Ex Parte Van Gemert et al

Patent Trial and Appeal Board

Apr 19, 2017

13123942 (P.T.A.B. Apr. 19, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/123,942 07/07/2011 John Van Gemert 2005-1072 2583
466 7590 04/21/2017
YOUNG fr THOMPSON
EXAMINER
209 Madison Street VALENTI, ANDREA M
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Alexandria, VA 22314 ART UNIT PAPER NUMBER
3643
NOTIFICATION DATE DELIVERY MODE
04/21/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN VAN GEMERT, MARTINUS KERS, and
GERARDUS JOHANNES JOZEF MARIA MEEUWS
Appeal 2015-000170
Application 13/123,9421
Technology Center 3600
Before LINDA E. HORNER, BRANDON J. WARNER, and
JASON W. MELVIN, Administrative Patent Judges.
MELVIN, Administrative Patent Judge.
DECISION ON APPEAL
This appeal arises under 35 U.S.C. § 134(a), from a final rejection of
claims 1—6, 8, 10-12, and 14—20. Appellants’ representative presented
arguments at an oral hearing on March 16, 2017. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
1 Appellants identify Plantlab Groep B.V. as the real party in interest.
Appeal Br. 1.
Appeal 2015-000170
Application 13/123,942
BACKGROUND
The claims are directed to systems and methods for growing a plant in
a conditioned environment. Claim 1, reproduced below, is illustrative:
1. A system for growing a plant in a conditioned environment,
comprising:
a cultivation base adapted for receiving a culture substrate
with a root system of the plant therein;
means for root temperature control adapted to impose a
predetermined root temperature on a root system;
means for lighting adapted to expose leaves of the plant to
actinic artificial light;
means for leaf heating adapted to impose on the leaf of the
plant a leaf temperature varying from an ambient
temperature; and
a control is provided between the means for leaf heating and
the means for root temperature control which imposes a
mutual dependence on the leaf temperature and the root
temperature.
Appeal Br. 15 (Claims App.).
REJECTIONS
Appellants seek review of the following: claims 1—6, 8, 10-12, and
14—20 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Wittlin
(U.S. Pat. No. 5,009,029, iss. Apr. 23, 1991), Fang (U.S. Pat. Pub. No.
2001/0047618 Al, pub. Dec. 6, 2001), Horaguchi (U.S. Pat. No. 5,269,093,
iss. Dec. 14, 1993), Morag (U.S. Pat. Pub. No. 2007/0260400 Al, pub. Nov.
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Application 13/123,942
8, 2007), and Taylor (A.O. Taylor and J. A. Rowley, Plants under Climatic
Stress, 47 Plant Physiol. 713, (1971)). Final Act. 4—7; Adv. Act. 2.2
DISCUSSION
Claim construction
The Examiner construes several limitations as means-phis-fimction
limitations pursuant to35U.S.C. § 112, sixth paragraph. Although the
Examiner does not elaborate on each required function, the Examiner
provides the corresponding structures recited in the Specification:
Limitation Corresponding structure
“means for root temperature
control”
a closed conduit system receiving
therein liquid flow
“means for lighting” set of light emitting diodes (LEDs)
“means for leaf heating” infrared radiation element #30
Final Act. 2. Appellants do not challenge these constructions in their briefs.
Obviousness
Appellants address all claims as a group. See Appeal Br. 4—13.
Accordingly, we select claim 1 as representative and all other claims stand
or fall with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that Wittlin teaches the claimed cultivation base
and means for root temperature control. Final Act. 4. Although Wittlin
2 The rejection of claim 21 under 35 U.S.C. § 112, fourth paragraph (Final
Act. 3) was rendered moot by Appellants cancelling that claim. See Appeal
Br. 4 (noting that the Advisory Action of February 24, 2014, entered the
amendment cancelling claim 21).
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Appeal 2015-000170
Application 13/123,942
teaches artificial lighting, it does not teach LEDs; the Examiner relies on
Fang as teaching LEDs and finds that a person of ordinary skill in the art had
reason to use the LEDs of Fang “to achieve optimal light quality for either
energy savings and/or better growth rate of plants as taught by Wittlin.”
Final Act. 5.
Regarding the means for leaf heating, the Examiner finds that
Horaguchi teaches the claimed structure—infrared radiation elements—and
that a person of skill had reason to add those elements to Wittlin’s growing
apparatus “for providing photomorphogenesis.” Final Act. 5.
Regarding the claimed control, the Examiner finds that “Morag
teaches a computerized crop growing management system that provides
control between root temperature and leaf temperature” (citing Morag 1 89)
and that Taylor teaches “the mutual dependence of leaf temperature and root
temperature” (citing Taylor, 715—16). Final Act. 6. The Examiner further
finds that a person of ordinary skill in the art had reason to “to modify the
teachings of Wittlin with the general knowledge of Morag and Taylor at the
time of the invention for automated management and controlled growth.”
Id. at 6. In the Answer, the Examiner further finds that using teachings from
Morag and Taylor would allow “optimiz[ing] photosynthesis and plant
growth.” Ans. 7.
Horaguchi
Appellants argue that “Horaguchi. . . do[es] not discuss the relevance
of an ambient temperature in relation to a leaf temperature for improving
plant growth, and hence fails to disclose means for imposing a leaf
temperature on the leaves varying from an ambient temperature.” Appeal
Br. 9. We do not agree that Horaguchi must discuss the relevance of
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Application 13/123,942
ambient temperature in order for its teaching of infrared radiators to teach
the claimed structure. We see no error in the Examiner’s finding that
“Horaguchi teaches wavelengths in the infrared range . . . and satisfies the
claim requirement of the leaf heating means according to the invention.”
Ans. 5—6; accord id. at 6 (“The light of Horaguchi at the taught wavelength
will produce heat i.e. impose a temperature that varies from the ambient
temperature.”).
During the hearing, counsel for Appellants pointed to Horaguchi’s
teaching of a wind tunnel with an electric fan for air circulation. See
Horaguchi 2:25—27. According to Appellants, because Horaguchi includes
that wind-tunnel arrangement, Horaguchi’s infrared radiators are not
“adapted to impose on the leaf of the plant a leaf temperature varying from
an ambient temperature” as claimed. Transcript of March 16, 2017, 7:8—
9:15. In our view, however, Horaguchi’s wind tunnel supports the
Examiner’s findings: using a wind tunnel to control the ambient temperature
is consistent with the finding that Horaguchi’s infrared radiators impose a
leaf temperature that varies from the ambient temperature.
Appellants argue that there “is no motivation in Horaguchi... to
provide means to impose a leaf temperature on the leaves of the plant
varying from an ambient temperature” and that, therefore, the skilled
practitioner “would have no reason to modify the teaching of Wittlin in view
of Horaguchi.” Appeal Br. 9—10; see also Reply Br. 3^4 (“The effect on
plant growth by a possible heat development in the leaves as a result of such
irradiation is not disclosed in Horaguchi.”). But the Examiner explains that
a person of ordinary skill in the art would have been motivated by
Horaguchi’s teaching to use the infrared radiators “for providing
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Application 13/123,942
photomorphogenesis.” Final Act. 5; Ans. 6 (both citing Horaguchi 1:46—
48). The Examiner’s rejection relies on a reason for the modification with
rational underpinning.3 In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006).
Indeed, accepting Appellants’ position would amount to ignoring the
Supreme Court’s instruction that “neither the particular motivation nor the
avowed purpose of the patentee controls.” KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398, 419 (2007). Thus, Appellants’ arguments regarding
Horaguchi do not apprise us of error in the rejection.
Morag and Taylor
Appellants argue that the Examiner incorrectly concludes that it
would have been obvious to use the claimed control, which “imposes mutual
dependence on the leaf temperature and the root temperature.” Appeal Br.
10—12. According to Appellants, Taylor at most teaches “that the root
temperature and the leaf temperature both play a role in photosynthesis” but
not “that controlling the root temperature and leaf temperature of the plant in
mutual dependence results in an improved growth of the plant.” Id. at 11.
We, however, agree with the Examiner that Taylor teaches “leaf temperature
and root temperature have a mutual dependence.” See Ans. 7.
In a section titled “Root Temperature and Leaf Temperature,” Taylor
describes a set of experiments measuring photosynthesis activity, in which
root and leaf temperature were varied in two different plants by reducing
them from 25°C to 10°C. Taylor 715—16. As Taylor’s Table IV shows, the
3 The Examiner has not supported the conclusion that using Horaguchi’s
leaf-heating means would have been “merely the simple substitution of one
known element for another to obtain predictable results.” Final Act. 5. But
that deficiency does not undermine the Examiner’s other reasoning.
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Application 13/123,942
experiments included changing the root and leaf temperature together and
also changing just one or the other. Id. at 716. We agree with the
Examiner’s finding that Taylor teaches “mutual dependence of leaf
temperature and root temperature.” Final Act. 6.
Morag teaches that “a climate controller in a greenhouse may be
connected to one or more operational sensors,” including those measuring
“the roots’ temperature” and “leaf temperature,” and that “controllers known
in the prior art run the control loop in accordance with data received from
the operational sensors.” Morag | 89. We agree with the Examiner’s
finding that Morag teaches “using a computerized system to analy[ze] and
control the environmental parameters.” Ans. 7.
We note the broad scope of the claim term “imposes a mutual
dependence.” See Appeal Br. 15 (Claims App.). Neither the claims nor the
Specification provides a narrowing statement regarding how a controller
must impose mutual dependence. See Tr. 11:1—12:8, 14:1—11. The
Specification gives an example that “[i]n for instance a normal growth
trajectory the leaf temperature will thus follow, optionally in directly
proportional manner, a change in root temperature.” Spec. 5:13—15. We
conclude that the broadest reasonable construction of the term includes any
control where one parameter depends on the other in some fashion. When
considering Morag’s teachings of an environmental controller together with
Taylor’s teachings regarding the interdependence of root and leaf
temperatures, we agree with the Examiner’s findings that a person of skill
had reason to configure the controller taught by Morag with the claimed
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mutual dependence of root and leaf temperature as taught by Taylor in order
“to optimize photosynthesis and plant growth.”4 Ans. 7.
Thus, Appellants’ arguments regarding Morag and Taylor do not
apprise us of error in the rejection.
Accordingly, we sustain the Examiner’s rejection of claims 1—6, 8,
10-12, and 14—20.
DECISION
For the above reasons, the Examiner’s rejection of claims 1—6, 8, 10—
12, and 14—20 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)(l)(iv).
AFFIRMED
4 The Examiner has not supported the conclusion that “[t]he modification is
merely ‘obvious to try’ choosing from a finite number of identified,
predictable solutions, with a reasonable expectation of success.” Final Act.
6; accord Ans. 7. But that deficiency does not undermine the Examiner’s
other reasoning.
8