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 .
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.
The abstract of the disclosure is objected to because it contains more than 150 words. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
The disclosure is objected to because of the following informalities: In ¶0001 U.S. Patent Application No. 18/269,116 should be changed to U.S. Patent No. 12,364,211.
Appropriate correction is required.
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 rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 1-20 of U.S. Patent No. 12,364,211. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of U.S. Patent No. 12,364,211 anticipate the claims of the invention. Claim 1 of U.S. Patent No. 12,364,211 and the instant invention differ in that claim 1 of U.S. Patent No. 12,364,211 recites elements which differ from elements of the instant invention but also anticipate them (such a camera vs a photographing portion, a medium accommodated in the cultivation portion vs a cultivation portion configured to accommodate a medium).
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
In the claims it is unclear how a region ratio is used by the controller to determine various states of plants. However, in the specification it seems a region ratio is determined by a color difference between a cover portion and a cover through hole in an image. However, it is unclear how this image is obtained and what structure captures the image, as there is no clear link between a structure to capture the image and the claimed invention. This causes confusion with numerous claims (including but not an exhaustive list: claims 6-13), as the image, region ratio, etc. is used to further define structure of the claim.
In the claims a region ratio identified by the controller is used to determine an abnormal state (independent claims 1, 18, and subsequent claims). However, it is unclear how pictures of the plants are obtained in a first region compared to a second region if a cover is configured to shield the open top of the cultivation container if the second region extends beyond the through hole of the cover (instant specification, ¶0014).
In claim 4 it is unclear how a display of the cover determines a relative position.
In claim 7 it is unclear how the controller is configured to perform a hardness determination.
Claim limitation “a photographing portion provided in the cabinet and configured to photograph the cultivation portion” 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 written description discloses the photographing portion may correspond to a camera (instant specification ¶0078) but does not clearly and definitively link a camera or other structure to a “photographing portion” 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 4 limitation “a display that determines a relative position with respect to the at least one cover through-hole” has been evaluated under the three-prong test set forth in MPEP § 2181, subsection I, but the result is inconclusive. Thus, it is unclear whether this limitation should be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The boundaries of this claim limitation are ambiguous; 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.
In response to this rejection, applicant must clarify whether this limitation should be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. Mere assertion regarding applicant’s intent to invoke or not invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph is insufficient. Applicant may:
(a) Amend the claim to clearly invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, by reciting “means” or a generic placeholder for means, or by reciting “step.” The “means,” generic placeholder, or “step” must be modified by functional language, and must not be modified by sufficient structure, material, or acts for performing the claimed function;
(b) Present a sufficient showing that 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, should apply because the claim limitation recites a function to be performed and does not recite sufficient structure, material, or acts to perform that function;
(c) Amend the claim to clearly avoid invoking 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, by deleting the function or by reciting sufficient structure, material or acts to perform the recited function; or
(d) Present a sufficient showing that 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, does not apply because the limitation does not recite a function or does recite a function along with sufficient structure, material or acts to perform that function.
In the claims, including independent claims 1 and 18, it is unclear if the applicant intends to positively claim an image as part of the plant cultivation apparatus. “The image from the photographing portion” and “the image from the camera” is recited in claims 1 and 18, respectively, as well as “configured to receive an image”. Numerous dependent claims go on to positively recite the image and attempt to further define the device related to the image (including claims 2, 4, 6, 12, 14, 15, and 19).
Claims 1 and 18 recite “the medium” in line 13. However, a medium is previously functionally claimed, making it unclear if the medium is a positively recited element of the claim.
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) 1-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kim US 20220192106 in view of Yoo US 20220192118.
Regarding claims 1, 2, 3, 5-9, 14, and 15, Kim discloses a plant cultivation apparatus, comprising: a cabinet (1); at least one bed (50) provided inside of the cabinet; a cultivation portion (521) provided on the at least one bed and configured to accommodate a medium containing at least a portion a plant; a photographing portion (1100) provided in the cabinet and configured to photograph the cultivation portion; and a controller configured to receive an image photographed by the photographing portion (Kim, ¶0096), wherein the cultivation portion includes: a cultivation container (60) seated on the at least one bed, having an open top, and configured to accommodate the medium therein; and a cover (62) configured to shield the open top of the cultivation container. Not disclosed is the cover having a through-hole. Yoo teaches a plant cultivation apparatus with a cover having a through hole (Yoo, ¶0071) formed at a position corresponding to the medium. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the cover of Kim with the through hole of Yoo as to provide access to the container (Yoo, ¶0072). Kim in view of Yoo is capable of performing the functional language relating to the image and controller. Kim in view of Yoo further discloses the controller capable of performing the functional limitations of claims 2, 3, 5-9, 14, and 15 (Kim, ¶0096) as best understood.
Regarding claim 4, Kim in view of Yoo further discloses the cover portion includes a display that determines a relative position with respect to the at least one cover through-hole (Kim, ¶0165), wherein the image of the photographing portion includes the display (as best understood), and wherein the controller is configured to perform a second position determination mode for defining the first region by identifying a position of the display in the image and reflecting the relative position (as best understood).
Regarding claim 10-12, Kim in view of Yoo further discloses wherein a cultivation space (S1) in which the plant is cultivated is formed inside of the cabinet, wherein the plant cultivation apparatus further comprises a blower (80) including a blower fan provided in the cabinet to circulate air in the cultivation space, and wherein the controller is configured to perform a blowing mode for adjusting an amount of air circulation in the cultivation space by controlling the blower when the fallen state of the plant is determined in the hardness determination mode (the controller of Kim is capable of performing this function)(Kim, ¶0096). Kim in view of Yoo is capable of performing the functional limitations of claims 11 and 12.
Regarding claim 13, Kim in view of Yoo further discloses a light emitting portion including a light emitting body (70) provided inside of the cabinet and that irradiates light toward the cultivation portion (Kim, Figure 5), wherein when the controller determines that the plant is in the fallen state in the hardness determination mode (the controller of Kim performs this limitation, as best understood), the controller controls the light emitting portion to increase a light amount of the light emitting body so that a light amount adjustment mode for inducing recovery of the plant in the fallen state is performed (Kim, ¶0200, 0201).
Regarding claim 16, Kim in view of Yoo further discloses a light emitting portion (70) including a light emitting body provided inside of the cabinet and that irradiates light toward the cultivation portion (Kim, Figure 5), wherein when the plant is determined to be in the growth abnormality state in the growth abnormality determination mode (the controller of Kim performs this limitation, as best understood) the controller controls the light emitting portion to reduce a light amount of the light emitting body so that a light amount adjustment mode inducing recovery of the plant in the growth abnormality state is performed (Kim, ¶0200, 0201).
Regarding claim 17, Kim in view of Yoo further discloses a water supply portion (512) provided inside of the cabinet (Kim, Figure 5) and configured to supply a nutrient solution to the cultivation portion, wherein the controller performs a flow rate adjustment mode for adjusting the nutrient solution supplied to the cultivation portion by controlling the water supply portion when the controller determines that the plant is in the growth abnormality state in the growth abnormality determination mode (Kim, ¶0029).
Regarding claims 18 and 19, Kim discloses a plant cultivation apparatus, comprising: a cabinet (1); at least one bed (50) provided inside of the cabinet; a cultivation portion (521) provided on the at least one bed and configured to accommodate a medium containing at least a portion of the plant; a camera (1100) provided in the cabinet and configured to photograph the cultivation portion; and a controller configured to receive an image photographed by the camera and determine a status of the plant based on the photograph (Kim, ¶0096), wherein the cultivation portion includes: a cultivation container (60) seated on the at least one bed, having an open top, and configured to accommodate the medium therein; and a cover (62) configured to shield the open top of the cultivation container. Not disclosed is the cover having a through-hole. Yoo teaches a plant cultivation apparatus with a cover having a through hole (Yoo, ¶0071) formed at a position corresponding to the medium. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the cover of Kim with the through hole of Yoo as to provide access to the container (Yoo, ¶0072). Kim in view of Yoo is capable of performing the functional language relating to the image and controller. Kim in view of Yoo further discloses the controller capable of performing the functional limitations of claim 19 (Kim, ¶0096) as best understood.
Regarding claim 20, Kim in view of Yoo further discloses the plant cultivation apparatus comprising a light source (70) and a blower (80), wherein the controller is configured to control the blower based on status of the plant (the controller of Kim is capable of performing this function)(Kim, ¶0096).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: US 2023/0255153.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KRISTEN C HAYES whose telephone number is (571)272-7881. The examiner can normally be reached M-F 8am-6pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michener Joshua can be reached at 571.272.1467. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/KRISTEN C HAYES/Primary Examiner, Art Unit 3642