Ex Parte Henson

Board of Patent Appeals and Interferences

May 14, 2009

10922552 (B.P.A.I. May. 14, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte DAVID LEE HENSON
__________

Appeal 2009-3344
Application 10/922,552
Technology Center 3600
__________

Decided:1 May 14, 2009
__________

Before ERIC GRIMES, LORA M. GREEN, and
MELANIE L. McCOLLUM, Administrative Patent Judges.

GREEN, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 26-49. We have jurisdiction under 35
U.S.C. § 6(b).

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

Appeal 2009-3344
Application 10/922,552

STATEMENT OF THE CASE
Claim 26 is representative of the claims on appeal, and reads as
follows:
26. A horticultural container lining for use under soil, comprising:
a plurality of Kenaf fibers; and
a plurality of binding fibers binding together the plurality of Kenaf
fibers to form a liner with a density that initially keeps water from
penetrating the liner until the soil above the liner is saturated with water and
permitting water to flow through the liner after the soil is saturated.

The Examiner relies on the following evidence:
Jaskowski US 4,568,739 Feb. 4, 1986
Hendrickson US 2003/0024160 A1 Feb. 6, 2003
Medoff US 2003/0187102 A1 Oct. 2, 2003

Native African plant yields beautiful fibers in Mississippi project,
Mississippi State University, posted on internet June 2002,
http://msuinfo.ur.msstate.edu/msu_memo/1995/7-10-95/kenaf.htm [retrieved
from internet 07 September 2006], 3 pages (hereinafter, “MSU”).

We affirm.

ISSUE
The Examiner concludes that claims 26, 28-34, 36-43, and 45-49 are
rendered obvious by the combination of Hendrickson, Medoff, and MSU;
and that claims 27, 35, and 44 are rendered obvious by the combination of
Hendrickson, Medoff, and MSU, as further combined with Jaskowski.
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Appellant contends that the Examiner has not provided any evidence
that flax and Kenaf are alternatives for each other, especially in the
horticultural container art.
Thus, the issue on appeal is: Has Appellant demonstrated that the
Examiner erred in combining Medoff with Hendrickson to arrive at the
subject matter of claim 26?

FINDINGS OF FACT
FF1 The Examiner rejects claims 26, 28-34, 36-43, and 45-49 under 35
U.S.C. § 103(a) as being obvious over the combination of Hendrickson,
Medoff, and MSU (Ans. 3-4). As Appellant does not argue the claims
separately, we focus our analysis on claim 26, and claims 28-34, 36-43, and
45-49 stand or fall with that claim. 37 C.F.R. § 41.37(c)(1)(vii).
FF2 The Examiner finds that Hendrickson teaches a horticultural container
lining for use under soil as well as a method of lining the container (Ans. 4).
FF3 The Examiner finds further that the lining of Hendrickson comprises a
plurality of fibers and a plurality of binding fibers that bind together the
plurality of fibers “to form a liner with a density that resists water absorption
and initially keeps water from penetrating the liner thereby first saturating
the soil above the liner.” (Id. (citing Hendrickson, ¶¶7, 13, 28, and 30).)
FF4 Hendrickson is drawn to a plant basket liner member comprised of
flax straw and poly fiber, wherein the poly fiber is melted together with the
flax straw, connecting the flax straw together (Hendrickson, ¶9).
FF5 The liner system of Hendrickson provides for improved water
retention, thus requiring less watering (id. at ¶13).
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FF6 According to Hendrickson, the absorption of the mat liner may be
improved by using less poly fiber with the flax straw, and if the strength of
the mat and its use in weed prevention is desired, the amount of poly fiber
may be increased (id. at ¶31).
FF7 The Examiner acknowledges that Hendrickson specifically teaches the
use of flax straw fibers, but is silent on the use of Kenaf fibers (Ans. 4).
FF8 The Examiner cites Medoff for teaching “lignocellulosic raw material
‘flax’ combined with a binder ‘resin’ for agricultural applications.” (Id. at 4-
5 (citing Medoff, ¶97).)
FF9 Medoff is drawn to a method of manufacturing a composite, wherein
cellulosic or lignocellulosic fibers are sheared to form a texturized fiber, and
wherein the sheared cellulosic or lignocellulosic fibers are combined with a
resin (Medoff, ¶5).
FF10 Medoff teaches that examples of lignocellulosic raw materials
include, inter alia, materials derived from kenaf and flax (id. at ¶50).
Lignocellulosic raw materials also include wood fibers, grasses, rice hulls,
bagasse, cotton, jute, and other stem plants such as bamboo (id.).
FF11 According to Medoff, the texturized fibrous materials have absorbent
properties and are generally biodegradable (id. at ¶27).
FF12 Medoff lists different forms in which the composite may be formed,
and includes a mat in the list, and also lists different products the composite
may be useful in, specifically including agricultural products in the list (id.
at ¶25). Medoff also teaches that the texturized materials can be blended
with seeds, with or without treatment with a solution of fertilizer, pesticides,
etc. (id. at ¶62).
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FF13 The Examiner cites MSU for teaching that “kenaf fibers are strong
and resist mildew.” (Ans. 5.)
FF14 MSU teaches that kenaf is a fiber native to Africa, and that kenaf
fibers are strong and resist mildew and rotting (MSU 1-2).
FF15 The Examiner concludes that it “would have been obvious to one of
ordinary skill in the art to modify the teachings of Hendrickson with the
teachings of Medoff at the time of the invention since the modification is
merely an engineering design choice involving the selection of a known
alternative natural plant fiber performing the same intended function of
water control in a plant container i.e. the selection of a known material for
intended use,” as well as using a mildew resistant fiber (Ans. 5).
FF16 The Examiner also rejects claims 27, 35, and 44 under 35 U.S.C.
§ 103(a) over the combination of Hendrickson, Medoff, and MSU, as further
combined with Jaskowski (Ans. 6-7).
FF17 Akin, relied upon by Appellant, teaches that flax and kenaf are
sources of fiber used for textile and industrial applications (Akin, 846).
FF18 Akin used UV absorption microspectrophotometry and histochemistry
to elucidate the chemistry and structure of flax and kenaf related to
enzymatic retting (id.).
FF19 Akin teaches that “[a]romatics such as lignins are produced by plants
for protection and strength, but their presence inhibits microbial degradation,
which is necessary in retting.” (Id.)
FF20 According to Akin:
Evidence from histochemical and UV absorption studies
suggest extreme variations in factors which affect the retting of
flax and kenaf fibers. In flax, lignin does not appear to pose a
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Application 10/922,552

major limitation to degrading enzymes, with few middle
lamellae maintaining best integrity. Polysaccharidases such as
pectinases are therefore capable of degrading non-fiber tissues
to effect retting. In contrast, kenaf fibers are highly lignified
with syringyl-type lignin, and retting requires methods to attack
lignin if ultimate fibers are to be obtained. Otherwise, kenaf
fibers would consist of coarse bundles of fibers.

(Id.)

PRINCIPLES OF LAW
The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art;
(2) the level of ordinary skill in the art; (3) the differences between the
claimed invention and the prior art; and (4) secondary considerations of
nonobviousness, if any. Graham v. John Deere Co., 383 U.S. 1, 17 (1966).
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).
If a person of ordinary skill can implement a predictable
variation, § 103 likely bars its patentability. For the same
reason, if a technique has been used to improve one device, and
a person of ordinary skill in the art would recognize that it
would improve similar devices in the same way, using the
technique is obvious unless its actual application is beyond his
or her skill.

Id. at 417. It is proper to “take account of the inferences and creative steps
that a person of ordinary skill in the art would employ.” Id. at 418. See also
id. at 421 (“A person of ordinary skill is also a person of ordinary creativity,
not an automaton.”). “In determining whether obviousness is established by
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combining the teachings of the prior art, the test is what the combined
teachings of the references would have suggested to those of ordinary skill
in the art.” In re GPAC Inc., 57 F.3d 1573, 1581 (Fed. Cir. 1995) (internal
quotations omitted). Moreover, “[w]hen there is a design need or market
pressure to solve a problem and there are a finite number of identified,
predictable solutions, a person of ordinary skill has good reason to pursue
the known options within his or her technical grasp. If this leads to the
anticipated success, it is likely the product not of innovation but of ordinary
skill and common sense.” KSR, 550 U.S. at 421.

ANALYSIS
Appellant argues that the Examiner “has not provided any evidence
that flax and Kenaf are alternatives for each other, especially in the
horticultural container liner art.” (App. Br.2 10.) According to Appellant,
Medoff states “that both flax and Kenaf are lignocellusosic raw materials,
along with numerous other materials, that can be processed to make a
refined product.” (Id.) Thus, Appellant contends, “the phrase
‘lignocellulosic raw materials’ in the Medoff application is to simply
classify between processed cellulose such as paper (which has had lignin
removed during processing) and that material which has not yet been
processed so it contains lignin,” and does not support the Examiner’s finding
that it illustrates the general knowledge in the art “that flax and Kenaf are
known natural plant fibers that are alternatives in regards to fabricating

2 All references to the Appeal Brief (App. Br.) are to the “Resubmitted Brief
for Appellant” dated August 31, 2007.
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agricultural applications and mats.” (Id.) As to the MSU article, Appellant
argues that it does not make up the deficiencies of the combination of
Hendrickson and Medoff, as it relates to clothing, and is not relevant to the
present invention (id. at 12).
Appellant cites Akin as evidence “that proves that it is not obvious to
substitute Kenaf fibers for flax fibers.” (Id. at 10.) Akin, according to
Appellant, teaches that Kenaf fibers are highly lignified, while in flax, lignin
does not provide a major limitation to degrading enzymes (id. at 11). Thus,
Appellant argues, it is because of the high lignin content of the Kenaf fibers
that a mat made from those fibers initially prevents water from penetrating
the mat, whereas flax will readily absorb moisture, acting as a reservoir for
water, which, Appellant asserts, “is the exact opposite of how a Kenaf mat
functions.” (Id.) Specifically, Appellant argues, lignin is hydrophobic and
kenaf is thus not absorbent, whereas flax is absorbent because of its low
lignin content, and it is the difference in absorbency that results in the
different soil hydration mechanisms (id.).
Appellant’s arguments have been carefully considered, but are not
found to be persuasive. Hendrickson teaches a mat that may be used as a
horticultural container liner comprised of flax straw fibers and a binding
fiber (FF3, FF4). Medoff teaches a composite of a lignocellulosic fiber and
a resin (i.e., a binder) (FF9), and specifically teaches that such composites
may be used in agricultural products. In addition, Medoff teaches that
examples of lignocellulosic fibers include, among others, kenaf and flax
(FF10). Thus, we agree with the Examiner (FF15) that it would have been
obvious to use kenaf with a binding fiber to form a mat or liner as required
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by claim 26. The MSU article supports that conclusion by teaching that
kenaf fibers form materials that are mildew resistant and resist rotting
(FF14).
Moreover, we do not conclude that Akin is evidence of non-
obviousness. First, Akin notes that both flax and kenaf are sources of fiber
for textile and other industrial applications (FF17). Thus, Akin recognizes
that both fibers are used in similar, if not the same, applications. In addition,
while Akin does note that kenaf is more highly lignified than flax, the
reference merely concludes that kenaf may require additional retting if
ultimate fibers, rather than coarse bundles of fibers, are to be obtained
(FF20). Claim 26 does not require that the kenaf fibers in the mat be an
“ultimate” fiber, and does not exclude a coarse bundle of fibers. Moreover,
as noted above, both Hendrickson and Medoff teach a mat of a natural fiber,
and Medoff teaches that the disclosed mat may be used for agricultural
purposes.
In addition, Akin may demonstrate that flax and kenaf fibers are not
exactly the same. But the ordinary artisan would not expect them to be
exactly the same as they are derived from different plants. Medoff lists a
variety of sources of fibers, such as wood, cotton, and bamboo, which may
be used in their composite, and again, as they are different plants, they
would not have the exact same properties, such as the same lignin
composition. Medoff, however, teaches that they may all be used, along
with a binding resin, to form a composite that may be used for an
agricultural purpose, and thus the ordinary artisan would have had a reason
to use the composite of Medoff as the liner of Hendrickson.
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Application 10/922,552

Finally, as to the Appellant’s argument that it is because of the high
lignin content of the kenaf fibers that a mat made from those fibers initially
prevents water from penetrating the mat, whereas flax will readily absorb
moisture, acting as a reservoir for water, which, Appellant asserts, is the
exact opposite of how a kenaf mat functions, first, that would be an inherent
property of a mat made with kenaf as taught by Medoff. In addition,
Hendrickson teaches that one can vary the amount of binding fiber to change
the absorption properties and strength of the mat (FF6). Thus, the absorbent
properties are not just dependent on the fiber (i.e., flax or kenaf) used, but is
also dependent on the amount of binding fiber. Finally, Hendrickson teaches
that the liner provides for improved water retention (FF5), and Medoff
teaches that the composite has absorbent properties (FF11), again supporting
the combination.
As to the rejection over the rejection of Hendrickson, Medoff, and
MSU, as further combined with Jaskowski, Appellant relies on the
arguments made with respect to the combination of Hendrickson, Medoff,
and MSU (App. Br. 12). Thus, we do not find that argument persuasive for
the reasons set forth above.

CONCLUSION(S) OF LAW
We conclude that Appellant has not demonstrated that the Examiner
erred in combining Medoff with Hendrickson to arrive at the subject matter
of claim 26, and thus affirm the rejection of claim 26 under 35 U.S.C.
§ 103(a) over the combination of Hendrickson, Medoff, and MSU. As
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Appellant has not argued the claim separately, we also affirm the rejection as
to claims 28-34, 36-43, and 45-49.
We also affirm the rejection of claims 27, 35, and 44 under 35 U.S.C.
§ 103(a) over the combination of Hendrickson, Medoff, and MSU, as further
combined with Jaskowski, as Appellant relies on the arguments made with
respect to the rejection of claim 26.

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

cdc

WESTMAN CHAMPLIN & KELLY, P.A.
SUITE 1400
900 SECOND AVENUE SOUTH
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