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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 01/22/2026 has been considered by the examiner.
Drawings
The drawings are objected to because it appears, based on the brief description of Figs 10A and 10B, as well as the disclosure concerning these figures, that ‘reference character ‘20’ should really be reference character ‘22’, given both Figs 10A and 10B do not show entire plugs 20, but rather only two parts 22 of two potential plug embodiments 20.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The disclosure is objected to because of the following informalities:
¶0081-0083: “protrusions 52” should read –protrusions 50--.
¶0081: “may be spacer apart regularly” should read –may be spaced apart regularly--.
Appropriate correction is required.
The specification is objected to as failing to provide proper antecedent basis for the following claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction is required:
Claim 5: each one of the at least two discreet parts includes a repeating pattern of a projecting outer sidewall portion followed by a planar intermediate sidewall segment around its perimeter.
Claim 7: each one of the at least two discrete parts includes intermediate sidewall planar segments positioned between the inner portion of the part and an outer sidewall.
Claim 10: an inner arcuate sidewall defining a curved surface… an outer sidewall having one or more outwardly projecting portions that define an external perimeter of the body; and intermediate sidewall segments extending vertically between a top surface and a bottom surface of each one of the at least two discrete parts, each intermediate sidewall segment being planar and interconnecting the inner arcuate sidewall and the outer sidewall, the intermediate sidewall segments defining a faceted transition between the recess and the outer sidewall.
Claim 13: each outwardly projecting portion has a rounded or convex external surface.
Claim 15: wherein the outwardly projecting portions define a non-uniform, lobed external perimeter of the discrete parts
Claim 18:
(a) an inner arcuate sidewall defining a curved surface that cooperatively forms a recess in the hydrophilic body when the parts are assembled;
(b) an outer sidewall including one or more outwardly projecting portions that define an external perimeter of the hydrophilic body; and
(c) one or more intermediate planar sidewall segments extending vertically between the inner arcuate sidewall and the outer sidewall, the intermediate planar sidewall segments defining a faceted transition between the recess and the external perimeter of the hydrophilic body;
Claim Objections
Claims 6-7, 10, and 14 are objected to because of the following informalities:
Claim 10: “a plant growing medium comprising: a plant growing medium comprising a self-supporting, semi-rigid body” should read –a plant growing medium comprising: a self-supporting, semi-rigid body—
Claim 14: “a reminder” should read –a remainder—
Claim 6, as best understood given the lack of antecedent basis in the specification, uses the term “planar intermediate sidewall segments” to refer to the perimeter segments being pointed at by character ‘52’ in Fig 10B, given the claim discusses these structures as part of a pattern with projecting outer sidewall portions (seemingly projections 50 in Fig 10B). However, claim 7 also uses the term “intermediate sidewall planar segments,” to refer to a different structure of the device shown in 10B, than that which was considered “a planar intermediate sidewall segment” in claim 6. The examiner requests that the applicant distinguish these structures with different terms for improved claim comprehension.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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 11-12, and 14-15 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 11 recites the limitation "the grow plug" in line 2. There is insufficient antecedent basis for this limitation in the claim. Although Claim 10 recites “an inner arcuate sidewall defining a curved surface that cooperatively forms a grow plug-receiving recess when the discrete parts are assembled,” This does not actually positively require/recite a grow plug, rather just a recess capable of receiving a grow plug. Similarly, for “the grow plug” in claim 12, lines 2-3.
Claim 14 recites “wherein a thickness between a central portion and/or edge portions and a remainder of the body changes gradually.” At present, with how the claim is written, it is not wholly clear what thickness refers to. It seems as if thickness is the distance between the central portion/edge portions and the remainder of the body, but if this is the case, how might a distance between two set parts change gradually? Perhaps the applicant is attempting to claim the fact that the body or discrete parts may have a gradually varying thickness at a certain area? If the latter, the Examiner suggests changing the body of claim 14 to read –wherein the [body or plant growing medium or each discrete part] exhibits a gradual change in thickness between a thickness at a central portion and/or a thickness at edge portions and a thickness at a remainder of the body--- or –wherein a thickness of the [body or plant growing medium or each discrete part] changes gradually between a central portion and/or edge portion and a remainder of the body--, or something similar.
Claim 15 recites “wherein the outwardly projecting portions define a non-uniform, lobed external perimeter of the discrete parts.” It is unclear what a ‘uniform’ perimeter might entail, and therefore, it is unclear what a ‘non-uniform’ perimeter might entail? Would the perimeter of a circle be non-uniform, in that the directional vectors change depending on position along the perimeter? Would a non-polygonal perimeter be non-uniform?
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-4, 6-7, and 18 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Reiersen (US 20210037724, as cited on previous 892), hereinafter referred to as Reiersen.
Regarding claim 1:
Reiersen discloses a plant growing medium (see abstract) comprising: a self-supporting, semi-rigid body (wrap 12, Fig 21) including at least two discreet parts (wrap segments 12a/12b, Fig 21), each part having a set of dimensions including a first thickness and a recess in an inner portion of the part (see annotated Fig 21 below), the at least two discreet parts being structured to cooperatively form the body (see Fig 21), the body structured to provide support to plant roots (¶0070).
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Regarding claim 2:
Reiersen discloses the limitations of claim 1 above and further discloses wherein the at least two discreet parts are symmetrical (see Fig 21).
Regarding claim 3:
Reiersen discloses the limitations of claim 1 above and further discloses wherein the at least two discreet parts include more than two parts (¶0073: may be any number of wrap segments; ¶0005: two or more wrap segments).
Regarding claim 4:
Reiersen discloses the limitations of claim 1 above and further discloses wherein each one of the at least two discreet parts includes at least one edge portion, at least some of the edge portions having a second thickness different from the first thickness.
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Regarding claim 6:
Reiersen discloses the limitations of claim 1 above and further discloses wherein the body is hydrophilic (¶0091: “hydrophilic”).
Regarding claim 7:
Reiersen discloses the limitations of claim 1 above and further discloses wherein each of the at least two discrete parts includes intermediate sidewall planar segments positioned between the inner portion of the part and an outer sidewall (see annotated Fig 21 below).
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Regarding claim 18:
Reiersen discloses an orchid cultivation assembly (wrap, plug, and container; see Fig 32B) comprising:
a container having one or more sides defining a central aperture (see outer container in Figs 31 and 32B);
a self-supporting, semi-rigid hydrophilic body (¶0091) disposed within the central aperture of the container (see wrap in Figs 31 and 32B), the hydrophilic body including at least two parts cooperating to form a recess in the body (see annotated Fig 31 below), each part comprising:
an inner arcuate sidewall defining a curved surface that forms a recess in the hydrophilic body when the parts are assembled (see annotated Fig 31 below);
an outer sidewall including one or more outwardly projecting portions that define an external perimeter of the hydrophilic body (see annotated Fig 31 below); and
one or more intermediate planar sidewall segments extending vertically between the inner arcuate sidewall and the outer sidewall, the intermediate planar sidewall segments defining a faceted transition between the recess and the external perimeter of the hydrophilic body (see annotated Fig 31 below); and
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an orchid starter material located in the recess of the hydrophilic body (‘plug’; see Figs 31-32B); and
wherein the orchid starter material is capable of forming plant roots and the body is structured to provide support to plant roots (see roots 20, Fig 21; ¶0003).
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.
Claims 1, 4-5, and 10-15 are rejected under 35 U.S.C. 103 as being unpatentable over Reiersen, as best understood in light of the 112(b) issues addressed above.
Regarding claim 1:
Reiersen, in the embodiment with exterior protrusions, as exemplified in Figs 30-32C discloses a plant growing medium comprising: a self-supporting, semi-rigid body having a first thickness (thickness of the wrap, not at the protrusions), including a recess in an inner portion of the body (see Fig 32B), the body structured to provide support to plant roots (functional language: structure is inherently capable of providing support to plant roots).
The selected embodiment of Reiersen fails to specifically contemplate that the body includes at least two discreet parts, each part having a set of dimensions including a first thickness and a recess in an inner portion of the part, the at least two discreet parts being structured to cooperatively form the body.
However, Reiersen explicitly contemplates, in certain embodiments, splitting a wrap 312 in half into two discreet wrap segments which cooperatively form the body (¶0005; ¶0070).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have split the body of the embodiment with protrusions in half, thereby forming two discreet parts which cooperatively form the body, the result having a reasonable expectation of success. One would have been motivated to make this modification because, as disclosed in Reiersen, doing so allows for a gentler transplantation and cupping around the roots of the plant held in the central plug (¶0070). Further, The equivalence of a single part wrap and a multi-part wrap in their ability to support plant growth is known in the art, as evidenced by Reiersen (see Figs 2 and 21), and the selection of any known equivalents would be within the level of ordinary skill in the art. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007). Finally, it has been held that constructing a formerly integral structure in various elements involves only routine skill in the art. Nerwin v. Erlichman, 168 USPQ 177, 179.
Regarding claim 4:
Reiersen as modified discloses the limitations of claim 1 above and further discloses wherein each one of the at least two discreet parts includes at least one edge portion, at least some of the edge portions having a second thickness different from the first thickness (see annotated Fig 31 Below).
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Regarding claim 5:
Reiersen as modified discloses the limitations of claim 4 above and further discloses each one of the at least two discreet parts includes a repeating pattern of a projecting outer sidewall portion followed by a planar intermediate sidewall segment around its perimeter (see annotated Fig 31 below).
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Regarding claim 10:
Reiersen discloses a plant growing medium comprising:
a plant growing medium comprising a self-supporting, semi-rigid body (wrap as seen in Figs 30-32C), the body having:
An inner arcuate sidewall defining a curved surface that forms a grow plug-receiving recess (see annotated Fig 31 below)
An outer sidewall having one or more outwardly projecting portions that define an external perimeter of the body (see annotated Fig 31 below); and
Intermediate sidewall segments extending vertically between a top surface and a bottom surface of the body, being planar and interconnecting the inner arcuate sidewall and the outer sidewall, the intermediate sidewall segments defining a faceted transition between the recess and the outer sidewall (see annotated Fig 31 below)
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The selected embodiment of Reiersen fails to specifically disclose that the body includes at least two discrete parts, and thereby, that each one of the at least two discrete parts have:
An inner arcuate sidewall defining a curved surface that cooperatively forms a grow plug-receiving recess when the discrete parts are assembled
An outer sidewall having one or more outwardly projecting portions that define an external perimeter of the body; and
Intermediate sidewall segments extending vertically between a top surface and a bottom surface of each one of the at least two discrete parts, each intermediate sidewall segment being planar and interconnecting the inner arcuate sidewall and the outer sidewall, the intermediate sidewall segments defining a faceted transition between the recess and the outer sidewall.
However, Reiersen explicitly contemplates, in certain embodiments, splitting a wrap 312 in half into two discreet wrap segments which cooperatively form the body (¶0005; ¶0070; Fig 21).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have split the body of the embodiment with protrusions in half, thereby forming two discreet parts which cooperatively form the body, the result having a reasonable expectation of success. One would have been motivated to make this modification because, as disclosed in Reiersen, doing so allows for a gentler transplantation and cupping around the roots of the plant held in the central plug (¶0070). Further, The equivalence of a single part wrap and a multi-part wrap in their ability to support plant growth is known in the art, as evidenced by Reiersen (see Figs 2 and 21), and the selection of any known equivalents would be within the level of ordinary skill in the art. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007). Finally, it has been held that constructing a formerly integral structure in various elements involves only routine skill in the art. Nerwin v. Erlichman, 168 USPQ 177, 179.
The examiner notes that, upon division of the wrap into two halves would result in halves which include the claimed outer sidewall, inner sidewall, protrusion, and intermediate segments as claimed – this can be seen visually in Fig 21.
Regarding claim 11:
Reiersen as modified discloses the limitations of claim 10 above and further discloses wherein the grow plug is configured to support a plant seedling, the grow plug being disposed within the recess of the body (claim 32; Fig 32B), the grow plug and the body being made of fibrous material (¶0088).
Regarding claim 12:
Reiersen as modified discloses the limitations of claim 10 above and further discloses a container supporting the body and the grow plug such that the body is disposed between the grow plug and the container (see Fig 32B).
Regarding claim 13:
Reiersen as modified discloses the limitations of claim 10 above and further discloses wherein each outwardly projecting portion has a rounded or convex external surface (see Figs 30-32B).
Regarding claim 14:
Reiersen as modified discloses the limitations of claim 10 above and further discloses wherein a thickness between a central portion and/or edge portions and a remainder of the body changes gradually (see Figs 30-32B).
Regarding claim 15:
Reiersen as modified discloses the limitations of claim 10 above and further discloses wherein the outwardly projecting portions define a non-uniform, lobed external perimeter of the discrete parts (see Figs 30-32B).
Claims 8, 16, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Reiersen, as applied to claims 1, 10, and 18 above, in view of Kay (US 6195938, as cited on previous 892), hereinafter referred to as Kay.
Regarding claim 8:
Reiersen discloses the limitations of claim 1 above.
Reiersen fails to specifically disclose wherein the semi-rigid body has a moisture content of about 60-90%.
Kay discloses a plant growth medium that has been hydrated so as to have a moisture content of about 60-90% (claim 7).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have hydrated the grow medium forming the body of Reiersen to have a moisture content of about 60-90%, as in Kay, the result having a reasonable expectation of success. One would have been motivated to make such a modification in order to provide a grow medium that is not so wet that it molds or falls apart, but is wet enough to ensure sufficient moisture holding capacity to water the planted plant (Col 2, lines 35-50), and generally to provide a moisture content sufficient to provide a density and a porosity that will support plant growth (claim 5). Further, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 16:
Reiersen as modified discloses the limitations of claim 10 above.
Reiersen fails to specifically disclose wherein the semi-rigid body has a moisture content of about 60-90%.
Kay discloses a plant growth medium that has been hydrated so as to have a moisture content of about 60-90% (claim 7).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have hydrated the grow medium forming the body of Reiersen to have a moisture content of about 60-90%, as in Kay, the result having a reasonable expectation of success. One would have been motivated to make such a modification in order to provide a grow medium that is not so wet that it molds or falls apart, but is wet enough to ensure sufficient moisture holding capacity to water the planted plant (Col 2, lines 35-50), and generally to provide a moisture content sufficient to provide a density and a porosity that will support plant growth (claim 5). Further, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 19:
Reiersen discloses the limitations of claim 18 above.
Reiersen fails to specifically disclose wherein the semi-rigid body has a moisture content of about 60-90%.
Kay discloses a plant growth medium that has been hydrated so as to have a moisture content of about 60-90% (claim 7).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have hydrated the grow medium forming the body of Reiersen to have a moisture content of about 60-90%, as in Kay, the result having a reasonable expectation of success. One would have been motivated to make such a modification in order to provide a grow medium that is not so wet that it molds or falls apart, but is wet enough to ensure sufficient moisture holding capacity to water the planted plant (Col 2, lines 35-50), and generally to provide a moisture content sufficient to provide a density and a porosity that will support plant growth (claim 5). Further, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Claims 9, 17, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Reiersen, as applied to claims 1, 10, and 18 above, in view of Spittle (US 20170114276, as cited on IDS dated 12/10/2024), hereinafter referred to as Spittle.
Regarding claim 9:
Reiersen discloses the limitations of claim 1 above.
Reiersen fails to specifically disclose wherein the semi-rigid body has a bulk density may be about 100 to 140 kg/m3.
Spittle discloses a grow medium with a bulk density about 100 to 140 kg/m3 (claim 1; ¶0076).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have modified the grow medium forming the body of Reiersen to have a bulk density about 100 to 140 kg/m3, as in Spittle, the result having a reasonable expectation of success. One would have been motivated to make such a modification in order to provide optimal water distribution or root support to the plant. Further, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 17:
Reiersen as modified discloses the limitations of claim 10 above.
Reiersen fails to specifically disclose wherein the semi-rigid body has a bulk density may be about 100 to 140 kg/m3.
Spittle discloses a grow medium with a bulk density about 100 to 140 kg/m3 (claim 1; ¶0076).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have modified the grow medium forming the body of Reiersen to have a bulk density about 100 to 140 kg/m3, as in Spittle, the result having a reasonable expectation of success. One would have been motivated to make such a modification in order to provide optimal water distribution or root support to the plant. Further, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 20:
Reiersen discloses the limitations of claim 18 above.
Reiersen fails to specifically disclose wherein the semi-rigid body has a bulk density may be about 100 to 140 kg/m3.
Spittle discloses a grow medium with a bulk density about 100 to 140 kg/m3 (claim 1; ¶0076).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have modified the grow medium forming the body of Reiersen to have a bulk density about 100 to 140 kg/m3, as in Spittle, the result having a reasonable expectation of success. One would have been motivated to make such a modification in order to provide optimal water distribution or root support to the plant. Further, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Response to Arguments
Applicant's arguments filed 12/08/2025 have been fully considered but they are not persuasive.
On pages 9-10, the applicant argues that Reiersen does not disclose a “self-supporting semi-rigid body” that is “structured to provide support to plant roots.” The applicant references, in support, that Reierson states that the wrap or wrap segments are generally made of a soft, flexible material, that encircles the plug and fills the void around the final container diameter, and that although Reierson references interaction between the wrap and roots and that the wrap is made of a similar material, there is no disclosure that the wrap is intended as a growing material for roots, and thereby does not teach root support.
The examiner notes that the broadest reasonable interpretation (BRI) of the plain meaning of the term “semi-rigid” is “rigid to some degree or in some parts” (Merriam Webster Dictionary). The examiner asserts that Reiersen clearly meets this extremely broad modifier, pointing to a later portion of the cited paragraph (¶0092), where the wrap or wrap segments are described as “stable and bendable into the container” and ¶0090 which discusses a material for the wrap segments which is resilient, integral, dimensionally stable, cohesive, and homogenous; the mere fact that the wrap segments may be molded then removed from the mold and inserted into a container while retaining their shape is support that the segments are “semi-rigid”. Further, “semi-rigid” does not require an absence of flexibility, rather the “semi” part of the term implies a level of flexibility; this is on par with the applicant’s own disclosure, which describes the plug as both semi-rigid and flexible (¶0071). The examiner relies upon this same disclosure as evidence that the wraps are capable of supporting themselves, if they were not, they would not be able to hold their shape or survive transference into a container without falling apart.
Further, on pages 9-10, the applicant remarks that the examiner chose Fig. 21 as the specific embodiment of Reiersen used for the 102 rejection, and generally implies that the examiner is therefore limited to Fig 21 and its description in ¶0073. As an example, implying, on page 3, that the examiner improperly relied on ¶0070, which showed teaching of root/wrap interaction.
The examiner respectfully disagrees, noting that one of ordinary skill in the art would understand many sections of the applicant’s disclosure to be generic to several depicted or disclosed wrap/system embodiments, including the split embodiment depicted, as an example, in Fig 21. This is especially the case with ¶0070 which specifically mentions that the wrap may be in the form of two or more wrap segments, as is shown in Fig 21.
On page 11, the applicant argues, in relation to claim 2, that Reiersen does not disclose “wherein the at least two discreet parts are symmetrical”, given, despite their similar shape, in Fig 21, the number of slits on each wrap segment are not the same, and therefore the overall shapes of the discreet parts are not symmetrical.
The examiner respectfully disagrees with the applicant’s characterization of the claim scope. The claim does not require that the at least two discreet parts be identical in shape/size to each other. Rather, the claim requires that “the at least two discreet parts are symmetrical.” There are several reasonable plain meanings of symmetrical: “having involving or exhibiting symmetry” (symmetry defined as “balanced proportions” or “correspondence in size, shape, and relative position of parts on opposite sides of a dividing line or median plane or about a center or axis”); or “capable of division by a longitudinal plane into similar halves”. In the exemplary embodiment shown in Fig 21, the examiner asserts that, under BRI, a person having ordinary skill in the art would reasonably understand each discreet part/wrap segment as exhibiting balanced proportions or being capable of division by a longitudinal plane into similar halves. Further, the examiner notes that Fig 21 is an exemplary depiction of Reiersen’s disclosure of a wrap formed of slitted wrap segments, encircling a plug, in a container. Regardless, the examiner points to ¶0095 which describes the molds of Fig 10, 29B, and 20A-20E as being used to form wrap segments with slits; Reiersen thereby contemplates using a single mold to make wrap segments (which would result in identical wrap segments), and also contemplates wrap segments fitting together to encircle a plug (¶0005) – the written disclosure alone is sufficient to teach claim 1 - Fig 21 is merely exemplary of a disclosed embodiment, referenced by the examiner to aid in the applicant’s understanding of the disclosed subject matter. Finally, it is also generally noted that the applicant has no criticality for symmetry, even referencing symmetrical and asymmetrical parts as equal alternatives (¶0051), and 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.
On page 11, the applicant briefly remarks that “Reiersen does not disclose “each one of the at least two discrete parts includes intermediate sidewall planar segments positioned between the inner portion of the part and an outer sidewall.
The examiner respectfully disagrees and refers to the rejection above and annotated Fig 21 below.
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On pages 12-13, the applicant argues that, since the portion of the system that hosts the plant in Reiersen is the plug, despite Kay’s teaching of a plant growth medium with a moisture content as claimed, Kay would not have suggested modification of the wrap portions to have a moisture content as claimed, rather, if anything, a person of ordinary skill in the art would only be guided to provide the plug with the moisture content as claimed.
In response to applicant's argument that Kay doesn’t teach a wrap, and rather would only suggest modification of a plug, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Further, the examiner notes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, given Reiersen discusses forming the wrap of a plant growth substrate, and even remarks on the benefits of using the same substrate for the wrap as for the plug (¶0087), and given Kay discloses a plant growth substrate of a specific hydration that provides benefits in a plant growing system (Col 2, lines 35-50; claim 5), the examiner asserts that one of ordinary skill in the art would have been motivated to providing the plant growth substrate of Reiersen with the specific beneficial hydration percentage, as suggested by Kay. Such a modification being well within ordinary skill. Regardless, the examiner further emphasizes that the applicant provides no criticality to the claimed moisture content range, and in the absence of any stated problems solved by or any stated advantage obtained by having certain features as claimed, it would have been obvious to have modified chosen a material for the wrap with the moisture content as claimed, based on the moisture needs of the plant, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art (In re Aller, 105 USPQ 233), and it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice (In re Leshin, 125 USPQ 416).
On page 13, the applicant argues that Kay is nonanalogous art, given it provides a more practical way how to remove a plastic sleeve and caters towards the propagation of conifer seedlings, rather than orchids. Similarly, on page 14, the applicant argues that Grunert is nonanalogous art, given Grunert deals with loose or blended growing media and the microbial community structure, not discussing molded structures, orchid cultivation, part geometry or holding relevance to the multi-part body of the present invention.
In response to applicant's argument that Kay and Grunert are nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, the examiner contends that Kay is both in the field of the inventor's endeavor and reasonably pertinent to a particular problem with which the inventor was concerned. First of all, MPEP 2141.01(a)(I) states that, when determining whether a piece of art is from a relevant field of endeavor to the applicant’s invention, the examiner should consider "explanations of the invention’s subject matter in the patent application, including the embodiments, function, and structure of the claimed invention." Airbus S.A.S. v. Firepass Corp., 941 F.3d 1374, 1380, 2019 USPQ2d 430083 (Fed. Cir. 2019) (quoting Bigio, 381 F.3d at 1325, 72 USPQ2d at 1212 ). The applicant’s specification describes the invention’s subject matter as including a structure of a plug formed of a plant growth substrate (¶0075) and discloses adequate water holding capacity and air space for plant growth as a problem with which the inventor is concerned (¶0080). Kay discloses similar structure, with a plug made of plant growth substrate, and is reasonably pertinent to these particular problems as it contemplates optimization of porosity and moisture holding capacity (Col 2, lines 35-50; claim 5). Grunert is analogous art as it discloses similar structure (plant growth medium), addresses optimization of plant growth through growth media amendment, and discusses water retention, growth media materials, porosity, etc.. The examiner also notes that per MPEP 2141.01(a) “The field of endeavor is ‘not limited to the specific point of novelty, the narrowest possible conception of the field, or the particular focus within a given field.’””) (quoting Unwired Planet, LLC v. Google Inc., 841 F.3d 995, 1001, 120 USPQ2d 1593, 1597 (Fed. Cir. 2016)) and that the Federal Circuit reads KSR as “direct[ing] us to construe the scope of analogous art broadly” because “familiar items may have obvious uses beyond their primary purposes, and a person of ordinary skill often will be able to fit the teachings of multiple patents together like pieces of a puzzle.” Wyers v. Master Lock Co., 616 F.3d 1231, 1238, 95 USPQ2d 1525, 1530 (Fed. Cir. 2010) (quoting KSR, 550 U.S. at 402, 127 S. Ct. at 1727). Further, per Stevenson v. Int'l Trade Comm., 612 F.2d 546, 550, 204 USPQ 276, 280 (CCPA 1979), "In a simple mechanical invention a broad spectrum of prior art must be explored and it is reasonable to permit inquiry into other areas where one of ordinary skill in the art would be aware that similar problems exist." The examiner thusly asserts that Kay and Grunert are, in fact, considered analogous art and thus the rejection is sound.
Applicant’s arguments with respect to claim(s) 5 and 10-20 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.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Van Der Knapp (WO 2015183094 A1), Xu (CN 107148866 A), Lee (KR 20090070257 A), and De Ruiter (WO 2019224317 A1) exhibit similarities to the present invention.
THIS ACTION IS MADE FINAL. 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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/B.V.S./Examiner, Art Unit 3642
/JOSHUA D HUSON/Supervisory Patent Examiner, Art Unit 3642