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 .
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 1-10 and 12-17 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 written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 states “A gutter system for growing one or more plants, comprising: a first double-sided side wall; a second double-sided side wall” and “a holding portion connected to and situated above the first double-sided side wall and the second double-sided side wall,” and “a first gutter insert and second gutter insert” and “the first gutter insert is connected to the first double-sided side walls and the second gutter insert is connected to the second double-sided side wall by the respective clips of the first gutter insert and the second gutter insert.” These statements appear to be from different embodiments of the invention, and there is no support for the embodiments overlapping in the way that applicant is claiming. For example, the only embodiment with a double-side walled gutter in Applicant’s specification is the embodiment in Figure 3, with double side walls 302. This embodiment has a holding portion 306 above the double side wall. However, there are no gutter inserts or clips in this embodiment, and it also does not appear that the embodiment in Figure 3 could even be used with inserts and clips, as it already has a holding portion. Paragraph [0024] states “Similar to the inserts 100, the plant plug 308 may be held by the holding portion 306 via friction,” however, there is no mention of an embodiment that uses both a holding portion and gutter inserts. In the remarks page 13, applicant states that Figure 1 has a double-sided wall, however, the only walls that could possibly be considered double sided in Figure 1 are the walls of the insert. Even if claim 1 were to be talking about the double walls of the insert, there is still no support for having both a holding portion and an insert in the same embodiment, especially since the holding portion is claimed to be located above the double-sided walls, and the insert is claim separately from the double-sided walls.
Similarly, claim 15 states “a first double-sided side wall; a second double-sided side wall,” and “a holding portion connected to and situated above the first double-sided side wall and the second double-sided side wall,” and “a clip connected to the hollow outer wall, wherein the clip is configured to secure the gutter insert to a gutter.” As stated above, there is no support in the specification or figures for a clip or an insert being used with a holding portion and a double sided wall.
Claims 2-10, 12-14, and 16-17 are rejected to as being dependent on a rejected base claim.
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 1-10 and 12-17 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, and similarly claim 15, states “A gutter system for growing one or more plants, comprising: a first double-sided side wall; a second double-sided side wall” and “a holding portion connected to and situated above the first double-sided side wall and the second double-sided side wall,” and “a first gutter insert and second gutter insert” and “the first gutter insert is connected to the first double-sided side walls and the second gutter insert is connected to the second double-sided side wall by the respective clips of the first gutter insert and the second gutter insert.” It is unclear where the inserts are located and how they would be attached to the double sided walls, when the holding portion is already located above the double sided walls, thus rendering the claim indefinite. It appears that applicant is combining multiple embodiments of the invention, as Figure 1 has gutter inserts and Figure 3 has holding portions, however it is unclear how these two embodiments could be combined, as the holding portions and gutter inserts and similarly shaped and the holding portions would leave no room for the inserts to be clipped onto the gutter. Additionally, it is unclear as to whether the double-sided walls are referring to the cutters themselves or the gutter inserts. Applicant argues on page 13 that the double sided walls are referring to the insert, however, the insert is claimed separately in claim 1, from the double-sided walls.
Claims 2-10, 12-14, and 16-17 are rejected to as being dependent on a rejected base claim.
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.
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Gomez (ES 2350989) in view of Overgaag (US 2018/0332785) and Kantola et al. (WO 2016/151186).
Regarding Claim 19, Gomez discloses an integrated gutter comprising
a first double-sided side wall (shown in annotated Figure 6 below);
a second double-sided side wall (shown in annotated Figure 6 below);
a bottom portion (shown in annotated Figure 6 below);
a plurality of legs (supports 11 Figure 1); and
a holding portion connected to and situated above the first double-sided side wall and second double-sided side wall, the holding portion configured to receive a plurality of plant plugs (cross bars 13; “ The mentioned crossbars (13) can be substituted or used in combination with other crossbars (13 ') that in addition to having the same fins (14 and 15) for fixing to the mouth of the gutter (1), incorporate fins or eyelashes (17) oriented up and out, which improve the stability of peat bags arranged on said support crossbars (13-13 ').” Page 4 Paragraph 3 of translation);
wherein each of the first side wall, the second side wall, and the bottom portion contain at least one hollow cavity (interiors 20, Figure 6);
the first double-sided wall and the second double-sided wall each have an inner side, and an outer side (shown in annotated Figure 6 below);
the inner side of the first double-sided wall slopes downward toward the bottom portion and inward toward the inner side of the second double-sided wall (Figure 6);
the inner side of the second double-sided wall slopes downward toward the bottom portion and inward toward the inner side of the first double-sided wall (Figure 6).
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Gomez fails to disclose wherein the plurality of legs, and the holding portion contain at least one hollow cavity; the integrated gutter comprises an air gap between the plurality of plant plugs and the bottom portion when at least one of the plurality of plant plugs is inserted into the holding portion; the first double-sided wall and the second double-sided wall each have a bottom surface; the inner side of the first double-sided wall slopes downward toward the bottom surface of the first double-sided wall; the inner side of the second double-sided wall slopes downward toward the bottom surface of the second double-sided wall.
However, Overgaag teaches a similar gutter wherein the plurality of legs contains at least one hollow cavity (lumen 1440; Paragraph [0056]; Figure 14B).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the legs of Gomez, to be hollow as taught by Overgaag, with reasonable expectation of success, in order to help make the invention more lightweight and decreasing the amount of material used during manufacturing, while maintaining the strength of the invention.
Additionally, Kantola teaches a similar gutter wherein the holding portion contains at least one hollow cavity (Figures 1, 3, and 4; “the side wall 34 may comprise walls 42, 46, 48 of variable thickness which may also encompass open or closed chambers or channels” Page 6 lines 30-32); the integrated gutter comprises an air gap between the plurality of plant plugs and the bottom portion when at least one of the plurality of plant plugs is inserted into the holding portion (substrates 74 and 76; Figure 3); the first double-sided wall and the second double-sided wall each have an inner side (48, 52, 54, 56; Figure 1), an outer side (50, 46), and a bottom surface (shown in annotated Figure 1 below); the inner side of the first double-sided wall slopes downward toward the bottom surface of the first double-sided wall and inward toward the inner side of the second double-sided wall (Figure 1); wherein the inner side of the second double-sided wall slopes downward toward the bottom surface of the second double-sided wall and inward toward the inner side of the first double-sided wall (Figure 1).
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It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified holding portions of Gomez, to be hollow as taught by Kantola, with reasonable expectation of success, in order to help increase the strength and flexibility of the supports, to help ensure the plant has enough room and support to grow, and to have modified the gutter of Gomez, to provide an air gap below the plug as taught by Kantola, with reasonable expectation of success, in order to help ensure the roots have sufficient room to grow, and to have provided the double walls of Gomez, with the bottom surfaces of Kantola, with reasonable expectation of success, in order to help provide separation between the upper portion of the plant and the water, to help ensure the plant receives the proper amount of water for healthy growth.
Additionally, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the bottom surface of Kantola, to be sloped upwards towards the sidewalls, with reasonable expectation of success, in order to help direct the water towards the plant and plant roots, while maintaining sufficient support for the plant, 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.
Response to Arguments
Applicant’s arguments filed 3/2/26 with respect to claims 1 and 12 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.
Newly added 112(a) and 112(b) rejections have been applied, see currently presented rejection discussed above.
Applicant's arguments filed 3/2/26 have been fully considered but they are not persuasive.
Applicant remarks on page 14 that “The Office Action, on page 15, summarily alleged that "Gomez and Kantola both teach double sided walls" but did not address all of the claimed subject matter. None of the cited reference disclose the recited structure and no combination of their features would produce the recited structure.” However, Applicant fails to explain what parts of claim 19 Gomez and Kantola fail to address. Gomez in view of Overgaag and Kantola teach claim 19 as discussed in the currently presented rejection above.
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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/A.K.P./Examiner, Art Unit 3642
/JOSHUA D HUSON/Supervisory Patent Examiner, Art Unit 3642