Ex parte Biggs et al.

Board of Patent Appeals and Interferences

Sep 10, 2001

08727125 (B.P.A.I. Sep. 10, 2001)

Application for patent filed October 8, 1996, entitled1
"Method and Apparatus for Real-Time Determination and
Application of Nitrogen Fertilizer Using Rapid,
Non-Destructive Crop Canopy Measurements," which is a
continuation-in-part of Application 08/410,783, filed March
24, 1995, now abandoned.
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The opinion in support of the decision being
entered today was not written for publication
and is not binding precedent of the Board.
_______________
Paper No. 23
UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES

Ex parte GREGORY L. BIGGS,
TRACEY M. BLACKMER, TANVIR H. DEMETRIADES-SHAH,
KYLE H. HOLLAND, JAMES S. SCHEPERS,
and JOHN HENRY WURM

Appeal No. 1999-1101
Application 08/727,1251

ON BRIEF

Before BARRETT, DIXON, and BLANKENSHIP, Administrative Patent
Judges.
BARRETT, Administrative Patent Judge.
DECISION ON APPEAL
Appeal No. 1999-1101
Application 08/727,125
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This is a decision on appeal under 35 U.S.C. § 134 from
the final rejection of claims 1-4, 6, 7, 9, 10, 12, 13, and
17-21. Claims 5, 8, 11, 14, 22, and 23 stand allowed. In the
examiner's answer (Paper No. 22), page 2, claim 14 is allowed
and claims 15 and 16 are noted to contain allowable subject
matter.
We affirm.
BACKGROUND
The invention relates to a method and apparatus for the
real-time determination and application of optimum amounts of
fertilizer to a crop. A physical attribute related to the
fertilizer requirement of the crop is sensed and used to
control the fertilizer application. The fertilizer
application may be controlled by comparing a sensed physical
characteristic of a reference area of the crop that is known
to have sufficient fertilizer with a non-reference area of the
crop.
Claim 1 is reproduced below.
1. A method for controlling the application of
fertilizer to a crop having a physical attribute related
to the fertilizer requirement of said crop, comprising
the steps of:
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Application 08/727,125
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(a) providing a sensor which is responsive to at
least one characteristic of said crop;
(b) measuring said at least one characteristic of
said crop;
(c) determining at least one physical attribute of
said crop from said measurement of a
characteristic; and
(d) controlling fertilizer application to said crop
in real-time in response to said physical
attribute.
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THE PRIOR ART
The Examiner relies on following references:
Wolfe, Jr. 4,662,563 May 5, 1987
Monson 5,355,815 October 18, 1994
Todd A. Peterson, Tracy M. Blackmer, Dennis D. Francis,
and James S. Schepers, Using a Chlorophyll Meter to
Improve N Management, NebGuide G93-1171-A, published by
Cooperative Extension, Institute of Agriculture and
Natural Resources, University of Nebraska-Lincoln, July
1993 (hereinafter "Peterson").
T.H. Demetriades-Shah and M.N. Court, Oblique view
reflectance for assessing nitrogen status of incomplete
canopies, Int. J. Remote Sensing, 1987, Vol. 8, No. 7,
pp. 1049-1055 (hereinafter "Demetriades-Shah").
Wolfe discloses a center pivot irrigation system with a
controller for automatically starting and stopping the
irrigation system based on the sensed moisture level of the
soil (abstract).
Monson discloses a real-time (on-line) system for
controlling fertilizer application from a tractor. The system
includes a soil analyzer 28 capable of analyzing soil for
chemical content (e.g., nitrogen, phosphorus, and potassium)
and soil type (e.g., clay, sand, or silt) in real time and an
expert system 30 that determines a soil prescription and
instructs control application system 22 to dispense a blend of
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fertilizers at a rate depending upon the determined soil
chemical composition. Monson does not disclose real-time
application of fertilizer based on a physical characteristic
of the crop.
Peterson discloses use of a hand-held chlorophyll meter
to measure portions of leaves in the field as a tool to
detecting nitrogen deficiency and determining the need for
additional nitrogen fertilizer. The meter is an alternative
to soil testing (first page). Peterson discloses that there
is a close link between leaf chlorophyll and nitrogen content
(first page). Peterson teaches using reference strips (strips
in the field that are adequately fertilized with sufficient
levels of nitrogen fertilizer so they do not exhibit nitrogen
deficiency) to calibrate the chlorophyll meter for each field,
previous crop, hybrid, fertilizer and/or manure application,
and differing soil types (under "Establishing Reference
Strips" and Fig. 3). "By comparing the average chlorophyll
meter readings from the reference strips to those from the
rest of the field, N sufficiency and the need for additional N
supplied through fertigation can be determined." (Under
"Establishing Reference Strips.") The recommended measurement
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technique compares meter readings from the reference strip and
the bulk field at a minimum of three locations in each field
and, at each location, the average reading of 30 plants from
the reference area and the adjacent bulk field should be
compared (under "How to sample"). Because chlorophyll meter
readings vary with the time of day, readings from the
reference strip and the bulk field should be taken at about
the same time (id.). Peterson forecasts that "[p]otential
uses of these techniques in the future may include remote
sensing by satellite or airplane to schedule the need for
additional fertilizer N" (under "The chlorophyll meter as an N
management tool").
Demetriades-Shah discloses an experiment to determine if
a change in crop color due to nitrogen stress (lack of
nitrogen) can be assessed in terms of leaf chlorophyll
concentrations using crop reflectance measurements.
Demetriades-Shah discloses that "leaf chlorophyll
concentration assessed on a plant weight basis is strongly
influenced by the nutrient status of the soil and by the
growth stage of the crop, rising after germination and then
declining as crop growth rate increases" (pp. 1049-50).
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Demetriades-Shah compares measurements of crop reflectances
taken from a conventional nadir view (vertically downward
looking) against reflectances taken at an oblique angle.
Canopy reflectance from a downward view includes the influence
of soil visible between the plants and is primarily sensitive
to the relative amounts of soil and green vegetation in its
field of view rather than the greenness of canopy leaves
(p. 1055). There is a strong correlation between reflectance
measurements and chlorophyll content per unit ground area, but
poor correlation between reflectance measurements and
chlorophyll per unit plant weight for downward-looking
measurements (p. 1051). Demetriades-Shah concludes "that
plant chlorophyll concentration is better predicted from
oblique-looking reflectance measurements than from vertically
downward-looking measurements, because the influence of soil
reflectance is removed" (p. 1055).
THE REJECTIONS
Claims 1, 3, 7, 9, 13, and 17-21 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Monson,
Demetriades-Shah, and Peterson.
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Application 08/727,125
The statement of the rejection in the examiner's2
answer, page 4, incorrectly includes allowed claim 11.
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Claims 2, 4, 6, 10, and 12 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Monson, Demetriades-Shah,
and Peterson, further in view of Wolfe.2
We refer to the final rejection (Paper No. 12) and the
examiner's answer (Paper No. 22) for a statement of the
Examiner's position, and to the appeal brief (Paper No. 21)
(pages referred to as "Br__") for a statement of Appellants'
arguments thereagainst.
OPINION
Claim 1
The test for obviousness is what the combined teachings
of the references would have suggested to those of ordinary
skill in the art. In re Keller, 642 F.2d 413, 425,
208 USPQ 871, 881 (CCPA 1981). Monson discloses a "real-time"
fertilization system in which fertilizer is dispensed in real
time in response to the measured composition of the soil.
"Real time" is interpreted to mean that the fertilizer is
applied at a certain location at approximately at the same
time as the measured need for fertilizer at that location.
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The difference between Monson and the subject matter of
claim 1 is that Monson measures physical characteristics of
the soil, not a characteristic of the crop, as claimed.
Peterson teaches the claimed subject matter of independent
method claims 1 and 3 except for controlling fertilizer
application "in real-time." The hand-held chlorophyll meter
in Peterson is not suitable for a continuous real-time
(on-line) fertilizer application method or apparatus and, so,
would not constitute the "means for measuring" of claim 9.
Peterson discloses that the hand-held chlorophyll meter for
measuring a crop characteristic (the chlorophyll content) is a
substitute for soil analysis (first page); thus, Peterson
suggested measuring the physical characteristics of a crop,
instead of the soil as in Monson, to determine fertilizer
requirements. Peterson further discloses that future
techniques would include remote sensing by satellite or
airplane in place of the hand-held meter (under "The
chlorophyll meter as an N management tool"); thus, Peterson
suggested using remote sensing of crop physical
characteristics in place of the hand-held meter and in place
of soil analysis. Demetriades-Shah teaches remote sensing of
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chlorophyll concentration by reflectance measurements and that
chlorophyll concentration is directly related to nitrogen
fertilizer requirements of the crop. One of ordinary skill in
the art would have been motivated to substitute a reflectance
measurement sensor, either vertically or obliquely mounted, as
taught in Demetriades-Shah for the soil measurement sensor in
the real-time system of Monson because: (1) it was a known
alternative way to determine fertilizer requirements;
(2) Peterson suggested remote sensing in place of soil testing
to determine fertilizer requirements and Demetriades-Shah was
one known type of remote sensor for determining fertilizer
requirements; and (3) there is a direct correlation between
the measured chlorophyll (nitrogen) content of the crop and
the fertilization requirements of the crop in Demetriades-Shah
and Peterson, whereas there is only an indirect correlation
between the nitrogen content of the soil and the fertilization
requirements of the crop in Monson. In the absence of
persuasive arguments to the contrary, the combination of
references is sufficient to establish a prima facie case of
obviousness.
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Next, we determine whether Appellants' arguments
demonstrate insufficient evidence of prima facie obviousness.
See In re Rouffet, 149 F.3d 1350, 1355, 47 USPQ2d 1453, 1455
(Fed. Cir. 1998) ("On appeal to the Board, an applicant can
overcome a rejection by showing insufficient evidence of prima
facie obviousness or by rebutting the prima facie case with
evidence of secondary indicia of nonobviousness.").
Our discussion of the claims is limited to the arguments
in the brief. Under U.S. Patent and Trademark Office rules,
Appellants' brief is required to specify the particular
limitations in the rejected claims which are not described in
the prior art or rendered obvious over the prior art. See 37
CFR § 1.192(c)(8)(iv) (1997). Cf. In re Baxter Travenol
Labs., 952 F.2d 388, 391, 21 USPQ2d 1281, 1285 (Fed. Cir.
1991) ("It is not the function of this court to examine the
claims in greater detail than argued by an appellant, looking
for nonobvious distinctions over the prior art.");
In re Wiechert, 370 F.2d 927, 936, 152 USPQ 247, 254 (CCPA
1967) ("This court has uniformly followed the sound rule that
an issue raised below which is not argued in this court, even
if it has been properly brought here by a reason of appeal, is
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regarded as abandoned and will not be considered. It is our
function as a court to decide disputed issues, not to create
them."); In re Wiseman, 596 F.2d 1019, 1022, 201 USPQ 658, 661
(CCPA 1979) (arguments must first be presented to the Board
before they can be argued on appeal).
Appellants argue that Monson senses the characteristics
of the earth and is not concerned with measuring
characteristics of plants. It is argued that Monson
apparently does not appreciate that soil measurements cannot
accommodate the different amounts of nitrogen needed at
different times of the year and under different environmental
conditions (Br14-15; Br15-16).
One cannot show nonobviousness by attacking the
references individually where the rejection is based on a
combination of references. Keller, 642 F.2d at 426,
208 USPQ at 882. While it is true that Monson only teaches
sensing soil characteristics, it is Demetriades-Shah and
Peterson that are relied on to show measurement of a physical
characteristic of a crop.
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Appellants argue that Demetriades-Shah does not suggest
using radiation and sensing of reflection in an on-line system
such as that taught by Monson even in view of Peterson (Br15).
Demetriades-Shah teaches measurement of a characteristic
of the crop, its reflectance, which characteristic is directly
related to chlorophyll concentration, which, in turn, is
directly related to nitrogen requirements of the crop. One of
ordinary skill in the sensing art would have had sufficient
skill to appreciate that the reflectance measurements and
calculations in Demetriades-Shah can be done in real time
because they are similar in nature to the spectrographic
analysis in Monson, unlike the hand-held meter in Peterson and
unlike chemical assaying of plant nitrogen status. One of
ordinary skill in the art would have been motivated to apply
remote sensing in a real-time fertilization system in view of
Monson. Demetriades-Shah and Peterson provide the motivation
to use remote sensing of physical characteristics of the crop,
instead of the soil, to determine fertilizer requirements.
Appellants argue that "Demetriades-Shah, et al., teaches
away from the necessary reflectance measurement in which the
light is reflected down and then upwardly by referring to
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oblique measurements to avoid interference with background"
(Br15). It is also argued that "[t]he oblique measurement
system of Demetriades-Shah, et al., requires separated sources
of light and detector devices not indicative of the current
system" (Br16).
None of the claims on appeal recite a specific sensor,
much less a sensor that uses downward radiation and reflection
of upward waves. Nor do the claims recite measuring a
specific characteristic which might indirectly limit the type
of sensor; e.g., measurement of plant biomass (also called
crop density or fractional cover), the relative amounts of
soil and green vegetation within view of the sensor, is
measured by a downward-looking sensor (specification, pp. 3-4;
Demetriades-Shah, p. 1049). The claims only require a sensor
that measures a characteristic (claim 1) or a physical
characteristic (claims 3 and 9) of the crop. Demetriades-Shah
describes a comparison between radiometer sensors that are
oriented looking vertically down and that are oriented at an
oblique angle (p. 1050) and, thus, teaches both kinds of
measurement. Each type of orientation is good for a certain
purpose. A reference must be evaluated for all it fairly
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suggests to one of ordinary skill in the art. In re Boe,
355 F.2d 961, 965, 148 USPQ 507, 510 (CCPA 1966);
In re Lemelson, 397 F.2d 1006, 1009, 158 USPQ 275, 277 (CCPA
1968) (the use of patents as references is not limited to what
the patentees describe as their own invention or to the
problems with which they are concerned). Appellants' argument
that the measurement system of Demetriades-Shah is not
indicative of the current system is not commensurate in scope
with the claim language.
It is argued that Peterson teaches a hand measuring
device which cannot perform a continuous on-line measurement
(Br15) and Peterson's leaf-by-leaf measurement has no utility
to the invention (Br16).
It is true that the chlorophyll meter of Peterson is not
suited to a real-time system. However, Demetriades-Shah is
relied on for a suitable sensor. Again, one cannot show
nonobviousness by attacking the references individually where
the rejection is based on a combination of references.
Keller, 642 F.2d at 426, 208 USPQ at 882. It is noted that
Peterson expressly suggests that the chlorophyll (nitrogen)
measurement could be done by remote sensing instead of a
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hand-held meter (under "The chlorophyll meter as an N
management tool").
We conclude that Appellants have not demonstrated error
in the prima facie case of obviousness. The rejection of
claim 1 is sustained.
Claims 17-21
Claim 17 depends on claim 1 and recites that the sensed
characteristic is electromagnetic radiation affected by the
crop. Appellants argue that the limitation defines a further
invention (Br17). However, Demetriades-Shah discloses sensing
electromagnetic radiation affected by the crop and this
teaching has not been addressed by Appellants. It is also
noted that Peterson discloses that remote sensing by satellite
or aircraft could be used to determine nitrogen content, which
implies sensing electromagnetic radiation affected by the
crop. The rejection of claim 17 is sustained.
Claim 18 depends on claim 1 and recites that the step of
determining the physical attribute includes the substep of
comparing the sensed characteristic with a reference value.
Appellants argue that while Peterson discloses the use of a
reference crop, it does not teach any mechanism by which
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moving measuring devices can sense both a reference crop and
the crop that is to be determined simultaneously (Br17).
Peterson teaches comparing readings from a bulk field with a
reference strip (under "Establishing Reference Strips") and
that readings should be taken from the reference strip and the
bulk field at about the same time because readings may vary
with time of day (under "How to sample"), which suggests
comparing reference and non-reference readings taken more or
less simultaneously. One of ordinary skill in the art would
have been motivated to provide for simultaneous measurement of
reference and non-reference in implementing a real-time
system. However, it is noted that neither claim 18 nor any of
the other claims require simultaneous sensing of a reference
and a non-reference value: the value of the reference crop
could be measured and stored for comparison and use during the
time the non-reference crop is being measured. The rejection
of claim 18 is sustained.
Claim 19 depends on claim 18 and recites that the
reference value changes in accordance with a changing standard
for a crop. Appellants argue that this allows different
environmental conditions or growing stages of the crop to be
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taken into consideration, but do not address the teachings of
the references (Br17). Peterson discloses that the measured
value of chlorophyll (and, hence, the amount of nitrogen in
the plant) for an adequately fertilized crop in the reference
strips (the standard for a crop) changes in response to crop
and environmental conditions which is the reason for reference
strips to calibrate the bulk field readings (paragraph above
"Field Use of the Chlorophyll Meter" and under "Establishing
Reference Strips"). Thus, Peterson teaches that the reference
value changes in accordance with a changing standard for the
crop. The rejection of claim 19 is sustained.
Claim 20 depends on claim 19 and recites that the
changing standard is electromagnetic radiation affected by a
reference crop in the same stage of growth. Appellants argue
that this requires that electromagnetic radiation must be
affected by different stages of growth, but do not address the
teachings of the references (Br17). Peterson discloses that
the amount of measured chlorophyll (hence, the amount of
nitrogen in the plant) is affected by environmental conditions
and discloses the use of reference strips of crops in the same
stage of growth as a changing standard for chlorophyll
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measurement. One of ordinary skill in the art would have been
motivated to measure electromagnetic radiation to remotely
sense the amount of chlorophyll in view of Demetriades-Shah.
The rejection of claim 20 is sustained.
Claim 21 depends on claim 19 and recites that the
changing standard includes a changing background reflection.
Appellants argue that there is no contemplation in the
references in dealing with the difficulty of background
reflections which are strong and disturbing in making the
measurements (Br18). We do not find any disclosure in the
specification about what is meant by "a changing background
reflection." If background reflection is intended to refer to
soil reflection, which changes as the crop biomass (fractional
cover) increases, then Demetriades-Shah discloses that
vertically downward-looking measurements can be used to
provide a good correlation between crop growth and chlorophyll
per unit ground area (pp. 1051, 1055). Demetriades-Shah
teaches that either a vertically downward-looking or oblique-
looking sensor can be used; each provides correlation to a
different characteristics of the crop. In any case, since
"the changing standard includes a changing background
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reflection" appears to be a property of the crop, the
reference crop in Peterson inherently has this property. The
rejection of claim 21 is sustained.
Claims 3, 7, 9, and 13
Independent method claim 3 recites a crop having a
non-reference area and a reference area, measuring the
physical characteristics of the reference crop and
non-reference crop, and controlling fertilizer application in
real time based on a comparison of the reference and
non-reference crop physical characteristics. Independent
apparatus claim 9 contains corresponding means-plus-function
limitations. Thus, claims 3 and 9 differ from claim 1 in
requiring the comparison of physical characteristics of a
reference crop.
Appellants rely on the same arguments as made with
respect to claim 1 (Br18). We refer to our discussion of
claim 1 for a response to these arguments. Appellants do not
argue the reference crop limitations. Nevertheless, Peterson
expressly discloses that the need for additional nitrogen
should be determined by comparing readings of reference strips
of crop and non-reference areas of the crop (the bulk field)
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because the standard chlorophyll readings (hence, the amount
of nitrogen in the plant) are affected by many factors. One
of ordinary skill in the art would have been motivated by
Peterson to use reference areas of crop to calibrate the
sensors regardless of the type of sensor. It is noted that
claims 3 and 9 do not require that the physical
characteristics of the reference crop and the non-reference
crop be determined simultaneously. The physical
characteristic of the reference crop could be measured and
stored and then used for comparison during measurement of the
physical characteristics of the non-reference crop (the bulk
field). The rejection of claims 3 and 9 is sustained.
As to claim 7, Appellants merely repeat the limitations
of the claim. This is not an argument. See 37 CFR
§ 1.192(c)(7). In any case, however, Monson expressly teaches
that the sensor can be secured to a tractor drawn real-time
fertilizer application system. One of ordinary skill in the
art seeking to use an electromagnetic sensor as taught by
Demetriades-Shah in a real-time fertilization system would
have been motivated to mount the sensor on a tractor in view
of Monson. Claim 13 is the apparatus counterpart of claim 7
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and would have been obvious for the same reason. The
rejection of claims 7 and 13 is sustained.
Claims 2, 4, 6, 10, and 12
Claims 2, 4, and 10 recite measuring by passing the
sensor over the crop by securement to a center pivot
irrigation system. Claim 4 also recites that the fertilizer
application is by fertigation.
Appellants argue that claim 2 depends from claim 1 and is
patentable for the same reasons as claim 1 (Br19), that
claim 4 depends from claim 3 and is patentable for the same
reasons as claim 3 (Br20), and that claim 10 depends from
claim 9 and is patentable for the same reasons as claim 9
(Br21). We disagree that claims 1, 3, and 9 are patentable
for the reasons stated in the discussion of those claims.
Appellants argue that it would have been unobvious to
combine Wolfe with Monson and Demetriades-Shah since Wolfe
senses only moisture in soil and does not relate to sensing a
characteristic that reflects the attribute of a plant (Br19).
Moreover, it is argued, Wolfe senses the soil in only one
location and could not accommodate variation of the needs of
the crop from location to location (Br20). It is argued that
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Peterson with its hand-held meter does not cure the problem
and Demetriades-Shah teaches away from a solution (Br20).
Monson teaches securement of the measurement sensor to
the moving irrigation device, a tractor in Monson's case, to
provide a real-time irrigation system. Manifestly, for a
real-time fertilization system, such as Monson, it is
necessary for the sensor to travel along with the
fertilization means so that the fertilizer can be applied
based on the measured characteristic. Monson would have
suggested to one of ordinary skill in the art to secure the
sensor to the fertilization means in any real-time
fertilization system. Wolfe teaches a center pivot irrigation
system which could be used for fertilization (fertigation) and
we agree with the Examiner that it would have been obvious to
attach a measurement sensor to such a system. In addition,
however, Peterson discloses applying nitrogen fertilizer
through the irrigation system (fertigation) which is generally
limited to center pivot or lateral move sprinkler systems
(second page, first para.). Peterson discloses fertilization
based on the physical characteristics of the plant and
suggests the use of remote sensing instead of a hand-held
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meter. We conclude that it would have been obvious to one of
ordinary skill in the art to secure sensors to any mechanism
for dispensing fertilizer in view of the real-time system in
Monson and, in particular, it would have been obvious to
secure the sensor to a center pivot fertigation system because
Peterson teaches that the center pivot system was a well known
mechanism for dispensing fertilizer. Further, in our opinion,
one of ordinary skill in the art would have had sufficient
knowledge to extend Peterson's suggestion of "remote sensing
by satellite or airplane" (under "The chlorophyll meter as an
N management tool") to sensors mounted on high-clearance
ground equipment, such as center pivot fertigation systems.
The rejection of claims 2, 4, and 10 is sustained.
Claims 6 and 12 recite that the sensor measures the light
reflectances from the crop. Demetriades-Shah teaches this
limitation. The rejection of claims 6 and 12 is sustained.
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CONCLUSION
The rejections of claims 1-4, 6, 7, 9, 10, 12, 13, and
17-21 are sustained.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED
LEE E. BARRETT )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JOSEPH L. DIXON ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
HOWARD B. BLANKENSHIP )
Administrative Patent Judge )
Appeal No. 1999-1101
Application 08/727,125
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Vincent L. Carney
P.O. Box 80836
Lincoln, NE 68501-0836