San Diego Farms LLC

Patent Trials and Appeals Board

Oct 26, 2021

2021003691 (P.T.A.B. Oct. 26, 2021)

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.
14/162,684 01/23/2014 David G. Sasuga 114837-00034 1073
26511 7590 10/26/2021
HIGGS, FLETCHER & MACK LLP
401 West A Street
Suite 2600
SAN DIEGO, CA 92101
EXAMINER
LACHICA, ERICSON M
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
10/26/2021 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):
patents@higgslaw.com
santiagot@higgslaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DAVID G. SASUGA
____________

Appeal 2021-003691
Application 14/162,684
Technology Center 1700
____________
Before MICHAEL P. COLAIANNI, GEORGE C. BEST, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
BEST, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 6, 7, 15, 16, and 19 of Application
14/162,684. Final Act. (December 12, 2019). We have jurisdiction under
35 U.S.C. § 6.
A video hearing was held on October 4, 2021. A hearing transcript has
been added to the prosecution history of the ’684 Application.
For the reasons set forth below, we affirm.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies San Diego Farms LLC as the real party in interest. Appeal Br. 2.
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I. BACKGROUND
The ’684 Application describes microgreen products with an extended
shelf life. Spec. ¶ 1. Microgreens are young edible greens produced from
various kinds of vegetables, herbs, or other plants. Id. ¶ 3. According to the
Specification, microgreens are a relatively new crop and not widely mass-
produced because of their delicate and highly perishable nature. Id. ¶ 5.
The ’684 Application describes methods for producing microgreens
that are said to result in “a microgreen which is characterized by a husky,
shorter, thicker main stem reaching a harvested height of about one inch,
with larger leaves, and is further characterized by a deeper color of green or
red with a more intense taste and longer shelf life” than conventional
microgreens. Id. ¶ 12.
Claim 15 is representative of the ’684 Application’s claims and is
reproduced below from the Appeal Brief’s Claims Appendix. Limitations
that are especially relevant to our analysis are italicized.
15. A method of making a microgreens product having an
extended shelf life comprising the following steps:
(a) using certain varieties of conventional microgreens seeds
capable of producing conventional microgreens having
significantly longer shelf lives between 13 and 21 days, the
selected varieties being selected from the group consisting of
fennel, tatsoi, brussels sprouts, parsley Italian, cress uplan[d],
parsley curled and celery;
(b) planting the conventional microgreens seeds at a low
microgreen seed density not in a crowded condition for each
selected variety of microgreens that provides suitable space to
allow each individual microgreens plant to grow and develop
resulting in longer shelf life for a given microgreen variety and
growing microgreen seedlings of that given variety at that
identified density;
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(c) after planting the microgreens, optionally growing the
microgreens under conditions of light intensity higher than
artificial light intensity;
(d) growing the microgreens under considerations of lower
soil fertility as low as possible and still promoting growth of the
microgreens;
(e) without treating the growing microgreens with at least
one sanitizing agent prior to harvesting;
(f) prior to harvesting, drying stems and leaves of the
seedlings if wet without thermal processing, and harvesting the
dried microgreen seedlings when the stems and leaves of the
seedlings are completely dry;
(g) quick-cooling the microgreens immediately after
harvesting by placing the harvested dried microgreens into final
containers within a cooled environment; and
(h) maintaining the harvested dry microgreens at a
temperature of between 35- 40 °F (1.66 to 4.44 °C) without
interruption following the placing in the final containers by
placing the final containers within insulated shipping boxes
together with cooling materials,
whereby the harvested varieties of microgreens have
resulting extended shelf lives longer than the corresponding
conventional varieties of microgreens are at least from about 15
days to about 28 days.
Appeal Br. 14–15 (emphasis added).
II. REJECTIONS
On appeal, the Examiner maintains the following rejections:
1. Claims 6, 7, 15, 16, and 19 are rejected under 35 U.S.C. § 112,
second paragraph as indefinite. Final Act. 2.
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2. Claims 15 and 19 are rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Berba,2 Schröder,3 and Whitehead.4
Final Act. 5.
3. Claims 6, 7, and 16 are rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Berba, Schröder, Whitehead,
Twinam,5 and Clarke.6 Final Act. 8–9.
III. DISCUSSION
A. Rejection of claims 6, 7, 15, 16, and 19 as indefinite
The Examiner entered specific rejections of independent claim 15 and
dependent claims 6 and 19 as indefinite. Final Act. 2–4. Claims 7 and 16
were rejected as being dependent upon a rejected base claim. Id. at 4.
For the reasons set forth below, we affirm the rejection of claim 15.
Thus, we also affirm the rejections of claims 7 and 16. Because Appellant
does not present substantive arguments for reversal of the rejection of claims
6 and 19, we summarily affirm the indefiniteness rejections of those claims.

2 Kenneth J. Berba & Mark E. Uchanski, Post-harvest physiology of
microgreens, 24 J. Young Investigators 1 (2012).
3 Stéphane Schröder, How To Plant Bamboo, Guadua Bamboo (December
19, 2011), https://www.guaduabamboo.com/cultivation/how-to-plant-
bamboo.
4 US 3,407,608, issued October 29, 1968.
5 US 5,945,146, issued August 31, 1999.
6 US 2002/0127305 A1, published September 12, 2002.
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1. Claim 15
The Examiner rejected claim 15 on the basis of multiple limitations
that the Examiner determined were indefinite. Final Act. 2–4.
During prosecution, a claim is examined for compliance with 35
U.S.C. § 112, ¶ 2 by determining whether the claim meets threshold
requirements of clarity and precision. In re Skvorecz, 580 F.3d 1262, 1268
(Fed. Cir. 2009) (quoting MPEP § 2173.02). A claim is not indefinite merely
because more suitable language or modes of expression are available. Id. In
determining whether a particular claim is definite, the claim’s language must
be analyzed in light of the content of the particular application, the prior
art’s teaching, and the interpretation that would be given to the claim’s
language by a person of ordinary skill in the art at the time the invention was
made. Id. Thus, a rejection for indefiniteness is appropriate if, after the
broadest reasonable interpretation has been applied to the claims, the metes
and bounds of the claimed invention are not clear. In re Packard, 751 F.3d
1307, 1310 (Fed. Cir. 2014) (per curiam).
Appellant, grouping some of the limitations together, argues that each
of the limitations identified by the Examiner is definite and clear.
First, Appellant addresses the claim phrases “extended shelf life,”
“conventional microgreens,” and “significantly longer.” Appeal Br. 5. The
Examiner determined that each of these phrases was indefinite. Final Act. 2–
3.
In view of the following, we determine that each of these claim
phrases is definite and cannot form the basis of a rejection under 35 U.S.C.
§ 112(b).
We begin by considering the claim phrase “extended shelf life.” The
Specification describes the shelf life of the conventional microgreens as
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being between about 5 to about 10 days. Spec. ¶ 36. According to the
Specification, the systems and methods described in the ’684 Application
provide a microgreens product with a significantly longer shelf life, ranging
from 10 days to 28 days. Id. ¶ 13.
In the Examiner’s Answer, the Examiner argues that
[A]ppellant’s assertion that “extended shelf lives” were found
by experimentation to range at least from about 15 to about 28
days extends beyond the 13-21 day range of shelf lives of
unimproved microgreens has overlapping shelf lives of 15-21
days. In other words, a “conventional” shelf life of 21 days
(upper limit of 13-21 days) is longer than an “extended” shelf
life of 15 days (lower limit of 15-28 days).
Answer 14.
We are not persuaded by the Examiner’s argument. The fundamental
error in the rejection is the Examiner’s failure to realize that a person of
ordinary skill in the art would understand that each particular type of
microgreen has its own conventional shelf life. Therefore, determining
whether a particular growing method or treatment results in an “extended
shelf life” requires a determination based upon the observed shelf life of the
microgreen produced by the growing method or treatment as compared to its
normal shelf life. The Examiner’s analysis making use of the broad ranges
disclosed for microgreens as a group fails to consider each particular type of
microgreen on an individual basis.
In view of the foregoing, we determine that the claim term “extended
shelf life” is not indefinite.
Next, we consider the claim term “conventional microgreens.” We
begin by looking at the context in which it appears in claim 15. In relevant
part, claim 15 reads: “using certain varieties of conventional microgreens
seeds capable of producing conventional microgreens having significantly
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longer shelf lives between 13 and 21 days.” In this context, the ordinary
meaning of the term conventional is “[c]onforming to established practice or
accepted standards.” Conventional - definition of conventional by The Free
Dictionary, The Free Dictionary (September 30, 2021),
https://www.thefreedictionary.com/conventional. Based on this definition
and the context provided by claim 15, a person of ordinary skill in the art
would understand the term “conventional microgreens” to mean microgreens
produced from conventional microgreens seeds by established or traditional
microgreen production methods as opposed to the methods described in the
Specification and recited in claim 15. The claim term is not indefinite.
Finally, we consider the claim term “significantly longer.” This claim
term is not indefinite. In the context in which it appears in claim 15, the
phrase “significantly longer” is adjectival. It modifies the term “shelf lives,”
which refers to the shelf lives of the selected varieties of conventional
microgreens. The claim goes on to recite that the shelf lives of the selected
varieties of conventional microgreens are between 13 and 21 days. The
Specification describes the shelf lives of most conventional microgreens as
being between about 5 to about 10 days. Spec. ¶ 36. Thus, claim 15’s
description of the shelf lives (13–21 days) of the selected varieties of
conventional microgreens as being significantly longer than that of standard
microgreens is not indefinite.
Second, Appellant addresses the claim phrase “planting the
conventional microgreen seeds at a low microgreen seed density not in a
crowded condition.” Appeal Br. 6. The Examiner determined that the claim
terms “low” and “not crowded” are relative terms which render the claims
indefinite. Final Act. 3. Because seed density can vary continuously across
some range, this phrase presents the problem of how to determine where to
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divide the range between low seed densities and other-than-low seed
densities. Because the plain language of the phrase does not provide any
guidance as to how to make that determination, we turn to the Specification.
Appellant argues that the phrase in question is not indefinite, citing
paragraphs 17, 44, and 54 of the Specification. Appeal Br. 6. These portions
of the Specification, however, do little to illuminate the meaning of the
phrase “low microgreen seed density not in a crowded condition.”
Paragraph 17 merely states that planting the microgreen seeds at the
proper seed density is one of the methods that can be used to extend the shelf
life of microgreens and microgreen products. Spec. ¶ ¶ 14, 17. It does not
provide any guidance as to how to determine what constitutes a low
microgreen seed density.
Paragraph 44 states that “microgreens grown with excessive seed
density results in crowded conditions that cause soft elongated or stretched
stems and smaller leaves.” Spec. ¶ 44. At first blush, this passage would
seem to illuminate the meaning of the phrase “low microgreen seed density.”
A low microgreen seed density is a seed density that produces microgreens
that do not have soft elongated or stretched stems and smaller leaves. The
Specification, however, does not provide any guidance regarding how to
determine whether a microgreen’s stem is soft, elongated, or stretched or
whether a microgreen’s leaves are “smaller.”
Paragraph 54 contrasts the methods used to produce sprouts versus the
methods used to produce microgreens. Spec. ¶ 54. It does not provide any
guidance as to what constitutes a low microgreen seed density. At most, it
establishes that the seed densities used to produce microgreens are lower
than those used to produce sprouts, which are a different product. Id. The
large number of other differences between these methods, however, suggest
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that the seed density used to produce sprouts are unrelated to those used in
microgreen production.
Appellant does not point to any evidence in the record—such as a
declaration or an affidavit—that would support a determination that a person
having ordinary skill in the art would understand how to make the necessary
determination.
In view of the foregoing, we conclude that the claim phrase “low
microgreen seed density not in a crowded condition” is indefinite. Even after
considering the Specification’s contents, a person having ordinary skill in
the art would not be able to understand where the boundary is between low
seed density and other-than-low seed density.
Third, Appellant addresses the claim phrase “growing the microgreens
under considerations of lower soil fertility as low as possible and still
promoting growth of the microgreens.” Appeal Br. 6. The Examiner
determined that the term “lower” rendered this phrase indefinite. Final
Act. 3. Because soil fertility can vary continuously across some range, this
phrase presents the problem of how to determine where to divide the range
between lower soil fertility and other-than-lower soil fertility. Because the
plain language of the phrase does not provide any guidance as to how to
make that determination, we turn to the Specification.
Appellant argues that this claim phrase is not indefinite, citing
paragraphs 19 and 45 of the Specification. Appeal Br. 6. These portions of
the Specification, however, do not clarify the meaning of the phrase.
Paragraph 19 reads, in its entirety, “growing microgreens with low
levels of fertility.” As written, it is unclear that this passage is even referring
to soil fertility. While we infer that the paragraph is discussing soil fertility,
it certainly does not help a person having ordinary skill in the art determine
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what constitutes what is meant by “under considerations of lower soil
fertility as low as possible and still promoting growth of the microgreens.”
Paragraph 45 also is unhelpful in determining how the phrase “under
considerations of lower soil fertility as low as possible and still promoting
growth of the microgreens” should be interpreted. Paragraph 45 teaches that
“microgreens that are grown with high levels of fertility results [sic] in soft
elongated growth and soft leaves. Microgreens grown with high levels of
fertility have shorter shelf life than those grown with lower fertility levels.”
The Specification, however, provides no guidance for determining when
microgreens are demonstrating soft elongated growth or have soft leaves.
Thus, this paragraph does not clarify the boundary created by the phrase in
question.
Appellant does not point to any evidence in the record that would
support a finding regarding the knowledge of a person having ordinary skill
in the art that might render the limitation in question indefinite.
In view of the foregoing, we conclude that the phrase “under
considerations of lower soil fertility as low as possible and still promoting
growth of the microgreens” is indefinite.
Fourth, Appellant addresses the claim phrase “drying stems and
leaves of the seedlings if wet without thermal processing, and harvesting the
dried microgreen seedlings when the stems and leaves of the seedlings are
completely dry.” Appeal Br. 6–7. The Examiner determined that the term
“completely dry” rendered this phrase indefinite. Final Act. 3–4.
Appellant argues that the characteristics of harvesting microgreens
when they are completely dry is discussed in paragraphs 21 and 47 of the
Specification. Appeal Br. 7.
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Paragraph 21 merely identifies “harvesting [the microgreens] when
stems and leaves are dry” as a practice that has an advantage over currently
used conventional microgreen production methods. Spec. ¶ ¶ 14–27.
Paragraph 47 further explains what is meant by harvesting the microgreens
when the stems and leaves are dry:
Making reasonably certain that the microgreens are dry
before harvesting results in longer shelf life compared to
microgreens that are harvested when wet. When microgreens
are irrigated[,] it may take several hours before the stems and
leaves are dry. when microgreens are subjected to high
humidity levels, the stems and leaves may be wet. By making
reasonably certain the stems and leaves are completely dry prior
to being harvested[,] the shelf life is improved.
From this description, it is clear that “harvesting when stems and leaves are
dry” refers to a practice of not harvesting microgreens that have droplets of
water on the surface of the stems and leaves.
Thus, a person having ordinary skill in the art would understand that
the phrase “completely dry” refers to the presence of water droplets on the
exterior of the microgreens. The phrase “completely dry,” therefore, does
not render claim 15 indefinite.
2. Claim 6
For ease of reference, we reproduce claim 6 below.
6. The method of claim 15, comprising packaging the
microgreens to produce the microgreens product, comprising at
least one of the following:
(a) selecting and using final packaging containers with
limited amount of air exchange;
(b) packaging under Modified Atmosphere Packaging,
optionally including nitrogen gas at above ambient
levels; and
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(c) maintaining microgreens at a temperature between
35-40 °F (1.66 to 4.44 °C) without interruption during
packaging.
Appeal Br. 13 (emphasis added).
The Examiner rejected claim 6, determining that the limitation
“limited amount of air exchange” renders the claim indefinite. Final Act. 4.
According to the Examiner, neither the claim nor the Specification provide a
standard for determining the requisite degree of limitation of the amount of
air exchange. Id.
Appellant does not present specific arguments for reversal of this
rejection in the Appeal Brief. See Appeal Br. 4–7. Accordingly, we
summarily affirm the rejection of claim 6 as indefinite.
3. Claim 19
For ease of reference, we reproduce claim 19 below.
19. A method of claim 15, the selected varieties being
selected from the group further comprising fennel, tatsoi,
brussels sprouts, parsley Italian, cress uplan[d], parsley curled,
celery, arugula, sylvetta,[7] radish ruby, radish green and
cabbage red.
Appeal Br. 16 (emphasis added).
The Examiner determined that claim 19 recites an open ended
Markush group. Appeal Br. 4. The Examiner explained that a Markush
group requires selection of an alternative from a closed group “consisting
of” the identified alternatives. Id. (citing MPEP section 2117). As the

7 Based upon the legend of Figure 1, we understand the comma after arugula
to be extraneous. For the purpose of this opinion, we interpret the claim
language “arugula, sylvetta” as if it read “arugula sylvetta.” If prosecution of
the ’684 Application continues, correction of this error is suggested.
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Examiner found, the phrase “further comprising” is open ended, rendering
the Markush group indefinite.
Appellant does not present specific arguments for reversal of this
rejection in the Appeal Brief. See Appeal Br. 4–7. Accordingly, we
summarily affirm the rejection of claim 19 as indefinite.
B. Rejection of claims 15 and 19 over the combination of Berba,
Schröder, and Whitehead
Appellant argues for reversal of this rejection based upon the
limitations of independent claim 15. See Appeal Br. 7–12. Claim 19 is said
to be patentable for the same reasons as independent claim 15. Id. at 12. We,
therefore, select claim 15 as representative of the claims subject to this
ground of rejection and limit our discussion accordingly. 37 C.F.R.
§ 41.37(c)(1)(iv) (2019).
Appellant argues that the rejection of claim 15 should be reversed
because the Examiner has not established a prima facie case of obviousness
over the combination of Berba, Schröder, and Whitehead. In particular,
Appellant argues that the Examiner made errors regarding the contents of the
prior art.
Inter alia, Appellant argues that the Examiner erred by finding that
Berba describes or suggests drying the microgreens prior to harvesting.
Appeal Br. 8.
We agree with Appellant.
Berba clearly states that the microgreens were dried after harvest:
“[T]he crops were harvested by cutting at the media surface after seven days
of growth for the radish, nine days for arugula, and eleven days for red
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cabbage. After harvest, greens were fan dried to remove surface moisture
without wilting (approximately 8-10 min).” Berba 3.
In view of the foregoing, we have reversed the rejection of claim 15 as
obvious over the combination of Berba, Schröder, and Whitehead. Thus, we
also reverse the rejection of claim 19.
C. Rejection of claims 6, 7, and 16 over the combination of Berba,
Schröder, Whitehead, Twinam, and Clarke
Appellant does not present substantive arguments for the reversal of
this rejection. See generally Appeal Br. 4–12. Rather, claims 6, 7, and 16 are
said to be patentable based upon their dependence from claim 15. Id. at 12.
For the reasons set forth above, we have reversed the rejection of
claim 15 as obvious over the combination of Berba, Schröder, and
Whitehead. In rejecting claims 6, 7, and 16, the Examiner does not find that
Twinam and Clarke cure the deficiencies in the rejection of claim 15. We,
therefore, reverse the rejection of claims 6, 7, and 16 as obvious over the
combination of Berba, Schröder, Whitehead, Twinam, and Clarke.
IV. CONCLUSION
In summary:
Claim(s)
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
6, 7, 15, 16, 19 112 Indefiniteness 6, 7, 15, 16, 19
15, 19 103(a) Berba, Schröder, Whitehead 15, 19
6, 7, 16 103(a) Berba, Schröder, Whitehead, Twinam, Clarke 6, 7, 16
Overall Outcome 6, 7, 15, 16, 19
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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