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 § 102
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 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 1, 3, 4 and 12 are rejected under 35 U.S.C. 102(a)(1)(a)(2) as being anticipated by Nason (US 2013/0042528).
Regarding claim 1, Nason discloses a germination tray suspended between inner walls of the pod (plates 28 and 30, fig. 5); and anchoring cones extending from the inner wall of the pod (ledge members 56, fig. 2); wherein the germination tray comprises flexible elements configured to support plant seeds (ribs 33, para. 0023), and said anchoring cones support and anchor plants from the seeds and expanding out a top of the pod (ledges 56 allows plates 28 and 30 to rest on the ledges, para. 0023).
Regarding claim 3, Nason discloses a first part and a second part (halves 2 and 4) said first and second parts being locked together in a closed position of the pod and unlocked in an open position of the pod (para. 0023).
Regarding claim 4, Nason discloses comprising a first part and a second part (halves 2 and 4), said first and second parts being locked together in a closed position of the pod and unlocked in an open position of the pod (para. 0023); wherein: the first part (half 2) comprises first anchoring cones extending along a height of an inner wall thereof between a bottom wall and a top edge thereof (ledges 56, fig. 2); the second part (half 4) comprises second anchoring cones along a height of an inner wall thereof and extending from an inner wall thereof between a bottom wall and a top edge thereof (ledges 56, fig. 2).
Regarding claim 12, Nason discloses made in an elastomer (halves can be injection molded from rigid plastic, para. 0025).
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 11 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Nason.
Regarding claim 11, Nason teaches the invention substantially as claimed but fails to teach wherein said flexible elements are bristles of at least one of : selected lengths, selected diameters, and selected density, on the germination tray. It would have been obvious to one of ordinary skill in the art before the before the effective filing date to make the different portions of the ribs of whatever form or shape was desired or expedient. A change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. In re Dailey et al., 149 USPQ 47.
Regarding claim 13, Nason teaches the invention substantially as claimed but fails to teach made in a food grade silicone. It would have been obvious to one having ordinary skill in the art before the effective filing date to use a food grade silicon, 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 obviousness. In re Leshin, 125 USPQ 416. See also Ballas Liquidating Co. v. Allied industries of Kansas, Inc. (DC Kans) 205 USPQ 331.
Allowable Subject Matter
Claims 2, 5-10 and 14 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
Claims 15-20 are allowed.
Response to Arguments
Applicant's arguments filed 12/16/2025 have been fully considered but they are not persuasive.
In response to applicant’s argument that Nason does not teach flexible elements configured to support plant seeds, nor anchoring cones configured to support and anchor plants growing from the seeds and expanding out a top of the pod, the Examiner disagrees. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. In this case, seeds can be positioned on false bottom 28 and 30 i.e. figure 4 clearly discloses that false bottom 28 and 30 and ledge members 56 are configured to support items positioned on the upper surfaces, thus false bottom 28 and 30 and leges members 56 are configured to support a seed.
Conclusion
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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/EBONY E EVANS/Primary Examiner, Art Unit 3647