PAB Allows Application Despite Examiner’s Rejection Based upon Unpatentable Subject Matter

PAB Allows Application Despite Examiner’s Rejection Based upon Unpatentable Subject Matter

Re. Patent Application 2,333,184 CD 1345




The patent application at issue is for an automated method of classifying or sorting plant embryos of unknown germination potential prior to being encapsulated and formed into artificial seeds.


During examination the application was deemed defective as it was directed toward non-statutory subject matter and was too broad.


Claim 1 reads:

1. A method for classifying plant embryos according to their germination potential comprising:

(a) developing a classification model by

(i) using a scanning device, acquiring raw digital image data of reference samples of whole

plant embryos or of embryo organs of known germination potential;

(ii) using a computer coupled to the scanning device, performing a data analysis by

applying one or more classification algorithms to the acquired raw digital image data,

wherein at least one of the classification algorithms uses more than an embryo perimeter

from the acquired raw digital image data, the data analysis resulting in development of a

classification model for classifying plant embryos by their germination potential; and

(iii) storing the developed classification model in computer memory;

(b) using the scanning device, acquiring raw digital image data of a plant embryo or a plant

embryo organ of unknown germination potential; and

(c) using the computer, applying the developed classification model stored in the computer

memory to the raw digital image data of step (b) to classify the plant embryo of unknown

germination potential according to its presumed germination potential.



Are claims 1-34 invalid for claiming non-statutory subject matter?

The examiner found that the claimed subject matter lacked physicality. The examiner also found the claims to be essentially abstract.[7]


The Board then examined the context of the invention, its purpose and the problem the invention seeks to address.[13] The invention is performed in an industrial setting to select suitable embryos.


Classifying plant embryos is not defined in the specification. Accordingly the dictionary definition means to arrange in classes or categories according to shared qualities or characteristics. It is synonymous with organize, group and sort.[21] The preamble therefore means that the method is performed on a population of embryos to achieve a physical result. The body of claim 1 indicates that it possesses physicality.[23]


The invention has several essential elements – most importantly the acquisition of image data of high enough resolution to allow for proper sorting.[26]


While performing calculations or data analysis may not amount to physical transformation purposive construction informs the interpretation of the claims to include physical essential steps.[37] Computer implemented data analyses are not the focus of the invention. Independent claim 1 is therefore compliant with section 2 of the Act. Similar reasoning applies to all other dependent claims.[44]


Are the remaining claims abstract mathematical theorems?


The theorems applied are not merely abstract but rather are directed and implemented for practical value. This is done utilizing ‘metric values’ which are scalar statistical values that encompass things like geometry, colour, and other features that are predictive of germination potential.[63]



The claims are not too broad and comply with Rule 84 and subsection 27(3) of the Act. The application should therefore be allowed.