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
Applicant’s election without traverse of Group I, claims 1, 3, 5-8, 10-11, 17-18, 24-26, 31-33, 35-38, 41, and 43-44, in the reply filed on May 26, 2026 is acknowledged.
Claims 46 and 69 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 May 26, 2026.
Specification
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Claim Objections
Claim 10 is objected to because of the following informalities:
In line 7, “12 cm2 or” should read “12 cm2, or”.
In line 10, “3-glycidyloxypropyl)” should read “3(glycidyloxypropyl)”.
Appropriate correction is required.
Claim 18 is objected to because of the following informalities:
In line 2, “CuMOF” should read “copper-based metal-organic framework (CuMOF)”.
In line 6, “c)” should read “d)”.
In line 8, “d)” should read “e)”.
In line 10, “e)” should read “f)”.
Appropriate correction is required.
Claim 26 is objected to because of the following informalities: in line 4, “5° to 350° or 6° to 320° or 7° to 300° or 8° to 290°” should read “5° to 350°, or 6° to 320°, or 7° to 300°, or 8° to 290°”. Appropriate correction is required.
Claim 31 is objected to because of the following informalities: in line 3, “and indole-3-acetic acid” should read “or indole-3-acetic acid”. Appropriate correction is required.
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: “the electrode control unit” in claim 38 (there is no corresponding structure in the instant specification), and “communication unit” in claim 38 (there is no corresponding structure in the instant specification).
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.
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 § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 38 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 38 recites the limitations “the electrode control unit” and “the communication unit” which invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. The disclosure is devoid of any structure that performs the functions in the claim. Therefore, these means-plus-function limitations lack adequate written description. MPEP § 2181(IV).
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, 3, 5-8, 10-11, 17-18, 24-26, 31-33, 35-38, 41, and 43-44 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.
Claim 1 recites the limitation “at least one of a temperature sensor and a humidity sensor” in lines 9-10 of the claim. It is unclear whether this limitation requires: a) at least one temperature sensor and at least one humidity sensor, or b) at least one of a temperature sensor or a humidity sensor. For the purpose of examination, Examiner interprets it as the latter. Claims 3, 5-8, 10-11, 17-18, 24-26, 31-33, 35-38, 41, and 43-44 are rejected as dependent thereon.
Claim 31 recites the limitation "the phytohormone sensor" in line 2 of the claim. There is insufficient antecedent basis for this limitation in the claim.
Claim 31 recites the limitation "the level" in line 2 of the claim. There is insufficient antecedent basis for this limitation in the claim.
Claim 37 recites the limitation “a reference electrode (RE), a counter electrode (CE), and at least one working electrode (WE)” in lines 2-3 of the claim. It is unclear whether these electrodes in claim 37 are part of the previously recited “two or more electrodes” in line 6 of claim 1. For the purpose of examination, Examiner interprets them to be the same.
Claim 38 recites the limitation "the electrode control unit" in line 5 of the claim. There is insufficient antecedent basis for this limitation in the claim.
Claim limitations “the electrode control unit” and “the communication unit” in claim 38 invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. The disclosure is devoid of any structure that performs the functions in the claim. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
Claim 38 recites the limitation “the three or more electrodes” in line 6 of the claim. It is unclear whether these electrodes in claim 38 are the same as or different from the previously recited “two or more electrodes” in line 6 of claim 1. For the purpose of examination, Examiner interprets them to be the same.
Claim 38 recites the limitation "the sensor data" in line 7 of the claim. There is insufficient antecedent basis for this limitation in the claim. It is unclear whether this is supposed to be the same as the previously recited “electrode data” in line 6 of the claim. For the purpose of examination, Examiner interprets them to be the same.
Claim 41 recites the limitation “at least one sensor” in line 3 of the claim. It is unclear whether “at least one sensor” in claim 41 is the same as or different from the previously recited “at least one sensor” in line 3 of claim 1. For the purpose of examination, Examiner interprets them to be the same.
Claim 43 recites the limitation "the calibration" in line 2 of the claim. There is insufficient antecedent basis for this limitation in the claim. It is unclear whether this is supposed to be the same as the previously recited “a signal calibration” in line 3 of claim 41. For the purpose of examination, Examiner interprets them to be the same.
Claim 43 recites the limitation “a signal calibration” in line 4 of the claim. It is unclear whether “a signal calibration” in claim 43 is the same as or different from the previously recited “a signal calibration” in line 3 of claim 41. For the purpose of examination, Examiner interprets them to be the same.
Claim 43 recites the limitation "the signal" in line 4 of the claim. There is insufficient antecedent basis for this limitation in the claim.
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 and 37 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 19/327,540 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because instant application claims 1 and 37 are each anticipated by copending application claim 1.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 10 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over each of claims 2, 11, and 12 of copending Application No. 19/327,540 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because instant application claim 10 is anticipated by copending application claims 2, 11, and 12 individually.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 33 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 17 of copending Application No. 19/327,540 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because instant application claim 33 is anticipated by copending application claim 17.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 35 and 38 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 18 of copending Application No. 19/327,540 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because instant application claims 35 and 38 are each anticipated by copending application claim 18.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 3, 5-8, 10-11, 17, 24-26, 31-33, 35, 37-38, 41, and 43-44 are rejected under 35 U.S.C. 102(a)(1)/102(a)(2) as being anticipated by Hussain et al. (US 2020/0072810 A1).
Regarding claim 1, Hussain teaches a flexible plant sensor (a flexible crop sensor system 100A/100B, Figs. 1-4D, para. [0026], [0031], [0034]-[0035]), comprising:
a flexible substrate (a flexible substrate 410, Figs. 3 & 4A-4D, para. [0035]); and
at least one sensor disposed on the flexible substrate selected from a humidity sensor, a temperature sensor, a strain sensor, a pressure sensor, an electrochemical sensor, or a combination thereof (two interdigitated sensor electrodes 405 and a sensing film 415 are formed on the flexible substrate 410, and this sensor can sense humidity levels, Figs. 4A-4D, para. [0035]-[0036]),
wherein the at least one sensor comprises two or more electrodes (the two interdigitated sensor electrodes 405, Figs. 4A-4D, para. [0035]).
Regarding claim 3, Hussain teaches the at least one sensor (the humidity sensor, Figs. 4A-4D, para. [0035]-[0036]).
The limitation “has a coefficient of variance between calibration curves of not more than 3% based on four repeating measurements” does not further limit the structure of the at least one sensor and is interpreted as intended use and/or functional language. The Courts have held that the manner in which a claimed apparatus is intended to be employed does not differentiate an apparatus claim from the prior art, if the prior art apparatus teaches all of the structural limitations of the claim. See Ex parte Masham, 2 USPQ2d 1647 (BPAI 1987). A functional recitation of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. See MPEP § 2114. The humidity sensor disclosed by Hussain teaches all of the structural limitations of the claim and thus is configured for and capable of having “a coefficient of variance between calibration curves of not more than 3% based on four repeating measurements.”
Regarding claim 5, Hussain teaches the at least one sensor (the humidity sensor, Figs. 4A-4D, para. [0035]-[0036]).
The limitation “has a coefficient of variance between calibration curves of not more than 8% before and after a dynamic folding test, wherein in the dynamic folding test the flexible plant sensor in an unbent orientation is bent to a 90° angle, returned to the unbent orientation, and repeated up to 30 cycles, or 60 cycles, or 90 cycles, or 100 cycles” does not further limit the structure of the at least one sensor and is interpreted as intended use and/or functional language. The Courts have held that the manner in which a claimed apparatus is intended to be employed does not differentiate an apparatus claim from the prior art, if the prior art apparatus teaches all of the structural limitations of the claim. See Ex parte Masham, 2 USPQ2d 1647 (BPAI 1987). A functional recitation of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. See MPEP § 2114. The humidity sensor disclosed by Hussain teaches all of the structural limitations of the claim and thus is configured for and capable having “a coefficient of variance between calibration curves of not more than 8% before and after a dynamic folding test, wherein in the dynamic folding test the flexible plant sensor in an unbent orientation is bent to a 90° angle, returned to the unbent orientation, and repeated up to 30 cycles, or 60 cycles, or 90 cycles, or 100 cycles.”
Regarding claim 6, Hussain teaches the at least one sensor (the humidity sensor, Figs. 4A-4D, para. [0035]-[0036]).
The limitation “has a hysteresis between 0th and 100th cycles of less than 5%” does not further limit the structure of the at least one sensor and is interpreted as intended use and/or functional language. The Courts have held that the manner in which a claimed apparatus is intended to be employed does not differentiate an apparatus claim from the prior art, if the prior art apparatus teaches all of the structural limitations of the claim. See Ex parte Masham, 2 USPQ2d 1647 (BPAI 1987). A functional recitation of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. See MPEP § 2114. The humidity sensor disclosed by Hussain teaches all of the structural limitations of the claim and thus is configured for and capable of having “a hysteresis between 0th and 100th cycles of less than 5%.”
Regarding claim 7, Hussain teaches the at least one sensor (the humidity sensor, Figs. 4A-4D, para. [0035]-[0036]).
The limitation “has a coefficient of variance of < 5% up to one hour, or < 5% up to 7 days” does not further limit the structure of the at least one sensor and is interpreted as intended use and/or functional language. The Courts have held that the manner in which a claimed apparatus is intended to be employed does not differentiate an apparatus claim from the prior art, if the prior art apparatus teaches all of the structural limitations of the claim. See Ex parte Masham, 2 USPQ2d 1647 (BPAI 1987). A functional recitation of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. See MPEP § 2114. The humidity sensor disclosed by Hussain teaches all of the structural limitations of the claim and thus is configured for and capable of having “a coefficient of variance of < 5% up to one hour, or < 5% up to 7 days.”
Regarding claim 8, Hussain teaches the at least one sensor (the humidity sensor, Figs. 4A-4D, para. [0035]-[0036]).
The limitations “has a coefficient of variance between calibration curves of not more than 9% over a temperature range of 10 °C to 55 °C” and/or “has a coefficient of variance between calibration curves of not more than 9% over a relative humidity (RH) range of 10 RH to 90 RH” do not further limit the structure of the at least one sensor and are interpreted as intended use and/or functional language. The Courts have held that the manner in which a claimed apparatus is intended to be employed does not differentiate an apparatus claim from the prior art, if the prior art apparatus teaches all of the structural limitations of the claim. See Ex parte Masham, 2 USPQ2d 1647 (BPAI 1987). A functional recitation of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. See MPEP § 2114. The humidity sensor disclosed by Hussain teaches all of the structural limitations of the claim and thus is configured for and capable of having “a coefficient of variance between calibration curves of not more than 9% over a temperature range of 10 °C to 55 °C” and/or “a coefficient of variance between calibration curves of not more than 9% over a relative humidity (RH) range of 10 RH to 90 RH”.
Regarding claim 10, Hussain teaches wherein a) the flexible substrate is a thermoplastic and/or thermosetting film (the flexible substrate 410 is a polyimide substrate, Figs. 4A-4D, para. [0035]), d) the flexible plant sensor is 5 grams or less (the flexible crop sensor system 100A/100B weighs 50 mg, Figs. 1A-1B, para. [0034]), and/or e) the flexible plant sensor has a surface area of 1 to 15 cm2, or 3 to 12 cm2 or 4 to 10 cm2, or 6 to 8 cm2 (the flexible crop sensor system 100A/100B has a surface area larger than 1 cm × 1 cm, Figs. 1A-1B, para. [0034]). Additionally, generally, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP § 2144.05(I).
Regarding claim 11, Hussain teaches wherein the flexible substrate is a flexible polyimide film, a perfluorinated sulfonic-acid isomer film, or a sulfonated tetrafluoroethylene fluoropolymer-copolymer film (the flexible substrate 410 is a polyimide substrate, Figs. 4A-4D, para. [0035]).
Regarding claim 17, claim 10 recites “wherein a) the flexible substrate is a thermoplastic and/or thermosetting film, b) the flexible substrate has a thickness of 50 µm to 500 µm, or 100 µm to 400 µm, or 125 µm to 350 µm, or 150 µm to 250 µm, or 175 µm to 200 µm, c) the flexible plant sensor has a width of 0.1 cm to 2 cm, or 0.25 cm to 1.5 cm, or 0.5 cm to 1 cm, or 0.75 cm, and a length of 0.5 cm to 5 cm, or 0.75 cm to 2.5 cm, or 1 cm to 2 cm, or 1.5 cm, d) the flexible plant sensor is 5 grams or less, e) the flexible plant sensor has a surface area of 1 to 15 cm2, or 3 to 12 cm2 or 4 to 10 cm2, or 6 to 8 cm2, and/or f) the at least one sensor further comprises a coating selected from a graphene ink, an Ag/AgCl paste, a metal organic framework (MOF), a poly(3,4-ethylenedioxythiophene) polystyrene sulfonate (PEDOT:PSS) cross-linked with 3-glycidyloxypropyl)trimethoxysilane (GOPS), or a combination thereof” (emphasis added to “or” by Examiner in the claimed list of alternatives), and therefore, the limitation “wherein the metal organic framework comprises at least one metal selected from copper, zinc, or gold” of claim 17 is further limiting an optional component (f) of claim 10 and is not further limiting the flexible plant sensor when: a) the flexible substrate is a thermoplastic and/or thermosetting film, d) the flexible plant sensor is 5 grams or less, and/or e) the flexible plant sensor has a surface area of 1 to 15 cm2, or 3 to 12 cm2 or 4 to 10 cm2, or 6 to 8 cm2 (see rejection of claim 10 supra).
Regarding claim 24, Hussain teaches the at least one sensor (the humidity sensor, Figs. 4A-4D, para. [0035]-[0036]).
The limitation “capable of real-time and/or continuous monitoring of one or more physical and/or chemical parameters in a plant” does not further limit the structure of the at least one sensor and is interpreted as intended use and/or functional language. The Courts have held that the manner in which a claimed apparatus is intended to be employed does not differentiate an apparatus claim from the prior art, if the prior art apparatus teaches all of the structural limitations of the claim. See Ex parte Masham, 2 USPQ2d 1647 (BPAI 1987). A functional recitation of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. See MPEP § 2114. The humidity sensor disclosed by Hussain teaches all of the structural limitations of the claim and thus is configured for and capable of “real-time and/or continuous monitoring of one or more physical and/or chemical parameters in a plant.”
Regarding claim 25, claim 1 recites “at least one sensor disposed on the flexible substrate selected from a humidity sensor, a temperature sensor, a strain sensor, a pressure sensor, an electrochemical sensor, or a combination thereof”, and therefore, the limitation “wherein the electrochemical sensor is at least one of a phytohormone sensor or a volatile organic compound sensor” of claim 25 is further limiting an optional component of claim 1 and is not further limiting the at least one sensor when the at least one sensor is a humidity sensor.
Regarding claim 26, claim 1 recites “at least one sensor disposed on the flexible substrate selected from a humidity sensor, a temperature sensor, a strain sensor, a pressure sensor, an electrochemical sensor, or a combination thereof”, and therefore, the limitation “wherein the strain sensor has a gauge factor of at least 800 at a strain of 0.4% to 2% and a curvature angle detection of at least 0.01 degrees and/or has an angle of curvature detection from 50 to 350° or 6° to 320° or 7° to 300° or 8° to 290°” of claim 26 is further limiting an optional component of claim 1 and is not further limiting the at least one sensor when the at least one sensor is a humidity sensor.
Regarding claim 31, claim 1 recites “at least one sensor disposed on the flexible substrate selected from a humidity sensor, a temperature sensor, a strain sensor, a pressure sensor, an electrochemical sensor, or a combination thereof”, and therefore, the limitation “wherein the phytohormone sensor is configured to quantitatively measure the level of at least one of salicylic acid, abscisic acid, jasmonic acid, and indole-3-acetic acid” of claim 31 is further limiting an optional component of claim 1 (for the purpose of examination, Examiner interprets “phytohormone sensor” to further limit the optional “electrochemical sensor” of claim 1) and is not further limiting the at least one sensor when the at least one sensor is a humidity sensor.
Regarding claim 32, claim 1 recites “at least one sensor disposed on the flexible substrate selected from a humidity sensor, a temperature sensor, a strain sensor, a pressure sensor, an electrochemical sensor, or a combination thereof”, and therefore, the limitation “wherein the pressure sensor has a detection range of 0.1 kPa to 100 kPa” of claim 32 is further limiting an optional component of claim 1 and is not further limiting the at least one sensor when the at least one sensor is a humidity sensor.
Regarding claim 33, Hussain teaches wherein the at least one sensor is bioagent-free and/or non-invasive (the humidity sensor is silent with respect to any bioagents, Figs. 4A-4D, para. [0035]-[0039], and the humidity sensor adheres to crops due to van der Waals force such that the sensor system 100A/100B is separated by a distance D from a crop leaf 205, Figs. 2 & 7A-7B, para. [0032]).
The limitation “non-invasive” does not further limit the structure of the at least one sensor and is interpreted as intended use and/or functional language. The Courts have held that the manner in which a claimed apparatus is intended to be employed does not differentiate an apparatus claim from the prior art, if the prior art apparatus teaches all of the structural limitations of the claim. See Ex parte Masham, 2 USPQ2d 1647 (BPAI 1987). A functional recitation of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. See MPEP § 2114. The humidity sensor disclosed by Hussain teaches all of the structural limitations of the claim and thus is configured for and capable of being “non-invasive” as recited in the rejection supra.
Regarding claim 35, Hussain teaches a data acquisition system, wherein the data acquisition system comprises a processor; a communication unit; and a power supply unit, and wherein the data acquisition system is in communication with the at least one sensor (a processor 104, a transceiver 108, and a power source 106 in communication with the humidity sensor 102/400, Figs. 1A-1B & 3-4D, para. [0027]-[0031], [0039]).
Regarding claim 37, claim 1 recites “at least one sensor disposed on the flexible substrate selected from a humidity sensor, a temperature sensor, a strain sensor, a pressure sensor, an electrochemical sensor, or a combination thereof”, and therefore, the limitation “wherein the electrochemical sensor comprises a reference electrode (RE), a counter electrode (CE), and at least one working electrode (WE)” of claim 37 is further limiting an optional component of claim 1 and is not further limiting the at least one sensor when the at least one sensor is a humidity sensor.
Regarding claim 38, Hussain teaches wherein the data acquisition system comprises a non-transitory computer readable medium communicatively coupled to the processor, the non-transitory computer readable medium having stored thereon computer software comprising a set of instructions that, when executed by the processor, causes the electrode control unit to: receive electrode data from each of the three or more electrodes; and send, via the communication unit, the sensor data to an external device (the sensor system 100A/100B includes a memory 110 coupled to the processor 104, wherein the memory 110 stores both program instructions for the processor 104 and the transceiver 108 and the parameters collected by the one or more sensors 102A-102X comprising the electrodes, Figs. 1A-1B, para. [0027], [0030]). For the purpose of examination, Examiner interprets “the electrode control unit” to be the same as “the processor” in the claim since “the electrode control unit” lacks antecedent basis and there is no corresponding structure in the instant specification when interpreting under 35 U.S.C. 112(f).
The limitations “receive electrode data from each of the three or more electrodes” and “send, via the communication unit, the sensor data to an external device” do not further limit the structure of the flexible plant sensor and are interpreted as intended use and/or functional language. Examiner notes that “an external device” is not a positively recited element of the claim, and therefore, is not an element of the claimed flexible plant sensor. The Courts have held that the manner in which a claimed apparatus is intended to be employed does not differentiate an apparatus claim from the prior art, if the prior art apparatus teaches all of the structural limitations of the claim. See Ex parte Masham, 2 USPQ2d 1647 (BPAI 1987). A functional recitation of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. See MPEP § 2114. The sensor system disclosed by Hussain teaches all of the structural limitations of the claim and thus is configured for and capable of “receive electrode data from each of the three or more electrodes” and “send, via the communication unit, the sensor data to an external device” as recited in the rejection supra.
Regarding claim 41, Hussain teaches the flexible plant sensor (the flexible crop sensor system 100A/100B comprises a processor 104 and the one or more sensors 102A-102X including the humidity sensor, Figs. 1-4D, para. [0026]-[0028], [0031], [0034]-[0036]).
The limitation “configured to select one or more calibration plots to analyze at least one electrode data and/or to perform a signal calibration of at least one sensor” does not further limit the structure of the flexible plant sensor and is interpreted as intended use and/or functional language. The Courts have held that the manner in which a claimed apparatus is intended to be employed does not differentiate an apparatus claim from the prior art, if the prior art apparatus teaches all of the structural limitations of the claim. See Ex parte Masham, 2 USPQ2d 1647 (BPAI 1987). A functional recitation of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. See MPEP § 2114. The flexible crop sensor system disclosed by Hussain teaches all of the structural limitations of the claim and thus is configured for and capable of being “configured to select one or more calibration plots to analyze at least one electrode data and/or to perform a signal calibration of at least one sensor.”
Regarding claim 43, Hussain teaches the flexible crop sensor system 100A/100B comprising the processor 104 and the one or more sensors 102A-102X including the humidity sensor (Figs. 1-4D, para. [0026]-[0028], [0031], [0034]-[0036]).
The limitation “the calibration comprises a pH-based signal correction, a temperature-based signal correction, a humidity-based signal correction, a sensor bending correction, a pressure-based signal calibration, a signal calibration based on the signal of an analyte, or a combination thereof” does not further limit the structure of the flexible plant sensor and is interpreted as intended use and/or functional language. The Courts have held that the manner in which a claimed apparatus is intended to be employed does not differentiate an apparatus claim from the prior art, if the prior art apparatus teaches all of the structural limitations of the claim. See Ex parte Masham, 2 USPQ2d 1647 (BPAI 1987). A functional recitation of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. See MPEP § 2114. The flexible crop sensor system disclosed by Hussain teaches all of the structural limitations of the claim and thus is configured for and capable of “the calibration comprises a pH-based signal correction, a temperature-based signal correction, a humidity-based signal correction, a sensor bending correction, a pressure-based signal calibration, a signal calibration based on the signal of an analyte, or a combination thereof.”
Regarding claim 44, Hussain teaches wherein the at least one sensor is configured to attach to a plant leaf, a plant stem, or both separately or concurrently (the sensor system 100A/100B/710 comprising the humidity sensor is placed directly on a crop leaf 205/705 and adheres to the crop leaf 205/705, Figs. 2, 4A-4D, & 7A-7B, para. [0026], [0031]-[0032], [0035]-[0036], [0043]).
The limitation “configured to attach to a plant leaf, a plant stem, or both separately or concurrently” does not further limit the structure of the at least one sensor and is interpreted as intended use and/or functional language. Examiner notes that “a plant leaf, a plant stem, or both” are not positively recited elements of the claim, and therefore, are not elements of the claimed flexible plant sensor. The Courts have held that the manner in which a claimed apparatus is intended to be employed does not differentiate an apparatus claim from the prior art, if the prior art apparatus teaches all of the structural limitations of the claim. See Ex parte Masham, 2 USPQ2d 1647 (BPAI 1987). A functional recitation of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. See MPEP § 2114. The humidity sensor disclosed by Hussain teaches all of the structural limitations of the claim and thus is configured for and capable of “attach to a plant leaf, a plant stem, or both separately or concurrently” as recited in the rejection supra.
The limitation “a plant leaf, a plant stem, or both separately or concurrently” is with respect to an article worked upon and not a positively recited element of the flexible plant sensor. Inclusion of the material or article worked upon (a plant leaf, a plant stem, or both separately or concurrently) by a structure (flexible plant sensor) being claimed does not impart patentability to the claims. MPEP § 2115.
Claim Rejections - 35 USC § 103
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 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 18 is rejected under 35 U.S.C. 103 as being unpatentable over Hussain as applied to claim 1 above.
Regarding claim 18, Hussain teaches wherein e) the at least one sensor further comprises an encapsulation layer having a thickness (the sensor electrodes 405, the flexible substrate 410, and the sensing film 415 are encapsulated in a dissolvable polymer 420 having a thickness, Figs. 3 & 4A-4D, para. [0038]). Hussain teaches that the thickness of the dissolvable polymer 420 is selected to correspond to how long the sensor is intended to operate before dissolving due to expected environmental factors, and in the case of the dissolvable polymer 420 being polyimide, a 4 μm (0.16 mil) thin film of the polymer disintegrates in approximately 2-3 months when exposed to a saline solution (Figs. 4A-4D, para. [0038]). Hussain fails to teach that the thickness of the dissolvable polymer is 0.5 mil to 2 mil.
However, Hussain teaches wherein the thickness of the dissolvable polymer is a result-effective variable. Specifically, Hussain teaches that the thickness of the dissolvable polymer controls how long the sensor is intended to operate before dissolving due to expected environmental factors (Figs. 4A-4D, para. [0038]). Since these particular parameters are recognized as result-effective variables, i.e. a variable which achieves a recognized result, the determination of the optimum or workable ranges of said variable can be characterized as routine experimentation. See In re Boesch, 617 F. 2d 272, 205 U.S.P.Q. 215 (C.C.P.A. 1980).
It would have been obvious for one having ordinary skill in the art before the effective filing date of the claimed invention to modify the thickness of the dissolvable polymer of Hussain to be 0.5 mil to 2 mil through routine experimentation because doing so would yield the predictable desired length of operation of the humidity sensor before dissolving due to expected environmental factors.
Claim 36 is rejected under 35 U.S.C. 103 as being unpatentable over Hussain as applied to claim 1 above, and further in view of Shacham-Diamand et al. (US 2021/0116442 A1).
Regarding claim 36, Hussain teaches the humidity sensor comprising two interdigitated sensor electrodes 405 and a sensing film 415 formed on the flexible substrate 410 (Hussain, Figs. 4A-4D, para. [0035]-[0036]). Hussain fails to teach a potentiostat.
Shacham-Diamand teaches a sensing system comprising an electrochemical chip having an arrangement of electrodes configured for electrochemical sensing, and an attachment system for attaching the surface of the sensing system to a surface of the plant part (Shacham-Diamand, abstract). Shacham-Diamand teaches that the chip comprising the electrodes is connected to a portable potentiostat for real-time detection (Shacham-Diamand, Figs. 7A-7B, para. [0046], [0131]).
It would have been obvious for one having ordinary skill in the art before the effective filing date of the claimed invention to modify the sensor system of Hussain to further include a potentiostat connected to the electrodes as taught by Shacham-Diamand in order to yield the predictable result of real-time detection. Furthermore, the claimed limitations are obvious because all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results. MPEP § 2143(I)(A).
Conclusion
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/V.T./ Examiner, Art Unit 1794
/JAMES LIN/ Supervisory Patent Examiner, Art Unit 1794
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