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 1-20 have been examined in this application. This communication is the first action on the merits of these claims.
Claim Rejections - 35 USC § 102
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, 5-7, 18-22 are rejected under 35 USC 102(a)(1) and 102(a)(2) as being anticipated by 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:
Acquiring information on a cultivation method of the fruit tree (the machine translation discloses “an algorithm makes it possible to select the cutting points according to the selected size method”, the selected size method comprises a cultivation method of the fruit tree);
for each of one or more canes of the fruit tree, acquiring one or more measurement values concerning one or more attributes including an attribute having different evaluation criteria depending on the cultivation method, based on sensor data including information indicating a three-dimensional structure of the one or more canes, the sensor data 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 (“the image-capturing means consist of at least one profilometric camera including, on the one hand, the means for projecting a laser beam and, on the other hand, a camera allowing the recording and recording of a series of images”);
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 point clouds into skeletons of feet implementing a database including information on: segment intersections; - node coordinates; - the thicknesses of knots”);
determining the one or more canes each as a cane to be removed or a cane to be retained based on the one or more measurement values (“selection of the cutting points according to the branches to cut selected, and depending on the type of size selected”); and
generating the cut-point data for each cane determined as a cane to be removed, wherein the acquiring the one or more measurement values concerning the one or more attributes includes, for each of the one or more canes, acquiring the one or more measurement values concerning the one or more attributes based on the segmented image (“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”).
Regarding claim 2 (dependent on claim 1), Morcellet discloses the information on the cultivation method includes information on at least one of a shape of a trellis system of the fruit tree, or a pruning method for the fruit tree and a training method for the fruit tree (“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 physical sizes of the branches are information on a shape of the trellis system and the selection of the cutting points are a pruning method for the fruit tree).
Regarding claim 3 (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 claim 5 (dependent on claim 1), Morcellet discloses acquiring information on the cultivation method includes acquiring information on the cultivation method based on sensor data of the fruit tree (“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”).
Regarding claim 6 (dependent on claim 5), Morcellet discloses the acquiring information on the cultivation method includes acquiring information on the cultivation method based on an image of the fruit tree acquired by an imager (“The profilometric camera is moved in translation, and proceeds to an image survey of the corresponding vine”).
Regarding claim 7 (dependent on claim 1), Morcellet discloses the attribute having different evaluation criteria depending on the cultivation method includes at least one of a direction in which the cane extends, a height of a base of the cane (“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’)”). The coordinates of the Y of the branch would also show the direction in which the cane extends and a height of a base of the cane.
Regarding claim 18, 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 including information indicating a three-dimensional structure of one or more canes of the fruit tree (“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”), the sensor data including an image of the one or more canes acquired by an imager (“the image-capturing means consist of at least one profilometric camera including, on the one hand, the means for projecting a laser beam and, on the other hand, a camera allowing the recording and recording of a series of images”); and
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:
acquire information on a cultivation method of the fruit tree (“an algorithm makes it possible to select the cutting points according to the selected size method”, the selected size method comprises a cultivation method of the fruit tree);
based on the sensor data, for each of the one or more canes, acquire one or more measurement values concerning one or more attributes, including an attribute having different evaluation criteria depending on the cultivation method (“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 point clouds into skeletons of feet implementing a database including information on: segment intersections; - node coordinates; - the thicknesses of knots”);
based on the one or more measurement values, determine the two 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, wherein when the data processor acquires the one or more measurement values concerning the one or more attributes, the data processor is configured or programmed to, for each of the one or more canes, acquire the one or more measurement values concerning the one or more attributes based on the segmented image (“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”).
Regarding claim 19 (dependent on claim 18), 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 20 (dependent on claim 19), Morcellet discloses an agricultural machine comprising the system of claim 19 (mobile structure 1).
Regarding claims 21 (dependent on claim 1) and 22 (dependent on claim 18), Morcellet discloses the segmented image including 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”).
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 4 and 8-17 are rejected under 35 USC 103 as being obvious over FR 2994057 by Morcellet
Regarding claim 4 (dependent on claim 1), Morcellet does not disclose the acquiring the information on the cultivation method includes: acquiring the information on the cultivation method 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 8 (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 one or more attributes, determining a factor score based on the measurement value, and determining the one or more canes each as a cane to be removed or a cane to be retained based on the factor score, and the factor score is determined so as to differ depending on the cultivation method. 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. Furthermore, since the factor score is based on the measurement value, it would be an obvious of design choice to modify Morcellet to label the measure measurement values and set the thresholds using whatever scoring system is desired.
Regarding claims 9 (dependent on claim 8), 10 (dependent on claim 9), 11 (dependent on claim 8), 12 (dependent on claim 11), 13 (dependent on claim 8), 14 (dependent on claim 13), 15 (dependent on claim 8), 16 (dependent on claim 15), 17 (dependent on claim 16), Morcellet does not disclose the attribute having different evaluation criteria depending on the cultivation method includes a direction in which the cane extends; and the determining the factor score includes: for each of the one or more canes, determining the factor score based on an angle of tilt of the cane with respect to an opposite direction of the direction of gravity and based on an azimuth angle of the cane in a horizontal plane that is orthogonal to a direction of gravity, wherein the factor score of each of the one or more canes regarding the direction in which the cane extends is, when a shape of a trellis system in the cultivation method is a vertical shoot position, determined so that the factor score is higher as the angle of tilt of the cane is smaller, or the attribute having different evaluation criteria depending on the cultivation method includes a height of a base of the cane; and the determining the factor score includes: for each of the one or more canes, when a pruning method in the cultivation method is spur pruning, determining the factor score based on a height of the base of the cane from a cordon, wherein, when a shape of a trellis system in the cultivation method is a vertical shoot position and when a pruning method in the cultivation method is spur pruning, the factor score of each of the one or more canes regarding the height of the base of the cane is determined to be: if the height of the base of the cane from the cordon is smaller than a predetermined range, lower than when the height of the base of the cane from the cordon is within the predetermined range; and if the height of the base of the cane from the cordon is larger than the predetermined range, lower than when the height of the base of the cane from the cordon is smaller than the predetermined range, or the attribute having different evaluation criteria depending on the cultivation method includes a height of a base of the cane; and the determining the factor score includes: for each of the one or more canes, when a pruning method in the cultivation method is cane pruning, determining the factor score based on a height of the base of the cane from a head, wherein when a shape of a trellis system in the cultivation method is a vertical shoot position and when a pruning method in the cultivation method is cane pruning, the factor score of each of the one or more canes regarding the height of the base of the cane is determined to be: if the height of the base of the cane from the head is smaller than a predetermined range, lower than when the height of the base of the cane from the head is within the predetermined range; and if the height of the base of the cane from the head is larger than the predetermined range, lower than when the height of the base of the cane from the head is smaller than the predetermined range, or the attribute having different evaluation criteria depending on the cultivation method includes a direction in which buds are facing; and the determining the factor score includes: for each of the one or more canes, determining the factor score based on the direction in which buds on the cane are facing, further comprising acquiring information on a number of buds to be retained on each cane to be retained; wherein the determining the factor score includes: for each of the one or more canes, among buds on the cane, determining the factor score based on a mean value of directions in which as many buds as the number of buds to be retained are facing, or when a shape of a trellis system in the cultivation method is a vertical shoot position, the factor score of each of the one or more canes regarding the direction in which buds are facing is determined to be: higher when the mean value of directions in which as many buds as the number of buds to be retained on the cane are facing is upward from the horizontal plane than when the mean value of directions in which as many buds as the number of buds to be retained on the cane are facing is downward from the horizontal plane. 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.
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. 18/956,522 (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 ‘522 application referring to referring to “priority levels” instead of a “cultivation method”, but a cultivation method for trimming canes includes thresholds for when the canes should be cut, which is functionally the same thing as a priority level for the attributes.
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 argument that application 18/956,522 and the present application are patentably distinct because the present invention discloses acquiring one or more measurement values concerning one or more attributes including an attribute having different evaluation criteria depending on the cultivation method and the co-pending patent recites determining the one or more canes each as a cane to be removed or a cane to be retained based on the measurement values and the priority levels, as stated in the provisional double patenting rejection, a cultivation method for trimming canes includes thresholds for when the canes should be cut, which is functionally the same thing as a priority level for the attributes, and an attribute having different evaluation criteria depending on the cultivation is still just a different way to set priority levels.
Regarding the argument that Morcellet obtains a simplified representation of the vine plant by projecting a laser beam onto the vine one by one, and determines pruning points by using the simplified representation, as discussed in the current grounds of rejection above, Morcellet explicitly discloses that the profilometric camera of has a means for projecting a laser beam and a camera allowing the recording of images. A profilometric camera uses light or laser triangulation in order to help the camera capture surface topography of an object. This does not mean that the laser provides a simplified representation of the vine plant, or that a camera is not used. Rather, the laser and camera work together to provide a more accurate image of the vines. Afterwards, as quoted by the applicant, Morcellet explicitly states that “said processing means are suitable for converting said images into a point cloud”, which is the segmentation of the image.
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
Prosecution Insights