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 § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-7,9-26,28,30,31,33,35,36,39-41 are rejected under 35 U.S.C. 103 as being unpatentable over Lysaa (US 20190230876 A1) in view of Kendall et al. (US 20230026903 A1), Burgess et al. (GB 2604606 A), and Hawley et al. (WO 2023004200 A1).
For claim 1, Lysaa teaches a system for hydroponically growing plants in isolated batches (plants are grown in their own tray and tub as shown in the figures), the system comprising:
a fully quarantined seed tray (110; also, para. 0142 stated that the system is sanitized which would mean it is fully quarantined) configured to contain and germinate plants (functional recitation to which the seed tray of Lysaa can and does perform the intended function) and sitting in an isolated tub (112; plants are grown in their own tray and tub as shown in the figures) comprising aqueous solution (138), wherein the isolated tub is configured to prevent movement of the aqueous solution to other tubs and to mitigate the transfer of root disease and plant pathogens (functional recitation to which the tub of Lysaa can and does perform the intended function because each tub is its own and the aqueous solution is not connected to other tub, thus, this would help to prevent root disease and plant pathogens),
the isolated tub configured to hold the aqueous solution within the tub in an amount sufficient for a germinating plant to reach maturity without the need of additional aqueous solution (functional recitation to which the tub of Lysaa can and does perform the intended function), wherein the tub comprises:
a top portion that includes a lip (fig. 10 where ref. 112a is pointing at is a rim of tub 112);
a bottom portion (140) that prevents the aqueous solution from entering or leaving the tub once filled, wherein the bottom portion is smaller in size than the top portion (fig. 9 shows the bottom portion being smaller than the top portion due to the tapering), the bottom portion comprising at least one attachment mechanism (122,134) for removably attaching the tub to a frame (102; see also para. 0070);
an air diffuser (198 or 3198) that delivers air in an amount sufficient to generate turbulence in the nutrient solution around the roots to prevent root disease pathogens; and
sidewalls (144; also see figs. 8-9) that taper from the top portion to the bottom portion to form tapered sidewalls, wherein the tapered sidewalls cause roots hanging from the germinating plant in the seed tray to grow toward the air diffuser where turbulence is generated in the nutrient solution,
wherein the tub is attached to a table (102,104,106,190 or 3102,3196) having a source of air (202 or 3202) that is attached to the air diffuser.
However, in the event that applicant disagrees with the examiner’s interpretation of Lysaa teaching a fully quarantined seed tray, Kendall et al. teach in the same field of endeavor of a system for growing plants comprising a quarantine station to quarantine seed trays in the system (para. 0060,0129). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the seed trays of Lysaa be fully quarantined as taught by Kendall et al. in order to prevent cross contamination.
Lysaa is silent about the air diffuser that is attached to the bottom of the tub; wherein the tub and the seed tray are configured to allow the seed tray to float in the aqueous solution in the tub until the volume of aqueous solution decreases in the tub and causes the seed tray to sit on the lip of the top portion of the tub.
Burgess et al. teach in the same field of endeavor of a system for growing plants comprising an air diffuser (24,26,28) that is attached to a bottom (fig. 1B where ref. E0 is pointing at which is a bottom of tub 14) of a tub (14). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the air diffuser of Lysaa be attached to the bottom of the tub as taught by Burgess et al. in order to assure direct air distribution into the roots of the plants in the trays.
Hawley et al. teach in the same field of endeavor of a system for growing plants comprising a seed tray (100 100A,200) that are configured to float in an aqueous solution in a tub (500). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use a floating seed tray with the features as taught by Hawley et al. in place of the seed tray in Lysaa as modified by Kendall et al. and Burgess et al., depending on the user’s preference to employ various hydroponic techniques such as floating raft or nutrient technique (NFT) or ebb-and-flow, etc.
The combination of Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. will result in the seed tray (of Lysaa) to float (as modified with Hawley) in the aqueous solution in the tub (of Lysaa) until the volume of aqueous solution decreases in the tub and causes the seed tray to sit on the lip of the top portion of the tub (such is implied because if the seed tray is floatable, and if the aqueous solution decrease, the seed tray will not float anymore due to there is less aqueous solution; hence, the seed tray rim where ref. 112b in fig. 10 of Lysaa will naturally sit on the lip where ref. 112a is pointing at of the tub 112).
For claim 2, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 1, and further teaches wherein the table contains an integrated air manifold (as modified with Burgess; manifold pipe 28, airline 24) that is attached to the source of air (as modified with Burgess).
For claim 3, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 2, and further teaches at least one blower (para. 0090 of Lysaa or ref. 22 of Burgess) that is attached to the integrated air manifold pipe.
For claim 4, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 3, but is silent about wherein the at least one blower supplies air to up to 25 tables at once. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the at least one blower of Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. supplies air to up to 25 tables at once, depending on how much plants and tables that the user wishes to have for mass production or not, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
For claim 5, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 3, and further teaches the integrated air manifold (24,26,28) having some sort of attachment mechanism into the tub’s bottom as shown in fig. 1B of Burgess. However, it is unclear if this attachment mechanism has a threaded connection. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to substitute the attachment mechanism of Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. with one that has a threaded connection, since a simple substitution of one known equivalent element for another would obtain predictable results (both types of attachment mechanism would allow the manifold to be held in place at the bottom of the tub). KSR International Co. v. Teleflex Inc., 127 S. Ct. 1727, 1739, 1740, 82 USPQ2d 1385, 1395, 1396 (2007).
For claim 6, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 1, and further teaches wherein the table is made of a frame (102 or 3102 of Lysaa) comprising at least two elongated members (see figs. 1 & 21A of Lysaa) that run the length of the table, and multiple cross members (see figs. 1 & 21A of Lysaa) that run the width of the table and that are substantially perpendicular to the elongated members.
For claim 7, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 6, and further teaches wherein the frame is made of aluminum or alloy thereof. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the frame of Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. be made of aluminum or alloy thereof, depending on the user’s preference of material for lightweight or not, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious choice. In re Leshin, 125 USPQ 416.
For claim 9, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 6, and further teaches wherein the multiple cross members comprise drive wheels (128 of Lysaa; since there are a plurality of wheels 128 running cross-wise and length-wise, any two or more can be drive wheels, for the wheels are there to guide and drive) configured to configured to allow the table to move in the direction of the cross members and perpendicular to the elongated members.
For claim 10, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 9, further teaches in para. 0140-0144 of Lysaa another embodiment (4100) with same or similar system as system 100, the another embodiment (4100) having a plurality of wheels and conveyors that can be considered each table or horizontal conveyor as shown in fig. 23, with the wheels being two guide wheels and four drive wheels. For example, para. 0142 stated that there are side-by-side conveyors that can be areas or stations such as for cleaning, sanitizing, inspection, maintenance, and/or component adjustment or replacement, which any of these conveyors will have guide wheels (for example, ref. 128) and then there will be drive wheels to drive the tray/tub to the stations. However, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. did not specifically state wherein each table has two guide wheels and four drive wheels that allow the table to be mechanically moved between growing, harvesting, cleaning and replanting locations. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have each table of Lysaa with two guide wheels and four drive wheels, depending on how smooth of conveyance the user wishes to have for the table, meaning, more wheels more smooth transition, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233. In addition, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the areas or stations of Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. be for harvesting and replanting locations, depending on the user’s preference to designate the areas or stations in Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. as such for harvesting and replanting, since Lysaa already teaches areas or stations designated for such actions per para. 0142.
For claim 11, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 6, further teaches the tub and the cross members are removably attached or connected as shown in figs. 5,10. However, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. is silent about wherein the multiple cross members to support each tub are bolted to the table with a watertight connection. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the multiple cross members to support each tub of Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. be bolted to the table with a watertight connection, depending on the user’s preference to have the parts be permanently attached or removably attached, since it has been held that forming in one piece an article which has formerly been formed in two pieces and put together involves only routine skill in the art. Howard v. Detroit Stove Works, 150 U.S. 164 (1993).
For claim 12, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 1, wherein the table is configured to feed grown plants through a harvesting machine without removing the tub from the table or the plant from the tub (functional recitation to which the table of Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. can perform the intended function by the conveyors as taught in Lysaa).
For claim 13, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 1, but is silent about wherein the seed tray has a top surface and a bottom surface with a plurality of openings completely through the top surface and the bottom surface, wherein the plurality of openings are configured to hold soil and germinate seeds in said soil, the plurality of opening comprising at least three regions: a top region having a top opening sufficient for sprouting plants to grow through the top surface and sidewalls having a tapered shape to a more narrow transition region; the transition region having sidewalls that further taper to a more narrow end region; and an end region having straight sidewalls with a bottom opening for plant roots to grow through the bottom surface and contact the aqueous solution that is contained in a tub.
In addition to the above, Hawley et al. teach the seed tray (100, 100A,200) has a top surface and a bottom surface with a plurality of openings (115,154,119) completely through the top surface and the bottom surface (see figs. 1G,1H,2D), wherein the plurality of openings are configured to hold soil and germinate seeds in said soil, the plurality of opening comprising at least three regions: a top region (for example, fig. 1G, where ref. 115 is pointing at) having a top opening sufficient for sprouting plants to grow through the top surface and sidewalls (for example, fig. 1H where ref. 112 is pointing at) having a tapered shape to a more narrow transition region; the transition region having sidewalls that further taper to a more narrow end region (for example, fig. 1H shows the transition in the hm area); and an end region (for example, fig. 1H where ref. 119 is pointing at) having straight sidewalls with a bottom opening for plant roots to grow through the bottom surface and contact the aqueous solution that is contained in a tub. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use a floating seed tray with the features as taught by Hawley et al. in place of the seed tray in Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al., depending on the user’s preference to employ various hydroponic techniques such as floating raft or nutrient technique (NFT) or ebb-and-flow, etc.
For claim 14, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches (emphasis on Hawley et al. since they are relied on for the floating seed tray with openings) the system of claim 13, and further teaches wherein the plurality of openings has various shape on the top surface and a round shape on the bottom surface. However, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. did not specifically state the plurality of openings have an oval shape on the top surface.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the plurality of openings of Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. be oval shaped, depending on the user’s preference, especially the shape of the plant being grown, since a mere change in size or shape of a component is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
For claim 15, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 14, but is silent about wherein the oval shape on the top surface has as its longest axis a diameter of 18-20 mm. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the plurality of openings of Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. be oval shaped, the oval shape on the top surface has as its longest axis a diameter of 18-20 mm, depending on the user’s preference, especially the shape of the plant being grown, since a mere change in size or shape of a component is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
For claim 16, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 15, and further teaches wherein the round shape on the bottom surface has a diameter of 8-10 mm (para. 0041, 0068 of Hawley et al.).
For claim 17, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 13, but is silent about wherein the sidewalls of the top region have a taper angle of 2-4 degrees relative to a vertical plane drawn through the center of the openings. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the sidewalls of the top region of Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. with a taper angle of 2-4 degrees relative to a vertical plane drawn through the center of the openings, depending on the user’s preference and the size of the plant being grown, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
For claim 18, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 13, and further teaches wherein the top region has a concaved shape bottom (at junction 412 of Hawley which para. 0068 states that the junction can be circular which would have concave shape) leading into the transition region.
For claim 19, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 13, but is silent about wherein the sidewalls of the transition region have a taper angle of 26-28 degrees relative to a vertical plane drawn through the center of the openings. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the sidewalls of the transition region of Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. with a taper angle of 26-28 degrees relative to a vertical plane drawn through the center of the openings, depending on the user’s preference and the size of the plant being grown, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
For claim 20, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 13, and further teaches wherein the seed tray is made of expanded polystyrene (EPS) (para. 0004 of Hawley).
For claim 21, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 13, wherein the top surface includes a border around the edge that is free of openings, wherein the border has a size at least as wide as the longest axis of the oval shaped openings (borders are shown in various figures such as figs. 1A,1B, where ref. 120 is pointing at in Hawley).
For claim 22, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 21, wherein the border comprises a plurality of tabs that are configured to allow seed trays to be stacked on each other without the bottom surface of a top seed tray touching the top surface of a bottom seed tray stacked on top of it (see fig. 1L of Hawley).
For claim 23, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 13, which is a rectangular shape that is 450-550 mm wide, 700-800 mm long and 50-60 mm thick (para. 0036 of Hawley).
For claim 24, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 13, but is silent about wherein each seed tray includes from 400-450 openings. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have each seed tray of Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. includes from 400-450 opening, depending on the number of plants the user wishes to grow for mass production, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
For claim 25, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 13, but is silent about wherein each opening has a volume ranging from 8-10 ml. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have each opening of Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. with a volume ranging from 8-10 ml, depending on the size of the plants the user wishes to grow, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
For claim 26, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 13, but is silent about wherein each seed tray can grow from 400-1200 plants. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have each seed tray of Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. can grow from 400-1200 plants, depending on the number of plants the user wishes to grow for mass production, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
For claim 28, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 1, wherein the lip on the top portion of the tub is configured to receive a seed tray has a thickness of 50-60 mm. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the lip on the top portion of the tub of Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. be configured to receive a seed tray has a thickness of 50-60 mm, depending on the size of the plants the user wishes to grow, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
For claim 30, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 1, but is silent about wherein on the top portion of the tub includes a structure for keeping the seed trays from floating off the tub when the tub is filled with said aqueous mixture. In addition to the above, Hawley et al. teach on the top portion of the tub includes a structure (510) for keeping the seed trays (100) from floating off the tub when the tub is filled with said aqueous mixture (505). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to a structure as taught by Hawley et al. on the top portion of the tub of Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. in order to pin down the seed trays as stated in para. 0099 of Hawley et al.
For claim 31, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 30, and further teaches wherein the structure further includes an opening (Hawley et al., ref. 510 is elevated above the tub 520 with a space or opening as shown in fig. 4 which excess solution can expel from the tub therethrough) for removing excess aqueous mixture from the tub.
For claim 33, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 1, but is silent about wherein the air diffuser creates an amount of aeration of 25 L/min through an 8 inch air diffuser in a 20 gal reservoir. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the air diffuser of Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. creates an amount of aeration of 25 L/min through an 8 inch air diffuser in a 20 gal reservoir, depending on how much aeration the plants required, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
For claim 35, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 1, but is silent about wherein the tub has a surface area of 15 square feet or less. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the tub of Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. with a surface area of 15 square feet or less, depending on how big the plants is and amount of nutrient solution needed to be contained for mass production, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
For claim 36, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 1, and further teaches wherein the bottom portion of the tub comprises four attachment mechanisms (134, in each corner of the tub as shown in figs. 5,8,10 of Lysaa) for removably attaching the tub to the frame, wherein said air diffuser is positioned in the middle of the four attachment mechanisms (fig. 10 of Lysaa shows the air diffuser in the middle of the corners where the four attachment mechanisms are located, thus, as modified with Burgess’s air diffuser configuration, the position will be the same).
For claim 39, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 1, and further teaches wherein the seed tray and tub are configured such that as the water level continues to drop, the roots follow the water level down so that a portion of the roots remained exposed to air and a portion of the roots in contact with the mixture of water and nutrient solution (functional recitation to which the combination of Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. can and does perform the intended function because such is the action of gravity).
For claim 40, Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 1, and further teaches wherein a plurality of said individual tubs are connected in the frame that holds 5 to 20 tubs in row (see figs. 1A, 21A of Lysaa).
For claim 41., Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. teaches the system of claim 1, and further teaches wherein the seed tray and tub are configured to be cleaned after every growing cycle (functional recitation to which the combination of Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. can and does perform the intended function, see para. 0142 of Lysaa).
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-7,9-26,28,30,31,33,35,36,39-41 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. However, certain pertinent arguments will be addressed.
Applicant argued that, clearly, the nutrient recirculation system that includes a nutrient recirculation ductwork including a plurality of collection troughs, is NOT consistent with, and would NOT render obvious a fully quarantined seed tray configured to contain and germinate plants and sitting in an isolated tub comprising aqueous solution, wherein the isolated tub is configured to prevent movement of the aqueous solution to other tubs and to mitigate the transfer of root disease and plant pathogens, as claimed. For this additional reason, this rejection is improper and should be withdrawn.
The examiner respectfully disagrees because recirculation of the nutrient has nothing to do with what is being claimed and that is a fully quarantined seed tray, which means that the see tray is fully quarantined upon usage and/or sterilized after a growth cycle. The claimed limitation did not state anything about the nutrient solution being quarantined or not because all that the claimed limitation stated is the seed tray that is fully quarantined or sterilized.
In addition, as stated in the above, each of the tub in Lysaa are separated and not connected together in a sense that there is a pipe or tube to transfer the solution, thus, the tub is an isolated tub and there is no cross-contamination between the tubs.
Applicant argued that, however, this configuration does not direct air through the nutrient solution to the plant roots but the "hollow vent interior [is] in fluid isolation of the nutrient chamber" that provides air to the top of the tray and the plant leaves.
The examiner respectfully disagrees because applicant’s statement is not true of what Lysaa is teaching. Clearly from fig. 10, there is an air diffuser from the bottom of the tub that direct air from the solution to the roots. Para. 0079 and fig. 10 discussed and showed the air flow path 172 which comes from the bottom to the solution to the roots to the leaves or top of the plants 118.
Applicant argued that, a system comprising at least one blower supplies air to up to 25 tables at once; each table having two guide wheels and four drive wheels that allow the table to be mechanically moved between growing, harvesting, cleaning and replanting locations; and the multiple cross members to support each tub and comprise holes drilled to match holes in the bottom of the tub, wherein the matching holes allow the tub to be bolted to the table with a watertight connection, which the Examiner asserts, without any support, that each of these elements would have been obvious to one having ordinary skill in the art "since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art."
The examiner respectfully disagrees because the examiner does believe these claimed limitations are routine testing and general experimental conditions and forming in one piece an article which has formerly been formed in two pieces and put together to create the one-piece article.
In regard to “a system comprising at least one blower supplies air to up to 25 tables at once” would depend on routine testing and experimentation to see how many blower(s) one would need to cover the number of tables available. This also depends on how much plants and tables that the user wishes to have for mass production or not. Thus, the examiner’s deduction of obviousness based on routine testing and general experimental conditions is proper. In addition, applicant has no criticality whatsoever as to why one blower only covers up to 25 tables. Nowhere in the specification does applicant defined such criticality. Under some circumstances, however, changes such as these may impart patentability to a process if the particular ranges claimed produce a new and unexpected result which is different in kind and not merely in degree from the results of the prior art. In re Dreyfus, 22 CCPA (Patents) 830, 73 F.2d 931, 24 USPQ 52; In re Waite et al., 35 CCPA (Patents) 1117, 168 F.2d 104, 77 USPQ 586. Such ranges are termed "critical" ranges, and the applicant has the burden of proving such criticality. In re Swenson et al., 30 CCPA (Patents) 809, 132 F.2d 1020, 56 USPQ 372; In re Scherl, 33 CCPA (Patents) 1193, 156 F.2d 72, 70 USPQ 204. However, even though applicant's modification results in great improvement and utility over the prior art, it may still not be patentable if the modification was within the capabilities of one skilled in the art. In re Sola, 22 CCPA (Patents) 1313, 77 F.2d 627, 25 USPQ 433; In re Normann et al., 32 CCPA (Patents) 1248, 150 F.2d 627, 66 USPQ 308; In re Irmscher, 32 CCPA (Patents) 1259, 150 F.2d 705, 66 USPQ 314. More particularly, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Swain et al., 33 CCPA (Patents) 1250, 156 F.2d 239, 70 USPQ 412; Minnesota Mining and Mfg. Co. v. Coe, 69 App. D.C. 217, 99 F.2d 986, 38 USPQ 213; Allen et al. v. Coe, 77 App. D.C. 324, 135 F.2d 11, 57 USPQ 136. Furthermore, the claimed limitation stated “at least one blower” which means that there could be infinite number of blowers as long as there is one. Thus, there is definitely no criticality in this and it appears that it is merely a routine testing and experimentation based on the user’s preference to grow plants for mass production or not.
In regard to “each table having two guide wheels and four drive wheels that allow the table to be mechanically moved between growing, harvesting, cleaning and replanting locations”, as stated in the above rejection, para. 0140-0144 of Lysaa another embodiment (4100) with same or similar system as system 100, the another embodiment (4100) having a plurality of wheels and conveyors that can be considered each table or horizontal conveyor as shown in fig. 23, with the wheels being two guide wheels and four drive wheels. For example, para. 0142 stated that there are side-by-side conveyors that can be areas or stations such as for cleaning, sanitizing, inspection, maintenance, and/or component adjustment or replacement, which any of these conveyors will have guide wheels (for example, ref. 128) and then there will be drive wheels to drive the tray/tub to the stations. Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have each table of Lysaa with two guide wheels and four drive wheels, depending on how smooth of conveyance the user wishes to have for the table, meaning, more wheels more smooth transition, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233. In addition, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the areas or stations of Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. be for harvesting and replanting locations, depending on the user’s preference to designate the areas or stations in Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. as such for harvesting and replanting, since Lysaa already teaches areas or stations designated for such actions per para. 0142.
In regard to “the multiple cross members to support each tub and comprise holes drilled to match holes in the bottom of the tub, wherein the matching holes allow the tub to be bolted to the table with a watertight connection”, as stated in the above, Lysaa’s tub and cross members are removably attached or connected as shown in figs. 5,10. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the multiple cross members to support each tub of Lysaa as modified by Kendall et al., Burgess et al., and Hawley et al. be bolted to the table with a watertight connection, depending on the user’s preference to have the parts be permanently attached or removably attached, since it has been held that forming in one piece an article which has formerly been formed in two pieces and put together involves only routine skill in the art. Howard v. Detroit Stove Works, 150 U.S. 164 (1993).
Thus, the examiner believes that the obviousness rejections for these limitations are proper, especially since applicant failed to demonstrate the criticality of these limitations and it would seem that one skill in the art based on routine testing and experimentation would know to determine how many blowers are need to cover the number of tables employed, and how many wheels are need for various areas of the system, and how to attach between the parts of the invention.
Applicant argued that, specifically, like Lyssa, Hawley does not teach or suggest a system for hydroponically growing plants in isolated batches to prevent root disease growth.
The examiner respectfully disagrees because Hawley was not relied on for a system for hydroponically growing plants in isolated batches to prevent root disease growth. As stated in the above rejection, Hawley et al. were relied on for a seed tray (100 100A,200) that are configured to float in an aqueous solution in a tub (500). Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use a floating seed tray with the features as taught by Hawley et al. in place of the seed tray in Lysaa as modified by Kendall et al. and Burgess et al., depending on the user’s preference to employ various hydroponic techniques such as floating raft or nutrient technique (NFT) or ebb-and-flow, etc.
Applicant argued that Hawley describes a different "pond" system and method, which is exactly what Applicant sought to avoid in developing this quarantined tub invention.
The examiner respectfully disagrees because Hawley was not relied on for a pond system. Please see above for what Hawley et al. were relied on for. In addition, even though Hawley et al. may call their system as “pond”, from fig. 4, it is a container that can be considered as a tub.
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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/Son T Nguyen/ Primary Examiner, Art Unit 3643
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