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 .
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 14, 15 and 33 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 4 recites the limitation "the zones" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 15 recites the limitation "the growth cycle" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 33 recites the limitation "the ambient temperature" in line 1. There is insufficient antecedent basis for this limitation in the claim.
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 1-6, 8, 11, 24, 38, and 41-43 are rejected under 35 U.S.C. 102(a)(1) (a)(2) as being anticipated by Ware (US 4299054).
Regarding claim 1, Ware discloses a method for vertical farming, the method comprising: obtaining at least one germinated plant (seedling 15, col. 3, ll. 19-20) wherein the at least one germinated plant is housed in a first container (tray 11, col. 3, ll. 13-15) with solid growth medium (wafer 30, col. 3, ll. 32-35), and wherein a distal portion of the roots of the at least one germinated plant extends through a bottom of the first container (fig. 5); and positioning the first container (tray 11) and the at least one germinated plant relative to a second container (trough 12) with an aqueous growth medium (water or nutrient solution 16, col. 3, ll. 20-21) such that an air gap is present between the bottom of the first container and a surface of the aqueous growth medium (an air gap is formed between the bottom surface of tray 11 and the surface of nutrient solution 16, fig. 5).
Regarding claim 2, Ware discloses wherein the at least one germinated plant has been allowed to germinate for between about 2 and about 7 days (seeds are allowed to sprout within a cycle of a few days, col. 7, ll. 5-8).
Regarding claim 3, Ware discloses wherein the distal portion of the roots of the at least one germinated plant is in contact with the aqueous growth medium in the second container or are less than 5 mm from contacting the aqueous medium in the second container (fig. 5).
Regarding claim 4, Ware discloses wherein the distal portion of the roots of the at least one germinated plant extends from about 10 mm to about 50 mm below the bottom of the first container such that the zones of maturation of the roots are exposed to the air gap (roots are exposed to air located between the bottom surface of tray 11 and the nutrient solution 16, fig. 5).
Regarding claim 5, Ware discloses wherein the air gap formed between the bottom of the first container and the surface of the aqueous solution is from about 1 mm to about 50 mm (fig. 5).
Regarding claim 6, Ware discloses wherein the air gap formed between the bottom of the first container and the surface of the aqueous solution is from about 1 mm to about 10 mm (fig. 5).
Regarding claim 8, Ware discloses wherein the solid growth medium is from about 2 cm to about 6 cm deep, and from about 1 cm to about 3 cm wide (col. 3, ll. 36-38).
Regarding claim 11, Ware discloses wherein the air gap is maintained at a humidity level that is about 60% to about 100% relative humidity (col. 4, ll. 22-24).
Regarding claim 24, Ware discloses wherein the aqueous growth medium is not circulated, recirculated, or agitated during growth of the at least one germinated plant (col. 4, ll. 49-52).
Regarding claim 38, Ware discloses wherein the method further comprises transferring the at least one germinated plant to at least a third container containing aqueous growth medium (plants are transplanted to another pot i.e. a third pot, col. 7, ll. 5-6).
Regarding claim 41, Ware discloses wherein the method further comprises assessing at least one growth parameter during growth of the at least one germinated plant (plant growth is assessed to determine when to remove cover 13, col. 6, ll. 64-67 and col. 7, ll. 36-38).
Regarding claim 42, Ware discloses wherein the method further comprises harvesting the at least one germinated plant when a desired growth outcome is reached (col. 2, ll. 4-7, lettuce is harvested).
Regarding claim 43, Ware discloses wherein the at least one germinated plant is selected from the group consisting of: bok choy, pac choi, lettuce, spinach, chard, kale, arugula, mustard greens, fennel, basil, chives, mint, parsley, cilantro, tomatoes, cucumbers, broccoli, peas, strawberries, rice, quinoa, mushrooms, and/or flowering plants (col. 2, ll. 4-7, lettuce is harvested).
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.
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 15 is rejected under 35 U.S.C. 103 as being unpatentable over Ware.
Regarding claim 15, Ware teaches wherein the air gap is maintained during the growth cycle of the at least one germinated plant (col. 7, ll. 33-35, system doesn’t require the water level to be varied thus the air gap would be maintained) and wherein the growth cycle of the at least one germinated plant is a few days (col. 7, ll. 6-8) but is silent on wherein the growth cycle of the at least one germinated plant is from about 10 days to about 25 days. It would have been obvious to one having ordinary skill in the art before the effective filing date to have the plant germinate from about 10 days to about 25 days, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Ware in view of Hardej (US 2017/0303482).
Regarding claim 16, Ware teaches the invention substantially as claimed but fails to teaches wherein the aqueous growing medium comprises an oxygen level that is 10 ppm or less. However, Hardej teaches an aqueous growing medium comprises an oxygen level that is 10 ppm or less (saturated dissolved oxygen level of 5ppm, para. 0021). It would have been obvious to one having ordinary skill in the art before the effective filing date to modify Ware’s nutrient solution with an oxygen level as taught by Hardej to aid a plant in nutrient uptake.
Claimd 20, and 27 are rejected under 35 U.S.C. 103 as being unpatentable over Ware in view of King et al. (US 6074988 henceforth King).
Regarding claim 20, Ware teaches the invention substantially as claimed but fails to teaches wherein the aqueous growth medium comprises a pH from about 5.0 to about 8.0. However, King teaches an aqueous growth medium comprises a pH from about 5.0 to about 8.0 (medium solution comprising a pH of between 4 and 7.5, col 4, ll. 54-56). It would have been obvious to one having ordinary skill in the art before the effective filing date to modify Ware’s nutrient solution with a pH level as taught by King to aid a plant in nutrient uptake.
Regarding claim 27, Ware teaches the invention substantially as claimed but fails to teaches wherein the solid growth medium comprises a wetting agent. However, King teaches a solid growth medium comprising a wetting agent (perlite, vermiculite, col 4, ll. 66-67). It would have been obvious to one having ordinary skill in the art before the effective filing date to modify Ware’s growth medium with a wetting agent as taught by King to improve the growth of a plant.
Claim 29 is rejected under 35 U.S.C. 103 as being unpatentable over Ware in view of DE 4426851.
Regarding claim 29, Ware teaches the invention substantially as claimed but fails to teaches wherein the solid growth medium comprises a fungal agent. However, DE 4426851 teaches a solid growth medium comprising a fungal agent (mycorrhizal, claim 1). It would have been obvious to one having ordinary skill in the art before the effective filing date to modify Ware’s growth medium with a fungal agent as taught by DE 4426851 to prevent root damage.
Claim 33 is rejected under 35 U.S.C. 103 as being unpatentable over Ware in view of Mizrakci et al. (US 11582927 henceforth Mizrakci).
Regarding claim 33, Ware teaches the invention substantially as claimed but fails to teaches wherein the ambient temperature surrounding the first container and the second container is maintained at about 15°C to about 25°C. However, Mizrakci teaches an ambient temperature surrounding the first container and the second container is maintained at about 15°C to about 25°C (temperature is kept at 22C to 26C, col. 13, ll. 25-26). It would have been obvious to one having ordinary skill in the art before the effective filing date to modify Ware’s temperature with a temperature as taught by Mizrakci to maintain a healthy growth environment for the plant.
Claim 35 is rejected under 35 U.S.C. 103 as being unpatentable over Ware in view of Smith (US 4106235).
Regarding claim 35, Ware teaches the invention substantially as claimed but fails to teaches wherein the method further comprises replacing and/or replenishing the aqueous growth medium at least once during growth of the at least one germinated plant. However, Smith teaches replacing and/or replenishing the aqueous growth medium at least once during growth of the at least one germinated plant (col. 10, ll. 7-13). It would have been obvious to one having ordinary skill in the art before the effective filing date to modify Ware’s method with a watering method as taught by Smith to maintain a liquid level to cover the lower root system to promote growth.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to EBONY E EVANS whose telephone number is (571)270-1157. The examiner can normally be reached 9am -5pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kimberly Berona can be reached at 5712726909. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/EBONY E EVANS/Primary Examiner, Art Unit 3647
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