DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-10 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 is rejected as it recites “a method using a tubular structure to grow plants” but has no method steps. The claim appears to be a use claim (See MPEP 2173.05) as it merely recites the use and no active positive steps delimiting how to use. The limitations “is placed” and “is filled” are not active positive steps. As written the claim appears to be more structured towards an apparatus claim and is being interpreted as such.
Claims 2-10 are rejected based on their dependency on 1.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-10 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because claim 1 is a use claim because it merely recites a use without any active, positive steps delimiting how this use is actually practiced. "Use" claims that do not purport to claim a process, machine, manufacture, or composition of matter fail to comply with 35 U.S.C. 101. In re Moreton, 288 F.2d 708, 709, 129 USPQ 227, 228 (CCPA 1961)("one cannot claim a new use per se, because it is not among the categories of patentable inventions specified in 35 U.S.C. § 101 ").
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, 2, 3, 4, 10 are rejected under 35 U.S.C. 102 (a) (1) as being anticipated by Lennstroem (SE 370002, provided herein, see English translation provided herein)
For claim 1, Lennstroem teaches method of using a tubular structure for growing plants (see figs. 1-3), wherein the tubular structure comprises a base tubular wall (1, 4) having a central axis and having first and second closed-contour edges at first and second opposed axial ends (see fig. 1), said first and second axial ends are open over at least 50% of the respective surfaces thereof (see fig. 1 and 2, fully open on top and bottom),
wherein the first closed-contour edge is placed on a ground (see figs.), and
wherein the base tubular wall is filled with a growing medium communicating with a soil through the first open end, and the plants are planted in the growing medium (see fig. 3, description thereof).
For claim 2, Lennstroem discloses wherein the first end is open over at least 90% of the surface thereof (see fig. 1 and 2).
For claim 3, Lennstroem discloses wherein the base tubular wall has openings (3), cups protruding radially outwardly from the base tubular wall (7) and being located immediately offset toward the first edge with respect to the openings (as best understood see figs.).
For claim 4, Lennstroem discloses wherein the cups are filled with a growth medium (visible in fig. 3), the plants are planted in the growth medium filling the cups (visible in fig. 3).
For claim 10, Lennstroem discloses wherein the first end is open over 100% of the surface thereof (as best understood fully open ends).
Claim(s) 1, 2, 5, 10 are rejected under 35 U.S.C. 102 (a) (1) as being anticipated by DE 202005007556 (cited in the IDS, provided by applicant, see English translation provided herein)
For claim 1, DE ‘556 discloses method of using a tubular structure for growing plants (abstract and figs. planter can be cylindrical), wherein the tubular structure comprises
a base tubular wall having a central axis and having first and second closed-contour edges at first and second opposed axial ends (see figs., wall of 1 on each plant segment 4), said first and second axial ends are open over at least 50% of the respective surfaces thereof (hollow open device, see description and figs.),
wherein the first closed-contour edge is placed on a ground (see figs.), and
wherein the base tubular wall is filled with a growing medium communicating with a soil through the first open end (abstract-soil and figs.), and
the plants are planted in the growing medium (see description).
For claim 2, DE ‘556 further discloses wherein the first end is open over at least 90% of the surface thereof (see figs.).
For claim 5, DE ‘556 further discloses wherein the tubular structure comprises at least one second tubular wall coaxial with the base tubular wall, having first and second closed-contour edges at first and second opposed axial ends, the first and second axial ends being open over at least 50% of the respective surfaces thereof, the first edge is placed on the second closed-contour edge of the base tubular wall (see figs. a second 4 placed on the first 4).
For claim 10, DE ‘556 further discloses wherein the first end is open over 100% of the surface thereof (see element 4 in figs. as best understood fully open).
Claim(s) 1, 2, 10, and 11 are rejected under 35 U.S.C. 102 (a) (1) as being anticipated by Pree (DE 202013001140, provided herein, see English translation provided herein.
For claims 1 and 11, Pree teaches a method of growing plants (see description and figs.), comprising:
obtaining a tubular structure comprising a base tubular wall having a central axis and having first and second closed-contour edges at first and second opposed axial ends, said first and second axial ends being open over at least 50% of the respective surfaces thereof (see figs. 1-3, main opening 14 and bottom open of hollowed out trunk);
placing the first closed-contour edge on a ground (see fig. 3, is placed directly on ground 13);
filling the base tubular wall with a growing medium communicating with a soil through the first open end; and planting the plants in the growing medium (substrate 5, can be soil, in communication with ground 13).
For claim 2, Pree further discloses wherein the first end is open over at least 90% of the surface thereof (see figs.).
For claim 10, Pree further discloses wherein the first end is open over 100% of the surface thereof (see 14 in figs.).
Claim Rejections - 35 USC § 102/103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 6 is rejected under 35 U.S.C. 103 as obvious over DE ‘556 in view of Guesdon (FR 2766328, hereafter referred to as Guesdon, see English translation provided herein).
For claims 6, DE ‘556 is silent about wherein the base tubular wall and said at least one second tubular wall are locked in position relative to each other by mating reliefs, formed on the second closed-contour edge of the base tubular wall and on the first edge of said at least one second tubular wall;
Guesdon teaches a method of growing plants using a modular multi-part structure (abstract and figs.) wherein wherein the base wall (bottom 1 in fig. 3) and said at least one second wall (upper 1 in fig. 3) are locked in position relative to each other by mating reliefs (5I, 5S), formed on the second closed-contour edge of the base wall and on the first edge of said at least one second tubular wall (see fig. 3).
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to make the planter of DE ‘556 include mating reliefs, as taught by Guesdon, with a reasonable expectation of success, in order to secure the planter elements together.
Claim(s) 7 is rejected under 35 U.S.C. 103 as obvious over DE ‘556 in view of Guesdon, as applied to claim 6 above, in further view of Keissling (US 11051461).
For claim 7, Modified DE ‘556 further teaches wherein the base tubular wall and said at least one second tubular wall are locked in position relative to each other by a pin engaged in ears rigidly attached to the base tubular wall and to said at least one second tubular wall see description, “the lower securing members 51 on the one hand, upper 5s on the other hand, each have the shape of an ear formed on the external face of the wall of said tank, this ear comprising a bore 10 for the passage from a fixing member to a joining member of an identical adjacent container or to any support. The fixing member may consist of a pin, a screw, a padlock or any other suitable fixing member”).
Modified DE ‘556 is silent about rings.
Kiessling teaches a multiple piece planter (abstract and figs.) wherein first and second members are joined together using mating reliefs and a pin (34 and 42), wherein the mating reliefs are rings (see fig. 2).
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to make the planter of DE ‘556 include ring shaped mating reliefs, as further taught by Kiessling, with a reasonable expectation of success, in order to affix the planter pieces firmly together with any shape or form.
Claim(s) 8 is rejected under 35 U.S.C. 103 as obvious over DE ‘556 in view of Cudmore et al. (US 9918436, hereafter referred to as Cudmore).
For claim 8, DE ‘556 is silent about wherein the base tubular wall is made of terracotta.
Cudmore teaches a multi-piece planter made of terracotta (Col. 8, lines 60-65).
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to make the planter of DE ‘556 from terracotta, as taught by Cudmore, with a reasonable expectation of success, in order to form the planter from any well known or suitable material.
Claim(s) 9 is rejected under 35 U.S.C. 103 as obvious over Lennstoerm or alternatively DE ‘556 in view Prieschl (DE 202013002569, provided herein, see English translation provided herein).
For claim 9, Lennstroerm or alternatively DE ‘556 teach soil, however both are silent about potting soil.
Prieschl teaches a stackable multi-piece planter placed on the ground and filled with potting soil (see fig. 1, ground 8, potting soil 6, see description).
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to make the planter of Lennstroem or DE ‘556 include potting soil, as taught by Prieschl, with a reasonable expectation of success, in order to effectively grow plants as potting soil contains nutrients for plant growth.
Claim(s) 11-12 are rejected under 35 U.S.C. 103 as obvious over DE ‘556 in view Lennstroem in view of Prieschl (DE 202013002569, provided herein, see English translation provided herein).
For claim 11, Lennstroem discloses a method of growing plants (description and figs.), comprising:
obtaining a tubular structure comprising a base tubular wall having a central axis and having first and second closed-contour edges at first and second opposed axial ends, said first and second axial ends being open over at least 50% of the respective surfaces thereof (see figs. 1 and 2 fully open top and bottom)
filling the base tubular wall with a growing medium communicating with a soil through the first open end (soil, see fig. 3, and description thereof); and
planting the plants in the growing medium (see description and fig. 3).
Lennstroem does not specifically state that the closed-contour edge on a ground.
Prieschl teaches a stackable multi-piece planter placed on the ground and filled with potting soil (see fig. 1, ground 8, potting soil 6, see description), filling the base tubular wall with a growing medium communicating with a soil through the first open end (soil to ground contact, see fig. 1).
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to make the planter of DE ‘556 include directly placed on the ground (open to the ground for communication therewith), as taught by fig. 1 of Prieschl, in order to protect the plant from wind or winter while also allowing for the roots of the plant to grow down into the ground.
For claim 12, Lennstroerm teaches soil, but is silent about potting soil.
Prieschl teaches a stackable multi-piece planter placed on the ground and filled with potting soil (see fig. 1, ground 8, potting soil 6, see description).
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to make the planter of Lennstroem include potting soil, as taught by Prieschl, with a reasonable expectation of success, in order to effectively grow plants as potting soil contains nutrients for plant growth.
Claim(s) 11-12 are rejected under 35 U.S.C. 103 as obvious over DE ‘556 in view Prieschl (DE 202013002569, provided herein, see English translation provided herein).
For claim 11, DE ‘556 discloses a method of growing plants (description and figs.), comprising:
obtaining a tubular structure comprising a base tubular wall having a central axis and having first and second closed-contour edges at first and second opposed axial ends, said first and second axial ends being open over at least 50% of the respective surfaces thereof (see figs. elements 4 with both ends fully open);
filling the base tubular wall with a growing medium communicating with a soil through the first open end (soil, see abstract); and
planting the plants in the growing medium (see description).
DE ‘556 does not specifically state that the closed-contour edge on a ground.
Prieschl teaches a stackable multi-piece planter placed on the ground and filled with potting soil (see fig. 1, ground 8, potting soil 6, see description), filling the base tubular wall with a growing medium communicating with a soil through the first open end (soil to ground contact, see fig. 1).
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to make the planter of DE ‘556 include directly placed on the ground (open to the ground for communication therewith), as taught by fig. 1 of Prieschl, in order to protect the plant from wind or winter while also allowing for the roots of the plant to grow down into the ground.
For claim 12, DE ‘556 teaches soil, but is silent about potting soil.
Prieschl teaches a stackable multi-piece planter placed on the ground and filled with potting soil (see fig. 1, ground 8, potting soil 6, see description).
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to make the planter of DE ‘556 include potting soil, as taught by Prieschl, with a reasonable expectation of success, in order to effectively grow plants as potting soil contains nutrients for plant growth.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
The cited prior art of record is noted as it pertains to multi-tier tubular planters or multi-tier planters in general.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MAGDALENA TOPOLSKI whose telephone number is (571)270-3568. The examiner can normally be reached M-F 9-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joshua Huson can be reached at 5712705301. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MAGDALENA TOPOLSKI/Primary Examiner, Art Unit 3642