Ex Parte ARA et al

Patent Trial and Appeal Board

May 16, 2018

14651268 (P.T.A.B. May. 16, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/651,268 06/11/2015
77464 7590 05/18/2018
IPUSA, P.L.L.C
1054 31ST STREET, N.W.
Suite 400
Washington, DC 20007
FIRST NAMED INVENTOR
Hironori ARA
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
14SHD-019 1557
EXAMINER
TOPOLSKI, MAGDALENA
ART UNIT PAPER NUMBER
3643
NOTIFICATION DATE DELIVERY MODE
05/18/2018 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):
IPUSA@IPUSAPAT.COM
ips@itohpat.co.jp
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HIRONORI ARA, HIROSHI SUZUKI, and
RYOUICHI TAKEUCHI
Appeal2017-006715
Application 14/651,268 1
Technology Center 3600
Before LINDA E. HORNER, BENJAMIN D. M. WOOD, and
BRETT C. MARTIN, Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner's decision rejecting claims 3-16. Final Office Action (August 9,
2016) (hereinafter "Final Act."). 2 We have jurisdiction under 35 U.S.C.
§ 6(b ).
1 Showa Denko K.K. ("Appellant") is the applicant as provided for under
37 C.F.R. § 1.46 and is identified as the real party in interest. Appeal Brief 3
(December 12, 2016) (hereinafter "Appeal Br.").
2 Claims 1 and 2 are withdrawn from consideration. Appeal Br. 5.
Appeal2017-006715
Application 14/ 651,268
The claimed subject matter relates to a method for cultivating a fruit
vegetable, which allows for harvesting the fruit vegetable early.
Specification 2, 11. 6-7 (June 11, 2015) (hereinafter "Spec."). "[F]ruit
vegetable refers to a plant having edible seed or fruit, amongst the
vegetables." Id. at 4, 11. 9-10. The method includes alternately using red
light and blue light, each for a period of 3 to 48 hours, to continuously
irradiate a sprout to cause flower bud differentiation, and irradiating a
sunbeam on the flower bud differentiated fruit vegetable. Id. at 2, 1. 29-
3, 1. 3; 5, 1. 30-6, 1. 4; 6, 11. 11-12; and 10, 11. 2--4.
The Examiner determined that the claimed method would have been
obvious in light of a combination of teachings in the prior art. Appellant
argues that the Examiner erred in modifying the teachings of prior art
references directed to cultivating plants pre-harvest with the teaching of a
prior art reference directed to irradiating plants post-harvest. For the reasons
discussed below, the Examiner's proposed combination is supported by a
preponderance of the evidence. Accordingly, we AFFIRM.
CLAIMED SUBJECT MATTER
Claim 3 is the sole independent claim on appeal and is reproduced
below.
3. A method for cultivating a fruit vegetable,
compnsmg:
causing a flower bud differentiation by separately and
independently carrying out a procedure to continuously irradiate
red light on a fruit vegetable sprout, and a procedure to
continuously irradiate blue light on the fruit vegetable sprout;
and
irradiating a sunbeam on the flower bud differentiated fruit
vegetable, wherein the procedure to continuously irradiate the
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red light and the procedure to continuously irradiate the blue light
are alternately carried out, each for a length of time from three
hours to forty-eight hours.
Appeal Br. 15 (Claims Appendix).
EVIDENCE
Widmayer us 3,930,335 Jan. 6, 1976
Karpinski US 2007/0151149 Al July 5, 2007
Okamoto JP08-103167 Apr. 23, 1996
Chapman WO 2009/141287 Al Nov. 26, 2009
REJECTIONS
The Final Office Action includes the following rejections:
1. Claims 3, 4, 6, 8-10, 12-14, and 16 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Okamoto, Chapman, and Karpinski. 3
2. Claims 5, 7, 11, and 15 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Okamoto, Chapman, Karpinski, and Widmayer.
ISSUES
With respect to claim 3, the Examiner found that Okamoto as
modified by Chapman discloses the claimed method of cultivating a plant
except for the length of time recited for continuously irradiating the red light
and blue light. Final Act. 3. The Examiner determined that it would have
been obvious to further modify Chapman's method to continuously irradiate
3 The statement of this first ground of rejection includes claim 11 (Final
Act. 2); however, the subsequent explanation of the rejection omits any
mention of claim 11. Final Act. 2-5. Because claim 11 depends from
claim 5 (Appeal Br. 17), and both claims 5 and 11 are included in the second
ground of rejection (Final Act. 5), we understand this first ground of
rejection does not include a rejection of claim 11.
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Application 14/ 651,268
for the claimed length of time in light of the teachings of Karpinski. Id. at
3--4. The Examiner found that "the method of Karpinski will alter
phytochemicals in both harvested and not harvested plants, [i.e.,] the effects
of Karpinski are still desirable in pre-harvest plants to maintain vitamin
levels, [etc.]." Advisory Action 2 (October 14, 2016).
Appellant argues that the Examiner erred in determining that it would
have been obvious to one of ordinary skill in the art to apply the teachings of
Karpinski in the method of Okamoto, as modified by Chapman. Appeal Br.
7. Appellant explains that both Okamoto and Chapman use irradiating light
for promoting cultivation or growth of a plant, and, by contrast, Karpinski
uses irradiating light to alter the level of phytochemicals in harvested plant
material. Id. at 8; see also Reply Brief 3 (March 21, 2017). Appellant
asserts that Karpinski contains "no disclosure on what would happen if the
method of Karpinski were applied to not harvested plants (or pre-harvest
plants)" and does not teach that the effects of its technique are desirable in
pre-harvest plants. Appeal Br. 8.
The issue before us is whether the Examiner erred in finding that
Karpinski's technique is applicable and desirable in pre-harvest plants.
ANALYSIS
First, by way of background, we review the teachings of Okamoto and
Chapman. Okamoto teaches that it was known to alternately use light-
emitting diodes radiating blue light and red light to irradiate a plant with
light energy for culturing, growing, and cultivating the plant. Okamoto,
Abstract. Chapman discloses a method for using light emitting diodes to
supplement natural light in a greenhouse setting. Chapman 1, 11. 8-10.
Chapman discloses that it was known in the art that "[t]he color and intensity
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of light are used in different photosynthesis reactions" and that "[r Jed light
promotes height and blue light promotes growth in girth." Id. at 2, 11. 1-3.
Chapman also discloses that "[i]n greenhouses, it is often desirable to
control a plant's growth" including "to promote ... budding [and]
flowering." Id. at 2, 11. 7-9. Chapman teaches that "[c]ommonly,
greenhouses will use lights to encourage or discourage plant growth" and
that "the intensity of particular wavelengths of light may be adjusted with
the type of lights used to control growth mode." Id. at 2, 11. 14-15, 18-20.
Specifically, Chapman discloses using a lighting element in a
greenhouse to supplement natural light where "[t]o achieve generous growth
of the plant" some of the OLEDs emit blue light and other OLEDs emit red
light. Id. at 7, 11. 11-15; see also id. at 11, 11. 28-29 ("[t]he best light for
most plant growth is in the red and blue wavelengths"). Chapman teaches
that "by using light with the appropriate wavelength the blooming of the
plants can be controlled." Id. at 7, 11. 25-26. As noted by the Examiner
(Final Act. 3), Chapman teaches that it was known that one could use red
and blue lights in a greenhouse to encourage germination growth and
budding and fruiting of plants, and then discontinue the use of these
supplemental lights to inhibit ripening of the vegetable, i.e., after flower bud
differentiation, so that it is not overly ripe when it reaches the food market.
Id. at 2, 1. 35 - 3, 1. 2. As noted above, the Examiner found that the only
aspect of claim 3 not explicitly addressed by the combined teachings of
Okamoto and Chapman is the length of time that one should continuously
irradiate the red and blue light. Final Act. 3.
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Karpinski describes "a method for altering the level of
phytochemicals4 ... in harvested plant cells and/or plant tissue by applying
wavelengths of light thereto selected from the white light or visible
spectrum." Karpinski i-f 1. Karpinski teaches that "the antioxidant properties
of certain phytochemicals may help protect against the effects of ageing and
chronic diseases." Id. i-f 6. Karpinski employs his technique "on any plant
tissue that is capable of responding to exposure to or irradiation with
wavelengths of light as outlined herein" and preferably on plant tissue
"capable of photosynthesis." Id. i-f 11. Karpinski provides examples of plant
material including green vegetables such as peas and green beans. 5 Id.
Specifically, Karpinski's technique involves "raising the phytochemical
content in live plant cells or plant tissue in an environment by exposing the
said plant cells or tissue with light of at least a wavelength selected from
light of wavelengths found in cold light from an artificial light source." Id.
i-f 12; see also id. i-f 10 (discussing that light found in the red and/or blue part
of the visible spectrum is particularly suitable for altering the level of
phytochemicals within plant tissue comprised of a plant cell or plant cells
that is/are capable of photosynthesis); id. i-f 16 (discussing irradiation of live
plant cells). Karpinski teaches that "the length of time that plant cells or
plant tissue may be exposed to wavelengths used in the present invention for
4 Karpinski defines "phytochemical" to encompass "any chemical compound
such as a secondary plant metabolite and which may be found naturally
occurring in a plant." Id. i-f 6. "Such phytochemicals including antioxidants
such as vitamins." Id.
5 Appellant's Specification defines fruit vegetables to include string beans
and peas. Spec. 4, 11. 9-14.
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an effect on phytochemical levels to be observed lies in the range up to 180
minutes." Id. i-f 10. 6
Although Karpinski's focus is on using irradiating light to alter the
level of phytochemicals in harvested live plant material, as noted above,
Karpinski teaches that this technique can be employed on any plant tissue
that is capable of responding to exposure to or irradiation with wavelengths
of light, including plants capable of photosynthesis, such as plant tissue of
fruit vegetables. The plant tissue of the pre-harvest plants disclosed in
Okamoto and Chapman contain live plant cells that are capable of
responding to exposure to or irradiation with the wavelengths of light
disclosed in Karpinski. As such, we find adequate evidence in Karpinski to
support the Examiner's finding that application of Karpinski's technique to
plant tissue pre-harvest would result in an increase in the level of
phytochemicals including antioxidants such as vitamins. Further, Karpinski
evidences a desire in the art to optimize the phytochemicals in the plant
tissue to maintain beneficial antioxidant properties. Thus, we agree with the
Examiner's finding that one having ordinary skill in the art would have
found it desirable to apply Karpinski's technique to pre-harvest plants to
maintain vitamin levels in the plants. As such, it would have been obvious
to one having ordinary skill in the art at the time of Appellant's invention, to
apply the method of Okamoto/Chapman of alternating red and blue light to
cause flower bud differentiation, for a period of three hours as taught by
6 This range overlaps with the claimed range of 3 to 48 hours. Appellant
does not argue that its claimed range is patentably distinct from the range
disclosed in Karpinski.
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Karpinski to obtain the benefit of increasing the level of phytochemicals in
the plant.
We are not persuaded of error by Appellant's argument that Karpinski
does not teach that the effects of its technique are "desirable in pre-harvest
plants." As acknowledged by the Court in KSR Int'! Co. v. Teleflex Inc., 550
U.S. 398, 418 (2007), "the analysis need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for a court
can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ."
For these reasons, we do not find error in the Examiner's
determination of unpatentability of claim 3 over Okamoto, Chapman, and
Karpinski. Accordingly, we sustain the rejection of claim 3, and of claims 4,
6, 8-10, 12-14, and 16, which depend from claim 3, under 35 U.S.C.
§ 103(a). See 37 C.F.R. § 41.37(c)(l)(iv); Appeal Br. 7 (Appellant argued
all of the claims subject to the first ground of rejection as a group).
Appellant does not present any additional arguments for patentability
of claims 5, 7, 11, and 15 over Okamoto, Chapman, Karpinski, and
Widmayer. Accordingly, for the same reasons discussed above, we also
sustain the rejection of claims 5, 7, 11, and 15 under 35 U.S.C. § 103(a).
DECISION
The decision of the Examiner rejecting claims 3-16 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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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