DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of Claims
As per the submission to the Office filed on 08/03/2026, the following represents the changes from the previous claims: Claim 2 was canceled. Claims 1 and 3-16 are presented for examination.
Specification
Applicant is reminded of the proper content of an abstract of the disclosure.
A patent abstract is a concise statement of the technical disclosure of the patent and should include that which is new in the art to which the invention pertains. The abstract should not refer to purported merits or speculative applications of the invention and should not compare the invention with the prior art.
If the patent is of a basic nature, the entire technical disclosure may be new in the art, and the abstract should be directed to the entire disclosure. If the patent is in the nature of an improvement in an old apparatus, process, product, or composition, the abstract should include the technical disclosure of the improvement. The abstract should also mention by way of example any preferred modifications or alternatives.
Where applicable, the abstract should include the following: (1) if a machine or apparatus, its organization and operation; (2) if an article, its method of making; (3) if a chemical compound, its identity and use; (4) if a mixture, its ingredients; (5) if a process, the steps.
Extensive mechanical and design details of an apparatus should not be included in the abstract. The abstract should be in narrative form and generally limited to a single paragraph within the range of 50 to 150 words in length.
See MPEP § 608.01(b) for guidelines for the preparation of patent abstracts.
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 9-15 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.
For claims 9-11 and 15, the limitation “otherwise” in line 3 is unclear because the previously stated soilless growing media is being compared to a different soilless growing media that isn’t being claimed and required.
For claims 12-14, the limitation “otherwise” in line 2 is unclear because the previously stated soilless growing media is being compared to a different soilless growing media that isn’t being claimed and required.
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.
Claims 1, 3-6, 8-15 are rejected under 35 U.S.C. 103 as being unpatentable over Westlind (US 20200329654 A1 as cited in IDS).
Regarding claim 1, Westlind teaches a soilless growing media (130) comprising a blend of a quantity of a natural material and a quantity of a fiberglass material ([0085]), wherein a ratio of the natural material to the fiberglass material ([0085] as the combination of the natural material and the fiberglass will have a ratio).
However, Westlind is silent wherein the ratio of the natural material to the fiberglass material is in a range of 1:4 to 4:1 by volume.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the ratio of the natural material and the fiberglass material of Westlind to include a range of 1:4 to 4:1 by volume based on the user’s preference of water absorption and durability in the growing media as it is well known in the art, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 3, Westlind teaches the soilless growing media of claim 1, and further teaches a ratio of the natural material to the fiberglass material ([0085] as the combination of the natural material and the fiberglass will have a ratio).
However, Westlind is silent about wherein the ratio of the natural material to the fiberglass material is about 7:3 by volume.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the ratio of the natural material and the fiberglass material of Westlind to be about 7:3 by volume based on the user’s preference of water absorption and durability in the growing media as it is well known in the art, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 4, Westlind teaches the soilless growing media of claim 1, and further teaches a ratio of the natural material to the fiberglass material ([0085] as the combination of the natural material and the fiberglass will have a ratio).
However, Westlind is silent about the ratio of the natural material to the fiberglass material is about 1:1 by volume.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the ratio of the natural material and the fiberglass material of Westlind to be about 1:1 by volume based on the user’s preference of water absorption and durability in the growing media as it is well known in the art, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 5, Westlind teaches the soilless growing media of claim 1, wherein the natural material is peat ([0085]).
Regarding claim 6, Westlind teaches the soilless growing media of claim 1, wherein the natural material is coconut coir ([0085]).
Regarding claim 8, Westlind teaches the soilless growing media of claim 1, but is silent wherein an average diameter of the fibers of the fiberglass material is in a range of 1 µm to 5 µm.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the fiberglass of Westlind to have wherein an average diameter of the fibers of the fiberglass material is in a range of 1 µm to 5 µm based on the user’s preference of resistance to compression of the media as it is well known in the art, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 9, Westlind teaches the soilless growing media of claim 1, and Westlind further teaches wherein the soilless growing media is able to hold an increased amount of available water as compared to an otherwise identical soilless growing media comprising only the natural material ([0085] and [0087] as the media is capable of holding an increased amount of available water as the material of the growth media is absorbent and fiberglass is known to be used for its capillary action to wick water).
However, Westlind is silent about over a pressure ranging from 1 kPa to 10 kPa.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include over a pressure ranging from 1 kPa to 10 kPa into the soilless growing media of Westlind in order for the user to monitor water retention as it is well known in the art, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 10, Westlind teaches the soilless growing media of claim 1, wherein the soilless growing media exhibits an increased hydraulic conductivity as compared to an otherwise identical soilless growing media comprising only the natural material ([0085-0087] as fiberglass is known to have a higher hydraulic conductivity than natural material such as coconut coir or peat).
However, Westlind is silent about over a pressure ranging from 10 kPa to 40 kPa.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include over a pressure ranging from 10 kPa to 40 kPa into the soilless growing media of Westlind in order for the user to monitor water retention as it is well known in the art, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 11, Westlind teaches the soilless growing media of claim 1, wherein the soilless growing media exhibits a decreased amount of unavailable water, as compared to an otherwise identical soilless growing media comprising only the natural material ([0085-0087] as the growing media will exhibit a decreased amount of unavailable water as the fiberglass will hold the water for the plant).
However, Westlind is silent about over a pressure ranging from ≥ 10 kPa.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include over a pressure ranging from ≥ 10 kPa into the soilless growing media of Westlind in order for the user to monitor water retention as it is well known in the art, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 12, Westlind teaches the soilless growing media of claim 1, wherein the soilless growing media exhibits a decreased dry bulk density, as compared to an otherwise identical soilless growing media comprising only the natural material ([0085-0087] as adding water will decrease the dry bulk density and the soilless growing media with fiberglass will hold more water than only the soilless growing media comprising only the natural material).
Regarding claim 13, Westlind teaches the soilless growing media of claim 1, wherein the soilless growing media exhibits a decreased wet bulk density, as compared to an otherwise identical soilless growing media comprising only the natural material ([0085-0087] as the wet bulk density will decrease when the amount of water is reduced).
Regarding claim 14, Westlind teaches the soilless growing media of claim 1, wherein the soilless growing media exhibits improved wettability, as compared to an otherwise identical soilless growing media comprising only the natural material ([0085-0087] as it is known that fiberglass can improve wettability).
Regarding claim 15, Westlind teaches a soilless growing media comprising about peat ([0085]) and fiberglass ([0085]), wherein the soilless growing media is able to hold more available water, as compared to an otherwise identical soilless growing media comprising only the peat ([0085] and [0087] as the media is capable of holding an increased amount of available water as the material of the soilless growing media is absorbent and fiberglass is known to be used for its capillary action to wick water).
However, Westlind is silent wherein the soilless growing media comprising 50% by volume of peat and about 50% by volume of fiberglass and wherein the soilless growing media is able to hold from about 15% to about 45% more available water.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the soilless growing media of Westlind to include 50% by volume of peat and about 50% by volume of fiberglass and wherein the soilless growing media is able to hold from about 15% to about 45% more available water in order to provide a more absorbent media to improve the health of the plant as it is well known in the art and allow the user to monitor water retention as it is well known in the art, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
Claims 7 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Westlind as applied to claim 1 above, and further in view of ROBERT (EP 0442811 B1 as cited in IDS).
Regarding claim 7, Westlind teaches the soilless growing media of claim 1, but is silent about wherein the fiberglass material is in a form of a plurality of discrete nodules of glass lacking a silicone emulsion.
Robert teaches wherein the fiberglass material is in a form of a plurality of discrete nodules of glass (see machine translation “Glass wool felts, used as substrates, the density of which is usually between 20 and 50 kg / m .sup.3 may, according to the invention, lead to substrates formed at from nodules”).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the fiberglass of Westlind to include a plurality of discrete nodules of glass as taught by Robert in order to provide less resistance to compression (see machine translation “The fibers in the nodules offer less resistance to compression.” of Robert).
The combination of Westlind as modified by Robert does not explicitly state wherein the fiberglass material is lacking a silicone emulsion.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the fiberglass of Westlind as modified by Robert to lack a silicone emulsion in order to prevent contamination, 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 design choice. In re Leshin, 125 USPQ 416.
Regarding claim 16, Westlind teaches the soilless growing media of claim 1, wherein the fiberglass material comprises a plurality of first fibers and a plurality of second fibers ([0085] as the composition of fiberglass comprises of a plurality of fibers, and so one area of the fiberglass will comprise of a plurality of first fibers and another area of the fiberglass will comprise of a plurality of second fibers).
However, Westlind does not explicitly teach wherein an average fiber diameter of the first fibers differs from an average fiber diameter of the second fibers.
Robert teaches wherein an average fiber diameter of the first fibers (see machine translation “Glass wool felts, used as substrates, the density of which is usually between 20 and 50 kg / m .sup.3 may, according to the invention, lead to substrates formed at from nodules” as the soilless growing media comprises of various fiberglass substrates, and so one area of the soilless growing media will comprise of first fibers) differs from an average fiber diameter of the second fibers (another area of the soilless growing media will comprise second fibers)(see machine translation “The particles or nodules used according to the invention come from a shredding or grinding operation. Their shapes and dimensions are variable” as the various fiberglass fibers will comprise of different diameters and so the first fibers will differ from an average fiber diameter of the second fibers).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the plurality of first fibers and the plurality of second fibers of Westlind to have wherein an average fiber diameter of the first fibers differs from an average fiber diameter of the second fibers as taught by Robert in order to have varying water retention (see machine translation “Water retention is only slightly higher with the finest fibers.” of Robert), since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
Response to Arguments
Applicant’s arguments filed on 08/03/2026 have been fully considered but they are not persuasive.
Applicant argues “It is respectfully submitted that use of the term "otherwise" in claims 9-14 does not render those claims indefinite, nor does reciting properties of the inventive soilless growing media in comparison to another soilless growing media that is identical to the inventive soilless growing media except for inclusion of the fiberglass material. In other words, it would have been sufficiently clear to one of ordinary skill in the art (at the time the instant application was filed) that claims 9-14 are reciting various properties of the soilless growing media of claim 1 (from which each of claims 9-14 depend). More specifically, claims 9-14 compare these properties for the inventive soilless growing media of claim 1, by noting that the inventive soilless growing media requires a quantity (volume) of fiberglass (i.e., 20% to 80%), such that the properties (set out in claims 9-14) differ from a soilless growing media that does not include any (i.e., 0%) fiberglass. This is further supported by the extensive data presented in the instant application, illustrating comparisons between the inventive soilless growing media (having 20% to 80% by volume of fiberglass) and comparative soilless growing media (having 0% by volume of fiberglass).”.
The examiner respectively disagrees. The limitation “otherwise” is unclear and causes confusion over the scope of the claim. The limitation “otherwise” renders the claim indefinite since the limitation “otherwise” is being used to compare the positively recited soilless growing media to an entirely different apparatus that is negatively recited, which is a soilless growing media comprising of only natural material.
Applicant further argues “With respect to point (i), the Examiner cites to paragraph [0085] of Westlind to support her position. This paragraph discloses, in part, that "[i]n embodiments, growth media field 130 can be made of rPET-silica aerogel, coco coir, jute, hemp, burlap, kenaf, wool, felt, peat moss, perlite, vermiculite, rockwool, fiberglass, synthetic foams, synthetic fibers, or a combination thereof." See also paragraph [ 0112] of Westlind. Thus, fiberglass is simply listed as one potential component of Westlind's growth media, within a relatively long list of potential components, several of which are natural components. The language "a combination thereof' could equally apply to a combination of natural materials, with no fiberglass material. It is also telling that the term "fiberglass" is only used twice in Westlind's specification (i.e., in 2 of the approximately 154 paragraphs). See paragraphs [0085] and [ 0112] of Westlind.”.
The examiner respectfully disagrees. Westlind in [0085] states “or a combination thereof” and so it is clear that Westlind teaches fiberglass and also teaches a ratio of the natural material to the fiberglass material. Also, the amount in which the term “fiberglass” is mentioned in Westlind does not matter as long as Westlind teaches fiberglass, which it does in [0085] and [0112].
Also, Applicant's arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references.
Applicant further argues “More problematic for the Examiner's position (ii) is that Westlind fails to disclose that any particular quantity (volume) of fiberglass should be used in its growth media. Claim 1 of the instant application requires more than "a ratio;" it requires a specific ratio of the natural material to the fiberglass material. The Examiner's position (ii) is further undermined by Westlind failing to disclose any specific properties or benefits obtained by including a particular quantity (volume) of fiberglass in its growth media. This not surprising given the very different applications encompassed by Westlind (i.e., hydroponics) and the instant application (i.e.,potting mix). Indeed, it is not hard to imagine that the use of any fiberglass in Westlind may be for different reasons, which require different (volumetric) quantities.”.
The examiner respectfully disagrees. Note the MPEP states where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235. Also, the claimed ratios were obvious as being reached by routine procedures and producing predictable results; In re Kulling, 897 F.2d 1147, 1149, 14 USPQ2d 1056, 1058.
Applicant further argues “Essentially, the Examiner's position (iii) is that it would have been obvious to modify Westlind to include a growth media having a ratio of a natural material to a fiberglass material (by volume) that falls in the recited range of 1:4 to 4:1. It is respectfully submitted that the Examiner's position is (iii) based on impermissible hindsight analysis and/or the result of an erroneous conclusion.”.
The examiner respectively disagrees. Westlind discloses that both components are required as [0085] of Westlind specifically states “a combination thereof.” and so it’s clear that Westlind teaches having a ratio of a natural material to a fiberglass material (by volume).
As stated above and in the MPEP, the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235. Also, the claimed ratios were obvious as being reached by routine procedures and producing predictable results; In re Kulling, 897 F.2d 1147, 1149, 14 USPQ2d 1056, 1058.
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the ratio of the natural material and the fiberglass material of Westlind to include a range of 1:4 to 4:1 by volume based on the user’s preference of water absorption and durability in the growing media as it is well known in the art, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
Applicant further argues “The Examiner's reliance on "the user's preference of water absorption and durability in the growing media" as a basis for expanding the teachings of Westlind, does not support a conclusion of routine optimization. Neither "water absorption" nor "durability" are linked to inclusion of a fiberglass material in Westlind. Indeed, Westlind does not appear to even discuss durability.”.
The examiner respectively disagrees. Since there is a combination between the natural material and fiberglass material, there will be a ratio as stated above. Therefore, Examiner’s reliance of routine optimization is supported by Westlind as Westlind does teach a ratio between the natural material and a fiberglass material.
Also, Westlind does not necessarily need to disclose "water absorption" or "durability" as it is well known that the ratio between the natural material and the fiberglass will have an impact on water absorption and durability of the growing media as the natural material will improve absorption and the fiberglass will wick water and improve the durability of the soilless growing media.
Applicant further argues “As noted in MPEP §2144.05(II), in order to properly support a rejection on the basis that an invention is the result of "routine optimization," the examiner must make findings of relevant facts, and present the underpinning reasoning in sufficient detail. The articulated rationale must include an explanation of why it would have been routine optimization to arrive at the claimed invention and why a person of ordinary skill in the art would have had a reasonable expectation of success to formulate the claimed range. Here, the Examiner's reliance on routine optimization is unsupported by Westlind.”.
The examiner respectively disagrees. Westlind discloses that both components are required as [0085] of Westlind specifically states “a combination thereof.” and so Westlind teaches both the natural material (e.g., coco coir, peat moss) and a fiberglass material. Therefore, Examiner’s reliance of routine optimization is supported by Westlind as Westlind does teach a ratio between the natural material and a fiberglass material.
Applicant further argues “Westlind does not recognize that the ratio of the natural material to the fiberglass material is a result-effective variable. While Westlind may disclose that it is possible to use a combination of a natural component and a fiberglass component in a growth media, Westlind does not teach or suggest that such a combination is necessary or that any benefit will result therefrom. Cf. Westlind: paragraph [0085]. For example, Westlind does not disclose or suggest that modifying a ratio of a natural component to a fiberglass component would result in any change to "water absorption and durability in the growing media," as suggested by the Examiner. See Office Action: page 4.
There is no teaching or suggestion in Westlind that controlling a ratio between a natural component and a fiberglass component is useful in any way, let alone to achieve the various positive outcomes (i.e., quantified benefits) described in the instant application. See, e.g., instant application: Tables 2 and 3. The only suggestion to modify a ratio between a natural component and a fiberglass component in a growth media comes from the instant application; the use of which would constitute impermissible hindsight. Thus, the Examiner has failed to establish a prima facie case of obvious with respect to claim 1. See, e.g., E.I. Dupont de Nemours & Company v. Synvina C.V., 904 F.3d 996, 1008, 128 USPQ2d 1193, 1202 (Fed. Cir. 2018).”.
Examiner respectfully disagrees. Applicant's arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references. Westlind still teaches the limitation of using both the natural material and the fiberglass material as Westlind states “a combination thereof.” in [0085]. The argument stating “Westlind does not teach or suggest that such a combination is necessary” is not persuasive as Westlind still teaches the claimed language. The Examiner would also like to state the use of “a combination thereof.” in [0085] is indeed necessary when the user requires a combination of natural material and fiberglass.
Also, Westlind does not necessarily need to disclose how “modifying a ratio of a natural component to a fiberglass component would result in any change to "water absorption and durability in the growing media,"” as argued above as it is well known that the ratio between the natural material and the fiberglass will have an impact on water absorption and durability of the growing media as the natural material will improve absorption and the fiberglass will wick water and improve the durability of the soilless growing media.
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., “controlling a ratio”) 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).
Applicant further argues “In rejecting dependent claims 3 and 4 under a similar "routine optimization" rationale, the Examiner is essentially saying that Westlind can be read to cover every possible ratio of natural material to fiberglass material in a growth media, even though Westlind is actually silent with respect to any specific ratio. See Office Action, page 4. This is clearly an impermissibly broad reading of Westlind.”.
Examiner respectfully disagrees. As stated above, the Examiner previously stated that Westlind is silent about the ratios 7:3 and 1:1 by volume. The Examiner has previously stated that it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the ratio of the natural material and the fiberglass material of Westlind to be about 7:3 by volume and 1:1 by volume based on the user’s preference of water absorption and durability in the growing media as it is well known in the art, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
Also, as stated above, note the MPEP states where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235. Also, the claimed ratios were obvious as being reached by routine procedures and producing predictable results; In re Kulling, 897 F.2d 1147, 1149, 14 USPQ2d 1056, 1058.
Applicant further argues “Furthermore, dependent claim 8 requires that an average fiber diameter of the fibers in the fiberglass material be in the range of 1 µm to 5 µm. Again, Westlind fails to disclose any fiber diameter or any significance attached thereto. See Office Action, page 5. The Examiner simply reaches a "routine optimization" conclusion, which is more egregious than that set forth above for claim 1 because no fiber properties are even mentioned in Westlind. Id.”.
Examiner respectfully disagrees. As stated above, the Examiner previously stated that Westlind is silent wherein an average diameter of the fibers of the fiberglass material is in a range of 1 µm to 5 µm. The Examiner has previously stated that it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the fiberglass of Westlind to have wherein an average diameter of the fibers of the fiberglass material is in a range of 1 µm to 5 µm based on the user’s preference of resistance to compression of the media as it is well known in the art, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
Also, as stated above, note the MPEP states where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235. Also, the claimed ratios were obvious as being reached by routine procedures and producing predictable results; In re Kulling, 897 F.2d 1147, 1149, 14 USPQ2d 1056, 1058.
Applicant further argues “In rejecting claims 9-14, the Examiner appears to make general statements about the behavior of fiberglass as compared to an abstract "natural material." See Office Action, pages 6- 8. This oversimplification misses the mark. For example, the instant application discloses that "[a] network or collection of glass fibers can form openings (i.e., pores) therethrough." Paragraph [0121]. These pores contribute to the porosity of the material, which is important for plant growth as the pores can be designed to improve their water holding ability and/or their air delivering ability. Id. As noted in paragraph [0122], in the case of water holding ability, gravitational pressure (Pg) tends to pull the water down through the growth substrate”. and “where p is the water density, g is gravity, and h is the height of the pot/container.
As noted in paragraph [0123], by manipulating the pore radius within the growth substrate, the gravitational pull on the water can be counteracted by creating a capillary pressure (P<c>)” and “where y is the surface tension, θ is the wetting angle, and r is the pore radius. This capillary pressure increases the growth substrate's ability to hold the water.”.
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., network or collection of glass fibers can form openings (i.e., pores) therethrough) 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).
Applicant further argues “These exemplary mechanisms are not discussed in Westlind, nor are any of Westlind's growth media shown to have the improvements recited in claims 9-14 - an increased amount of available water from 1 kPa to 10 kPa (claim 9); an increased hydraulic conductivity from 10 kPa to 40 kPa (claim 10); a decreased amount of unavailable water from > 10 kPa (claim 11); a decreased dry bulk density (claim 12); a decreased wet bulk density (claim 13); and an improved wettability (claim 14).”.
The MPEP states where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235. Also, the claimed ratios were obvious as being reached by routine procedures and producing predictable results; In re Kulling, 897 F.2d 1147, 1149, 14 USPQ2d 1056, 1058.
Also, Westlind teaches a decreased dry bulk density in claim 12 as it is well known that adding water will decrease the dry bulk density and the soilless growing media with fiberglass will hold more water than only the soilless growing media comprising only the natural material ([0085-0087] of Westlind).
Westlind teaches a decreased wet bulk density in claim 13 as it is well known that the wet bulk density will decrease when the amount of water is reduced ([0085-0087] of Westlind).
Westlind also teaches an improved wettability in claim 14 as it is well known that fiberglass can improve wettability ([0085-0087] of Westlind).
All other claims with arguments are similarly unpersuasive as they relate to claim 1 and the art used for those claims were used for other features that are not claimed in claim 1.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SAHAR ALMATRAHI whose telephone number is (571)272-2470. The examiner can normally be reached M-F 7:30-5:30.
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/SAHAR ALMATRAHI/Examiner, Art Unit 3643
/DAVID J PARSLEY/Primary Examiner, Art Unit 3643
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