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 .
Response to Arguments
Applicant's arguments filed 11/3/2025 have been fully considered but they are not persuasive.
With regard to the argument that “Choi teaches away from the claimed protective tree tube,” the body of Choi is not utilized to meet the amended limitation of a continuous tube, Elk has been herein supplied thus rendering such arguments moot.
In response to applicant's argument that Choi and Stanley are nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, both are pertinent to transplanting. The fastening applied to Stanley is highly relevant to transplanting a tree within a container as is discussed in both Elk and Stan. Applicant’s arguments supplied a much narrower scope than is appropriate.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant’s arguments which rely on language solely recited in preamble recitations in claim 1. When reading the preamble in the context of the entire claim, the recitation of being for planting in a revetment is not limiting because the body of the claim describes a complete invention and the language recited solely in the preamble does not provide any distinct definition of any of the claimed invention’s limitations. Thus, the preamble of the claim(s) is not considered a limitation and is of no significance to claim construction. See Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305, 51 USPQ2d 1161, 1165 (Fed. Cir. 1999). See MPEP § 2111.02.
Drawings
The drawings were received on 1/20/2026. These drawings are acceptable.
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 & 9 are rejected under 35 U.S.C. 103 as being unpatentable over Elkjær-Christensen et al., the European Patent Application No., EP 2 987 398 A1; herein Elk in view of Choi, the Korean Patent Publication No. KR 2015-0130898 A and in further view of Stanley et al., U.S. Patent No. 388,154 A, herein Stan.
Re claim 1, Elk discloses a protective tree tube for planting a tree, comprising:
an elongated hollow body (200; the tubular element, fig. 1) with a top end (240; the second end, fig. 1) and a bottom end (220; the first end, fig. 1) and a side wall between the top end and bottom end (fig. 1, the body of the tubular element), the body comprised of a biodegradable material (para 28, the plant plug is biodegradable), configured to decompose after being planted (para 28, the plant plug is designed to degrade environmentally), and having a plurality of holes (230; the perforations, fig. 1) formed in the body through the side wall (fig. 1 and para 64, the perforations are formed through the first end), wherein the hollow body is formed of a continuous tube (fig. 1).
The examiner recognizes the device being for planting a tree in a revetment as intended use clauses, the examiner upholds that in an apparatus claim the manner in which the device is intended to be employed does not differentiate a claim from the prior art. See MPEP 2114 II.
Elk fails to disclose a bottom cap covering the bottom end of the elongated hollow body and comprised of a biodegradable material, and having a plurality of drainage openings formed through the bottom cap; a bottom retainer that fits over the bottom cap and the bottom end of the elongated hollow body having a first portion that fits against an outer bottom surface of the bottom cap, and a second portion depending from the first portion that extends at least partially around the side wall of the elongated hollow body at an outside of the side wall; and a plurality of fasteners coupling the bottom retainer to the bottom cap and the bottom end of the elongated hollow body, including a first plurality of fasteners that pass through the first portion of the bottom retainer and the bottom cap, and a second plurality of fasteners that pass through the second portion of the bottom retainer and the sidewall of the elongated hollow body adjacent the bottom end of the elongated hollow body, thereby retaining the bottom cap in place at the bottom end of the elongated hollow body. However, Choi discloses a protective tree tube (100; the potted seedling production apparatus, fig. 1-3) comprising:
an elongated hollow body (200; the body, fig. 2) with a top end (fig. 1-2 & 4, adjacent the cover [400]) and a bottom end (fig. 1 & 3, adjacent the bottom plate [300]) and a side wall between the top end and bottom end (fig. 1-2), the body comprised of a biodegradable material (para 35, the material being wood) and having a plurality of holes (P; the aeration holes, fig. 1-2) formed in the body through the side wall (fig. 1-2 and para 50, the holes extend through the surface of the body for the distribution of air and moisture);
a bottom cap (300; the bottom plate, fig. 3) covering the bottom end of the elongated hollow body (fig. 1 and para 34, the bottom plate covers the lower portion of the body) and comprised of a biodegradable material (para 35, the material being wood), and having a plurality of drainage openings formed through the bottom cap (P; the aeration holes, fig. 3);
a bottom retainer (320; the bottom plate fastening rings, fig. 1 & 3) that fits over the bottom cap (fig. 3, a portion of the fastening rings extends over the surface bottom plate) and the bottom end of the elongated hollow body (fig. 1 and para 43-44, the bottom plate fastening ring and fastening socket mate to join the bottom plate to the body) having a first portion that fits against an outer bottom surface of the bottom cap (fig. 1 & 3, there is a section of the bottom plate fastening rings that exists about the circumference of the bottom plate), and a second portion (fig. 1 & 3 and para 44, the section above the fastening rings that sit flush with the body and fastening socket) depending from the first portion that extends at least partially around the side wall of the elongated hollow body at an outside of the side wall (fig. 1 and para 44, the section above the fastening rings that sit flush with the body and fastening socket); and
a plurality of fasteners (233; the fastening socket, fig. 1-2) coupling the bottom end of the elongated hollow body thereby retaining the bottom cap in place at the bottom end of the elongated hollow body (fig. 1 and para 43-44).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose a bottom cap covering the bottom end of the elongated hollow body and comprised of a biodegradable material, and having a plurality of drainage openings formed through the bottom cap; a bottom retainer that fits over the bottom cap and the bottom end of the elongated hollow body having a first portion that fits against an outer bottom surface of the bottom cap, and a second portion depending from the first portion that extends at least partially around the side wall of the elongated hollow body at an outside of the side wall; and a plurality of fasteners coupling the bottom retainer to the bottom cap and the bottom end of the elongated hollow body, including a first plurality of fasteners that pass through the first portion of the bottom retainer and the bottom cap, and a second plurality of fasteners that pass through the second portion of the bottom retainer and the sidewall of the elongated hollow body adjacent the bottom end of the elongated hollow body, thereby retaining the bottom cap in place at the bottom end of the elongated hollow body however, Choi discloses such a cap and retainer. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the prior art elements of the cap, retainer, and fastener arrangement as taught by Choi to the elongated hollow body of the prior art to yield the predictable result of forming a secure planting compartment within the plug. See MPEP 2143 I. (A).
The combination of Elk and Choi fails to disclose the plurality of fasteners coupling the bottom retainer to the bottom cap and the bottom end of the elongated hollow body, including a first plurality of fasteners that pass through the first portion of the bottom retainer and the bottom cap, and a second plurality of fasteners that pass through the second portion of the bottom retainer and the sidewall of the elongated hollow body adjacent the bottom end of the elongated hollow body, thereby retaining the bottom cap in place at the bottom end of the elongated hollow body. However, Stan discloses a plurality of fasteners (fig. 1, the fasteners that attach the iron strap top the staves) coupling a bottom retainer (page 1; 61-63, the strap iron, best seen in fig. 1) to a bottom cap (b; the stave section, fig. 1) and a bottom end (fig. 1 & 3, the iron strap is attached at a lower section of the upper stave sections) of an elongated hollow body (fig. 1, the stave sections forming the cylinder [a]), including a first plurality of fasteners that pass through the first portion of the bottom retainer and the bottom cap (fig. 1), and a second plurality of fasteners that pass through the second portion of the bottom retainer and the bottom end of the elongated hollow body (fig. 1), thereby retaining the bottom cap in place at the sidewall of the elongated hollow body adjacent the bottom end of the elongated hollow body (page 1; 61-63, the lower stave is attached to the upper stave via the iron strap and fasteners).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose the plurality of fasteners coupling the bottom retainer to the bottom cap and the bottom end of the elongated hollow body, including a first plurality of fasteners that pass through the first portion of the bottom retainer and the bottom cap, and a second plurality of fasteners that pass through the second portion of the bottom retainer and the sidewall of the elongated hollow body adjacent the sidewall of the elongated hollow body adjacent the bottom end of the elongated hollow body, thereby retaining the bottom cap in place at the bottom end of the elongated hollow body however, Stan discloses such a retainer with a plurality of fasteners. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the fastening rings and sockets by utilizing a simple substitution of the known fastening mechanism taught by the prior art for the simple iron strap and fasteners passing there through from Stan in order to obtain the predictable result of fastening the body and the bottom plate. See MPEP 2143 I. (B).
Re claim 9, the combination of Elk, Choi, and Stan discloses the invention of claim 1, Choi and applied to Elk and Stan discloses wherein the second portion of the top retainer depends from the first portion of the top retainer at a right angle (fig. 1 & 3, in order to pass through both the bottom plate and the body the iron strap would form a right angle along the perimeter of the body, see Stan fig. 1 & 3).
Additionally, the examiner notes it would have been obvious to one having ordinary skill in the art at the time the invention was made to have the bottom retainer be positioned at a right angle since that matches with the perimeter for a secure fit thereto since it has been held that such a modification would only involve a mere change in shape of a component which is generally recognized as an obvious modification. See MPEP 2144.04 IV. B.
Claims 2-3 & 10 are rejected under 35 U.S.C. 103 as being unpatentable over Elk in view of Choi and Stan as applied to claim 1 above, and further in view of Ashe, U.S. Patent No. 1,933,838 A. Ashe discloses a container which can hold virtually anything, including a plant.
Re claim 2, the combination of Elk, Choi, and Stan discloses the invention of claim 1, Choi further discloses a top cap (400; the cover, fig. 1 & 4-5) covering the top end of the elongated hollow body (fig. 1 & 4-5 and para 46, the cover is secured at the upper portion of the body) and having a plurality of ingress openings (P; the aeration holes, fig. 4-5) formed through the top cap (fig. 4-5 and para 50, the aeration holes pass through the cover); and
a top retainer (240; the slide long holes, fig. 5) that fits over the top cap (fig. 1 & 5, the slide long holes of the body fit over the cover) having a first portion that fits against an outer top surface of the top cap (fig. 1 & 5, via the slide slot), and a second portion (fig. 5, the second slide slot) depending from the first portion (fig. 4-5, across the plane to attach the cover portions) that extends at least partially around the sidewall of the elongated hollow body at the top end at an outside of the sidewall (fig. 1 & 5).
The combination of Elk, Choi, and Stan fails to disclose the top cap being comprised of a biodegradable material, the top retainer fitting over the top cap and the top end of the elongated hollow body, and a plurality of fasteners coupling the top retainer to the top cap and the top end of the elongated hollow body, including a first plurality that pass through the first portion of the top retainer and the top cap, and a second plurality of fasteners that pass through the second portion of the top retainer and the top end of the elongated hollow body, thereby retaining the top cap in place at the top end of the elongated hollow body. However, Ashe discloses a container comprising:
a top cap (19; the substantially circular cover, fig. 1-3) covering a top end of an elongated hollow body (fig. 1-3) and having a plurality of ingress openings (26 & 14; the holes, fig. 3) formed through the top cap (fig. 3 and page 2; 20-24, the holes receive a plurality of wires around the top member);
a top retainer (20; the horizontal ridges, fig. 2-3) that fits over the top cap and the top end of the elongated hollow body (fig. 2-3, via the offset) having a first portion that fits against an outer top surface of the top cap (fig. 3, where the cover begins increasing in height before making contact with the side wall of the container), and a second portion (21; the horizontal furrow, fig. 1 & 3) depending from the first portion that extends at least partially around the sidewall of the elongated hollow body at the top end at an outside of the sidewall (fig. 1 & 3); and
a plurality of fasteners (15; the tie wire, fig. 3) coupling the top retainer to the top cap (fig. 3) and the top end of the elongated hollow body (fig. 3), including a first plurality (18; the loop, fig. 3) that pass through the first portion of the top retainer and the top cap (fig. 3, the tie wire is inserted at the crux of the ridge and the plate section), and a second plurality (16; the looped end, fig. 3) of fasteners that pass through the second portion of the top retainer and the top end of the elongated hollow body (fig. 3, the wire section passes through the furrow and the side), thereby retaining the top cap in place at the top end of the elongated hollow body (pages 1-2; 108-24, the cover and side are fastened together by shape and the tie wires).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose the top cap being comprised of a biodegradable material, the top retainer fitting over the top cap and the top end of the elongated hollow body, and a plurality of fasteners coupling the top retainer to the top cap and the top end of the elongated hollow body, including a first plurality that pass through the first portion of the top retainer and the top cap, and a second plurality of fasteners that pass through the second portion of the top retainer and the top end of the elongated hollow body, thereby retaining the top cap in place at the top end of the elongated hollow body however, Ashe discloses such a top retainer and fastening technique. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the fastener by utilizing a simple substitution of the known wire taught by the prior art for the holes and tie wire from Ashe in order to obtain the predictable result of a way to fasten the cap. See MPEP 2143 I. (B).
The combination of Elk, Choi, Stan, and Ashe discloses the claimed invention except for the top cap being explicitly biodegradable. It would have been obvious to one having ordinary skill in the art before the effective filing date to utilize the same biodegradable material used for the base cap and cylindrical body to reduce the number of materials used in manufacturing, as 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. See MPEP 2144.07.
Re claim 3, the combination of Elk, Choi, Stan, and Ashe discloses the invention of claim 2, Choi further discloses wherein the top cap comprises a first cap member (410; the first cover, fig. 1 & 4-5) and a second cap member (420; the second cover, fig. 1 & 4-5), each of the first cap member and the second cap member being planar and sized and shaped to cover the top end of the elongated hollow body (fig. 1 & 4-5 and para 46, the cover members form a planar cover over the upper portion of the body), and having a slot (430; the concave planting groove, fig. 1) formed from an edge to a center of the respective first and second cap member (fig. 1 & 4 and para 46, the planting grooves form a passage which seeds grow and overlap each other to a certain degree), and wherein the first cap member sits on top of the second cap member (fig. 1 & 4, the first cover sits on top of the second cover which overlap).
Re claim 10, the combination of Elk, Choi, Stan, and Ashe discloses the invention of claim 2, Choi and applied to Elk, Stan, and Ashe discloses wherein the second portion of the top retainer depends from the first portion of the top retainer at a right angle (fig. 1 & 3, in order to pass through both the bottom plate and the body the iron strap would form a right angle along the perimeter of the body, see Stan fig. 1 & 3).
Additionally, the examiner notes it would have been obvious to one having ordinary skill in the art at the time the invention was made to have the bottom retainer be positioned at a right angle since that matches with the perimeter for a secure fit thereto since it has been held that such a modification would only involve a mere change in shape of a component which is generally recognized as an obvious modification. See MPEP 2144.04 IV. B.
Claims 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over Elk in view of Choi and Stan as applied to claim 1 above, in view of Anderson, U.S. Patent No. 5,325,627 A, herein Ander.
Re claim 4, the combination of Elk, Choi, and Stan discloses the invention of claim 1, Choi further discloses a top wall portion (fig. 5 and para 36, the upper portion of the body) comprising a coaxial tube section of the elongated hollow tubular body (fig. 5) and which extends from the top end of the elongated hollow body downward from the top end and ends at a point above a midway point along the elongated hollow body (fig. 5, the upper portion of the body ending where the cover ends below that point is a midway point of the body);
a bottom double wall portion (fig. 1, where the bottom plate’s fastening rings overlap the body) comprising a coaxial tube section around the outside of the elongated hollow tubular body (fig. 1) and which extends from the bottom end of the elongated hollow body upward from the bottom end and ends at a point below the midway point along the elongated hollow body (fig. 1, the bottom plate overlaps a small section of the lower body ending above a middle of the body);
wherein the top wall and bottom double wall portions do not cover a middle portion of the elongated hollow body (fig. 1 & 5) and the bottom double wall portion has holes that align with holes in the elongated hollow tubular body (fig. 1 & 3 and para 44, the fastening socket and bottom plate fastening rings as well as the gaps between each fastening members aligning); and
a wrapping portion (700; the separating cloth, fig. 7) provided around the elongated hollow body at the middle portion of the elongated hollow body that is not covered by the top wall and bottom double wall portions (fig. 7 & 9a-10b, the cloth is provided around the center of the body between the covers and the bottom plate).
The combination of Elk, Choi, and Stan fails to disclose a top double wall portion comprising a coaxial tube section around an outside of the elongated hollow tubular body and which extends from the top end of the elongated hollow body downward from the top end and ends at a point above a midway point along the elongated hollow body and the wrapping portion being made of jute. However, Ander discloses a top double wall portion (fig. 4-5 and col 6-7; 67-44, the retainer ring/respective ring portions engage the lip of the pot such that it is overlapping) comprising a coaxial tube section around an outside of the elongated hollow tubular body (62/74 & 76; the retainer ring/ring portions, fig. 4/5) and which extends from the top end of the elongated hollow body downward from the top end (fig. 4-5 and col 7; 45-58, the ring portions extend down from a peak to engage the rim which could be used to form a gap as described).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose a top double wall portion comprising a coaxial tube section around an outside of the elongated hollow tubular body and which extends from the top end of the elongated hollow body downward from the top end and ends at a point above a midway point along the elongated hollow body and the wrapping portion being made of jute however, Ander discloses such a top wall section. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the known technique of the cover retainer/ring taught by Ander to improve the similar device disclosed by the prior art in the same way by securing the cover in position and further securing the tubular structure of the body. See MPEP 2143 I. (C).
The combination of Choi, Stan, and Ander discloses the claimed invention except for a wrapping portion made of jute. It would have been obvious to one having ordinary skill in the art at the time the invention was made to use a jute material since it is well known for wrapping plants and inexpensive, since it has been held that selecting a known material on the basis of its suitability for the intended use supports a prima facie obviousness determination. See MPEP 2144.07.
Re claim 5, the combination of Elk, Choi, Stan, and Ander further discloses wherein the top double wall portion lacks holes (fig. 1, the upper body portion and cover as modified by Ander will not have any openings or holes).
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Elk in view of Choi and Ander.
Re claim 6, Elk discloses a protective tree tube, comprising: an elongated hollow continuous tubular body (200; the tubular element, fig. 1) with a top end (240; the second end, fig. 1) and a bottom end (220; the first end, fig. 1) and a side wall between the top end and bottom end (fig. 1, the body of the tubular element), the body comprised of a biodegradable material (para 28, the plant plug is biodegradable), configured to decompose after being planted (para 28, the plant plug is designed to degrade environmentally), and having a plurality of holes formed in the body through the side wall (fig. 1 and para 64, the perforations are formed through the first end).
Elk fails to disclose a bottom cap covering the bottom end of the elongated hollow body and comprised of a biodegradable material, and having a plurality of drainage openings formed through the bottom cap; a bottom retainer that fits over the bottom cap and the bottom end of the elongated hollow body having a first portion that fits against an outer surface of the bottom cap, and a second portion depending from the first portion that extends at least partially around the side wall of the elongated hollow body; a top double wall portion comprising a coaxial tube section around an outside of the elongated hollow tubular body and which extends from the top end of the elongated hollow body downward from the top end and ends at a point above a midway point along the elongated hollow tubular body; a bottom double wall portion comprising a coaxial tube section around the outside of the elongated hollow tubular body and which extends from the bottom end of the elongated hollow tubular body upward from the bottom end and ends at a point below the midway point along the elongated hollow body; wherein the top and bottom double wall portions do not cover a middle portion of the elongated hollow body and have holes that align with holes in the elongated hollow tubular body; and a jute wrapping portion provided around the elongated hollow tubular body at the middle portion of the elongated hollow body that is not covered by the top and bottom double wall portions. However, , Choi discloses a protective tree tube (100; the potted seedling production apparatus, fig. 1-3), comprising:
an elongated hollow tubular body (200; the body, fig. 2) with a top end (fig. 1-2 & 4, adjacent the cover [400]) and a bottom end (fig. 1 & 3, adjacent the bottom plate [300]) and a side wall between the top end and bottom end (fig. 1-2), the body comprised of a biodegradable material (para 35, the material being wood) and having a plurality of holes (P; the aeration holes, fig. 1-2) formed in the body through the side wall (fig. 1-2 and para 50, the holes extend through the surface of the body for the distribution of air and moisture);
a bottom cap (300; the bottom plate, fig. 3) covering the bottom end of the elongated hollow body (fig. 1 and para 34, the bottom plate covers the lower portion of the body) and comprised of a biodegradable material (para 35, the material being wood), and having a plurality of drainage openings formed through the bottom cap (P; the aeration holes, fig. 3);
a bottom retainer (320; the bottom plate fastening rings, fig. 1 & 3) that fits over the bottom cap (fig. 3, a portion of the fastening rings extends over the surface bottom plate) and the bottom end of the elongated hollow body (fig. 1 and para 43-44, the bottom plate fastening ring and fastening socket mate to join the bottom plate to the body) having a first portion that fits against an outer surface of the bottom cap (fig. 1 & 3, there is a section of the bottom plate fastening rings that exists about the circumference of the bottom plate), and a second portion (fig. 1 & 3 and para 44, the section above the fastening rings that sit flush with the body and fastening socket) depending from the first portion that extends at least partially around the side wall of the elongated hollow body (fig. 1 and para 44, the section above the fastening rings that sit flush with the body and fastening socket);
a top wall portion (fig. 5 and para 36, the upper portion of the body) comprising a coaxial tube section of the elongated hollow tubular body (fig. 5) and which extends from the top end of the elongated hollow body downward from the top end and ends at a point above a midway point along the elongated hollow tubular body (fig. 5, the upper portion of the body ending where the cover ends below that point is a midway point of the body);
a bottom double wall portion (fig. 1, where the bottom plate’s fastening rings overlap the body) comprising a coaxial tube section around the outside of the elongated hollow tubular body (fig. 1) and which extends from the bottom end of the elongated hollow tubular body upward from the bottom end and ends at a point below the midway point along the elongated hollow body (fig. 1, the bottom plate overlaps a small section of the lower body ending above a middle of the body);
wherein the top wall and bottom double wall portions do not cover a middle portion of the elongated hollow body (fig. 1 & 5) and have holes that align with holes in the elongated hollow tubular body (fig. 1-5, the aeration holes [P]); and
a wrapping portion (700; the separating cloth, fig. 7) provided around the elongated hollow tubular body at the middle portion of the elongated hollow body that is not covered by the top wall and bottom double wall portions (fig. 7 & 9a-10b, the cloth is provided around the center of the body between the covers and the bottom plate).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose a bottom cap covering the bottom end of the elongated hollow body and comprised of a biodegradable material, and having a plurality of drainage openings formed through the bottom cap; a bottom retainer that fits over the bottom cap and the bottom end of the elongated hollow body having a first portion that fits against an outer surface of the bottom cap, and a second portion depending from the first portion that extends at least partially around the side wall of the elongated hollow body; a top double wall portion comprising a coaxial tube section around an outside of the elongated hollow tubular body and which extends from the top end of the elongated hollow body downward from the top end and ends at a point above a midway point along the elongated hollow tubular body; a bottom double wall portion comprising a coaxial tube section around the outside of the elongated hollow tubular body and which extends from the bottom end of the elongated hollow tubular body upward from the bottom end and ends at a point below the midway point along the elongated hollow body; wherein the top and bottom double wall portions do not cover a middle portion of the elongated hollow body and have holes that align with holes in the elongated hollow tubular body; and a jute wrapping portion provided around the elongated hollow tubular body at the middle portion of the elongated hollow body that is not covered by the top and bottom double wall portions however, Choi discloses such a bottom cap and retainer. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the prior art elements of the cap, retainer, and fastener arrangement as taught by Choi to the elongated hollow body of the prior art to yield the predictable result of forming a secure planting compartment within the plug. See MPEP 2143 I. (A).
The combination of Elk and Choi fails to disclose a top double wall portion comprising a coaxial tube section around an outside of the elongated hollow tubular body and which extends from the top end of the elongated hollow body downward from the top end and ends at a point above a midway point along the elongated hollow body and the wrapping portion being made of jute. However, Ander discloses a top double wall portion (fig. 4-5 and col 6-7; 67-44, the retainer ring/respective ring portions engage the lip of the pot such that it is overlapping) comprising a coaxial tube section around an outside of the elongated hollow tubular body (62/74 & 76; the retainer ring/ring portions, fig. 4/5) and which extends from the top end of the elongated hollow body downward from the top end (fig. 4-5 and col 7; 45-58, the ring portions extend down from a peak to engage the rim which could be used to form a gap as described).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose a top double wall portion comprising a coaxial tube section around an outside of the elongated hollow tubular body and which extends from the top end of the elongated hollow body downward from the top end and ends at a point above a midway point along the elongated hollow body and the wrapping portion being made of jute however, Ander discloses such a top wall section. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the known technique of the cover retainer/ring taught by Ander to improve the similar device disclosed by the prior art in the same way by securing the cover in position and further securing the tubular structure of the body. See MPEP 2143 I. (C).
Choi discloses the claimed invention except for a wrapping portion made of jute. It would have been obvious to one having ordinary skill in the art at the time the invention was made to use a jute material since it is well known for wrapping plants and inexpensive, since it has been held that selecting a known material on the basis of its suitability for the intended use supports a prima facie obviousness determination. See MPEP 2144.07.
Claims 7-8 & 11 are rejected under 35 U.S.C. 103 as being unpatentable over Elk in view of Choi and Ander as applied to claim 6 above, and further in view of Stan.
Re claim 7, the combination of Elk, Choi, and Ander discloses the invention of claim 6, Choi further discloses at least one fastener (233; the fastening socket, fig. 1-2) coupling the bottom retainer to the bottom end of the elongated hollow body (fig. 1 and para 43-44, the bottom plate is secured via the fastening rings and the body’s fastening socket), thereby retaining the bottom cap on the bottom end of the elongated hollow tubular body (again see fig. 1 and para 43-44).
The combination of Elk, Choi, and Ander fails to disclose the least one fastener coupling the bottom retainer to the bottom cap and the bottom end of the elongated hollow body, wherein the at least one fastener passes through the first portion of the bottom retainer and the bottom cap. However, Stan discloses at least one fastener (fig. 1, the fasteners that attach the iron strap top the staves) coupling a bottom retainer (page 1; 61-63, the strap iron, best seen in fig. 1) to a bottom cap (b; the stave section, fig. 1) and a bottom end of an elongated hollow body (fig. 1, the stave sections forming the cylinder [a]), wherein the at least one fastener passes through the first portion of the bottom retainer and the bottom cap (fig. 1), thereby retaining the bottom cap on the bottom end of the elongated hollow tubular body (page 1; 61-63, the lower stave is attached to the upper stave via the iron strap and fasteners).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose the least one fastener coupling the bottom retainer to the bottom cap and the bottom end of the elongated hollow body, wherein the at least one fastener passes through the first portion of the bottom retainer and the bottom cap however, Stan discloses such a retainer with a plurality of fasteners. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the fastening rings and sockets by utilizing a simple substitution of the known fastening mechanism taught by the prior art for the simple iron strap and fasteners passing there through from Stan in order to obtain the predictable result of fastening the body and the bottom plate. See MPEP 2143 I. (B).
Re claim 8, the combination of Elk, Choi, Ander, and Stan discloses the invention of claim 7, Stan further discloses at least one additional fastener (fig. 1, the opposite fastener) that passes through the second portion of the bottom retainer and the bottom end of the elongated hollow tubular body (page 1; 61-63, the lower stave is attached to the upper stave via the iron strap and fasteners).
Re claim 11, the combination of Elk, Choi, Ander, and Stan discloses the invention of claim 7, Choi as modified by Stan further discloses wherein the second portion of the bottom retainer depends from the first portion of the bottom retainer at a right angle (fig. 1 & 3, in order to pass through both the bottom plate and the body the iron strap would form a right angle along the perimeter of the body, see Stan fig. 1 & 3).
Additionally, the examiner notes it would have been obvious to one having ordinary skill in the art at the time the invention was made to have the bottom retainer be positioned at a right angle since that matches with the perimeter for a secure fit thereto since it has been held that such a modification would only involve a mere change in shape of a component which is generally recognized as an obvious modification. See MPEP 2144.04 IV. B.
Conclusion
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.
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/NICOLE PAIGE MACCRATE/Examiner, Art Unit 3642 /JOSHUA J MICHENER/Supervisory Patent Examiner, Art Unit 3642