Detailed Action
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 10/09/2025 has been entered.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1, 4, 7, 12-13 and 27 are rejected under 35 U.S.C. 103 as being unpatentable over McLean (US 5471783 A) in view of Greer (US 5755376 A), O’Hare (US 4454684 A), Rouxel (US 20210392834 A1) and Reach (US-11032981-B2).
Regarding claim 1, McLean discloses a support for a climbing plant, the support comprising:
a tubular structure (tree guard 1, see fig 2) defining a volume for containing therein a substrate,
the tubular structure having a plurality of root-passage holes (26, see fig 2) for passage therethrough of roots of the climbing plant to engage the substrate, wherein the tubular structure comprises a single sheet (20, see fig 4) of plastic material (plastic sheet material, see col 3, lines 2-6)) having a first long edge (see fig 2, edge with tabs 21), a first short edge (top, see figs 2-3), a second long edge (edge with holes 22, see fig 2-3), and a second short edge (bottom, see figs 2-3)
the sheet (20) having the plurality of root-passage holes (26) provided therethrough;
wherein the plurality of root-passage holes are arranged in a grid configuration through the
sheet (see fig 4);
the sheet (20) having an integral plurality of tabs (21) extending from the first long edge and
spaced apart from each other at intervals along the first long edge (see figs 2-4);
the sheet (20) having a corresponding plurality of tab-engagement holes (22, see figs 2-4)
provided adjacent the second long edge and spaced apart from each other at intervals along the second long edge (see figs 2-4)
wherein the plurality of tabs and the corresponding plurality of tab-engagement holes are in
engagement with each other such that the sheet is assembled into the tubular structure (see figs 2-3); wherein the tubular structure assembled has open ends each defined by the first short edge or the second short edge (see figs 2-3);
wherein the sheet comprises a first longitudinal portion comprising the first long edge (edge
with tabs 21, see figs 2-4), a second longitudinal portion comprising the second long edge (edge with tab holes 22, see figs 2-4), and a central longitudinal portion (portion making up rest of tubular structure, see figs 2-4) provided between the first and second longitudinal portion, wherein the plurality of root-passage holes are provided on at least the central longitudinal portion (see figs 2-4, holes provided in space between two long edges).
Mclean fails to disclose wherein each of the plurality of root-passage holes is sized to allow the
roots of the climbing plants to pass through the root-passage hole, while to prevent the substrate contained in the support from falling out of the root-passage hole; wherein the each of the plurality of root-passage holes is configured to have a dimension ranging from 5 mm to 25 mm; wherein the sheet comprises a first longitudinal score line provided to facilitate bending without breaking of the sheet between the first longitudinal portion and the central longitudinal portion, wherein the sheet comprises a second longitudinal score line provided to facilitate bending without breaking of the sheet between the second longitudinal portion and the central longitudinal portion, and wherein bending of the sheet along both the first and second longitudinal score lines facilitates meeting and engagement of the plurality of tabs with the plurality of tab-engagement holes, when the plurality of tabs are in engagement with the plurality of tab-engagement holes, the tubular structure has a semi-circular cross-section, wherein multiple units of the support are joinable by insertion of a lower end of a first unit the support into an upper end of a second unit of the support to create an extended support of increased length, wherein the support includes a first interlocking structure located adjacent the lower end of the support and a second interlocking structure located adjacent the upper end of the support, wherein the first and second interlocking structures (38, 48) are longitudinally aligned in parallel with the first long edge of the sheet, wherein when the first and second units of the support are joined to create the extended support of increased length, the first interlocking structure of the first unit of the support engages the second interlocking structure of the second unit of the support to prevent separation of the first unit of the support from the second unit of the support.
Greer, in the analogous art of folding containers or supports, teaches wherein the sheet (see fig 1) comprises a first longitudinal score line (left folding line, see fig 1) provided to facilitate bending without breaking of the sheet between the first longitudinal portion and the central longitudinal portion, wherein the sheet comprises a second longitudinal score line (right folding line, see fig 1) provided to facilitate bending without breaking of the sheet between the second longitudinal portion and the central longitudinal portion, and wherein bending of the sheet along both the first and second longitudinal score lines facilitates meeting and engagement of the plurality of tabs with the plurality of tab-engagement holes (tabs and notches 31 and 31, see figs 1-4), when the plurality of tabs are in engagement with the plurality of tab-engagement holes, the tubular structure has a semi-circular cross-section (when tabs engaged, forms a semi-circular container, see figs 2-5).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the support of McLean with the semi-circular shape of Greer with a reasonable expectation of success because this configuration provides more stability and durability.
O’Hare teaches a tubular structure (cylinder 1) defining a volume for containing therein a
substrate (4, 10), the tubular structure having a plurality of root-passage holes (2) for passage therethrough of roots of the climbing plant to engage the substrate, wherein each of the plurality of root-passage holes is sized to allow the roots of the climbing plants to pass through the root-passage hole, while to prevent the substrate contained in the support from falling out of the root-passage hole (see figs 1-5, holes sized to keep substrate 4, 10 within cylinder 1 but allow plant roots or stems to grow through the root-passage holes).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system with the holes sized for root passage but small enough to contain the substrate with a reasonable expectation of success because this will ensure the nutrient composition (substrate) is contained to provide the plants with an optimal growing medium while passage through the holes ensures plant growth is not constrained.
Rouxel teaches wherein multiple units of the support are joinable by insertion of a lower end of a first unit the support into an upper end of a second unit of the support to create an extended support of increased length (see fig 4), wherein the support includes a first interlocking structure (362, see fig 4 and para 0060) located adjacent the lower end of the support and a second interlocking structure (450, see fig 4 and para 0062) located adjacent the upper end of the support, wherein the first and second interlocking structures (362, 450, see fig 4) are longitudinally aligned in parallel with the first long edge of the sheet, wherein when the first and second units of the support are joined to create the extended support of increased length, the first interlocking structure of the first unit of the support engages the second interlocking structure of the second unit of the support to prevent separation of the first unit of the support from the second unit of the support (see figs 1D and 4).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the support of McLean with multiple units as taught by Rouxel with a reasonable expectation of success as this will allow for continued support throughout a plant’s growth cycle.
Reach teaches wherein the each of the plurality of root-passage holes is configured to have a dimension ranging from 5 mm to 25 mm (openings of 5-9mm, see abstract).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system with the root holes being 5-9mm as taught by Reach with a reasonable expectation of success because this will mitigate the risk of insect infestation or pest nesting, see col 5, lines 15-22).
Regarding claim 4, the modified reference teaches the support of claim 1 and McLean further
discloses wherein each of the plurality of tabs comprises a tab head and a tab neck connecting the tab head to the first long edge (fig 4, see semicircular tab head and nipped/narrower neck connecting head to edge), wherein the tab head is configured to be manipulated through a corresponding one of the plurality of tab- engagement holes and to prevent slipping of the tab head back out of the tab- engagement hole, and wherein the tab neck has a width able to be accommodated by the tab-engagement hole (see figs 2 and 4).
Regarding claim 7, the modified reference teaches the support of claim 1 and McLean further
discloses wherein the plurality of root-passage holes (26) are arranged in a grid configuration through the sheet 20, (see fig 4).
Regarding claim 12, the modified reference teaches the support of claim 11, and Rouxel further
teaches wherein the first and second interlocking structures each comprise a flap defined by a U-shaped cut (362, see fig 4, see para 0060 and 0062, upper interlocking structure identical to lower) made in the sheet wherein legs of the U-shaped cut are parallel with the first and second short edges (legs of 362 parallel to top and bottom edges, see fig 4), wherein when the first and second units of the support are joined to create the extended support (see fig 4), the first U-shaped cut of the first unit of the support is congruent with the second U- shaped cut of the second unit (upper engagement feature may be identical to lower feature, see paras 0060 and 0062), such that bending the flaps together in a same direction away from a surface of the extended support prevents separation of the first unit of the support from the second unit of the support (see fig 4 and para 0060 and 0062, flaps or tabs identical upper and lower features for support and stacking).
Regarding claim 13, the modified reference teaches the support of claim 1 and McLean further
discloses further comprising at least one anchor tab (33) provided adjacent the first short edge for engaging a growing medium in which the support is embedded to anchor the support in the growing medium (see figs 3-4), the anchor tab (33, see figs 3-4) comprising an upward facing and outwardly extending tab assembled from a further U-shaped cut made in the sheet wherein legs of the further U-shaped cut point towards the first short edge (legs of tab 33 pointing towards first short edge, i.e. top edge).
Regarding claim 27, the modified reference teaches the claimed invention except wherein the
each of the plurality of root-passage holes is configured to have the dimension of 12 mm. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the root-passage holes to be 12 mm with a reasonable expectation of success because this will ensure the roots or stems of the plant are able to grow through the holes, while containing the substrate within the support to provide an optimal growing medium, and since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Further, in Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.
Claim(s) 5-6 are rejected under 35 U.S.C. 103 as being unpatentable over McLean (US 5471783 A) in view of Greer (US 5755376 A), O’Hare (US 4454684 A), Rouxel (US 20210392834 A1) and Reach (US-11032981-B2) as applied to claim 4 above, and further in view of Schmitt (US 4317311 A).
Regarding claim 5, the modified reference teaches the support of claim 4 and McLean further
discloses wherein each of the plurality of tab-engagement holes (22) comprises a slit provided through the sheet, wherein each tab head (21) has a free end and a necked end adjoining the tab neck (see fig 4).
The modified reference fails to teach wherein the free end has a width less than the length of the slit, and wherein the necked end has a width greater than a length of the slit.
Schmitt teaches wherein the free end has a width less than the length of the slit (free end of trapezoid 106, see fig 5), and wherein the necked end has a width greater than a length of the slit (102/104, see fig 5).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the tab of McLean with the proportions of Schmitt with a reasonable expectation of success because this configuration will ensure the tab cannot unintentionally slip out and come apart, and since there is no invention in merely changing the shape or form of an article without changing its function except in a design patent. Eskimo Pie Corp. v. Levous et al., 3 USPQ 23.
Regarding claim 6, the modified reference teaches the support of claim 5 and Schmitt further
teaches wherein the tab head has a shape that is one of: a triangle, a semi-circle, and an isosceles trapezoid (isosceles trapezoid, see fig 5).
Claim(s) 8 is rejected under 35 U.S.C. 103 as being unpatentable over McLean (US 5471783 A) in view of Greer (US 5755376 A), O’Hare (US 4454684 A), Rouxel (US 20210392834 A1) and Reach (US-11032981-B2) as applied to claim 1 above, and further in view of Kleinhert (CA 2391840 A1).
Regarding claim 8, the modified reference teaches the support of claim 1.
The modified reference fails to teach wherein the plastic material comprises polyethylene
terephthalate.
Kleinhert teaches wherein the plastic material comprises polyethylene terephthalate (pet, easily
moldable, see page 7, lines 7-15).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the sheet of McLean to be polyethylene terephthalate as taught by Kleinhert with a reasonable expectation of success because it is easily moldable without risk of breakage, and since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Claim(s) 11 is rejected under 35 U.S.C. 103 as being unpatentable over McLean (US 5471783 A) in view of Greer (US 5755376 A), O’Hare (US 4454684 A), Rouxel (US 20210392834 A1) and Reach (US-11032981-B2) as applied to claim 1 above, and further in view of Richman (US 20210345568 A1).
Regarding claim 11, the modified reference teaches the support of claim 1.
The modified reference fails to teach wherein the first and second interlocking structures each
comprise an embossing made in the sheet.
Richman teaches wherein the first and second interlocking structures each comprise an embossing made in the sheet (embossed feature for locking lid to tray, see para 0040).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the interlocking features to be an embossing in the sheet as taught by Richman with a reasonable expectation of success because this will ensure a secure fit so the plants are protected and the supports are not separated or broken by wind.
Response to Arguments
Applicant's arguments filed 10/09/2025 have been fully considered but they are not persuasive.
Applicant argues that the combination of McLean and Greer is not obvious due to the bottom flap of Greer and the overlap of the sheet. The Office respectfully disagrees. In response to applicant's argument that Greer is not obvious to combine with McLean, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). In this case, the proposed modification does not incorporate the bottom flap or the overlap of the sheets. Greer is simply being used to teach score lines, which are well known in the art, as evidenced by the additional references cited but not relied upon, and that it is known to used score lines on a blank to create a semi-circular shape. Therefore this argument is not persuasive.
Applicant argues that the apertures of McLean are designed to keep young plants inside and that this would prevent roots from penetrating the protector. The Office respectfully disagrees. The holes of the claimed invention are provided “for passage therethrough of the roots” which is functional language. Additionally, the claim does not specify the direction in which the roots are growing through the plant protector. Therefore this argument is not persuasive.
Applicant argues that the holes of O’Hare are too large and would be unsuitable for retaining substrate inside the support. However, O’Hare also utilizes a substrate, and has holes sized to retain the substrate, also referred to as a nutrient composition, while allowing passage of branches outward. See col 2, lines 42-67. Therefore this argument is not persuasive.
Applicant argues that neither Rouxel or Reach disclose a support structure adapted to facilitate growth of climbing plants, root passage holes, or an extended support with water flow continuity. The Office respectfully disagrees. Rouxel teaches multiple units of support connectable by joining structures as seen in the rejection above. Reach teaches specifics regarding the dimension of the holes of the plant protector as seen in the rejection above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The art noted in the References Cited document is relevant as it pertains to similar plant support systems. Specifically, Whyte teaches a plant support for containing a substrate.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATHERINE ANNE KLOECKER whose telephone number is (571)272-5103. The examiner can normally be reached M-Th: 8:00 -5:30 MST, F: 8:00 - 12:00 MST.
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/K.A.K./Examiner, Art Unit 3642
/MAGDALENA TOPOLSKI/Primary Examiner, Art Unit 3642