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 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.
Claim(s) 1-4 and 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kadkade et al US 4,506,474 in view of Dobrinsky US 11,925,152.
Regarding claim 1, Kadkade discloses a method of cultivating a fruit vegetable plant, comprising: irradiating a fruit vegetable plant with artificial light under a light irradiation condition which achieves a fruit setting rate of 80% or more (Kadkade, column 4: lines 15-25); wherein a variation in light intensity between plant parts is generated in the fruit vegetable plant by the irradiation with the artificial light (Kadkade, column 4: lines 16-18).
Kadkade fails to disclose a light intensity It of the artificial light with which a growth point of the fruit vegetable plant is irradiated and a light intensity Ib of the artificial light with which a central part of a lowest leaf of the fruit vegetable plant is irradiated satisfying the following relationship: Ib/It ≤ 0.8.
Dobrinsky teaches irradiating different parts of the fruit vegetable plant with different intensity (Dobrinsky, column 6: lines 10-18). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention with reasonable expectation of success to modify the method of Kadkade so that the plant was irradiated at a light intensity It of the artificial light, and a light intensity Ib of the artificial light. Given a finite number of identified, predictable solutions it would have been obvious to try to irradiate different sections of the plant in the claimed ratio as to increase the nutritional content of the plant (Dobrinsky, column 6: lines 10-18).
Regarding claim 2, Kadkade discloses the method of claim 1 but fails to disclose the fruit vegetable being a tomato. The examiner takes official notice that it is known to those of ordinary skill in the art to cultivate tomatoes by irradiating them with artificial light. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention with a reasonable expectation of success to modify the method of Kadkade so that the fruit vegetable was a tomato depending on the type of crop the user wished to cultivate and improve upon.
Regarding claim 3, Kadkade discloses the method of claim 1 but fails to disclose which direction the plant is irradiated from. Dobrinsky teaches irradiating a plant with artificial light from a direction of 0° ± 30° and a direction of 90° ± 30° with respect to a growth direction of a stem of the fruit vegetable plant (Dobrinsky, Figure 1, column 5: lines 47-55 and 28-31). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention with a reasonable expectation of success to modify the method of Kadkade so that the plants were irradiated with artificial light from a direction of 0° ± 30° and a direction of 90° ± 30° with respect to a growth direction of a stem of the fruit vegetable plant as to provide (Dobrinsky, column 8: lines 54-63).
Regarding claim 4, Kadkade further discloses the irradiating comprises irradiating, after confirmation of first flower bud differentiation of the fruit vegetable plant until confirmation of last fruit setting the fruit vegetable plant with the artificial light (Kadkade, column 4: lines 15-25). Kadkade fails to disclose irradiating from a direction of 0° ± 30° and a direction of 90° ± 30° with respect to a growth direction of a stem of the fruit vegetable plant. Dobrinsky teaches irradiating a plant with artificial light from a direction of 0° ± 30° and a direction of 90° ± 30° with respect to a growth direction of a stem of the fruit vegetable plant (Dobrinsky, Figure 1, column 5: lines 47-55 and 28-31). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention with a reasonable expectation of success to modify the method of Kadkade so that the plants were irradiated with artificial light from a direction of 0° ± 30° and a direction of 90° ± 30° with respect to a growth direction of a stem of the fruit vegetable plant as to provide (Dobrinsky, column 8: lines 54-63).
Regarding claim 7, Kadkade further discloses after confirmation of first flower bud differentiation of the fruit vegetable plant until confirmation of last fruit setting, a variation in light intensity between plant parts is generated (Kadkade, column 4: lines 14-20, column 4: 52-column 5: lines 22).
Response to Arguments
Applicant's arguments filed 04/24/2026 have been fully considered but they are not persuasive.
Applicant amended claim 1 to comprise previously rejected claims 5 and 6. The claims have not been amended to claim any method steps or limitations (such as further defining the irradiation condition) that would define the instant claims over the prior art.
Kadkade discloses irradiation a fruit vegetable plant with artificial light to increase a fruit setting rate (Kadkade, Table I). The claim limitation of “which achieves a fruit setting rate of 80% or more” is a result of the applied method and does not include method steps. Given the applied method steps, which Kadkade performs, the claimed results are able to be achieved. The fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Kadkade and Dobrinsky are both within the art of illuminating plant material to alter the growth of the plant and are analogous art. It has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). Dobrinksky is used to modify Kadkade to show that the concept of irradiating different parts of a plant with different light intensities is known in the art to alter the plant.
The examiner’s statement that it is known to those of ordinary skill in the art to cultivate tomatoes by irradiating them with artificial light is taken to be admitted prior art because applicant failed to traverse the examiner’s assertion of official notice.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: JP 2005328702.
THIS ACTION IS MADE FINAL. 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.
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/KRISTEN C HAYES/Primary Examiner, Art Unit 3642
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