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 .
Notice to Applicant
Claims 1-22 have been examined in this application. This communication is a final rejection in response to the “Amendments to the claims” and “Remarks” filed 2/5/2026.
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.
Claims 1-10, 12, 16-22 are rejected under 35 USC 103 as being obvious over FR 2994057 by Morcellet
Regarding claim 1, Morcellet discloses a method for using a computer or computers (vine-size robot, the machine translation of the description discloses “The invention also aims to provide such a robot that limits the processing of computer data compared to the prior art”) to generate cut-point data including information indicating a three-dimensional position of a point on a cane of a fruit tree where the cane is to be cut off (the machine translation discloses “the images are converted into a cloud of points, this cloud of points is analyzed; the processing means determine an automatic selection of the cutting points”), the method comprising:
for each of one or more canes of the fruit tree, acquiring measurement values concerning two or more attributes, based on sensor data of the one or more canes being acquired by a sensor or sensors (“This algorithm executes indicatively the following essential phases: determination of the coordinates of the first “Y” of the foot starting from the bottom of the skeleton (it being understood that the base of the Y is the parent branch and the two upper arms of Y corresponding to the branches ‘children’); determination, on each part of the Y, of the main branch by virtue of a score given according to: its largest thickness; its linearity; the number of ‘daughter’ branches for this branch; assigning a ‘score’ to each ‘girls’ branch according to: the usual type of cut of the winemaker, its length, his direction; the number of knots (or eyes); its position on the parent branch; selection of the cutting points according to the branches to cut selected, and depending on the type of size selected”), the sensor data including an image of the one or more canes acquired by an imager (“a camera allowing the recording and recording of a series of images”);
determining the one or more canes each as a cane to be removed or a cane to be retained based on the measurement values (“selection of the cutting points according to the branches to cut selected, and depending on the type of size selected”); and
obtaining a segmented image extracting the one or more canes by applying a segmentation to the image (“said processing means are able to convert said images into a cloud of points. In this case, the robot comprises means for converting said cloud points into skeleton of feet implementing a database including information on: segment intersections; node coordinates; the thickness of knots”);
generating the cut-point data for each cane determined as a cane to be removed (“the images are converted into a cloud of points, this cloud of points is analyzed; the processing means determine an automatic selection of the cutting points”); and
the acquiring measurement values concerning the two or more attributes includes, for each of the one or more canes, acquiring the measurement values concerning two or more attributes based on the segmented image (“determination, on each part of the Y, of the main branch by virtue of a score given according to: its largest thickness; its linearity; the number of ‘daughter’ branches for this branch; assigning a ‘score’ to each ‘girls’ branch according to: the usual type of cut of the winemaker, its length, his direction; the number of knots (or eyes); its position on the parent branch; selection of the cutting points according to the branches to cut selected, and depending on the type of size selected”).
Morcellet does not explicitly disclose acquiring information on priority levels of the two or more attributes and the determination of the cane to be removed being based on the priority levels. However, Morcellet discloses “an algorithm makes it possible to select the cutting points according to the selected size method”, and lists a variety of sizes including the largest thickness, length, linearity, and number of daughter branches as parameters for selecting cutting points. This suggests that there is a size threshold for each of these parameters that determines whether the branch should be cut or not and where the branch should be cut. It would therefore be obvious to a person having ordinary skill in the art that a branch that does not reach these thresholds comprises one priority level where the branch should not be cut, and a branch that exceeds these thresholds comprises another priority level where the branch should be cut.
Regarding claim 2 (dependent on claim 1), Morcellet discloses inputting the generated cut-point data to a controller configured or programmed to control a three-dimensional position of a cutter that cuts a cane of the fruit tree (“Cutting means are moved to the cutting positions, make the cuts, are returned to the waiting position”).
Regarding claims 3 (dependent on claim 1), 4 (dependent on claim 3), 5 (dependent on claim 3), 6 (dependent on claim 3), 7 (dependent on claim 3), 8 (dependent on claim 3), 9 (dependent on claim 3), 10 (dependent on claim 3), 16 (dependent on claim 1), Morcellet does not disclose the determining the one or more canes each as a cane to be removed or a cane to be retained includes: for each of the one or more canes, regarding each of the two or more attributes, determining a factor score based on the measurement value; for each of the one or more canes, based on the factor score regarding each of the two or more attributes and on the priority level of that attribute, calculating a total score; and determining the one or more canes each as a cane to be removed or a cane to be retained based on the total score, wherein the calculating the total score includes for each of the one or more canes, calculating the total score based on a value obtained by correcting the factor score regarding each of the two or more attributes based on the priority level of the attribute, or for each of the one or more canes, calculating the total score by summing a value obtained by multiplying the factor score regarding each of the two or more attributes with a priority level weight that is in accordance with the priority level of the attribute, or the determining the one or more canes each as a cane to be removed or a cane to be retained includes determining a cane with a total score that is highest among the two or more canes as a cane to be retained, or the one or more canes include two or more canes, and the determining the one or more canes each as a cane to be removed or a cane to be retained includes determining a cane with a total score that is highest among the two mor more canes as a cane to be retained, or the one or more canes include two or more canes, and the determining the one or more canes each as a cane to be removed or a cane to be retained includes determining a cane having a highest factor score regarding an attribute of a highest priority level as a cane to be retained if there exists a plurality of canes having a highest total score among the two or more canes, or the one or more canes include two or more canes, and the determining the one or more canes each as a cane to be removed or a cane to be retained includes determining a cane having a highest total score and a cane having a second highest total score among the two or more canes as canes to be retained, or the one or more canes include two or more canes, and the determining the factor score includes determining the factor score so that the two or more canes have respectively different factor scores regarding each of the two or more attributes, or the determine the one or more canes each as a cane to be removed or a cane to be retained includes if all of the total score of the one or more canes are lower than a predetermined value, selecting only one cane to be retained. However, Morcellet discloses “an algorithm makes it possible to select the cutting points according to the selected size method”, which suggests that there is a size threshold for each of these parameters that determines whether the branch should be cut or not and where the branch should be cut. It would obvious to a person having ordinary skill in the art to modify Morcellet to set different thresholds as desired for different types of trees and cultivation methods.
Regarding claim 12 (dependent on claim 1), Morcellet does not disclose the acquiring the information on the priority levels includes: acquiring the information on the priority levels based on a user input. However, Morcellet discloses “an algorithm makes it possible to select the cutting points according to the selected size method”, which suggests that there is a size threshold for each of these parameters that determines whether the branch should be cut or not and where the branch should be cut. It would obvious to a person having ordinary skill in the art to modify Morcellet to use user input to set different thresholds as desired for different types of trees and cultivation methods.
Regarding claim 16 (dependent on claim 1), Morcellet discloses the one or more canes include two or more canes; and the determining the one or more canes each as a cane to be removed or a cane to be retained includes: among the two or more canes, determining that any cane other than the cane(s) determined as a cane(s) to be retained is a cane to be removed. Morcellet discloses “an algorithm makes it possible to select the cutting points according to the selected size method”. Any branches that are not selected to be removed by the selected size method would therefore comprise a cane to be retained, and branches that are selected to be removed would be removed.
Regarding claim 17, Morcellet discloses a system for generating cut-point data including information indicating a three-dimensional position of a point on a cane of a fruit tree where the cane is to be cut off, the system comprising:
a sensor or sensors to acquire sensor data of one or more canes of the fruit tree, the sensor data including an image of the one or more canes acquired by an imager (“the profilometric camera is brought into the detection position of a vine; the mobile structure is moved by orienting with the poles planted along the row of vine (the posts being those of wire trellis); a vine is detected, leading to the stopping of the mobile structure; The profilometric camera is moved in translation, and proceeds to an image survey of the corresponding vine”);
a data processor configured or programmed to generate the cut-point data for a cane of the fruit tree based on the sensor data (“the images are converted into a cloud of points, this cloud of points is analyzed; the processing means determine an automatic selection of the cutting points”); wherein
the data processor is configured or programmed to:
based on the sensor data, acquire measurement values concerning two or more attributes for each of the one or more canes (“This algorithm executes indicatively the following essential phases: determination of the coordinates of the first “Y” of the foot starting from the bottom of the skeleton (it being understood that the base of the Y is the parent branch and the two upper arms of Y corresponding to the branches ‘children’); determination, on each part of the Y, of the main branch by virtue of a score given according to: its largest thickness; its linearity; the number of ‘daughter’ branches for this branch; assigning a ‘score’ to each ‘girls’ branch according to: the usual type of cut of the winemaker, its length, his direction; the number of knots (or eyes); its position on the parent branch; selection of the cutting points according to the branches to cut selected, and depending on the type of size selected”);
obtain a segmented image extracting the one or more canes by applying a segmentation to the image (“said processing means are able to convert said images into a cloud of points. In this case, the robot comprises means for converting said cloud points into skeleton of feet implementing a database including information on: segment intersections; node coordinates; the thickness of knots”);
based on the measurement values, determine the one or more canes each as a cane to be removed or a cane to be retained (“selection of the cutting points according to the branches to cut selected, and depending on the type of size selected”); and
generate the cut-point data for each cane determined as a cane to be removed (“the images are converted into a cloud of points, this cloud of points is analyzed; the processing means determine an automatic selection of the cutting points”); wherein
the acquiring measurement values concerning the two or more attributes includes, for each of the one or more canes, acquiring the measurement values concerning the two or more attributes based on the segmented image (“determination, on each part of the Y, of the main branch by virtue of a score given according to: its largest thickness; its linearity; the number of ‘daughter’ branches for this branch; assigning a ‘score’ to each ‘girls’ branch according to: the usual type of cut of the winemaker, its length, his direction; the number of knots (or eyes); its position on the parent branch; selection of the cutting points according to the branches to cut selected, and depending on the type of size selected”).
Morcellet does not explicitly disclose acquiring information on priority levels of the two or more attributes and the determination of the cane to be removed being based on the priority levels. However, Morcellet discloses “an algorithm makes it possible to select the cutting points according to the selected size method”, and lists a variety of sizes including the largest thickness, length, linearity, and number of daughter branches as parameters for selecting cutting points. This suggests that there is a size threshold for each of these parameters that determines whether the branch should be cut or not and where the branch should be cut. It would therefore be obvious to a person having ordinary skill in the art that a branch that does not reach these thresholds comprises one priority level where the branch should not be cut, and a branch that exceeds these thresholds comprises another priority level where the branch should be cut.
Regarding claim 18 (dependent on claim 17), Morcellet discloses
a cutter to cut a cane of the fruit tree and a controller configured or programmed to control a three-dimensional position of the cutter; wherein
the data processor is configured or programmed to input the generated cut-point data to the controller; and
the controller is configured or programmed to control the three-dimensional position of the cutter based on the cut-point data (“the images are converted into a cloud of points, this cloud of points is analyzed; the processing means determine an automatic selection of the cutting points; Cutting means are moved to the cutting positions, make the cuts, are returned to the waiting position”).
Regarding claim 19 (dependent on claim 18), Morcellet discloses an agricultural machine comprising the system of claim 18 (mobile structure 1).
Regarding claim 20 (dependent on claim 19), Morcellet discloses an arm supporting the cutter, a support supporting the arm, and a driver to move the support (“a “running” robot, which carries one or more articulated arms each provided with a cutting device”); wherein the controller is configured or programmed to control the three-dimensional position of the cutter by controlling an operation of the arm (“Cutting means are moved to the cutting positions, make the cuts, are returned to the waiting position”).
Regarding claims 21 (dependent on claim 1) and 22 (dependent on claim 17), Morcellet discloses the segmented image includes a mask extracting the one or more canes (“The parameters characterizing the skeleton of a vine are stored in a database including information on: - an identification code of each segment or branch”, the identification code comprises a mask extracting each branch, and Morcellet further discloses labeling parents branches and children branches)
Claims 11, 13, 14, 15 are rejected under 35 USC 103 as being obvious over FR 2994057 by Morcellet in view of US Patent Application Number 2022//0225583 by Hosomi
Regarding claims 11 (dependent on claim 10), 14 (dependent on claim 1), Morcellet does not disclose acquiring information on a number of buds to be retained on each cane to be retained; and if all of the total score(s) of the one or more canes are lower than a predetermined value, generating the cut-point data for the cane determined as a cane to be retained so that a number of buds remaining on the cane determined as a cane to be retained is smaller than the acquired number of buds to be retained. However, this limitation is taught by Hosomi. Hosomi discloses a plant management system using cameras to facilitate cultivation methods such as pruning, and paragraph 105 suggests that “Pruning includes bud removal” and “Bud removal, flower picking, topping, and fruit thinning can be quantified by quantity”. It would thus be obvious to a person having ordinary skill in the art to modify Morcellet using the teachings from Hosomi to use the number of buds as a parameter for determining the cutting points. Furthermore, it would be obvious to a person having ordinary skill in the art to set the thresholds for when cutting is needed as desired for different plants and cultivation methods.
Regarding claim 13 (dependent on claim 1), Morcellet as modified by Hosomi further teaches grouping a plurality of canes of the fruit tree into a plurality of groups based on sensor data of the plurality of canes; wherein the acquisition of the measurement values, the determination as to a cane to be removed or a cane to be retained, and the generation of the cut-point data are performed for one or more canes that are grouped into a same group among the plurality of groups. Paragraph 166 of Hosomi discloses “these pieces of information may be acquired for each stem of the cultivation target plant, or may be collectively acquired for a group of stems cultivated in a predetermined plot or a predetermined greenhouse”.
Regarding claim 15 (dependent on claim 14), Morcellet as modified by Hosomi further teaches the generating the cut-point data for each cane having been determined as a cane to be retained includes: generating the cut-point data so that each cane having been determined as a cane to be retained includes one or more buds after being cut. Hosomi teaches a cultivation method that includes bud removal, and Morcellet discloses a method that generates cut points for plants as desired.
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 1-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim s 1-20 of co-pending Application No. 18/956,549 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims cover similar limitations, with slightly different wording, such as claim 1 of the ‘549 application referring to “information indicating a three-dimensional structure of one or more canes of the fruit tree” and “evaluation criteria” that are just slightly different wording for the priority levels of the present application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant's arguments filed 2/5/2026 have been fully considered but they are not persuasive.
Regarding the double patenting rejection, as explained in the rejection, “information indicating a three-dimensional structure of one or more canes of the fruit tree” and “evaluation criteria” that are just slightly different wording for the priority levels of the present application. Applicant merely once again pointed out these different wording, without any support for how the different wordings are patentably distinct.
Regarding applicant’s argument that the segment intersections of Morcellet merely means intersections of the line segments S, this nonetheless means that there are individual segments S, which would be a segmentation of the entire image.
Regarding the argument that the segment intersections disclosed in Morcellet is not an image, the point clouds, and therefore the segment intersections, are converted from the images taken by the camera, and therefore are quite literally a segmentation of the images from the camera.
Conclusion
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 MICHAEL H WANG whose telephone number is (571)272-6554. The examiner can normally be reached 10-6:30.
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MICHAEL H. WANG
Primary Examiner
Art Unit 3642
/MICHAEL H WANG/Primary Examiner, Art Unit 3642
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