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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 29 April 2026 has been entered.
Claim Objections
Claim 22 is objected to because of the following informalities: “wherein the macropores are are” should be replaced with only one iteration of “are”: --wherein the macropores are [[are]]--. Appropriate correction is required.
Claim Rejections - 35 USC § 112
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, 20-27, & 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 second end is configured to be opened to define a plant opening;” in line 8; however, it is unclear in which state the device is being claimed. If the container is intended to be sealed, then it couldn’t operate as intended (a plant growing container). If the container is intended to be opened, then it is unclear what function the seal provides.
Additionally RE claim 1, it is unclear whether “[seal]” in line 10 is intended to be read into the claim limitation or not; if so, there is no antecedent basis for the term. If not, double brackets are used for removal of claim terms.
RE claim 4: “a plurality of particle sizes, a plurality of particle densities, and a particle arrangement of the horticultural media (the media necessarily has each of these components, and the components necessarily have a retention/release profile);” is an incomplete phrase. Additionally, a portion of the previously submitted claim (“the horticultural media has a porosity defined by constituents…”) is not provided in the current copy. It is paramount for prosecution for the claims to be consistently annotated such that prosecution can be easily followed. Similarly, claim 20 contains underlined text which was previously added to the claim.
For each of claims 5, 7, & 25: it is unclear which state the device is being claimed. For example, the terms “adjusted” and “blended” (claim 5) each implies a before and after, when the scope of the claim (plant growing system) does not allow for the inclusion of an implied method step. Thus, what is required to satisfy the metes and bounds of the claim? This is similarly applied to:
“increases or decreases as a function of a surface area of the side wall” (claim 7) - is the side wall changing sizes?
“calibrated relative to the cavity” (claim 25) which again appears to imply a before and after.
Claim 6 recites the limitation “the horticultural media composition” in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 22 requires “wherein the macropores are are disposed in a spatial arrangement through the base to inhibit moisture loss by water evaporation.” How does a spatial relationship of holes through the bottom wall of the device, per se, inhibit moisture loss?
Where applicant acts as his or her own lexicographer to specifically define a term of a claim contrary to its ordinary meaning, the written description must clearly redefine the claim term and set forth the uncommon definition so as to put one reasonably skilled in the art on notice that the applicant intended to so redefine that claim term. Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357, 52 USPQ2d 1029, 1033 (Fed. Cir. 1999). The term “calibrated” in claim 25 is used by the claim to mean some type of targeted range, while the accepted meaning is “check or adjust by comparison with a standard” and further implying an electronic application. The term is indefinite because the specification does not clearly redefine the term.
Claims 2, 3, 6, 21, 23, 24, 26, 27, & 29 are rejected as ultimately dependent from claim 1, rejected above.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-7, 20-27, & 29 are rejected under 35 U.S.C. 103 as being unpatentable over Gruber (GB 2045044 A) in view of 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 converging towards a second end (annotated), the second end is configured to be opened to define a plant opening (the opening is open to the interior cavity, 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 fluid 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 micropores sized from 0.0001 mm (0.1 micrometers) to 0.020 mm (20 micrometers).
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 discloses a range of 0-0.05mm, which anticipates the claimed range).
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 discussed 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 in view of Vanderhove 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, a plurality of particle sizes, a plurality of particle densities, and a 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 in view of Vanderhove 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 in view of Vanderhove 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
a plurality of particle sizes, a plurality of particle densities, and a particle arrangement of the horticultural media (see above 112b; as best understood, 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 the porosity of the horticultural media, and the distribution of the micropores and the 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 in view of Vanderhove teaches the plant growing system of claim 1, and Gruber further discloses wherein a horticultural media composition comprises component blended to define a total air and water filled porosity that is adjusted by the distribution of the micropores and the macropores and by the size of the container (the media necessarily has each of these components, and the components necessarily have a total air and water fill profile).
For Claim 6, Gruber in view of Vanderhove teaches the plant growing system of claim 1, and Gruber further discloses wherein the horticultural media composition comprises a specific ratio of constituents defining a non-homogenous particle arrangement that establishes a predetermined water release profile configured to satisfy a physiological moisture requirement of a specific plant species2 (the media necessarily has each of these components, and the mixture of components of the media discussed by Gruber necessarily has a moisture retention/release profile).
For Claim 7, Gruber as modified teaches the plant growing system of claim 1, and Gruber further discloses wherein the micropores and the macropores are distributed on the side wall in a spatial arrangement having a pore density that increases or decreases as a function of a surface area of the side wall to maintain3 a uniform moisture exchange rate across the sidewall (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, meeting the pore arrangement claimed).
For Claim 20, Gruber as modified teaches the plant growing system of claim 1, and Gruber further discloses wherein the horticultural media has 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, a plurality of particle sizes, a plurality of particle densities, and a 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 in view of Vanderhove teaches the plant growing system of claim 1, and Vandenhove further teaches wherein the micropores are disposed along the sidewall in a plurality of bands (¶0128 disclosed that the length of the band is 20 mm, or about 0.78 inches, which discloses at least two different stripes).
Vandenhove is silent to each of the plurality of bands having a height of 76.2 mm (3”), wherein the plurality of bands are spaces apart by non-perforated sections of the side wall to define distinct moisture exchange zones.
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).
It would have been further obvious to one of ordinary skill in the art before the claimed invention was effectively filed to modify the bands of the above-modified reference with non-perforated sections of sidewall therebetween, in order to, e.g. provide portions of the container which are easier to grip without crushing the container, as this amounts to (E) “Obvious to try” – by allowing the user to choose from a finite number of identified, predictable solutions (e.g. perforated and/or non-perforated strips), with a reasonable expectation of success.
For Claim 22, Gruber in view of Vanderhove teaches the plant growing system of claim 1, and the resulting device further teaches wherein the macropores are are disposed in a spatial arrangement through the base to inhibit 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 in view of Vanderhove 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 in view of Vanderhove teaches the plant growing system of claim 23 and Gruber further teaches wherein porosity of the horticultural media to air and water is established by a composition of the media components, a plurality of particle sizes, a plurality of particles densities, and a particle arrangement of the horticultural media to provide a predetermined water release profile (the media necessarily has each of these components, and the components necessarily have a predetermined water release profile).
For Claim 25, Gruber in view of Vanderhove teaches the plant growing system of claim 24 and Gruber further teaches wherein a total volume of the horticultural media is calibrated relative ot the cavity to define a structural air-to-water ratio and the distribution of air and water 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 in view of Vanderhove teaches the plant growing system of claim 25, and Gruber further teaches wherein the media components are selected from the group consisting of4 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 in view of Vanderhove 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);
wherein the horticultural media has a porosity established by media components, a plurality of particle sizes, a plurality of particle densities, and a particle arrangement of the horticultural media (the media necessarily has each of these components, and the components necessarily have a retention/release profile);
a total volume of the horticultural media in the container and the porosity of the horticultural media define predetermined water retention and release profiles of the container and the horticultural media of the container and the horticultural media configured to maintain a moisture tension range (both the container and the contained media necessarily has each of these components, and the components necessarily have a water retention/release profile) 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 0.102 mm (0.004”) to 0.356 mm (0.014”) (Gruber teaches the pores are 0.1-1mm, which converts to about 0.004”-0.04”, anticipating the claimed range).
Response to Arguments
Applicant's arguments filed 29 April 2026 have been fully considered but they are not persuasive.
Applicant argues that “The office action relies on Vandenhove for its teaching of micro-perforations. However, Vandenhove explicitly defines its micro-perforations as having an equivalent diameter of "less than or equal to 0.05 mm" (which is 50 µm). This size is still 2.5 times larger than the maximum limit of 20 µm (0.02 mm) required by Claim 1.” (page 9, Remarks, 4/29/2026). Applicant does not clearly argue whether the intent is that the claimed range (0.001 - 0.02 mm) is not anticipated by the prior art range (0-0.05mm) or whether there is more specificity to the claimed range than the prior art range. Regardless, the prior art reference range envelopes both ends of the claimed range, anticipating it. Additionally, the instant disclosure does not mention why this range is critical, and rather discusses that “the perforations may range from, for example, approximately 0.1 µm to greater than 75 µm.” in paragraph ¶0027. The arguments of counsel cannot take the place of evidence in the record. In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965); In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997) (“An assertion of what seems to follow from common experience is just attorney argument and not the kind of factual evidence that is required to rebut a prima facie case of obviousness.”).
In response to applicant's argument that a different, favorable result is obtained from the combination of features (page 10-11), the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, the motivation to combine is pulled directly from the secondary reference to Vanderhove, in order to mitigate or affect gas permeation, yielding predictable results.
Applicant contends that the rejection oversimplifies the claimed subject matter, the Examiner respectfully disagrees. It is noted that the features upon which applicant relies (i.e., a specific definition of a predetermined water release profile, for instance) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). The profiles, comprising necessary elements of horticultural medium, would inherently have water and/or nutrient release characteristics, amounting to profiles. Throughout prosecution, various manners of “selection,” “establishment,” “adjustment,” and other manners of affecting the established device have been claimed. These are simply not covered within the scope of the claimed invention, as these are intermediate steps and/or products. The focus of an apparatus claim set is to the structural details which are required in the scope of the claim. Functions are a secondary notion limited to how they are tied to the scope of the claimed components. This claim set scope does not cover product-by-process limitations, nor does it cover method claim steps, which are inappropriate for a system claim.
In arguendo, the implied steps of “adjusting,” “blending,” etc. appear to amount to the removal of the medium and amendment of the soil therein. This is exceedingly well known in the art, even if it were required in the claims.
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.
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: not only is the “specific plant species” not positively required, neither is a predetermined water release profile.
3 Interpretation note: “to maintain…” is the intended use of the profile disclosed; however, no specifics are required of the profile, only amounting to functional recitations.
4 Interpretation note: only one aspect is required due to the alternative construction triggered by the Markush limitation.
Prosecution Insights