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 .
Drawings
The drawings are objected to because Figs. 3 and 4 do not include labels on the axis. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 1-9 and 11-20 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 Claims 1-9 and 11-20, the claims are method claims and are written in past tense with no active method steps. Therefore, it is unclear if these steps are required by the claimed method.
For example, in claim 1, “is detected” and “is established or judged” should be “detecting” and “establishing or judging”.
In claims 2 and 6 “is detected” should be “detecting”.
In claims 3 and 11 “is established” should be “establishing”.
In claims 4, 5, and 12-20 “is measured” and “is made”” should be “measuring” and “making”.
In claim 7, “is processed” should be “processing”.
In claim 8, “is generated” should be “generating”.
In claim 9, “is determined or judged” and “is activated” should be “determining or judging” and “activating”.
Regarding claim 1, there is insufficient antecedent basis for “the inclination”, “the occurrence”, “the observed leaf/leaves”, and “the time course”. Furthermore, the claim switches from “a leaf, or a set of leaves” to “the leaf” to “leaf/leaves”. It is suggested to use consistent terms.
Regarding claims 4, and 12-15, there is insufficient antecedent basis for “the leaf inclination” and “the case of water stress” and “the majority of instants”.
Regarding claims 5, and 16-20, there is insufficient antecedent basis for “the leaf inclination” and “the case of water stress” and “the instants”.
Regarding claims 5 and 16-20, the term “most of the instants” in claims 5 and 16-20 is a relative term which renders the claim indefinite. The term “most” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear how many “instants” are “most of the instants”.
Claims 2-9 and 11-20 are further rejected based upon dependency on claim 1.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 15 and 20 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 15 depends on claim 4 and is an exact duplicate of claim 4.
Claim 20 depends on claim 5 and is an exact duplicate of claim 5.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 1-9 and 11-20 are rejected under 35 U.S.C. 101 because the claims are directed to an abstract idea without significantly more.
Claim 1 recites “the inclination of a leaf… is detected at successive time instants wherein there are different stable illumination conditions on the leaf, and the occurrence of water stress is established or judged when the time course of the observed leaf/leaves inclination(s) corresponds to—or correlates with—a reference time course.”
The broadest reasonable interpretation of “the inclination of a leaf… is detected” is an observation, a mental process that could be performed in the human mind, See MPEP 2106.04(a)(2).
The broadest reasonable interpretation of “the occurrence of water stress is established or judged” is a judgment or evaluation, a mental process that could be performed in the human mind. See MPEP 2106.04(a)(2).
As a result of the broadest reasonable interpretation, these limitations amount to a mental process that could be practically performed in the human mind. Such a process is considered an abstract idea in view of, for example, CyberSource Corp. V. Retail Decisions, Inc., 654 F.3d 1366, 1372, 99 USPQ 2d 1690, 1695 (Fed. Cir. 2011), as the courts consider a mental process (thinking) that "can be performed in the human mind, or by a human using a pen and paper' to be an abstract idea.
This judicial exception is not integrated into a practical application because there is no direct application of a judicial exception in a meaningful way. The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception because there are no positively recited steps are to how the data is measured; instead, the claim only requires observing and evaluating data. Without any meaningfully claimed limitation as to how the data is measured, it is not possible for the claimed abstract idea to be integrated into a judicial exception.
The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception for similar reasons as set forth above as to why the claim is not integrated into a practical application. There does not appear to be any additional limitation in the claim other than the abstract idea of observing and evaluating data. Since there are no additional limitations, the claim does not amount to significantly more than the judicial exception.
Regarding claim 2, the claim further defines the abstract step of detecting.
Regarding claims 3 and 11 the claims further define the abstract step of judging.
Regarding claims 4, 5, and 12-20, the claims recite the abstract step of measuring (an observation or mental process) and deciding. See MPEP 2106.04(a)(2).
Regarding claim 6, the claim recites that the inclination is detected with a sensor. This is mere data gathering and insignificant extra-solution activity. See MPEP 2106.05(g).
Regarding claim 7, the claim recite the abstract step of processing the data. See MPEP 2106.04(a)(2).
Regarding claim 8, the claim recites that an alert is generated. This is an insignificant application and insignificant extra-solution activity. See MPEP 2106.05(g).
Regarding claim 9, the claim recites that irrigation is activated. This is a well-understood, routine, conventional activity. See MPEP 2106.05(d).
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 6-9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Nakamura (EP3135102A1).
Regarding claim 1, Nakamura discloses a method for estimating the water stress of a plant (abstract, Fig. 2), wherein
the inclination of a leaf (paragraph [0032]), or a set of leaves, of the plant is detected at successive time instants (paragraphs [0028]-[0029], [0032]) wherein there are different stable illumination conditions on the leaf (The measurements are taken under sunlight (paragraph [0016], and as the claim requires the time to be successive time instants, the illumination conditions are inherently different stable illumination conditions), and
the occurrence of water stress is established or judged when the time course of the observed leaf/leaves inclination(s) (paragraphs [0032]-[0033]) corresponds to—or correlates with—a reference time course (paragraphs [0028], [0046]).
Regarding claim 6, Nakamura discloses wherein said leaf inclination is detected using an electronic image and/or distance sensor (paragraph [0045], ref 20).
Regarding claim 7, Nakamura discloses wherein data emitted from the sensor is processed with a software program to determine or judge the occurrence of water stress (paragraph [0021]).
Regarding claim 8, Nakamura discloses wherein an alert signal is generated when the occurrence of water stress is determined or judged (paragraph [0019]).
Regarding claim 9, Nakamura discloses wherein when the occurrence of the water stress condition is determined or judged, irrigation of the plant is activated (paragraphs [0079]-0082]).
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 2-5 and 11-20 are rejected under 35 U.S.C. 103 as being unpatentable over Nakamura as applied to claim 1 above, and further in view of Fujiyama et al. (US 2019/0265162A1), hereinafter “Fujiyama”.
Regarding claim 2, Nakamura is silent regarding wherein the inclination of a leaf, or set of leaves, of the plant is detected at successive temporal instants of day and night.
However, as Fujiyama teaches different water content at the day and night (paragraphs [0168], [0186]). Furthermore, it has been held that continuous operation involves only routine skill in the art. In re Dilnot, 319 F.2d 188, 138 USPQ 248 (CCPA 1963).
One would include wherein the inclination of a leaf, or set of leaves, of the plant is detected at successive temporal instants of day and night in order to measure the leaf in sunlight and without sunlight, in order to determine when watering is appropriate.
Regarding claims 3 and 11, Nakamura is silent regarding wherein the occurrence of water stress is established or judged when the leaf is more downwardly inclined in a higher illumination condition than in a lower illumination condition.
However, Fujiyama teaches different measurements in the day and night, which are different illumination conditions (paragraphs [0168], [0186]). Furthermore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include wherein the occurrence of water stress is established or judged when the leaf is more downwardly inclined in a higher illumination condition than in a lower illumination condition, as it had been held that "when there is motivation to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to anticipated success, it is likely the product not of innovation but of ordinary skill and common sense." KSR, 550 U.S. at 402-03, 82 USPQ2d at 1390. MPEP 2143. As there are only two options, one would try each option to determine with water stress appears.
Regarding claims 4 and 12-15, Nakamura is silent regarding wherein the leaf inclination is measured at a first series of consecutive time instants with a first illumination on the leaf, the leaf inclination is measured at a second set of consecutive time instants with a second illumination on the leaf, the first illumination being lower than the second illumination, and a decision is made for the case of water stress when the leaf inclination in the first set of time instants is, always or for the majority of instants, smaller than that in the second set of time instants.
However, Fujiyama teaches different measurements in the day and night, which are different illumination conditions (paragraphs [0168], [0186]). Furthermore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include wherein the leaf inclination is measured at a first series of consecutive time instants with a first illumination on the leaf, the leaf inclination is measured at a second set of consecutive time instants with a second illumination on the leaf, the first illumination being lower than the second illumination, and a decision is made for the case of water stress when the leaf inclination in the first set of time instants is, always or for the majority of instants, smaller than that in the second set of time instants, as it had been held that "when there is motivation to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to anticipated success, it is likely the product not of innovation but of ordinary skill and common sense." KSR, 550 U.S. at 402-03, 82 USPQ2d at 1390. MPEP 2143. As repeating measurements at different illuminations is known there are only two options, one would try each option to determine with water stress appears.
Regarding claims 5 and 16-20, Nakamura is silent regarding wherein the leaf inclination is measured at a sequence of consecutive time instants under alternating, higher or lower, illumination conditions for each successive instant, and a decision is made for the case of water stress when the leaf inclination is, always or for most of the instants, smaller in the instants with lower illumination conditions.
However, Fujiyama teaches different measurements in the day and night, which are different illumination conditions (paragraphs [0168], [0186]). Furthermore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include wherein the leaf inclination is measured at a sequence of consecutive time instants under alternating, higher or lower, illumination conditions for each successive instant, and a decision is made for the case of water stress when the leaf inclination is, always or for most of the instants, smaller in the instants with lower illumination conditions, as it had been held that "when there is motivation to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to anticipated success, it is likely the product not of innovation but of ordinary skill and common sense." KSR, 550 U.S. at 402-03, 82 USPQ2d at 1390. MPEP 2143. As repeating measurements at different illuminations is known there are only two options, one would try each option to determine with water stress appears.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Zhang (US20210289692A1) teaches a water stress measurement method and appears to anticipate at least claim 1.
Fujiyama (US 2018/0284016) teaches a similar water stress measurement method and can be combined with prior art to render dependent claims obvious.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DOMINIC J BOLOGNA whose telephone number is (571)272-9282. The examiner can normally be reached Monday - Friday 7:30am-3:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kara E Geisel can be reached at (571) 272-2416. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DOMINIC J BOLOGNA/Primary Examiner, Art Unit 2877
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