11921165 (P.T.A.B. Jun. 11, 2013)

Ex Parte Farmer et al

Patent Trial and Appeal BoardJun 11, 2013

11921165 (P.T.A.B. Jun. 11, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 11/921,165 11/28/2007 Sarah E. Farmer 28257.00 3539 37833 7590 06/12/2013 LITMAN LAW OFFICES, LTD. PATENT LAW BUILDING 8955 CENTER STREET MANASSAS, VA 20110 EXAMINER CLERKLEY, DANIELLE A ART UNIT PAPER NUMBER 3643 MAIL DATE DELIVERY MODE 06/12/2013 PAPER Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte SARAH E. FARMER and JAMES W. FARMER ____________ Appeal 2011-001689 Application 11/921,165 Technology Center 3600 ____________ Before JOHN C. KERINS, WILLIAM A. CAPP, and BEVERLY M. BUNTING, Administrative Patent Judges. KERINS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-001689 Application 11/921,165 2 STATEMENT OF THE CASE Sarah E. Farmer and James W. Farmer (Appellants) seek our review under 35 U.S.C. § 134(a) of the Examiner’s final rejection of claims 1, 2, 6, 7 and 11-13. Claims 4, 8 and 9 are canceled and claims 14-20 are withdrawn from consideration. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. THE INVENTION Appellants’ invention is directed to a below-ground apparatus for anchoring a tree. Independent claim 1, reproduced below, is representative of the claimed subject matter: 1. A belowground apparatus for anchoring a tree, comprising: a flexible blanket made of biodegradable material defining a periphery, the blanket having a center opening and an elongated, radial slit extending from the center opening to the periphery, and a plurality of tie-holes disposed adjacent the periphery defined therein and a plurality of tie- holes disposed along opposite edges of the elongated radial slit, the blanket being dimensioned and configured for overlying a root ball of the tree, the center opening being dimensioned and configured for wrapping around a trunk of the tree adjacent the root ball and free to flex as the trunk expands in diameter; a plurality of grommets, each of the tie-holes having one of the grommets installed about the tie- hole; a plurality of ties fastenable between the plurality of tie-holes disposed along the edges of the Appeal 2011-001689 Application 11/921,165 3 elongated radial slit for fastening opposite sides of the slit together around the trunk of the tree; a plurality of stakes adapted for anchoring in a hole in the ground accommodating the root ball of the tree; and a plurality of ties extending between the tie-holes in the blanket and the stakes for securing the blanket over the root ball, thereby anchoring the root ball and the tree in the ground. THE REJECTIONS Appellants appeal from the following rejections: (i) claims 1, 2, 6, 7, 11 and 12 under 35 U.S.C. § 103(a) as being unpatentable over Kida (JP 03-112419 A, published May 14, 1991)1 in view of Weidner (US 4,287,840, issued Sep. 8, 1981) and Williams (US 3,634,970, issued Jan. 18, 1972); and (ii) claim 13 under 35 U.S.C. § 103(a) as being unpatentable over Kida in view of Weidner, Williams and Brook (US 5,065,543, issued Nov. 19, 1991). ANALYSIS Claims 1, 2, 6, 7, 11 and 12--Obviousness--Kida/Weidner/Williams The Examiner found that Kida discloses all limitations set forth in claim 1, with the exception of a flexible blanket being made of a biodegradable material and the provision of a plurality of grommets for each of the tie holes. Ans. 3-5. The Examiner relied on Weidner as disclosing 1 Reference made herein to Kida is to an English-language translation of the published patent application which is of record in the present application. Appeal 2011-001689 Application 11/921,165 4 the use of a biodegradable flexible blanket in connection with a belowground system, and concluded that it would have been obvious to modify the system of Kida such that Kida would employ a biodegradable blanket. Ans. 4, 8. The Examiner further relied on Williams as disclosing that it was well known in the art of wrappings for tree root balls to employ grommets at the periphery of tie holes in order to reinforce such openings, and concluded that it would have therefore been obvious to provide such grommets in the tie holes of the Kida cover, as modified to employ a biodegradable blanket, to provide similar reinforcement. Ans. 4-5. The Examiner’s findings directed to the claim limitation calling for the center opening “being dimensioned and configured for wrapping around a trunk of the tree . . . and free to flex as the trunk expands in diameter” (emphasis added) are that: (1) Kida discloses that the cover 5 is pulled downward and stretched as the trunk expands in diameter; and (2) the collar 9 and ties 18a and 18b surrounding the periphery of the tree trunk are not rigid structures, and that the flexible nature of the materials enable the net- like material to flex about the tree trunk as the tree grows. Ans. 4, 7. Neither of these findings supports, by a preponderance of the evidence, that the Kida structure, as proposed to be modified by the secondary references results in a central opening configured to be free to flex as the trunk expands in diameter. The disclosure that the cover 5 is pulled downward and stretched relates to the procedure for installation of the cover over a root ball 3 and anchoring the cover into a planting hole 2. This has nothing to do with a central opening of the cover being free to flex when the tree trunk expands in diameter. To the extent that the Examiner might be suggesting that the Appeal 2011-001689 Application 11/921,165 5 central opening will expand in size as the cover is stretched, thus allowing for the tree trunk diameter to expand, this amounts to nothing more than speculation, and indeed appears to be contradicted by the Kida disclosure, as discussed below. The Examiner’s finding that the collar 9 and ties 18a and 18b of Kida are not rigid materials, thus allowing for flexion as a tree trunk grows fails to take into account that, when the cover in Kida is installed onto a root ball having a trunk protruding therefrom, Kida describes that “both ends 18a, 18b of thread 18 inserted through bag part 17 of perimeter line 6 of said collar part 9 are adjusted and tensioned by winch 15 and fastened.” Kida, p. 3, ll. 3-5 (emphasis added). The tensioning and fastening of thread 18 around the trunk (root part) 4, appears to preclude the opening from freely flexing upon expansion of the trunk diameter. In other words, the “ties 18a, 18b” referred to by the Examiner as being non-rigid structures appear to form a rigid structure, once tensioned and fastened around the trunk, relative to any expansion of the trunk diameter, and will not allow the cover to freely flex upon such expansion occurring. Thus, the Examiner’s finding lacks rational underpinnings. As the Examiner has failed to adequately establish that the combined teachings of Kida, Weidner and Williams render obvious a center opening in a blanket that is configured to be free to flex upon the expansion in diameter of a tree trunk, the rejection of claim 1, and of claims 2, 6, 7, 11 and 12 depending therefrom, is not sustained. Appeal 2011-001689 Application 11/921,165 6 Claim 13--Obviousness-- Kida/Weidner/Williams/Brook The Examiner does not rely on Brook for any teaching that would remedy the deficiency noted above with respect to the combined teachings of Kida, Weidner and Williams. For the reasons stated above, the rejection is not sustained. DECISION The decision of the Examiner to reject claims 1, 2, 6, 7 and 11-13 under 35 U.S.C. § 103(a) is reversed. REVERSED hh