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 § 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.
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 1-4 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Buckley (GB 191509018) in view of Wolter (US 6487816) in view of Pratt (GB 2494701).
Regarding claim 1, Buckley teaches an individual plant cover (IPC) device for a plant in a pot, the IPC device comprising: a support to be positioned in a soil surface of the pot adjacent to the plant and extending upward from the soil surface (post a, pg. 2, ll. 40-46, fig. 6) and at least one spreader device coupled to the stake (boss b and arms c, pg. 2, ll. 40-46, fig. 6) and comprising a bracket coupled to the stake (boss b), and first and second opposing arm coupled to the bracket and configured to extend outward to the mesh surface enclosure (arms c, pg. 2, ll. 40-46, fig. 6) but fails to disclose the first and second opposing arms being loops and a mesh surface enclosure comprising an upper end with a sealed apex, and a lower end to surround the pot, the surface enclosure defining a plant-receiving cavity therein; the mesh surface enclosure having a mesh size to prevent intrusion by psyllids and aphids. However, Wolter teaches first and second opposing arms being loops (pair of opposing retaining arms 22 can be formed into any configuration, col. 3, ll. 10-14, fig. 4). It would have been obvious to one having ordinary skill in the art before the effective filing date to modify Buckely’s arms with arms as taught by Wolter to provide added to support to a plant (col. 3, ll. 41-42, Buckley). And Pratt teaches a mesh surface enclosure comprising an upper end with a sealed, apex and a lower end to surround the pot (pg. 3, ll. 21-24, the cover is formed using a bag of mesh which slides over a frame and held in place by a strap that encircles the pot), the surface enclosure defining a plant-receiving cavity therein (pg. 3 ll. 21-24); the mesh surface enclosure having a mesh size to prevent intrusion by psyllids and aphids (pg. 6, ll. 18-19, Placing a cover 3 over the plant, seeds or cuttings also reduces the risk of attack by aphids or other pests). It would have been obvious to one having ordinary skill in the art before the effective filing date to modify Buckley’s system with a cover as taught by Pratt to protect a plant from damage by preventing insects from reaching the plant.
Regarding claim 2, Buckley as modified by Wolter and Pratt teaches the invention substantially as claimed and Pratt further teaches a first coupling device to wrap around the lower end and configured to cause the lower end to abut the pot (restraining tie 5, pg. 6, ll. 13-14 and claim 10).
Regarding claim 3, Buckley as modified by Wolter and Pratt teaches the invention substantially as claimed but is silent on a second coupling device to wrap around the upper end and configured to cause the upper end to abut the support. It would have been obvious to one having ordinary skill in the art before the effective filing date to have a plurality of coupling devices, since it has been held that mere duplication of the essential working parts of a device involves only routine skill in the art. St. Regis Paper Co. v. Bemis Co., 193 USPQ 8.
Regarding claim 4, Buckley as modified by Wolter and Pratt teaches the invention substantially as claimed and Pratt further teaches wherein each of the first coupling device and the second coupling device comprises one of a zip tie, a tether, and a wire (restraining tie 5, pg. 6, ll. 13-14 and claim 10).
Regarding claim 6, Buckley as modified by Wolter and Pratt teaches the invention substantially as claimed and Buckley further teaches wherein the at least one spreader device (arms c) comprises a plurality of spreader devices to be coupled to the stake (pg. 3, ll. 3-9).
Regarding claim 9, Buckley as modified by Wolter and Pratt teaches the invention substantially as claimed and Pratt further teaches wherein the mesh size of mesh surface enclosure provides for water permeability (pg. 4, line 4) and light transmissivity (light can pass through the mesh opening thus allowing for light transmissivity).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Buckley in view of Wolter in view of Pratt, as applied to claim 1 above, further in view of Bakowski (US 2007/0079548).
Regarding claim 7, Buckley as modified by Wolter and Pratt teaches the invention substantially as claimed but fails to teach wherein the mesh surface enclosure comprises a plurality of panels coupled together at respective panel seams. However, Bakoski teaches a mesh surface enclosure comprises a plurality of panels coupled together at respective panel seams (cover 4 is formed by joining together adjacent panels 18 , para. 0036). It would have been obvious to one having ordinary skill in the art before the effective filing date to modify Buckley’s system with a cover formed from panels as taught by Bakowski to allow various sized covers to be formed to fit various sized plants.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Buckley in view of Wolter in view of Pratt, as applied to claim 1 above further in view of Morris (US 0633528).
Regarding claim 8, Buckley as modified by Wolter and Pratt teaches the invention substantially as claimed but fails to teach wherein the upper end is cone shaped. However, Morris teaches an upper end of a mech cover being cone-shaped (fig. 1). It would have been obvious to one having ordinary skill in the art before the effective filing date to modify Buckley’s invention with a shape as taught by Morris to allow the cover to be used with plants of various shapes and/or size.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Zuckerman (US 1820040) in view of Pratt.
Regarding claim 10, Zuckerman discloses a plant cover assembly for a row of plants, the plant cover assembly comprising: a plurality of individual plant cover (IPC) devices respectively arranged over the row of plants (envelope 1, fig. 8), each IPC device comprising a mesh surface enclosure (pg. 1, ll. 84-85) comprising an upper end with a sealed apex (pg. 1, ll. 88-92), and a lower end to surround a respective plant (fig. 7), the mesh surface enclosure defining a plant-receiving cavity therein (pg. 2, ll. 114-118); first and second supports respectively at first and second ends of the row of plants (poles 15, pg. 2, ll. 104-108, fig. 8); and at least one wire sequentially being coupled to the first support, the plurality of IPC devices, and the second support (support wires 16, 108-110) but fails to teach the mesh surface enclosure having a mesh size to prevent intrusion by psyllids and aphids. However, Pratt teaches a mesh surface enclosure having a mesh size that prevents intrusion by psyllids and aphids (cover 3 reduces the risk of attack by aphids or other pests, pg. 6, ll. 18-19). It would have been obvious to one having ordinary skill in the art before the effective filing date to modify Zuckerman’s cover with a cover as taught by Pratt to reduce the risk of attacks by pests.
Claims 11, 12 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Zuckerman (US 1820040) in view of Pratt, as applied to claim 10 above, further in view of Broughton & Briggs (US 0542821 henceforth Briggs).
Regarding claim 11, Zuckerman as modified by Pratt teaches the invention substantially as claimed but fails to teach wherein each of the first support and the second support comprises a mast extending from a ground surface, and first and second arms extending laterally from the mast. However, Briggs teaches a mast extending from a ground surface (pole P, pg. 1, ll. 55-60, fig. 3), and first and second arms extending laterally from the mast (arms A, A, pg. 66-71, fig. 3). It would have been obvious to one having ordinary skill in the art before the effective filing date to modify Zuckerman’s support with a support and wires as taught by Briggs to allow an owner to increase the number of rows of plants being protected without increasing the number of posts required.
Regarding claim 12, Zuckerman as modified by Pratt and Briggs teaches the invention substantially as claimed and Briggs further teaches wherein the at least one wire comprises a first wire, a second wire, and a third wire respectively coupled to a distal end of the first arm, a distal end of the second arm, and the mast (W, W, pg. 1, ll. 85-91 and W’, pg. 1, ll. 98-100, fig. 1).
Regarding claim 13, Zuckerman as modified by Pratt and Briggs teaches the invention substantially as claimed and Pratt further teaches wherein the third wire is coupled to the sealed apex of each of the plurality of IPC devices (fig. 8).
Claims 14-18 are rejected under 35 U.S.C. 103 as being unpatentable over FR 2209129 in view of Pratt in view of Buckley (GB 191509018).
Regarding claim 14, FR 2209129 discloses a plant cover assembly for a row of plants, the plant cover assembly comprising: a plant cover device arranged over the row of plants and having a mesh surface (protective cover 300, para. 0020, fig. 1), the plant cover device comprising an upper end with a sealed apex (fig. 1), and a lower end to surround lowermost portions of plants in the row of plants (fig. 3A); first and second supports respectively at first and second ends of the row of plants (hoops 201, fig. 1); but fails to teach the mesh surface having a mesh size to prevent intrusion by psyllids and aphids and a plurality of spreader devices arranged within the row of plants, each spreader device to extend to the plant cover device. However, Pratt teaches a mesh surface enclosure (pg. 3, ll. 21-24) having a mesh size to prevent intrusion by psyllids and aphids (cover 3 reduces the risk of attack by aphids or other pests, pg. 6, ll. 18-19). It would have been obvious to one having ordinary skill in the art before the effective filing date to modify FR 2209129’s cover with a material as taught by Pratt to reduce the risk of attacks by pests (pg. 4, ll. 11-12 and pg. 6, ll. 18-19, Pratt). And Buckley teaches a plurality of spreader devices arranged within the row of plants, each spreader device to extend to the plant cover device (invention consists of devices each comprising a boss b having three or more arms c secured to and radiating therefrom, said boss having a central opening to admit it being passed over a post a, pg. 2, ll. 40-46, fig. 1). It would have been obvious to one having ordinary skill in the art before the effective filing date to modify FR 2209129’s system with a plurality of spreader devices as taught by Buckley to provide support to a growing plant (pg. 1, ll. 4-8, Buckley).
Regarding claim 15, FR 2209129 as modified by Pratt and Buckley teaches the invention substantially as claimed and Buckley further teaches wherein the spreader device comprises a support extending from a ground surface (post a), a bracket coupled to an uppermost portion of the support (boss b), and a pair of support arms extending from the bracket (arms c) but fails to teach each spreader device comprising a support. It would have been obvious to one having ordinary skill in the art before the effective filing date to have a plurality of supports with spreader devices, since it has been held that mere duplication of the essential working parts of a device involves only routine skill in the art. St. Regis Paper Co. v. Bemis Co., 193 USPQ 8. In this case, having a plurality of supports comprising spreader devices would allow a user to support various plants simultaneously.
Regarding claim 16, FR 2209129 as modified by Pratt and Buckley teaches the invention substantially as claimed and Buckley further teaches wherein each spreader device comprises a support extending from a ground surface (post a), a plurality of brackets coupled to the support (boss b), and a plurality of support arm pairs respectively extending from the plurality of brackets (arms c, fig. 1) but fails to teach each spreader device comprising a support. It would have been obvious to one having ordinary skill in the art before the effective filing date to have a plurality of supports with spreader devices, since it has been held that mere duplication of the essential working parts of a device involves only routine skill in the art. St. Regis Paper Co. v. Bemis Co., 193 USPQ 8. In this case, having a plurality of supports comprising spreader devices would allow a user to support various plants simultaneously.
Regarding claim 17, FR 2209129 as modified by Pratt and Buckley teaches the invention substantially as claimed and Buckley further teaches wherein the plurality of brackets is vertically aligned (a plurality of boss b are vertically aligned, fig. 1).
Regarding claim 18, FR 2209129 as modified by Pratt and Buckley teaches the invention substantially as claimed and Buckley further teaches wherein each of the plurality of support arm pairs is arranged to be transverse to the row of plants (fig. 6).
Claims 19 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over FR 2209129 in view of Pratt in view of Buckley, as applied to claim 14 above, further in view of Hinsperger (US 5605007).
Regarding claim 19, FR 2209129 as modified by Pratt and Buckley teaches the invention substantially as claimed but fails to teach wherein the lower end comprises a solid section. However, Hinsperger teaches a greenhouse mesh comprising a lower end with a solid section (lower end of central section 1 comprising fasteners 4, fig. 1). It would have been obvious to one having ordinary skill in the art before the effective filing date to modify FR 2209129’s greenhouse with a solid section as taught by Hinsperger to increase the durability of the mesh to prevent tearing or damage.
Regarding claim 19, FR 2209129 as modified by Pratt, Buckley and Hinsperger teaches the invention substantially as claimed and FR 2209129 further teaches wherein the lower end is anchored to a ground surface (protective cover 300 may be fixed to the ground 400 by any means, para. 0055).
Response to Arguments
Applicant’s arguments, see page 3, filed 8/17/2026, with respect to the rejection(s) of claims 1-9 under 103 rejection have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Buckley (GB 191509018) in view of Wolter (US 6487816) in view of Pratt (GB 2494701).
Applicant's arguments, see page 4 filed 8/17/2026 with respect to the rejection(s) of claims 10-20 under 103 rejection have been fully considered but they are not persuasive.
In response to applicant's argument that Zuckerman are for temporary climate protection and weatherproof, 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 response to applicant's argument that Zuckerman and Pratt 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, Zuckerman and Pratt discloses a mesh plant cover positioned on a plant and a support used to support the cover. Thus, the combination is proper.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes 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, Zuckerman discloses a mesh plant cover that protects from temperature fluctuations and Pratt teaches a mesh plant cover that protects from frost and minor temperature fluctuations and insect infestation (see page 4, lines 11-12) thus, it would have been obvious to modify Zuckerman’s cover with a cover taught by Pratt to not only protect the plant from inclement weather but also protect the plant from insect infestation.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to EBONY E EVANS whose telephone number is (571)270-1157. The examiner can normally be reached 9am -5pm EST.
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/EBONY E EVANS/Primary Examiner, Art Unit 3647
