Claim 1, lines 12+).
With respect to claims 4, 11, and 17, US12078302 shows the plant cultivation light device of claim 1, further comprising a controller coupled to the plurality of light emitters and configured to control a lighting condition (Claim 4).
With respect to claims 5, 12, and 18, US12078302 shows the plant cultivation light device of claim 4, wherein the lighting condition includes at least one of light intensity, spectral ratio, irradiation time or photoperiod (Claim 5).
With respect to claim 6, 13, and 19, US12078302 shows the plant cultivation light device of claim 1, further comprising an IR light emitter (Claim 6).
Response to Arguments
Applicant’s arguments with respect to claim 1 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Chen et al. US20100287830 shows sunshine simulation apparatus for developing biological growth
Klase et al. US20150305252 shows plant growth lighting device
Nicole US20160088802 shows a light recipe for horticulture
Ohta et al. US20170055538 shows method of preserving harvested crops
Ueno et al. US20180035619 shows a plant cultivation device
Aoki et al. US20190254426 shows a freshness keeping method
Naich US20220061227 shows a device for enhancing regulated plant growth
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 Alexander Taningco whose telephone number is (571)272-8048. The examiner can normally be reached Mon-Fri, 8am-4pm, EST.
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ALEXANDER H. TANINGCO
Supervisory Patent Examiner
Art Unit 2845
/ALEXANDER H TANINGCO/Supervisory Patent Examiner, Art Unit 2845
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