UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________
`
`SYNGENTA CROP PROTECTION AG
`
`Petitioner,
`
`v.
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`PLANTLAB GROEP B.V.
`
`Patent Owner
`
`___________________________________
`
`Case: PGR2021-000XX
`U.S. Patent No. 10,667,469
`Issue Date: June 2, 2020
`
`Title: SYSTEM AND METHOD FOR GROWING A PLANT IN AN AT LEAST
`PARTLY CONDITIONED ENVIRONMENT
`___________________________________
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`DECLARATION OF DR. BRUCE BUGBEE
`UNDER 37 C.F.R. § 1.68
`
`Petitioner Syngenta
`Exhibit 1002
`
`
`__________________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________
`
`SYNGENTA CROP PROTECTION AG
`
`Petitioner,
`
`v.
`
`PLANTLAB GROEP B.V.
`
`Patent Owner
`
`___________________________________
`
`Case: PGR2021-000XX
`U.S. Patent No. 10,667,469
`Issue Date: June 2, 2020
`
`Title: SYSTEM AND METHOD FOR GROWING A PLANT IN AN AT LEAST
`PARTLY CONDITIONED ENVIRONMENT
`___________________________________
`
`DECLARATION OF DR. BRUCE BUGBEE
`UNDER 37 C.F.R. § 1.68
`
`Petitioner Syngenta
`Exhibit 1002
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`I.
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`1.
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`INTRODUCTION
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`I, Dr. Bruce Bugbee, have been retained as an independent consultant by
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`Syngenta Crop Protection AG (China National Chemical Corporation) (“Syngenta”
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`or “Petitioner”) in connection with post-grant review of U.S. Patent No.
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`10,667,469 (“the ’469 patent”) (EX1001). I am over eighteen years of age, and I
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`am otherwise competent to testify as to the matters set forth herein if I am called
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`upon to do so. I have prepared this Declaration for consideration by the Patent
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`Trial and Appeal Board with respect to the Petition for Post Grant Review of the
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`’469 patent” filed by Syngenta.
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`2.
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`I have written this Declaration at the request of and have been retained by
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`Kilpatrick Townsend & Stockton, LLP, which represents Syngenta in connection
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`with the above-captioned Post Grant Review.
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`3.
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`I am being compensated at my standard hourly rate. My compensation is not
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`dependent on the outcome of or any issue in relation to this Post Grant Review or
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`any other post grant proceedings of which I am aware.
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`4.
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`In forming my opinions, I relied on my knowledge and experience in the
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`field and on documents and information referenced in this Declaration. All
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`statements in my Declaration, unless indicated otherwise, are based on my
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`knowledge and experience in the field.
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`5.
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`Specifically, this document contains my opinions about the subject matter in
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`claims 1-12 of the ’469 patent (“Challenged Claims”) and grounds asserted against
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`these claims by the Petitioner. I was not asked to provide any opinions that are not
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`expressed in this document.
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`II.
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`6.
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`SUMMARY OF OPINIONS
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`This declaration considers the Challenged Claims of the ’469 patent. Below
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`I include the opinions I have formed, the conclusions I have reached, and the
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`reasoning for these opinions and conclusions.
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`7.
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`Based on my experience, knowledge of the art at the time of the applicable
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`priority date, analysis of Petitioner’s asserted grounds and references, and the
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`understanding of a person of ordinary skill in the art would have had of the claims
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`in light of the specification (disclosure of the patent) as of the applicable priority
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`date, it is my opinion that the Challenged Claims of the ’469 patent are indefinite,
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`lack written description and enablement support, are obvious over the prior art, and
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`are not patent eligible.
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`III. BACKGROUND AND QUALIFICATIONS
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`8.
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`I earned a B.S. in Horticulture from the University of Minnesota in 1975, a
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`M.S. in Crop Physiology from the University of California, Davis in 1978, and a
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`Ph.D. in Environmental Plant Physiology from Penn State University in 1981.
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`9.
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`I have over forty years of experience with plant nutrition and crop
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`physiology and over thirty years of research experience in environmental control to
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`optimize plant growth and yield. As a Ph.D. student at Penn State University from
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`1978-1981, I studied the effects of root-zone temperature on plant growth as part
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`of my doctoral research. Over the course of my career starting as a Research
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`Assistant Professor and Assistant Professor in the Plant Sciences Department at
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`Utah State University, I have developed systems to optimize plant growth in
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`controlled environments. I have published articles and have presented at scientific
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`meetings on the development of methods and systems to optimize plant growth in
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`controlled environments as early as 1984. I am an author on numerous book
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`chapters related to controlled environment crop production and I am an author on
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`over 30 peer-reviewed journals regarding optimal conditions for plant growth and
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`development.
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`10.
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`I have served on national committees related to plant sciences, including
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`serving as Chair of the Biophysical Sensors and Measurements Community of the
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`American Society of Agronomy (2014-2015), and Chair of the Crop Physiology
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`Division of the American Society of Agronomy (2003-2004). I have been honored
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`as a Distinguished Fellow in both the American Society of Agronomy (2018), and
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`the American Society of Horticulture (2020). I have also received the D. Wynne
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`Thorne Career Research Award (2016) and Researcher of the Year Award (2005)
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`from Utah State University.
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`11.
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`I have been a consultant to several commercial companies on the
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`optimization of plant growth conditions to maximize yield in indoor agriculture,
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`conditions that are often characterized as having either sole source or supplemental
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`lighting from light emitting diodes (LEDs).
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`12.
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`I am currently a Professor in the Plant, Soils, & Climate Department at Utah
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`State University, where I teach graduate and undergraduate courses in plant
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`physiology, plant nutrition and environmental control. I was previously an
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`Associate Professor in the Plant, Soils, & Biometeorology Department at Utah
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`State University.
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`13. Additional details about my employment history, fields of expertise, and
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`publications are included in my curriculum vita, which is attached.
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`IV.
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`14.
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`INFORMATION CONSIDERED
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`In forming my opinions, in addition to my knowledge and experience, I have
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`considered the following documents and things that I have obtained or that have
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`been provided to me:
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`
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`U.S. Patent No. 10,667,469 to Van Gemert et. al. (“the ’469 patent”)
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`(EX1001) and its file history (EX1003);
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`
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`Nelson, Paul V., “Greenhouse Operation and Management,” 4th
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`Edition, Prentice Hall, Englewood Cliffs (1991) (“Nelson”)
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`(EX1005);
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`U.S. Patent App. Pub. No. US2001/0047618 to Fang et al. (“Fang”)
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`(EX1006);
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`U.S. Patent App. Pub. No. US2007/0260400 to Morag et al.
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`(“Morag”) (EX1007);
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`J.V.M. Vogelezang, “Effect of Root-Zone Heating on Growth,
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`Flowering and Keeping Quality of Saintpaulia,” SCIENTIA
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`HORTICULTURAE, 34:101-13 (1988) (“Vogelezang”) (EX1008);
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`U.S. Patent No. 4,850,134 to Snekkenes (“Snekkenes”) (EX1009);
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`Massa et al., “Plant Productivity in Response to LED Lighting,”
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`HORTSCIENCE, 43:1951-56 (2008) (Massa) (EX1012);
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`U.S. Patent No. 5,269,093 to Horaguchi et al., (“Horaguchi”)
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`(EX1013);
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`Kimball, B. A., “Theory and performance of an infrared heater for
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`ecosystem warming,” Global Change Biology, 11:2041-56, (2005)
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`(“Kimball”) (EX1014); and
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`I also did internet research and document review to confirm my
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`recollection of technology that was available prior to October 13,
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`2007. Some of the documents are cited in this document.
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`LEVEL OF ORDINARY SKILL IN THE ART
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`I understand that a person of ordinary skill in the art is a hypothetical person
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`V.
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`15.
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`who is presumed to be familiar with the relevant scientific field and its literature at
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`the time when the patent application was filed.
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`16.
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`In my opinion, a person of ordinary skill in the art (POSA), with respect to
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`the ’469 patent, is someone who would have obtained a bachelors in science (e.g.,
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`B.S.) in Plant Sciences or a related discipline. Furthermore, a POSA, in my
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`opinion, could alternatively have had at least five (5) years of experience in
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`controlled-environment agriculture. This POSA would have had specific
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`experience with and knowledge of the scientific literature regarding plant
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`physiology, plant nutrition, and environmental control. Given this experience and
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`knowledge of the literature, a POSA at that time would have understood and
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`recognized techniques for optimizing plant growth parameters. Well prior to
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`October 13, 2007, I was at least one of ordinary skill in the art based on my
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`education, experience, and knowledge of the literature.
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`VI. LEGAL STANDARDS
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`17.
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`This section reviews the relevant legal standards that have been provided to
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`me by attorneys for Petitioner. I understand that the issues presented in this Post
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`Grant Review must be considered in view of these legal standards. My
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`understanding of the legal standards to apply in reaching the conclusions in this
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`declaration is based on discussions with attorneys for Petitioner, my experience
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`applying similar standards in other patent-related matters, and my reading of the
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`documents submitted in this proceeding. These principles are consistent with my
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`understanding of patent law that I have gained through my professional experience,
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`which includes those experiences related to being an inventor on at least 2 issued
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`patents. I am not an attorney, however, and I am relying on these legal standards
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`only to guide my analysis. In preparing this declaration, I have tried to faithfully
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`apply these legal standards to the Challenged Claims.
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`A.
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`Claim Construction
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`18.
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`I have been instructed that the terms appearing in the ’469 patent should be
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`interpreted in view of the claim language itself, the specification (disclosure of the
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`patent), the prosecution history of the patent, and any relevant external (extrinsic)
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`evidence. The words of a claim are generally given their ordinary and customary
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`meaning, which is the meaning that the term would have to a person of ordinary
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`skill in the art as of one year prior to the earliest priority date claimed by the ’469
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`patent. I understand that while claim limitations cannot be read in from the
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`specification, the specification is the single best guide to the meaning of a disputed
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`term. I have followed these principles in reviewing the claims of the ’469 patent
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`and forming the opinions set forth in this declaration.
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`B. Written Description
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`19.
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`I understand that a patent claim is invalid if the specification fails to meet
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`the written description requirement. For a patent claim to be supported by an
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`adequate written description, the original disclosure contained within the
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`application must reasonably convey to a POSA that the inventor had possession of
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`the subject matter in the claims as of the filing date and invented what is claimed.
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`20.
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`I also understand that, to satisfy the written description requirement, the
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`patent specification must describe every claim limitation, although the exact words
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`used in the claim need not be used in the specification. However, I also understand
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`that the presence of literal (i.e., word-for-word) support in the specification for
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`claim terms does not necessarily mean that the written description requirement is
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`satisfied; the analysis instead focuses on whether the patent’s disclosure conveys
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`ownership of the invention.
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`21.
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`I also understand that a description that merely renders the invention obvious
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`does not necessarily satisfy the written description requirement. The level of detail
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`required to satisfy the written description requirement depends on the nature and
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`scope of the claims, and on the complexity and predictability of the relevant
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`technology. I have further been told that written description requires a description
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`of the invention, not a mere indication of a result that one might achieve if one
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`made that invention.
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`C.
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`Enablement
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`22.
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`I understand that a patent claim is invalid if it lacks enablement, and that
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`enablement considers whether a POSA could make or use the claimed invention
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`from the patent’s disclosure, coupled with the information known in the art,
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`without “undue” experimentation. I understand undue experimentation to mean
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`extensive experimentation and so, I have used these terms interchangeably in this
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`document.
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`23.
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`I understand that several factual considerations are involved in determining
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`whether extensive (undue) experimentation is needed to make or use a claimed
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`invention. Those factors, called the “Wands” factors from the case in which they
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`originated, include: (1) the quantity of experimentation necessary; (2) the amount
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`of direction or guidance presented; (3) the presence or absence of working
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`examples; (4) the nature of the invention; (5) the state of the prior art; (6) the
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`relative skill of those in the art; (7) the predictability or unpredictability of the art,
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`and (8) the breadth of the claims.
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`24.
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`I understand that a patent claim is invalid if the description provided by the
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`patent (i.e., the specification, figures and claims) does not enable the full scope of
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`the claim. I have also been told that, while a specification does not necessarily
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`need to disclose what is already well known in the art to be enabling, the
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`knowledge of a POSA cannot substitute for a basic enabling disclosure in the
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`patent itself. Thus, while the knowledge of a POSA is relevant, the novel aspect(s)
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`(if any) of a claimed invention must be enabled in the patent.
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`D.
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`Indefiniteness
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`25.
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`I understand that a patent’s claim, viewed in light of the specification and
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`the prosecution history, must inform a POSA about the scope of the invention with
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`reasonable certainty; if it does not, it is indefinite. I have further been told that a
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`claim is indefinite when it contains words or phrases whose meaning is unclear in
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`describing and defining the claimed invention.
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`26.
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`I also understand that the claims must provide objective boundaries for a
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`POSA, and that indefiniteness may arise if the claim language could mean several
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`different things (or the claim fails to distinguish between multiple possible
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`interpretations), and where no informed and confident choice is available among
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`the contending definitions. A patent specification presenting specific working
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`examples that provide points of comparison could potentially avoid indefiniteness
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`by providing an objective standard of the claim’s scope.
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`27.
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`I also understand that a “subjective” claim term having a scope that depends
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`on a particular person’s opinion (and that may vary from person to person) may be
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`indefinite.
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`E.
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`Obviousness
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`28.
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`I understand that a claim is obvious in light of the prior art if the difference
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`or differences between the claimed subject matter and the prior art are such that the
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`subject matter as a whole would have been obvious, at the time the invention was
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`made, to a POSA.
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`29.
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`I understand that several factual inquiries underlie a determination of
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`obviousness. These inquiries include (1) scope and content of the prior art, (2) the
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`level of ordinary skill in the field of the invention, (3) the differences between the
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`claimed invention and the prior art, and (4) any objective evidence of non-
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`obviousness. Such objective evidence of non-obviousness includes the invention’s
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`commercial success, commercial acquiescence (i.e., licensing), a long felt but
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`unresolved need, the failure of others, skepticism by experts, praise by others,
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`recognition of a problem, laudatory statements by the infringer, and copying of the
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`invention by others.
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`30.
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`I understand the test for obviousness is an expansive and flexible approach
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`using common sense. I also understand that any need or problem known in the
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`field of endeavor at the time of invention can provide a reason for combining the
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`elements in the manner claimed. I further understand that certain factors may show
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`obviousness:
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`a.
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`a combination of known elements or steps with no change in their
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`respective functions is likely to be obvious when the combination
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`does no more than yield predictable results,
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`b.
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`a predictable variation of a work or method in the same or a different
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`field of endeavor is likely to be obvious if a person of ordinary skill
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`would be able to implement the variation without undue
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`experimentation,
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`c.
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`an invention is likely obvious if it is the use of a known technique to
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`improve a similar device or method in the same way, unless the actual
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`application of the technique would have been beyond the skill of the
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`person of ordinary skill in the art,
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`d.
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`an invention is likely obvious if there existed at the time of invention
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`a known problem for which there was an obvious solution
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`encompassed by the patent’s claims,
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`e.
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`inventions that were “obvious to try” — chosen from a finite number
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`of identified, predictable solutions, with a reasonable expectation of
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`success — are likely obvious, and
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`f.
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`an explicit teaching, suggestion, or motivation in the art to combine
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`references, while not a requirement for a finding of obviousness,
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`remains “a helpful insight” in determining upon which a finding of
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`obviousness may be based.
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`F.
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`Patent Eligibility
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`31.
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`I understand that there are categories of subject matter referred to as
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`“judicial exceptions” or “exceptions” to patentable subject matter and that these
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`exceptions include: abstract ideas, laws of nature, and natural phenomena
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`(including products of nature). I understand that a patent claim in one of these
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`categories is not eligible for patenting unless the claim as a whole includes
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`additional limitations amounting to something significantly more than that precise
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`exception.
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`32.
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`I also understand that the test for subject matter eligibility has two parts. The
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`first step is to determine whether the claim is “directed to” one of the described
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`judicial exceptions. If so, the second step is to determine whether the claim
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`includes additional elements that impart an inventive concept that amounts to
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`significantly more than the ineligible concept itself.
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`VII. GENERAL FIELD OF THE ART
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`33.
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`I understand that October 13, 2008 is the earliest priority date to which the
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`Patent Owner may claim the ’469 patent is entitled. It has also been explained to
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`me that U.S. Application No. 14/707,134 (which issued as the ’469 patent) is a
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`divisional (an application having the same description, but different claims) of U.S.
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`Application No. 13/123,942 (the ’942 application) and that the ’942 application is
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`a U.S. national stage application of PCT/NL2009/050617, which was filed on
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`October 13, 2009, and claims priority to Netherlands Application No. 2002091,
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`filed on October 13, 2008. (EX1001, Cover). However, because the limitations, or
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`“elements” of the Challenged Claims of the ’469 patent are not supported or
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`enabled in any of the earlier-filed applications, I understand that the Challenged
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`Claims are not entitled to claim priority to any of the earlier-filed applications.
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`Rather, I understand that the Challenged Claims can claim priority to, at the
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`earliest, May 8, 2015, which is the filing date of the ’469 patent.
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`34. Although the Challenged Claims of the ’469 patent are not entitled to
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`priority to any of the earlier-filed applications, the attorneys for Petitioner have
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`advised me to assume that the “critical date” for certain prior art is one year prior
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`to the earliest alleged priority date (e.g., October 13, 2007). I understand that if a
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`prior art reference pre-dates that critical date, the Patent Owner cannot argue that
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`the Patent Owner’s invention before that critical date is sufficient to overcome the
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`prior art.
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`35. A POSA would have known, as of the critical date, that light, water and
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`temperature are three of the primary factors responsible for plant growth. Nelson
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`(EX1005) describes how light, water and temperature influence the rate of carbon
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`dioxide assimilation of a plant. EX1005, 187-91. The assimilation of carbon
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`dioxide into carbohydrates is known as photosynthesis. The equation for the inputs
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`to, and the outputs from, photosynthesis is provided below:
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`CO2 + water + light energy → carbohydrate + oxygen
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`Id., 187. This is perhaps the most fundamental equation in plant biology and is
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`known to students with a high-school education. Photosynthesis uses the green
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`pigment chlorophyll and generates oxygen as a byproduct. Id., 187-88. For plant
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`growth, the rate of photosynthesis must exceed the rate of respiration. Id., 199.
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`Respiration is the reverse of photosynthesis—it converts the carbohydrates
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`produced during photosynthesis into CO2, water, and energy. Id., 188.
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`36. At least as of the critical date, it was well known to a POSA that by
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`regulating temperature (root temperature and leaf temperature) and light, the rate
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`of photosynthesis and growth development of a plant can be controlled. The light
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`and temperature are interrelated parameters for plant growth that must be regulated
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`for optimal plant growth. Id. For example, Figure 11-1 of Nelson shows the effect
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`of light on the photosynthetic rate, id., Figure 11-3 of Nelson shows the effect of
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`the quality of light on the photosynthetic rate, id., 189, and Figure 11-13 of Nelson
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`shows the effect of CO2 concentration, light intensity, and leaf temperature on
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`photosynthesis, id., 199. Therefore, the temperature and light are optimized such
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`that photosynthesis is controlled to promote plant growth. Any single parameter of
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`temperature, light, and CO2 can be rate limiting for photosynthesis if it is
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`insufficient. Id., 199. Therefore, in order to promote efficient growth of a crop, a
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`POSA would have understood that the key factors that contribute to
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`photosynthesis, light and heat, are controlled in an interdependent relationship.
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`37. As discussed above, visible light is a key input to photosynthesis. Visible
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`light is a source of energy for plants. If light intensity is below an optimal light
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`intensity, photosynthesis (and growth) slows down. Id., 187. If light intensity is
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`above an optimal intensity, growth slows because chloroplasts in plant cells can be
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`injured. Chloroplasts are the organelles within green cells in which photosynthesis
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`occurs. Id. The effect of light intensity on the rate of photosynthesis is well known
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`and varies for different crops. In the absence of sufficient daylight, supplemental
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`light sources were often used to increase the rate of photosynthesis. See e.g., id.,
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`191, Figure 11-5.
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`38. Also, light emitting diodes (LEDs) were widely used as a supplemental light
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`source in climate-controlled environments well before the critical date. For
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`example, Massa et al., “Plant Productivity in Response to LED Lighting,”
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`HORTSCIENCE, 43:1951-56 (2008) (“Massa”) (EX1012) provides a review of the
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`use of LED lighting – many of the studies cited in this review paper were well
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`known before the critical date of October 13, 2007. See EX1012. Massa indicates
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`that studies from 1991 at the University of Wisconsin used LEDs for growing
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`plants. See, e.g., id., 1. Massa describes that LEDs have tremendous potential as
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`supplemental sole-source lighting. See id. Massa describes that spectral quality of
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`LEDs have a dramatic impact on crop anatomy and nutrient uptake. Id., Abstract.
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`Also, Fang (EX1006) describes the use of LED lighting for multi-layered
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`cultivation. See, e.g., EX1006, ¶¶ [0008], [0013]-[0015]. For example, Fang
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`describes “[a] plant growth apparatus that includes a chamber with multiple layers”
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`and a lamp that includes “a plurality of high intensity red light emitting diodes and
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`a plurality of blue light emitting diodes.” Id., Abstract. Fang describes some of the
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`advantages of using LEDs in multilayered, daylight-free plant growth chambers.
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`Id., ¶ [0004]. For example, Fang describes using LEDs of varying intensity to “find
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`the optimal light quantity and light quality for the growth of various plants.” Id., ¶
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`[0014]-[0016]. Fang specifically states the “controlling the frequency and duty
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`ratio of both LEDs” in a plant growth apparatus. Id., ¶ [0008]. Fang also describes
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`control and adaption of these LEDs to optimize plant growth. Id., ¶¶ [0008],
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`[0013]-[0015].
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`39.
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`It was well known by October 13, 2007 that all crops have an optimal
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`temperature range for photosynthesis and growth and that temperature is
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`determined by the input of heat to the plant. EX1005, 187. This is in part because
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`biochemical reactions in the plant are controlled by enzymes, which are heat-
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`Page 17 of 103
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`Exhibit 1002
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`sensitive. Id., 199. The temperature of the leaves and roots dictates the rate of
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`reaction of the enzymes for photosynthesis. Id.
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`40. As of the critical date, it was well known to a POSA to control or regulate
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`the temperature of the leaves and roots of a plant in order to control the rate of
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`photosynthesis. Depending on the type of light or heating source, systems are
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`needed to remove or add heat for optimal plant growth. For example, Vogelezang
`
`(EX1008) describes the effect of root-zone heating on growth and flowering of a
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`plant. EX1008, Abstract. Vogelezang notes that root temperature can control a
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`number of growth processes in a plant. Id., 1. Vogelezang utilizes a heating bench
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`with slots for heating tubes to control the root temperature. Id., 2. For example,
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`Vogelezang shows water at a desired temperature being fed into the heating tubes
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`disposed in the soil to control the root zone temperature. Id., 3. This was a well-
`
`known technique to remove excess heat from the roots of the plant.
`
`41. Other researchers had also shown the impact of the root zone temperature on
`
`photosynthesis well before the critical date. Nelson describes fluid conduit systems
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`for controlling root zone temperature. EX1005, 58; Figure 3-13 (showing hot water
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`heat pipe in plant beds). Nelson describes pipes installed “in the framework of
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`benches beneath the table top,” in the beds of plants, and on the sides of plant beds
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`for the purpose of “bringing heat distribution system[s] back down to the soil level.
`
`Id. Nelson describes that “[h]ot water [is used] in these systems because
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`Page 18 of 103
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`temperatures lower than that of steam are required to avoid burning of plants,” and
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`hot water helps to ensure uniform heating throughout the crop growth system. Id.
`
`A POSA would have understood that the root heat systems described in Nelson
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`function via heat exchange. Also, Vogelezang describes the use of a bench heating
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`system for controlling root zone temperature. EX1008, 2, Fig. 1. In addition,
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`Snekkenes (EX1009) describes the use of air as a fluid for heating the roots of
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`plants grown in a closed system. EX1009, 2:33-49. For example, Snekkenes
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`describes flowing climatically conditioned air between a base and the plant support
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`device. Id. In this manner Snekkenes describes controlling the difference between
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`the root temperature and temperature of the foliage (leaves) of the plants. Id., 4:18-
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`21. Specifically, Snekkenes states that “the root temperature of the plants should
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`not exceed the temperature of the foliage by more than about 8° C.” Id. 1:28-30.
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`42.
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`It was also well known prior to the critical date to use infrared heaters to
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`heat plant leaves. For example, U.S. Patent No. 5,269,093 to Horaguchi et al.
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`(“Horaguchi”) (EX1013) states that it was known that infrared radiation at
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`different wavelengths effect photosynthesis and photomorphogenesis. See EX1013,
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`1:32-49. Similarly, Kimball, B. A., “Theory and performance of an infrared heater
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`for ecosystem warming,” Global Change Biology, 11:2041-56, (2005) (“Kimball”)
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`(EX1014) describes that infrared heaters for warming vegetation was appealing
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`because “warming should be similar to normal solar heating of the leaves, and it
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`Page 19 of 103
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`Exhibit 1002
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`should be energetically efficient because one would heat the leaves directly
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`without having to overcome a boundary layer resistance if the air were heated
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`first.” EX1014, 2. Nelson also describes the advantages of heating the leaves using
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`infrared heat and its effects on photosynthesis. See EX1005, 51-52. For example,
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`Nelson describes one advantage of infrared heaters includes their ability to heat
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`objects in the path of the infrared radiation while not heating the air through which
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`the infrared radiation travels. Id. Nelson also states the advantages of soil-level
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`heat distribution systems consisting of hot water pipes installed in plant beds. Id.,
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`58-59. Thus, as noted by Nelson, both the root temperature and the leaf
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`temperature are important to plant growth.
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`43. As of the critical date of the patent, a POSA would have known how to
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`optimize variables associated with plant growth. Such variables include, for
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`example, leaf temperature, root temperature, and the amount of light. It was well
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`known that growth of a plant can be regulated by adjusting the amount of light and
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`heat (root temperature and leaf temperature) in optimal ratios.
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`44. At least as of the critical date, it was known that the root temperature and the
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`leaf temperature are interrelated. Nelson describes the importance of interrelated
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`regulation of heat and light to optimize photosynthesis of plants grown in
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`controlled environments. Id., 199-200. A POSA seeking to optimize plant growth
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`in a grow room would have known to control the interrelated factors of heat and
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`Page 20 of 103
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`Exhibit 1002
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`light to optimize photosynthesis and plant growth. For example, as the intensity of
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`light increases, the heat to the leaves increases, and therefore the amount of heat to
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`the plant (leaves or roots) needs to be regulated. Additionally, a POSA would have
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`understood the importance of regulating the temperature difference between the
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`foliage and root system of the crop to optimize plant health. EX1009, 1:15-20.
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`45.
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`Thus, as exemplified by these and other references described herein, control
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`of the leaf temperature, root temperature, and electric (i.e., artificial) light to
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`optimize plant growth was standard in the art before the critical date.
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`VIII. THE ’469 PATENT AND PROSECUTION HISTORY
`
`A.
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`Specification
`
`46.
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`The ’469 patent “relates to a system for growing a plant in an at least partly
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`conditioned environment, comprising a cultivation base for receiving a culture
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`substrate with a root system of the plant therein, root temperature control means
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`which are able and adapted to impose a predetermined root temperature on the root
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`system, and comprising lighting means which are able and adapted to expose
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`leaves of the plant to actinic artificial light.” EX1001, 1:9-16. The ’469 patent
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`states that:
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`[t]he invention is based here on the insight that three factors are
`essentially responsible for a successful plant development, i.e. the
`photosynthesis, the sap flow in the plant pushed upwards under the influence
`of a prevailing root pressure, and the carbon dioxide assimilation through
`mainly the leaf system of the plant, and that these three factors must at all
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`Page 21 of 103
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`times be adapted to each other in order to actually realize an optimal plant
`growth.
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`Id., 2:38-46. Figure 1 (excerpted below) describes an embodiment of the multilayer
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`cultivation system that attempts to optimize these three well-known parameters for
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`plant growth. The multilayer cultivation system is provided with an artificial light
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`source 20, a leaf heating means 30, and a closed conduit system 12 “through which
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`a heat-carrying medium such as water of a controlled temperature can be guided in
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`order to control a temperature of the root system.” Id., 5:4-50.
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`Id., Fig. 1 (annotated).
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`Fig. 1
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`47. Although a control is not shown or described in Figure 1, claim 1 states “a
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`control of the leaf heating means, the root temperature heat exchange system and
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`Page 2
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