Ex Parte HollandDownload PDFPatent Trial and Appeal BoardMay 28, 201311365110 (P.T.A.B. May. 28, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte KYLE HOLLAND ____________ Appeal 2010-011145 Application 11/365,110 Technology Center 2800 ____________ Before JASON V. MORGAN, HUNG H. BUI, and LYNNE E. PETTIGREW, Administrative Patent Judges. PETTIGREW, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1-8. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appeal 2010-011145 Application 11/365,110 2 STATEMENT OF THE CASE Introduction According to Appellant, the invention relates to an apparatus for remotely sensing and assessing plant chlorophyll content, thereby allowing selective monitoring or treatment of individual plants. Abstract. Claim 1 is independent and is illustrative of the invention (emphasis added): 1. Apparatus for assessing the status of a plant forming a part of a plant canopy under ambient sunlight conditions, comprising: (a) a light source positioned above the plant canopy and having an emission spectrum with a portion of its spectrum containing red-edge wavelengths from 700 nm to 735 nm for illuminating the plant canopy; (b) a detector for detecting portions of the light from the light source reflected off of a plant in the plant canopy; and (c) a processor for determining the plant's status based in part on the red-edge wavelengths emitted by the source. Prior Art Relied Upon The Examiner relies upon the following prior art in rejecting the claims: Beck US 5,389,781 Feb. 14, 1995 Lussier US 7,112,806 B2 Sept. 26, 2006 Schlemmer et al., Remotely Measuring Chlorophyll Content in Corn Leaves with Different Nitrogen Levels and Relative Water Content (received for publication May 11, 2004) (“Schlemmer”). Appeal 2010-011145 Application 11/365,110 3 Rejections on Appeal The Examiner has rejected claims 1, 3, 4, and 8 under 35 U.S.C. § 102(a) as being anticipated by Lussier. Ans. 3-4. The Examiner has rejected claim 2 as being unpatentable under 35 U.S.C. § 103(a) over Lussier and Schlemmer. Ans. 4-5. The Examiner has rejected claims 5-7 as being unpatentable under 35 U.S.C. § 103(a) over Lussier and Beck. Ans. 5-6. ANALYSIS Claims 1-4 and 8 Appellant contends that the Examiner erred in rejecting claim 1 because Lussier does not disclose a system that operates “under ambient light conditions” while also satisfying limitation (a) in the body of the claim. App. Br. 4-5; Reply Br. 13-14. Acknowledging that “under ambient light conditions” appears only in the preamble of the claim, Appellant nevertheless argues that the recited language should be given patentable weight because it “is needed to give life and meaning to the claim.” App. Br. 6. Appellant specifically points to limitation (b), which recites “a detector for detecting portions of the light from the light source reflected off of a plant in the plant canopy.” Id. According to Appellant, the “claim language is thus distinguishing the light detected in the detector from ambient or reflected sunlight.” Id. We are not persuaded by Appellant’s arguments. First, we agree with the Examiner that the preamble phrase “under ambient sunlight conditions” should not be given patentable weight, and we adopt as our own the Examiner’s findings and reasoning in that regard. As the Examiner correctly Appeal 2010-011145 Application 11/365,110 4 finds, “under ambient sunlight conditions” merely recites the intended use of the apparatus in claim 1. Ans. 8; see Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305 (Fed. Cir. 1999). As also stated by the Examiner, the body of the claim describes a structurally complete invention. Ans. 8; see Pitney-Bowes, 182 F.3d at 1305. Furthermore, “under ambient sunlight conditions” does not provide antecedent basis for any limitation in the claim body and, contrary to Appellant’s argument, is not essential to understanding the recitation in limitation (b) of detecting light from the light source reflected off of a plant. See Catalina Mktg. Int’l, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 808 (Fed. Cir. 2002). Thus, we agree with the Examiner that “under ambient light conditions” is not a claim limitation entitled to patentable weight. Ans. 8. Moreover, even if the recited language is considered a limitation, we concur with the Examiner’s finding that Lussier discloses a system that assesses the status of a plant under ambient sunlight conditions while also meeting the remaining limitations of claim 1. See Ans. 7. As found by the Examiner, Lussier describes a system with “day-night operation.” Ans. 7; Lussier, col. 5, ll. 8-9; col. 7, ll. 44-45; col. 8, ll. 50-58. Although the system in Lussier includes a box placed over the plant (item (1) in Figure 1), the system itself operates under ambient sunlight conditions during daytime operation. The Examiner has broadly but reasonably interpreted the claim language to encompass such a system. We also concur with the Examiner’s findings that the system described in Lussier that operates under ambient sunlight conditions also satisfies the other limitations of claim 1. Contrary to Appellant’s argument that during daytime operation the active light source in Lussier’s system is Appeal 2010-011145 Application 11/365,110 5 filtered for visible light in the 400-650 nm spectral band, App. Br. 5 (citing Lussier, col. 5, ll. 8-10), the Examiner correctly finds that Lussier also teaches other ranges for the light source depending on the operation required, including 650-1100 nm, which “contain[s] red-edge wavelengths from 700 nm to 735 nm,” as recited in claim 1. Ans. 7; Lussier, col. 7, ll. 29-33. As shown in Figure 1 of Lussier (item (4)), this light source is also “positioned above the plant canopy” as recited in claim 1. Ans. 9. Appellant’s contention that the light source is directed toward either side of a single leaf of a plant instead of positioned above the plant canopy (App. Br. 5) refers to an alternative embodiment and does not preclude anticipation by the configuration shown in Figure 1 of Lussier. Ans. 9. In the Reply Brief, Appellant argues for the first time that Lussier’s system measures fluorescence rather than reflectance of light from a plant. Reply Br. 4-11. Because this argument could have been presented in the Appeal Brief to rebut the rejection made in the Final Office Action, it is untimely and therefore waived. See Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative) (“[T]he reply brief [is not] an opportunity to make arguments that could have been made in the principal brief on appeal to rebut the Examiner’s rejections, but were not.”). Moreover, Appellant’s new argument is unpersuasive because Lussier describes detecting both fluorescence and reflectance. The Examiner finds that video imager (8) and video image sensor area array (12) in Lussier’s Figure 1 satisfy limitation (b) of claim 1, which recites “a detector for detecting portions of the light from the light source reflected off of a plant in the plant canopy.” Ans. 3-4. In addition to detecting fluorescence, video imager (8) may also detect reflectance of light from the plant. See, e.g., Lussier, col. 7, Appeal 2010-011145 Application 11/365,110 6 ll. 45-48 (“A second lens can be used to enable a second narrow-spectral band, 740 nm, and/or integrates a photo-diode array with interference filters to capture additional reflective VIS/NIR narrow band signatures.” (emphasis added)); Lussier, col. 7, ll. 59-62 (“A lens/photo-diode assembly with photo cells, filter (15) may replace lens 11 to measure reflective narrow-band VIS/NIR signatures to improve the diagnostic evaluation of the plant stress response.” (emphasis added)). For these reasons, we sustain the Examiner’s rejection of independent claim 1 and dependent claims 2-4 and 8, for which Appellant has not presented separate, detailed arguments. See App. Br. 7-8. Claims 5-7 Appellant also presents new arguments in the Reply Brief regarding the Examiner’s rejection of dependent claims 5-7 under 35 U.S.C. § 103(a) over Lussier and Beck. Reply Br. 12-13. Specifically, Appellant argues that one skilled in the art would have no way to modify Lussier to practically generate a map (claim 5) or take a reading and then apply a horticultural material (claims 6 and 7) as taught by Beck because Lussier’s system is meant to be stationary, and therefore there would be a time delay in performing multiple measurements. Id. These arguments could have been presented in the Appeal Brief, but were not, and are therefore waived. See Borden, 93 USPQ2d at 1473-74. Moreover, Appellant’s arguments are unpersuasive because the Examiner’s rejection is based on the combined teachings of the references, not physically modifying Lussier’s system to incorporate the mobile aspect of Beck’s system. See In re Keller, 642 F.2d 413, 425 (CCPA 1981) (“The test for obviousness is not whether the features Appeal 2010-011145 Application 11/365,110 7 of a secondary reference may be bodily incorporated into the structure of the primary reference . . . Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art.” (citations omitted)). Appellant otherwise argues the patentability of claims 5-7 for the same reasons presented with respect to claim 1. App. Br. 8. Accordingly, for the reasons discussed above with respect to claim 1, we sustain the Examiner’s rejection of claims 5-7. DECISION The Examiner’s rejection of claims 1-8 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED tj Copy with citationCopy as parenthetical citation