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 .
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the removable seal of claim 1 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claims 1, 4, 21, & 24-29 are objected to because of the following informalities:
Claim 1 includes new amended claim language which is “added” and “removed” based on underline and strike through notations;
Claim 4 should be amended to provide, e.g., a comma in line 7 between “container” and “the porosity”;
Claims 24-29 should be amended to provide a comma after the claim # in the preamble, in order to be consistent with the remaining claims;
3” bands, found in claim 21, and 0.004” to 0.014” found in claim 29 should be amended to align with MPEP § 608 which states that, “all patent applicants should use the metric (S.I.) units followed by the equivalent English units when describing their inventions in the specifications of patent applications.”. Appropriate correction is required.
Specification
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: constituents of the growing media have predetermined water release profiles is not described, but rather “The combination of macro perforations and the living horticultural media 316 may also provide for water release in a predetermined way across a tension range of 0 kPa to 1,500 kPa,” ¶0029 and “The exchange pores may be distributed to achieve water release at tensions from less than 0 kPa to above 1,500 kPa,” ¶0044 are disclosed without any further discussion of how these values are achieved (see below 112b rejection).
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 2-6, 20, & 27-28 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
The distribution of the micro- and macro-pores is only broadly discussed, it is unclear how someone having ordinary skill in the art would produce a structure which has the claimed water or nutrient release profiles of claims 2-4, 20, & 27-28 and how one would supposedly select distribution “based on” the characteristics of claims 5-6, since no further instruction or guidance is given. This arises to undue experimentation. Additionally, it is unclear how full saturation levels (at or lower than 0 kPa) of growth media can be surpassed using the exemplary growth media discussed in, e.g. ¶0047.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-7 & 20-29 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 requires the removable seal as a distinct element to the sidewall and base; however, this appears to be inconsistent with the specification which discusses the seal being opened or unsealed. Additionally, it is unclear what the scope of the claim is, if in the normal usage of the device, a portion of the device is removed and/or discarded.
Each of claims 2, 4, 20, 24, 25, 27, discusses what amounts to definitions of one or more terms, without providing any tangible structural details. Is it unclear what structural element(s) is being provided by each claim, and thus the scope of each claim cannot be ascertained. Claim 26 is rejected as dependent from claim 25 rejected above.
Claims 2, 4, & 27 each recites the limitation “the particle sizes, the particle densities, and the particle arrangement” in lines 5-6 of claims 2 & 4, and lines 4-5 of claim 27. There is insufficient antecedent basis for each limitation in the respective claim.
Claim 4 requires “micropores” and “macropores” - do these include or preclude those of claim 1, from which it ultimately depends?
Each of claims 5-7 appears to imply a mental or planning step without providing detailed information on how this is performed. It is unclear what specific structural elements each claim further requires.
Claim 5 requires “a horticultural media composition,” “micropores,” and “macropores” - it is unclear whether these are the same or different from the claim terms of claim 1, from which it depends.
The remaining claims have been rejected as ultimately dependent from claim 1, rejected above.
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.
Claims 1-7 & 20-29 are rejected under 35 U.S.C. 103 as being unpatentable over Gruber (GB 2045044 A) in view of Watson (US 10999985 B2) and Vanderhove (US 20090107040 A1).
For Claim 1, Gruber discloses a plant growing system (Figs. 1a, 1b in view of 1g) comprising:
a container (1, Fig. 1a and/or 1b) comprising:
a base (“perforate the entire side walls and bottom walls of the containers,” emphasis added, page 4, lines 66-73) having a top side (forming a portion of the interior of the device 1) and a bottom side (forming a portion of the outside of the device 1) and
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formed of a flexible material (“The container may also be in the form of a flexible bag” page 4, lines 47-50);
a side wall having an exterior surface and an interior surface (annotated) and formed of a flexible material (“The container may also be in the form of a flexible bag” page 4, lines 47-50), the side wall encircling the perimeter of the base at a first end and extending from the top side of the base and extending toward the second end (annotated);
a cavity formed within the interior surface of the side wall between the base and the second end (annotated), the cavity housing horticultural media (“the container is partly or completely filled with nutrient substrate,” Abstract);
macropores, extending through the base and sidewall (“perforate the entire side walls and bottom walls of the containers,” page 4, lines 66-73), disposed at predefined positions on the base and the side wall, and the macropores sized to promote water exchange (“when their diameter is in the preferred range of 1.0 to 0.1 mm” --at least 1.0 mm reads on “macropores” in light of “The container may also have perforations of differing diameters and the perforations may be arranged statistically,” both from page 4, lines 82-97; the macropores, by their existence, promote water/fluid exchange); and
micropores extending through the sidewall disposed at predefined positions on the side wall, and the micropores sized to inhibit water exchange between the interior and the exterior of the side wall but sized to permit air exchange between the interior and the exterior of the side wall (“when their diameter is in the preferred range of 1.0 to 0.1 mm” --at least 0.1 mm reads on “micropores” in light of “The container may also have perforations of differing diameters and the perforations may be arranged statistically,” both from page 4, lines 82-97; this size, in the same manner as the instant invention, would provide at least some inhibition of water, while promoting gas dispersion).
Gruber is silent to the sidewall converging towards a seal at the second end, and the seal being removable;
the micropores sized from 0.1 micrometers to 20 micrometers.
Watson, like prior art above, teaches a plant container (title, disclosure) further comprising sidewalls (sidewalls of container 6) converging towards a removable lid (30) at the top end (Fig. 1).
Therefore, it would have been obvious to one of ordinary skill in the art before the claimed invention was effectively filed to modify the container of Gruber with a removable lid as taught by Watson, in order to provide further protection and/or coverage, as deemed necessary by the user, yielding predictable results. The resulting device provides a sealed container.
Vandenhove, like prior art above, teaches a growth composition package (title, disclosure) further comprising micropores sized from 0.1 micrometers to 20 micrometers (“less than 0.05 mm” ¶0022).
Therefore, it would have been obvious to one of ordinary skill in the art before the claimed invention was effectively filed to modify at least a portion of the pores in the sidewall of Gruber with a gas exchanging membrane as taught by Vandenhove, in order to provide a device which provides the selective ability to provide gas or water permeation, in order to block water passing through to other structures outside of the container, for example, and yielding predictable results.
For Claim 2, Gruber as modified teaches the plant growing system of claim 1, and Gruber further discloses wherein the container and the horticultural growing media have water retention and release profiles (growth media and the associated container, regardless of what each is, necessarily have water release profiles);
the horticultural media has a porosity defined by constituents of the horticultural media comprising media components, the particle sizes, the particle densities, and the particle arrangement of the horticultural media (the media necessarily has each of these components, and the components necessarily have a retention/release profile); and the volume of the horticultural media in the container and the porosity of the horticultural media define water retention and release profiles of the container and the horticultural media (the media necessarily has volume as a property, the necessary porosity of the contained medium meets the claim limitation).
For Claim 3, Gruber as modified teaches the plant growing system of claim 2, and Gruber further teaches wherein the predetermined water release profiles have tension ranges from 0 kPa to 1500 kPa (“such as soil, peat,” page 2, lines 16-21, in the same manner as the instant invention ¶0047; for any “partial or complete” filling of the device, the system would meet the claimed range1).
For Claim 4, Gruber as modified teaches the plant growing system of claim 1, and Gruber further discloses the horticultural media interacts with the container (the media would at least interact with its container by being contained therein); and
the horticultural media has a porosity defined by constituents of the horticultural media comprising media components, the particle sizes, the particle densities, and the particle arrangement of the horticultural media (the media necessarily has each of these components, and the components necessarily have a retention/release profile);
the volume of the horticultural media in the container the porosity of the horticultural media, and the distribution of micropore and macropores define the total amount of water and air held in the horticultural media and the distribution of water and air held in the horticultural media (as illustrated in one of Figs. 1a, 1b and/or “perforations may be arranged statistically,” both from page 4, lines 82-97)
For Claim 5, Gruber as modified teaches the plant growing system of claim 1, and Gruber further discloses wherein a horticultural media composition in the container is based on the distribution of micropores and macropores of the container size (the media necessarily has each of these components, and the components necessarily have a retention/release profile).
For Claim 6, Gruber as modified teaches the plant growing system of claim 1, and Gruber further discloses wherein a desired planting is based on the distribution of micropores and macropores of the container and of the size of the container (the media necessarily has each of these components, and the components necessarily have a retention/release profile).
For Claim 7, Gruber as modified teaches the plant growing system of claim 1, and Gruber further discloses wherein the container size is based on the desired planting (as illustrated in one of Figs. 1a, 1b and/or “perforations may be arranged statistically,” both from page 4, lines 82-97 and/or page 2, lines 74-80).
For Claim 20, Gruber as modified teaches the plant growing system of claim 1, and Gruber further discloses wherein the horticultural media have a nutrient release profile (the growing media of Gruber, e.g. peat, would, in the same manner as the instant invention, release nutrients);
the horticultural media has a porosity defined by constituents of the horticultural media comprising media components, the particle sizes, the particle densities, and the particle arrangement of the horticultural media (the media necessarily has each of these components, and the components necessarily have a porosity);
the volume of the horticultural media in the container and the porosity of the horticultural media define the nutrient release profile of the horticultural media (the media necessarily has a volume within the container, and the components necessarily have a nutrient release profile).
For Claim 21, Gruber as modified teaches the plant growing system of claim 1, and Vandenhove further teaches wherein the micropores are disposed along the sidewall in bands (¶0128 disclosed that the length of the band is 20 mm, or about 0.78 inches).
Vandenhove is silent to the band being 3” (or about 76.2 mm).
It would have been obvious to one of ordinary skill in the art before the claimed invention was effectively filed to provide the bands of Vandenhove in 76mm bands, in order to better serve the overall system of Gruber in view of Vandenhove, 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).
For Claim 22, Gruber as modified teaches the plant growing system of claim 1, and the resulting device further teaches wherein the macropores are positioned along the base to minimize water evaporation (wherein at least a subset of the macropores is disclosed on the base and/or along the bottom of the sidewall).
For Claim 23, Gruber as modified teaches the plant growing system of claim 1, and Gruber further teaches wherein the horticultural media comprises media component having different particle sizes and different particle densities (“the container which may be partly or completely filled with the usual nutrient substrate such as soil, peat, expanded clay, special compost or agricultural soil. The nutrient substrate may also be mixed with any inert substances, for example sand or granulated synthetic material.” Page 2. So, the nutrient substrate has different particle sizes and densities from, e.g. sand.)
For Claim 24, Gruber as modified teaches the plant growing system of claim 23 and Gruber further teaches wherein porosity of the horticultural media to air and water is defined by a composition of the media components, the particle sizes, the particles densities, and the particle arrangement of the horticultural media (the media necessarily has each of these components, and the components necessarily have a porosity).
For Claim 25, Gruber as modified teaches the plant growing system of claim 24 and Gruber further teaches wherein the volume of horticultural media in the container affects the total amount of water and air in a container and the distribution of water and air in the container (the media necessarily holds onto or releases water, and air makes up a portion of the media and the non-media portion of the container, meeting the claim limitation).
For Claim 26, Gruber as modified teaches the plant growing system of claim 25 and Gruber further teaches wherein the media components are selected from the group consisting of2 biochar, peat moss (at least peat moss is discussed on page 2), bark, coconut coir, wood fiber, perlite, vermiculite, sand, and combinations thereof.
For Claim 27, Gruber as modified teaches the plant growing system of claim 20 wherein the container and the horticultural media have water retention and release profiles (the media and the container each necessarily has a water retention or release profile);
the horticultural media has a porosity defined by the constituents of the horticultural media comprising media components, the particle sizes, the particle densities, and the particle arrangement of the horticultural media (the media necessarily has each of these components, and the components necessarily have a retention/release profile);
the volume of the horticultural media in the container and the porosity of the horticultural media define water retention and release profiles of the container and the horticultural media (both the container and the contained media necessarily has each of these components, and the components necessarily have a water retention/release profile).
For Claim 28, Gruber as modified teaches the plant growing system of claim 27 and Gruber further teaches wherein the predetermined water release profile of the system has a tension range from 0 kPa to 1500 kPa (“such as soil, peat,” page 2, lines 16-21, in the same manner as the instant invention ¶0047; for any “partial or complete” filling of the device, the system would meet the claimed range).
For Claim 29, Gruber as modified teaches the plant growing system of claim 1 and Gruber further teaches wherein the macropores [[,]] are sized from 0.004” to 0.014” (Gruber teaches the pores are 0.1-1mm, which converts to about 0.004”-0.04”, fully anticipating the claimed range).
Response to Arguments
Applicant’s arguments with respect to present claims have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
The cited prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Special attention is drawn to the disclosures of US 20090107040 A1 and DE 10105736 A1 as disclosing an invention or aspects of the invention which are similar to those claimed and/or disclosed in the instant invention. The remaining references cited establish the state of the art.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Morgan T. Jordan whose telephone number is (571)272-8141. The examiner can normally be reached M-Th 8:30-5:30.
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/MORGAN T JORDAN/Primary Examiner, Art Unit 3643
1 “Root Medium Physical Properties” < https://swfrec.ifas.ufl.edu/docs/pdf/veg-hort/transplant/trans_media4.pdf> states “For every 1cm increase in height above the bottom of the pot, there is a 0.1 kPa increase in moisture tension and less water held.” (page 1)
2 Interpretation note: only one aspect is required due to the alternative construction triggered by the Markush limitation.