Yang Yang et al.

Patent Trials and Appeals Board

Feb 25, 2020

13804156 - (D) (P.T.A.B. Feb. 25, 2020)

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
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/804,156 03/14/2013 Yang Yang DAS-P0234-02-US-E 4009
83067 7590 02/25/2020
Faegre Drinker Biddle & Reath LLP-Dow AgroSciences
300 North Meridian Street
Suite 2500
Indianapolis, IN 46204
EXAMINER
TOPOLSKI, MAGDALENA
ART UNIT PAPER NUMBER
3643
NOTIFICATION DATE DELIVERY MODE
02/25/2020 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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
inteas@faegredrinker.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte YANG YANG, FRANK BURROUGHS, and KRISTEN CURLEE
Appeal 2018-006383
Application 13/804,156
Technology Center 3600
Before JILL D. HILL, LEE L. STEPINA, and ARTHUR M. PESLAK,
Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 3–7, and 21–23, which constitute all
the claims pending in this application.2 See Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Dow AgroSciences
LLC. Appeal Br. 3.
2 Claims 8–10 are withdrawn from consideration and claims 11 and 13–17
are allowed. Final Act. 1.
Appeal 2018-006383
Application 13/804,156

2
THE CLAIMED SUBJECT MATTER
Appellant’s invention relates to providing artificial light to plant
growing areas. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. An apparatus for controlling the light intensity received at
a plant canopy comprising:
a frame;
an artificial light source supported by the frame and
positioned at a distance generally above a plant canopy;
a light intensity sensor positioned to measure a light
intensity, the light intensity sensor positioned at one of the plant
canopy and a distance above the plant canopy;
a first height adjustment unit configured to adjust the
distance between the artificial light source and plant canopy; and
a distance sensor supported by the frame and moveable
with the artificial light source, the distance sensor measuring a
distance between the distance sensor and the plant canopy,
wherein the first height adjustment unit adjusts the distance
between the artificial light source and the plant canopy in
response to at least one of the light intensity measured by the
light intensity sensor and the distance measured by the distance
sensor.
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Application 13/804,156

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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Kloos US 5,038,261 Aug. 6, 1991
Van Den Dool US 2006/0032115 A1 Feb. 16, 2006
Dubé US 2010/0115830 A1 May 13, 2010
Hirawai3 JPH04356139A Dec. 9, 1992
Baccigalupi Baccigalupi et al.,
Field Programmable
Analog Arrays for
Conditioning
Ultrasonic Sensors,
IEEE Sensors
Journal, Vol. 7, No. 8
Aug. 2007

REJECTIONS
1) Claims 1, 3, 4, and 21–23 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Hirawai4, Kloos, and Dubé.
2) Claims 5 and 6 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Hirawai, Kloos, Dubé, and Van Den Dool.
3) Claim 7 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Hirawai, Kloos, Dubé, and Baccigalupi.

3 Although the inventor of JPH04356139A is Hirawai Hideyoshi, because
both the Examiner and Appellant use the name “Hirawai,” we keep this
nomenclature to refer to JPH04356139A for consistency.
4 We refer to the English-language machine translation provided by the
Examiner.
Appeal 2018-006383
Application 13/804,156

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OPINION
Rejection 1
Claims 1 and 22
The Examiner finds that Hirawai discloses all the limitations of claim
1 except that “Hirawai is silent about a light intensity sensor positioned to
measure a light intensity . . . and a distance sensor the distance sensor
measuring a distance between the distance sensor and the plant canopy.”
Final Act. 2–3. The Examiner finds that Kloos discloses a distance sensor
and that Dubé discloses a light intensity sensor. Id. at 3–4. The Examiner
concludes that it would have been obvious to replace Hirawai’s detection
sensor with Kloos’s distance sensor “in order to adjust the distance between
the plant canopy and the light based on plant height before the plants block
the light source,” and that it would have been obvious to further modify
Hirawai with Dubé’s light intensity sensor “in order to control the light
intensity hitting the plants and adjust the height based on various sensor
readings.” Id.
Appellant argues that Kloos is non-analogous art because (1) it is in a
different field of endeavor and because (2) it is not reasonably pertinent to
the particular problem with which the inventor is involved. Appeal Br. 11–
12 (citing In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004); In re Wood and
Eversole, 599 F.2d 1032, 1036 (CCPA 1979). Regarding the second prong
of the analogous art test, Appellant argues that the problem to be solved by
the claimed invention is “controlling of intensity of artificial light at a plant
canopy to improve quantity and quality of yields,” whereas Kloos focuses on
a different problem, namely, “readjust[ing] the beam direction setting so that
the originally set illumination zone (operating incision) will again be exactly
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Application 13/804,156

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illuminated without new displacement of the lamp fixture.” Id. at 12–13
(citing Spec. ¶ 3 and Kloos, 2:10–15). According to Appellant, “one of
ordinary skill in the art would not look to Kloos because the object of the
present invention is control the light intensity at a plant canopy and not to
ensure a specific area is covered by the light irrespective of intensity.” Id. at
13.
The Examiner responds that Kloos is addressing the same problem as
Appellant, “measuring the distance between an artificial light source and a
pertinent field.” Ans. 3 (citing Kloos, 3:25–30). Specifically, Kloos uses “a
distance sensor to determine any needed height adjustment of the light to the
pertinent field.” Id. According to the Examiner, “[t]he limitations of a plant
canopy and adjusting the distance from the plant itself have already been
taught by Hirawai, Kloos is merely teaching a light source with a different
type of sensor is known and can be implemented thereon.” Id. at 3–4.
Appellant replies that “the Examiner’s suggested problem is too
generic and abstract a way of framing the art fields in question.” Reply Br.
3. Appellant argues that “while Kloos is directed to keeping a specific area
illuminated and adjusting the lamp fixture to keep the exact area illuminated
at different positions, the present application is directed to providing a
specific, consistent intensity of light at the plant canopy independent of the
given area covered by the light.” Id. For the following reasons, we are not
persuaded that Kloos is not analogous art.
The analogous art test requires that a reference either be in the field of
the applicant's endeavor or reasonably pertinent to the problem with which
the inventor was concerned in order to rely on that reference as a basis for
the rejection. In re Oetiker, 977 F.2d 1443, 1447 (Fed. Cir. 1992).
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References are selected as being reasonably pertinent to the problem based
on the judgment of a person having ordinary skill in the art. Id. (“[I]t is
necessary to consider ‘the reality of the circumstances,’ --in other words,
common sense--in deciding in which fields a person of ordinary skill would
reasonably be expected to look for a solution to the problem facing the
inventor.” (quoting In re Wood, 599 F.2d 1032, 1036 (CCPA 1979))).
Furthermore, the scope of analogous art is to be construed broadly. Wyers v.
Master Lock Co., 616 F.3d 1231, 1238 (Fed. Cir. 2010) (“The Supreme
Court’s decision in KSR International Co. v. Teleflex, Inc., 550 U.S. 398
(2007), directs us to construe the scope of analogous art broadly, stating that
‘familiar items may have obvious uses beyond their primary purposes, and a
person of ordinary skill often will be able to fit the teachings of multiple
patents together like pieces of a puzzle.’ Id. at 402 (emphasis added).”).
Appellant’s argument in the Reply Brief that the Examiner’s framing
of the art fields in question is too generic and abstract may be relevant to the
first prong of the analogous art test, i.e., whether Kloos is in Appellant’s
field of endeavor. However, we focus here on the second prong, i.e.,
whether Kloos is reasonably pertinent to the problem with which the
inventor was concerned.
Appellant identifies a problem with prior art plant growing systems of
undesirable variations in lighting as plants grow because those systems use a
lamp “that is maintained at a fixed distance from the plant growing area.”
Spec. ¶ 3. Appellant’s claimed invention utilizes a distance sensor to
measure the distance between the distance sensor and the plant canopy and
then adjusting the distance between the light source and the plant canopy.
Appellant does not dispute the Examiner’s finding that Kloos teaches “an
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ultrasound sensor 15 for determining the distance between illumination zone
8 (operating plane) and reference point 7 of the lamp housing 9.” Kloos,
4:44–47. Because both Appellant and Kloos use a sensor to determine the
distance between a light source and what the light is illuminating (see Spec.
¶ 25; Kloos 4:44–47), we agree with the Examiner that Kloos is reasonably
pertinent to the problem addressed by the claimed invention. Appellant’s
assertion of differences between applications for surgical lamps and grow
lamps may be relevant to the first prong of the analogous art test, but does
not apprise us of Examiner error in finding that Kloos is reasonably pertinent
to the problem solved by Appellant’s claimed invention of adjusting the
distance between a light source and a plant canopy.
Appellant also argues that the combination of references fails to
disclose a first height adjustment unit adjusting the distance in response to
the distance measured by the distance sensor. Appeal Br. 15. According to
Appellant, Kloos rotates the lamp head in response to a distance
measurement indicating that the desired illuminated zone is not properly
illuminated, but does not adjust the distance between the artificial light
source and the field in response to the distance measurement. Id. The
Examiner responds that Kloos changes distance in addition to rotating the
lamp in order to have proper illumination. Ans. 4–5.
Appellant’s arguments are not persuasive because the arguments are
an attack on Kloos individually whereas the rejection is based on the
combined teachings of Hirawai and Kloos. See In re Keller, 642 F.2d 413,
425 (CCPA 1981) (explaining that one cannot show nonobviousness by
attacking references individually when the rejection is based on a
combination of references). Here, the Examiner finds that Kloos teaches a
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distance sensor, and proposes to modify Hirawai’s system to make Hirawai’s
detection sensor a distance sensor and reasons that the combination of
Hirawai and Kloos would have been obvious “in order to adjust the distance
between the plant canopy and the light based on plant height before the
plants block the light source.” Final Act. 3. Specifically, the Examiner
understands Hirawai’s system to wait until the light is blocked by the plants
before changing the distance, whereas Kloos determines a distance and
would allow the system of Hirawai to adjust the distance before the plant
blocks the light.
We agree with the Examiner that Kloos changes distance in addition
to rotating the lamp in order to have proper illumination. Kloos discloses
that “[a]fter movement of the lamp . . . the lamp housing is displaced until
the lighting axis intersects with the originally set illumination zone.” Kloos,
2:27–37. Specifically, with respect to Figure 4 of Kloos, when the distance
between illumination zone 8 (operating plane) and reference point 7 is
changed, i.e., “for displacement of lamp housing 9 by a distance N from
position 7 to position 7' . . . angles are then adjusted by the positioning
motors by rotations at joints 3 and 4. The resetting of the intensely
illuminated zone by overlapping of the light beams is accomplished.” Id. at
5:30–50 (emphasis omitted); see also Ans. 5.
Appellant also argues that there is no reason to replace the detection
sensor of Hirawai with the distance sensor of Kloos, because the plants of
Hirawai do not block the light source itself in Hirawai, but the light source
of the sensor so that the sensor may trip and signal that the light needs to be
moved up. Appeal Br. 16. We note that Appellant does not direct our
attention to any portion of Hirawai in support of this argument. See id.
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Appellant asserts that the Examiner’s proposed replacement is not a simple
substitution of the sensor of Hirawai with a distance sensor, because this
would render the system of Hirawai inoperable for its intended purpose. Id.
Specifically, Appellant asserts that even if the resultant system were
“capable of measuring a distance, there is no guidance with what to do with
the measured distance since neither Hirawai nor Kloos disclose adjusting the
height of the lamp relative to the plant canopy in response to the measured
distance.” Id.
Appellant’s arguments are not persuasive. Hirawai discloses that the
position of lamp 1 is changed in the vertical direction based on the output of
detecting means 3 so that the “distance between the plant 2 and the lamp 1
can be properly maintained at all times.” Hirawai Abstract, see also id. ¶ 8.
Using a distance sensor, if the distance is not appropriate, the height would
be adjusted so as to maintain a proper distance. Any adjustment would be
based on the measured distance. Previously, Hirawai would adjust the
distance based on the amount of light hitting the sensor (whether the light
hitting sensor 3 was blocked or not). By substituting the distance sensor of
Kloos for the detection sensor of Hirawai, Hirawai would continue to
operate in its intended manner of adjusting the height to maintain proper
distance between the plant and the lamp.
We have considered all of Appellant’s arguments and determine that
they fail to apprise us of error in the Examiner’s findings and reasoning.
We, thus, sustain the rejection of claim 1 under 35 U.S.C. § 103(a). Claim
22 depends from claim 1. Appeal Br. 27 (Claims App.). Appellant does not
argue separately for the patentability of claim 22. See Appeal Br. passim.
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We, thus, sustain the rejection of claim 22 for the same reasons as stated
above for claim 1.
Claims 3, 4, 21, and 23
For claim 3, the Examiner finds that it would have been obvious to
include a second height adjustment mechanism in order to further adjust the
height as the “mere duplication of the essential working parts of a device.”
Final Act. 4–5; see also Ans. 5.
Appellant argues that the addition of the second height adjustment
unit is not a mere duplication of parts because the second height adjustment
unit is configured to adjust a different distance than that of the first height
adjustment unit. Appeal Br. 17–18; see also Reply Br. 4.
Appellant’s argument is persuasive because the Examiner does not
explain adequately how duplication of height adjustment units will result in
a second height adjustment unit configured to adjust the relative position of
the light intensity sensor to the artificial light source as required by claim 3.
As Appellant correctly notes, the first height adjustment unit of claim 1 is
configured to adjust the distance between the artificial light source and plant
canopy. Having a second unit performing this function would not adjust the
relative position of the light intensity sensor to the artificial light source.
Thus, we agree with Appellant that the Examiner’s conclusion that the
second height adjustment unit is a mere duplication of parts is not supported
because “the addition of the second height adjustment unit adds the ability to
adjust two other components of the system relative to each other
independent or dependent of the adjust[ment]s made by the first height
adjustment unit.” Appeal Br. 18.
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For these reasons, we do not sustain the rejection of claim 3 and
claims 4, 21, and 23 depending therefrom.
Rejections 2 and 3
Claims 5–7 depend from claim 1. Appeal Br. 24 (Claims App.).
Appellant does not argue separately for the patentability of claims 5–7. See
Appeal Br. passim. We, thus, sustain the rejection of claims 5–7 for the
same reasons as stated above for claim 1.

DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3, 4, 21–23 103(a) Hirawai, Kloos, Dubé 1, 22 3, 4, 21, 23
5, 6 103(a) Hirawai, Kloos, Dubé,
Van Den Dool
5, 6
7 103(a) Hirawai, Kloos, Dubé,
Baccigalupi
7
Overall
Outcome:
1, 5–7, 22 3, 4, 21, 23

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED IN PART