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 .
Election/Restrictions
Newly submitted claims 14-20 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons:
The groups of inventions listed do not relate to a single general inventive concept under PCT Rule 13.1 because, under PCT Rule 13.2, they lack the same or corresponding special technical features for the following reasons:
Invention I; including claims 1-13 directed to a comb and divider arrangement and Invention II; including claims 14-20 directed towards a bar and divider arrangement lack unity of invention because even though the inventions of these groups require the technical feature of the divider, this technical feature is not a special technical feature as it does not make a contribution over the prior art in view of Van Wingerden, U.S. Patent No. 4,777,764 A; herein Van.
Van discloses substantially similar divider elements to allow for the growth of one or more plants, since such a feature is known Claims 1 & 14 do not make a contribution over the prior art a posteriori and Inventions I & II lack unity.
The comb as disclosed within the specification has an essential feature of the slits which engage the dividers are not necessary or present in the embodiment featuring the bars, thus creating a search burden based upon the physical structure thereof.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 14-20 withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 9-10 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 9 recites the limitation "said comb being made up of teeth and slits" which is a limitation that was previously recited within claim 1, from which claim 9 depends.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Response to Arguments
Applicant's arguments filed 1/13/2026 have been fully considered but they are not persuasive.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., a singular slit being dimensioned to cooperate with two dividers) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
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 1-8 & 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over Van in view of Higgins, European Patent Application No. EP 0012013 A1; herein Hig.
Re claim 1, Van discloses a device for growing and propagating one or more plants, comprising: at least two dividers (fig. 1-5 and col 4; 21-33, the partitions/barriers for accommodating the root systems of the individual seedlings growing therein) and at least two supports (13 & 15-16; the strips, fig. 1-2 & 4-5) for arranging the dividers so as to create at least one volume for growing and propagating one or more plants (fig. 1-2 & 4-5 and col 4; 5-20, the volumes formed between the partitions for accommodating the seedlings are arranged by the positioning of the partitions within the strips and fastening means assembly), wherein the dividers each have a corrugated shape (fig. 1-5 and col 3; 30-42, via the interconnected diverging walls being bridged together).
Van fails to disclose the at least two supports having a comb structure, wherein said combs are made up of teeth and one or more slits, wherein the slits are dimensioned to be able to cooperate with two dividers. However, Hig discloses a device for growing and propagating one or more plants, comprising: at least two dividers (fig. 1, the divider members; 13 with the slots; 14 facing down) and at least two combs (fig. 1, the divider members; 13 with the slots; 14 facing up) for arranging the dividers so as to create at least one volume for growing and propagating one or more plants (fig. 1, the slot arrangement allows for each divider member to be arranged into the individual cell structure shown), wherein said combs are made up of teeth (fig. 1, the surfaces between each slot) and one or more slits (14; the slots, fig. 1),
wherein the slits are dimensioned to be able to cooperate with two dividers (fig. 1, each slit is suitable to receive a divider member, there are at least two slots of each divider member).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose the at least two supports having a comb structure, wherein said combs are made up of teeth and one or more slits, wherein the slits are dimensioned to be able to cooperate with two dividers however, Hig discloses such structure. 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 comb fastening structure as taught by Hig to improve the similar device disclosed by the prior art in the same way by creating a more versatile/adjustable assembly for receiving the plants. See MPEP 2143 I. (C).
Additonally, the examiner notes it would have been obvious to one having ordinary skill in the art before the effective filling date of the invention to have the strips containing the openings and protrusions and the partitions having a smooth surfaces for arrangement thereon, since it has been held that a mere reversal of essential working parts is generally held as an obvious modification. See MPEP 2144.04 VI. A.
Re claim 2, the combination of Van and Hig discloses the invention of claim 1, Van as modified by Hig further discloses wherein the combs are placed at the ends of the dividers and in that the combs and wherein the dividers are removably fixed to one another, making said device dismountable (fig. 1-2 & 4-5 and col 5; 10-20, the combs, see the rejection of claim 1 above, are attached to the perimeter of the block/group of partitions and removable for allowing the disassembly thereof).
Re claim 3, the combination of Van and Hig discloses the invention of claim 1, Van further discloses wherein said device does not have a base directly adjoining the volumes defined by the dividers (fig. 3 and col 5; 21-30, the partitions have an open bottom to accommodate the plugs).
Re claim 4, the combination of Van and Hig discloses the invention of claim 1, Van further discloses wherein the arrangement of the dividers forms a cellular structure (fig. 1-2 & 4-5).
Re claim 5, the combination of Van and Hig discloses the invention of claim 1, Van further discloses wherein the corrugated shape comprises a partial polygonal repeating pattern (fig. 1-2 & 4-5).
Re claim 6, the combination of Van and Hig discloses the invention of claim 1, Van further discloses wherein the dividers are made from the same material (col 5; 1-9, each partition is made of the integral stiff plastic).
Re claim 7, the combination of Van and Hig discloses the invention of claim 1, Van further discloses wherein the dividers are made of a polymer material (col 5; 1-9, each partition is made of the integral stiff plastic).
Van as currently modified by Hig fails to disclose wherein the combs are made of a polymer material. However, Hig further discloses wherein the dividers and combs are made of a polymer material (page 3; 15-17, the dividers are all plastic).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose wherein the combs are made of a polymer material however, Hig discloses such a material. 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 combs by utilizing a simple substitution of the unidentified material taught by the prior art for the plastics from Hig in order to obtain the predictable result of a cost-effective and sufficiently rigid material. See MPEP 2143 I. (B).
Additionally, the examiner notes, it would have been obvious to one having ordinary skill in the art before the effective filling date of the invention to utilize plastic for the dividers and combs since they are known to be a cost-effective option, 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 8, the combination of Van and Hig discloses the invention of claim 1, Van further discloses wherein the corrugated dividers are straight dividers with a sinusoidal shape (fig. 1-2 & 4-5, identical to that described in the instant disclosure and shown in instant fig. 1-3 & 4F-6).
Re claim 11, the combination of Van and Hig discloses the invention of claim 4, Van further discloses wherein the arrangement of the dividers forms a honeycomb (fig. 1-2 & 4-5).
Re claim 12, the combination of Van and Hig discloses the invention of claim 5, Van further discloses wherein the corrugated shape comprises a partial repeating pattern of a hexagon (fig. 1-2 & 4-5).
Re claim 13, the combination of Van and Hig discloses the invention of claim 5, the combination further discloses wherein the dividers and combs are made of a plastic (see the rejection of claim 7).
Claims 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over Van in view of Hig as applied to claim 1 above, in further view of Simpson, U.S. Patent No. 2,974,817 A; herein Sim.
Re claim 9, the combination of Van and Hig discloses the invention of claim 1, Hig as applied to Van further discloses said comb being made up of teeth (fig. 1, between each of the slots) and slits (14; the slots, fig. 1), wherein at least two slits are disposed on opposite sides of the comb (fig. 1, the right-most and left-most slots; 14), , so that to open longitudinally each in one direction (fig. 1, each opening in the same direction).
The combination of Van and Hig fails to disclose wherein each of the directions being opposite to each other. However, Sim discloses combs (C; the third type of strip, fig. 7) made up of teeth (fig. 7, the surfaces between each of the slits) and slits (26, 28, 29; the set of slits, fig. 7) wherein at least two slits (26 & 28/29; the traverse and terminal slits, fig. 7) of said comb are disposed on opposite sides of the comb (fig. 7), so that to open longitudinally each in one direction, the directions being opposite to each other (fig. 7).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose wherein each of the directions being opposite to each other however, Sim discloses such structure. 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 transverse and terminal sets of slits as taught by Sim to improve the similar device disclosed by the prior art in the same way by allowing the comb to be attached to another comb or divider forming a more modular volume. See MPEP 2143 I. (C).
Re claim 10, the combination of Van, Hig, and Sim discloses the invention of claim 9, Hig as applied to Van and Sim wherein the teeth and slits each have widths (fig. 1, along the longitudinal surface of the divider member), where the width of the slits is smaller in size than the width of the teeth (fig. 1).
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 NICOLE P MACCRATE whose telephone number is (571)272-5215. The examiner can normally be reached M-Th: 9am-5pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joshua J Michener can be reached at 571-272-1467. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/NICOLE PAIGE MACCRATE/ Examiner, Art Unit 3642
/JOSHUA J MICHENER/ Supervisory Patent Examiner, Art Unit 3642
