Ex Parte TAKEUCHI et al

Patent Trial and Appeal BoardSep 14, 2018

14171066 (P.T.A.B. Sep. 14, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/171,066 02/03/2014 23373 7590 09/18/2018 SUGHRUE MION, PLLC 2100 PENNSYLVANIA A VENUE, N.W. SUITE 800 WASHINGTON, DC 20037 FIRST NAMED INVENTOR Ryouichi TAKEUCHI 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. Q209824 6615 EXAMINER RODZIWICZ, AARON M ART UNIT PAPER NUMBER 3642 NOTIFICATION DATE DELIVERY MODE 09/18/2018 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): PPROCESSING@SUGHRUE.COM sughrue@sughrue.com USPTO@sughrue.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RYOUICHI TAKEUCHI and HIRONORI ARA Appeal 2018-001195 Application 14/171,066 Technology Center 3600 Before: STEFAN STAICOVICI, LEE L. STEPINA, and ARTHUR M. PESLAK, Administrative Patent Judges. STAICOVICI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Ryouichi Takeuchi and Hironori Ara ("Appellants") 1 appeal under 35 U.S.C. Â§ 134(a) from the Examiner's decision in the Final Office Action (dated Nov. 29, 2016, hereinafter "Final Act.") rejecting claims 1-7. We have jurisdiction over this appeal under 35 U.S.C. Â§ 6(b ). SUMMARY OF DECISION WE AFFIRM. 1 According to Appellants' Appeal Brief (filed July 6, 2017, hereinafter "Br.") the real party in interest is indicated as Showa Denko, K.K. Br. 2. Appeal 2018-001195 Application 14/171,066 INVENTION Appellants' invention is relates to a method for cultivating a plant using artificial light. Spec. para. 1. Sole independent claim 1, reproduced below, is representative of the claimed subject matter: 1. A method of cultivating a plant using only an artificial light and comprising: a step (A) of irradiating a plant with a red light and a step (B) of irradiating a plant with a blue light, wherein the red light irradiation step (A) and the blue light irradiation step (B) are independently, alternately and repeatedly carried out over a period of time at least one hour for each irradiation time under cultivation conditions such that far-red light is additionally irradiated concurrently either with red light at the red light irradiation step (A) or with blue light at the blue light irradiation step (B), or with red light and blue light at the red light irradiation step (A) and the blue light irradiation step (B), respectively, each of the red light, the blue light, and the far- red light is an artificial light. REJECTIONS I. Claims 1--4, 6, and 7 are rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Seligmann et al. 2 (WO 2013/027198 Al, pub. Feb. 28, 2013, hereinafter "Seligmann") and Kojima (JP 2005-151850 A, pub. June 16, 2005)3â€¢ 2 Although the first noted inventor of WO 2013/027198 Al is indicated as Niv Sadeh, as both Appellants and Examiner refer to this reference as "Seligmann," for consistency purposes, we shall do so as well. 3 We derive our understanding of this reference from the English language translation contained in the image file wrapper of this application. All references to the text of this document are to portions of the translation. 2 Appeal 2018-001195 Application 14/171,066 II. Claim 5 is rejected under 35 U.S.C. I03(a) as being unpatentable over Seligmann, Kojima, and Takeuchi et al. (WO 2011/016521 Al, pub. Feb. 10, 2011, hereinafter "Takeuchi"). ANALYSIS Rejection I Appellants do not present arguments for the patentability of claims 2- 4, 6, and 7 apart from claim 1. See Br. 5---6. Therefore, in accordance with 37 C.F.R. Â§ 4I.37(c)(l)(iv), we select claim 1 as the representative claim to decide the appeal of the rejection of these claims, with claims 2--4, 6, and 7 standing or falling with claim 1. The Examiner finds that Seligmann discloses most of the limitations of independent claim 1 including, inter alia, independently illuminating a plant with red and blue lights of different wavelengths for at least one hour, but does not disclose that the illumination is alternately and repeatedly carried out. Final Act. 2-3 (citing Seligmann, p. 8, 11. 1-8, p. 9, 11. 14--15, 28-29, p. 10, 11. 1-5). Nonetheless, the Examiner finds that Kojima discloses irradiating a plant using a light source that alternates between different wavelengths and repeats the illumination process (cycle) for a set time period. Id. at 4 (citing Kojima, para. 35). Thus, the Examiner concludes that it would have been obvious to a person of ordinary skill in the art to modify Seligmann's illumination schedule to "alternate the wavelengths and repeat the schedule over a period of time, as taught by Kojima, for the purpose of optimizing the lighting cycle in order to promote healthy plant growth." Id. 3 Appeal 2018-001195 Application 14/171,066 Appellants argue that the teachings of Kojima do not overcome the shortcomings of Seligmann because "the emitting disclosed in Kojima does not correspond to an alternate and repeated irradiation but [rather] corresponds to a mixed irradiation including a plurality of lights with adjusting the light quality." Br. 6 ( citing Kojima, paras. 34, 47). Appellants further assert that "Kojima[] teaches repeating a cycle every minute," whereas claim 1 requires repeatedly illuminating the plant over a period of time of at least one hour. Id. We are not persuaded by Appellants' argument because "[ n ]onobviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references. [Each reference] must be read, not in isolation, but for what it fairly teaches in combination with the prior art as a whole." See In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). In this case, the Examiner employs Seligmann, not Kojima, to disclose independently irradiating a plant using red and blue lights having different wavelengths over a period of at least one hour. See Examiner's Answer 3 ( dated Oct. 31, 2017, hereinafter "Ans."). Furthermore, we appreciate Appellants' position that paragraphs 34 and 47 of Kojima appear in a first instance to disclose RIB/FR light (red/blue/far-red light) as a mixed light. See Br. 6. However, paragraph 35 of Kojima, which the Examiner relies upon, discloses that "[i]n RIB/FR, the cycle of B-R-FR and a dark period was repeated." Based on the different nomenclature, that is, B-R-FR versus BIR/FR, and the use of the term 4 Appeal 2018-001195 Application 14/171,066 "cycle,"4 we agree with the Examiner that a reasonable interpretation of Kojima's paragraph 35 is that in RIB/FR "the cycle of B-R-FR ... is alternating between Blue then Red then Far-red, and then a dark period" and then repeated over a set time period. Ans. 3 ( emphasis added). Appellants have not persuasively shown error in the Examiner's findings and interpretation of Kojima. Lastly, we do not agree with Appellants that "there is no motivation to combine the references with a reasonable expectation of success in achieving the claimed invention." Br. 7. Rather, we agree with the Examiner that because Seligmann teaches "the independent function of the lighting source and the timing schedule" and Kojima "teaches the repeating and alternating nature of the lighting schedule," the combined teachings of the references "disclose[] the very nature of the instant invention as a whole." Ans. 3--4; see also In re O 'Farrell, 853 F.2d 894, 903-904 (Fed. Cir. 1988) (Absolute predictability that the substitution will be successful is not required, all that is required is a reasonable expectation of success.). Moreover, the Examiner has articulated a reasoning with rational underpinnings to support the conclusion that modifying Seligmann's illumination schedule "by designing a lighting schedule that would alternate the wavelengths and repeat the schedule over a period of time, as taught by Kojima," would have been obvious "for the purpose of optimizing the lighting cycle in order to promote healthy plant growth." Final Act. 4. 4 An ordinary and customary meaning of the term "cycle" is "any complete round or series of occurrences that repeats or is repeated." See https://www.dictionary.com/browse/cycle (last visited September 7, 2018). 5 Appeal 2018-001195 Application 14/171,066 Appellants have not persuasively shown error in the Examiner's findings and reasoning. In conclusion, for the foregoing reasons, we sustain the rejection under 35 U.S.C. Â§ 103(a) of claim 1 as unpatentable over Seligmann and Kojima. Claims 2--4, 6, and 7 fall with claim 1. Rejection II Appellants do not set forth any other substantive arguments with respect to the rejection of claim 5, but rather rely on the arguments discussed above. See Br. 7. Therefore, for the same reasons discussed supra, we likewise sustain the rejection under 35 U.S.C. Â§ 103(a) of claim 5 as unpatentable over Seligmann, Kojima, and Takeuchi. DECISION The Examiner's decision to reject claims 1-7 under 35 U.S.C. Â§ 103(a) is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 6