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 1-8,10-12,14,15,17-20 are rejected under 35 U.S.C. 103 as being unpatentable over Clemmer et al. (US 20220046875 A1) in view of Smith et al. (US 20180213734 A1) OR Storey (US 20170332568 A1).
For claim 1, Clemmer et al. teach a plant support apparatus for a vertical growing system, the plant support apparatus comprising:
a housing having a first opening (300) on a first side thereof and a second opening (310) on a second side thereof, the second side opposing the first side, wherein the housing defines a first chamber accessible through the first opening and a second chamber accessible through the second opening;
a plurality of engagement portions (272,318B,306D,286,323B,284,324B,306C, 306B,282,306A) within each of the first chamber and the second chamber, the plurality of engagement portions disposed along sidewalls that form side boundaries within each of the first chamber and the second chamber; and
one or more panels (220F,220B) structurally configured for placement within each of the first chamber and the second chamber, the one or more panels engageable with at least one of the plurality of engagement portions to position and stabilize a panel within its respective chamber, the one or more panels structurally configured to engage with, and support in a substantially fixed position relative to the housing, at least one of (i) a shoot system of a plant and (ii) a support medium containing at least a portion of the plant.
However, Clemmer et al. are silent about at least one of the one or more panels including a width formed substantially by a material that is resiliently deformable such that the panel can be penetrated by the support medium, where the material substantially conforms to a shape of the support medium to hold the support medium in a fixed position along the panel.
Smith et al. teach a plant support apparatus comprising at least one of the one or more panels (1211) including a width formed substantially by a material that is resiliently deformable such that the panel can be penetrated by the support medium (1211 is a wicking medium which is resiliently deformable for the roots and the medium holding the roots such as soil particles or the like can fall into the porous wick material to penetrate per para. 0062; also, as stated in the paragraph, “In other configurations the roots extend out the bottom of the plug casing and make direct contact with wicking medium 1211. In yet other configurations, a wicking medium extends out the end portion of the plug casing and rests against wicking medium 1211 once the plug casing is properly located within the tower.”, which means that the support medium (i.e. the plug) will penetrate the wick material somewhat to affix the two items together), where the material substantially conforms to a shape of the support medium to hold the support medium in a fixed position along the panel (the panel 1211 conforms to the shape of the support medium along the whole panel as shown in figs 11-12, while the support medium 1209 is stated in para. 0062 to hold the panel 1211, it is also the reverse because if the panel 1211 is taken away, there will be a gap and the medium 1209 will not be stabilized; also, panel 1211 runs the whole distance along the medium 1209, thus, it substantially conforms to the shape of the medium). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include a wicking panel as taught by Smith et al. as one of the plurality of panels in the apparatus of Clemmer et al. in order to provide support and irrigation to the roots of the plants in the apparatus.
In the event that applicant disagrees with Smith et al., Storey teaches a tower comprising a plurality of panels (101,103,107) that are made out of nylon, plastic, etc. (para. 0019), which applicant listed as the material for the panel that is resiliently deformable per applicant’s specification, para. 0016,0083,0100. 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 one or more panels of Clemmer et al. be made out of nylon or plastic as taught by Storey, 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 (nylon and plastic are notoriously well-known material that are used in hydroponic towers or vertical growing system due to their abundant and cheap cost and flexibility). In re Leshin, 125 USPQ 416.
Clemmer et al. as modified by either Smith et al. OR Storey would result in the one or more panels (of Clemmer et al.) including a width formed substantially by a material that is resiliently deformable such that the panel can be penetrated by the support medium (as taught by either Smith et al. OR Storey), where the material substantially conforms to a shape of the support medium to hold the support medium in a fixed position along the panel (the flexibility of the material as modified with Smith et al. or Storey would allow the openings to be pre-formed or drill therein to conform to the shape of the support medium and to hold the medium in fixed position along the panel as shown in fig. 8A of Clemmer et al. for example).
For claim 2, Clemmer et al. as modified by either Smith et al. OR Storey teach the plant support apparatus of claim 1, and further teach wherein the housing is structurally configured for hanging to facilitate a vertical arrangement of one or more plants along the housing (as shown in fig. 6 of Clemmer).
For claim 3, Clemmer et al. as modified by either Smith et al. OR Storey teach the plant support apparatus of claim 1, and further teach wherein at least one of the one or more panels is removable and replaceable within a chamber of the housing (panels 220F,220B of Clemmer are slidably removable in the chamber by sliding with the engagement portions).
For claim 4, Clemmer et al. as modified by either Smith et al. OR Storey teach the plant support apparatus of claim 3, and further teach wherein the at least one of the one or more panels is slidably engageable with at least one of the plurality of engagement portions (panels 220F,220B of Clemmer are slidably removable in the chamber by sliding with the engagement portions).
For claim 5, Clemmer et al. as modified by either Smith et al. OR Storey teach the plant support apparatus of claim 1, and further teach wherein the first chamber includes at least two panels (220F and any one of 298,292,316,etc. of Clemmer), wherein a first panel (220F of Clemmer) of the at least two panels is disposed along or adjacent to the first opening, and wherein a second panel (any one of 298,292,316,etc. of Clemmer is of a predetermined distance from the first panel 220F) of the at least two panels is disposed a predetermined distance from the first panel within an interior of the first chamber.
For claim 6, Clemmer et al. as modified by either Smith et al. OR Storey teach the plant support apparatus of claim 5, and further teach wherein the first panel acts as a blocker (220F of Clemmer is a blocker, similar to applicant’s invention) along the first opening structurally configured to mitigate water from passing from the first chamber to an external environment, and structurally configured to engage with, and support, the shoot system of the plant.
For claim 7, Clemmer et al. as modified by either Smith et al. OR Storey teach the plant support apparatus of claim 5, and further teach wherein the second panel is configured to hold the support medium containing at least a portion of the plant (functional recitation to which any one of the second panel 298, 292, 316, etc. of Clemmer can performed the intended function of configured to hold the support medium).
For claim 8, Clemmer et al. as modified by either Smith et al. OR Storey teach the plant support apparatus of claim 5, and further teach a third panel (any one of the second panel 298,292,316, etc. of Clemmer can be considered a third panel) disposed a predetermined distance from the second panel within the interior of the first chamber.
For claim 10, Clemmer et al. as modified by either Smith et al. OR Storey teach the plant support apparatus of claim 1, and further teach wherein the one or more panels are structurally configured to engage with and support roots of the plant (panel 220F,220B of Clemmer are structurally configured to engage with a plant as shown in fig. 8A).
For claim 11, Clemmer et al. as modified by either Smith et al. OR Storey teach the plant support apparatus of claim 1, and further teach wherein at least two panels (any two of 220F,220B, 298, 292, 316, etc. of Clemmer) are disposed within a chamber, and wherein the at least two panels form a vertical pathway therebetween throughout the housing for a fluid to traverse through the housing.
For claim 12, Clemmer et al. as modified by either Smith et al. OR Storey teach the plant support apparatus of claim 1, but are silent about wherein at least one of the one or more panels includes a width formed substantially by a material structurally configured to wick water throughout a length of the panel.
As stated in the above, Smith et al. teach at least one of the one or more panels (1211) includes a width formed substantially by a material that is resiliently deformable such that the panel can be penetrated by an object, where the material substantially conforms to a shape of the object to hold the object in a fixed position along the panel (1211 is a wicking medium which is resiliently deformable for the roots to penetrate per para. 0062). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include a wicking panel as taught by Smith et al. as one of the plurality of panels in the apparatus of Clemmer et al. as modified by either Smith et al. OR Storey in order to provide support and irrigation to the roots of the plants in the apparatus.
For claim 14, Clemmer et al. as modified by either Smith et al. OR Storey teach the plant support apparatus of claim 1, and further teach wherein at least one of the plurality of engagement portions includes a first channel (any one of 280,282,284,286 of Clemmer).
For claim 15, Clemmer et al. as modified by either Smith et al. OR Storey teach the plant support apparatus of claim 14, and further teach wherein at least one of the one or more panels (panels 220F,220B of Clemmer slide into the channels) includes a first end portion slidably engageable within the first channel.
For claim 17, Clemmer et al. as modified by either Smith et al. OR Storey teach the plant support apparatus of claim 14, and further teach wherein at least one of the plurality of engagement portions includes a second channel (any one of 280,282,284,286 of Clemmer that is not considered for the first channel) disposed across from the first channel, and wherein a first end portion of a panel is slidably engageable within the first channel and a second end portion of the panel is slidably engageable within the second channel (panels 220F,220B of Clemmer slide into the channels).
For claim 18, Clemmer et al. as modified by either Smith et al. OR Storey teach the plant support apparatus of claim 1, and further teach wherein the first chamber and the second chamber are separated by an interior boundary (boundary created by 304,298,292,302, etc. of Clemmer in the interior area).
For claim 19, the limitations have been explained in the above, thus, please see above. The blocker can be considered refs. 220F,220B, and the limitation of “including a width formed substantially by a material that is resiliently deformable such that the blocker can be penetrated by a support medium containing at least a portion of a plant, where the material substantially conforms to a shape of the support medium to hold the support medium in a fixed position along the blocker” is explained in the above with Smith et al. OR Storey.
For claim 20, Clemmer et al. as modified by either Smith et al. OR Storey teach the plant support apparatus of claim 19, and further disclose planting media (242 of Clemmer) disposed within one or more of the first chamber and the second chamber, the planting media structurally configured for engagement with a root system of the one or more plants, and the planting media structurally configured to allow water to traverse through the planting media from a top end to a bottom end thereof in a controlled manner for absorption by the root system of the one or more plants.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Clemmer et al. as modified by either Smith et al. OR Storey as applied to claim 1 above, and further in view of Klein et al. (US 20200015439 A1).
For claim 13, Clemmer et al. as modified by either Smith et al. OR Storey teach the plant support apparatus of claim 1, but are silent about wherein an exterior surface of at least one of the one or more panels is a color that substantially reflects at least 50% of extended photosynthetically active radiation (ePAR) light.
Klein et al. teach a plant support apparatus comprising an exterior surface of at least one of the one or more panels is a color that substantially reflects at least 50% of extended photosynthetically active radiation (ePAR) light (para. 0029, the tower including its panels are made of an opaque PVC plastic that is colored white, which is the same as stated in applicant’s specification to reflect ePAR light). 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 one or more panels of Clemmer et al. as modified by either Smith et al. OR Storey be a color such as white as taught by Klein et al. in order to reflect off harmful light rays to minimize algae blooms in the apparatus (as taught by Klein et al.).
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Clemmer et al. (as above) in view of Smith et al. (as above).
For claim 21, Clemmer et al. teach a plant support apparatus for a vertical growing system, the plant support apparatus comprising:
a housing having a first opening (300) on a first side thereof and a second opening (310) on a second side thereof, the second side opposing the first side, wherein the housing defines a first chamber accessible through the first opening and a second chamber accessible through the second opening;
a plurality of engagement portions (272,318B,306D,286,323B,284,324B,306C, 306B,282,306A) within each of the first chamber and the second chamber, the plurality of engagement portions disposed along sidewalls that form side boundaries within each of the first chamber and the second chamber; and
at least two panels (220F,220B) structurally configured for placement within each of the first chamber and the second chamber, the at least two panels each engageable with at least one of the plurality of engagement portions to position and stabilize a panel within its respective chamber (figs. 8A-), a first panel (234,220B) of the at least two panels disposed along or adjacent to the first opening, the first panel structurally configured to engage with, and support in a substantially fixed position relative to the housing, a shoot system of a plant (shoot system of plant 114 will be fixed in position per openings 240 in fig. 9).
However, Clemmer et al. are silent about a second panel of the at least two panels disposed a predetermined distance from the first panel within an interior of the first chamber, and the second panel structurally configured to engage with, and support in a substantially fixed position relative to the housing, a support medium containing at least a portion of the plant.
Smith et al. teach a plant support apparatus comprising a second panel (1211) disposed a predetermined distance from the first panel (1203) within an interior of the first chamber, and the second panel structurally configured to engage with, and support in a substantially fixed position relative to the housing (1205,1217), a support medium containing at least a portion of the plant (para. 0062 states that the panel 1211 will be in contact with the plant root which would have some support medium therein). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include a second panel as taught by Smith et al. as one of the plurality of panels in the apparatus of Clemmer et al. in order to provide support and irrigation to the roots of the plants in the apparatus.
Response to Arguments
Applicant's arguments filed 10/23/2025 have been fully considered but they are not persuasive. Applicant argued the following:
No mention is made in Clemmer of a resiliently deformable panel, or of a panel that can be penetrated by a plant support medium, or of a panel capable of substantially conforming to a shape of the support medium to hold the support medium in a fixed position, as claimed.
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).
As stated in the rejection above, either Smith et al. or Storey teaches the resiliently deformable panel that is capable of substantially conforming to a shape of the support medium to hold the support medium in a fixed position, as claimed. First, Smith et al. teach a plant support apparatus comprising at least one of the one or more panels (1211) including a width formed substantially by a material that is resiliently deformable such that the panel can be penetrated by the support medium (1211 is a wicking medium which is resiliently deformable for the roots and the medium holding the roots such as soil particles or the like can fall into the porous wick material to penetrate per para. 0062; also, as stated in the paragraph, “In other configurations the roots extend out the bottom of the plug casing and make direct contact with wicking medium 1211. In yet other configurations, a wicking medium extends out the end portion of the plug casing and rests against wicking medium 1211 once the plug casing is properly located within the tower.”, which means that the support medium (i.e. the plug) will penetrate the wick material somewhat to affix the two items together), where the material substantially conforms to a shape of the support medium to hold the support medium in a fixed position along the panel (the panel 1211 conforms to the shape of the support medium along the whole panel as shown in figs 11-12, while the support medium 1209 is stated in para. 0062 to hold the panel 1211, it is also the reverse because if the panel 1211 is taken away, there will be a gap and the medium 1209 will not be stabilized; also, panel 1211 runs the whole distance along the medium 1209, thus, it substantially conforms to the shape of the medium). Thus, one ordinary skill in the art would rely on Smith et al.’s resiliently deformable panel and include it in the plant support apparatus of Clemmer et al. in order to provide support and irrigation to the roots of the plants in the apparatus.
Second, applicant stated in his specification that the material for the resiliently deformable panel is either nylon or plastic or similar material. Storey teaches a tower comprising a plurality of panels (101,103,107) that are made out of nylon, plastic, etc. (para. 0019), which applicant listed as the material for the panel that is resiliently deformable per applicant’s specification, para. 0016,0083,0100. 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 one or more panels of Clemmer et al. be made out of nylon or plastic as taught by Storey, 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 (nylon and plastic are notoriously well-known material that are used in hydroponic towers or vertical growing system due to their abundant and cheap cost and flexibility). In re Leshin, 125 USPQ 416.
Thus, the combination of Clemmer et al. as modified by either Smith et al. OR Storey does teach the argued limitation as stated.
Smith teaches a "[w]icking medium 1211, which is held in place by matrix media 1209, [that] is used to transport moisture and nutrients along the columnar receptacle to the individual plants 1213 contained in the individual plant plug casings 1207."' There is no teaching or suggestion in Smith that the wicking medium 1211 would be capable of supporting the plant support medium or holding it in a fixed position, as claimed.
As explained in the rejection above, while Smith et al. may state that the support medium 1209 holds the panel 1211 per para. 0062, it is also the reverse because if the panel 1211 is taken away, there will be a gap and the medium 1209 will not be stabilized. In addition, panel 1211 runs the whole distance along the medium 1209, thus, it substantially conforms to the shape of the medium. Furthermore, as stated in the paragraph, “In other configurations the roots extend out the bottom of the plug casing and make direct contact with wicking medium 1211. In yet other configurations, a wicking medium extends out the end portion of the plug casing and rests against wicking medium 1211 once the plug casing is properly located within the tower.”, which means that the support medium (i.e. the plug) will penetrate the wick material somewhat to affix the two items together.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SON T NGUYEN whose telephone number is (571)272-6889. The examiner can normally be reached 9:00 to 4:00.
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/Son T Nguyen/Primary Examiner, Art Unit 3643