Ex parte THOMAS

Board of Patent Appeals and Interferences

Mar 19, 1998

08295118 (B.P.A.I. Mar. 19, 1998)

Application for patent filed August 24, 1994.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 15
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte BERL M. THOMAS

_____________
Appeal No. 96-1323
Application 08/295,1181
______________
ON BRIEF
_______________
Before McCANDLISH, Senior Administrative Patent Judge, and
FRANKFORT and NASE, Administrative Patent Judges.
FRANKFORT, Administrative Patent Judge.
Appeal No. 96-1323
Application 08/295,118
2
DECISION ON APPEAL
This is a decision on appeal from the examiner's
final rejection of claims 1 through 6, which are all of the
claims in this application. On page 1 of the examiner's
answer (Paper No. 10), the examiner has indicated that the
rejections of claim 6 have been withdrawn and that claim 6
would be "allowed if rewritten to include all [of] the
limitation[s] of claim 1 from which it depends." Accordingly,
only the examiner's rejections of claims 1 through 5 remain
for our consideration on appeal.
Appellant's invention is directed to a molded plant
tray made from expanded polystyrene foam. Claim 1 is
representative of the subject matter on appeal and a copy
thereof, as it appears in the Appendix to appellant's brief,
is attached to this decision.
Appeal No. 96-1323
Application 08/295,118
3
The prior art references relied upon by the examiner
in rejecting the appealed claims are:
Todd 3,667,159 June 6,
1972
Hinds et al. (Hinds) 1,511,256 May 17,
1978
(British Patent Specification)
Claims 1 through 5 stand rejected under 35 U.S.C.
§ 102(b) as being anticipated by Hinds.
Claims 1 through 5 stand additionally rejected under
35 U.S.C. § 103 as being unpatentable over Hinds in view of
Todd, and alternatively, as being unpatentable over Todd in
view of Hinds.
Rather than attempt to reiterate the examiner's full
explanation of the above-noted rejections and the conflicting
viewpoints advanced by the examiner and appellant regarding
the rejections, we make reference to the examiner's answer
Appeal No. 96-1323
Application 08/295,118
4
(Paper No. 10, mailed October 25, 1995) for the examiner's
reasoning in support of the rejections, and to appellant's
brief (Paper No. 9, filed October 3, 1995) for appellant's
arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have
given careful consideration to appellant's specification and
claims, to the applied prior art references, and to the
respective positions articulated by appellant and the
examiner. As a consequence of our review, we have made the
determination that the examiner's
rejection of claims 1 through 5 under § 102 is well founded
and will be sustained. We have also determined that the
examiner's rejections under 35 U.S.C. § 103 of claims 1
through 5 are well founded and will likewise be sustained.
Our reasoning in support of these determinations follows.
Appeal No. 96-1323
Application 08/295,118
5
Looking first at the examiner's rejection of claims
1 through 5 under § 102(b), we are in agreement with the
examiner that the molded, expanded polystyrene plant tray of
Hinds is fully responsive to that set forth in the claims on
appeal, and that the plant tray of Hinds is fully capable of
being used with some form of drive member which would engage
in the generally U-shaped grooves in the bottom wall of the
tray therein, notwithstanding that the plant tray of Hinds is
not specifically disclosed for such use. In this regard, we
note that the molded plant tray of Hinds described at page 2,
lines 40-45, as having square openings or plant cells therein,
instead of the round openings or cells seen in Figure 1 of
this reference, would appear to be identical to that seen in
appellant's Figures 1 through 4 of the present application,
with the sole possible exception being that the generally U-
shaped grooves in the tray
of Hinds would be more squared in cross-section than are those
seen in appellant's drawing figures.
Appeal No. 96-1323
Application 08/295,118
6
Appellant's argument that the integrally molded tray
of Hinds lacks "drive member receiving groove means" and
"alignment means," each defined on the bottom surface of the
plant tray by portions of the intermediate walls and portions
of the side walls that make up the molded tray and open-ended
plant cells therein, is simply not understood. It is clear to
us that in an arrangement like that seen generally in Figure 1
of Hinds, but with square plant cells as described on page 2,
lines 40-45, and square flange portions extending around each
of the plant cell drain openings as explained in the paragraph
bridging pages 1 and 2 of Hinds, the tray therein would have
a plurality of (e.g., three) longitudinally extending
generally "U-shaped" grooves intermediate the four rows of
plant cell openings and a partial groove extending about the
periphery of the tray, and a plurality of (i.e., nine)
generally "U-shaped" grooves positioned in perpendicular
relationship to the longitudinally extending grooves. All of
these grooves in the tray of Hinds would be defined or formed
on the bottom surface of the tray by "portions of" the
intermediate walls and "portions of" the side walls that
Appeal No. 96-1323
Application 08/295,118
7
make up the integrally molded tray and open-ended plant cells
therein and would be spaced and oriented in the same manner as
set forth in appellant's claim 4 on appeal.
The central one of the nine transversely extending
generally U-shaped grooves of this embodiment in Hinds would
be located equidistant from the two parallel side/end walls of
the tray and have a central axis which would be perpendicular
to the central axes of the longitudinally extending grooves or
"drive member receiving groove means" of the tray, and thus is
seen to be fully responsive to appellant's claimed "alignment
means" required in claims 3 and 5 on appeal. As for the
converging side walls of each plant cell defined in claim 2 on
appeal, this is clearly disclosed in Hinds at, for example,
page 2, lines 85-89.
With respect to the above determinations, we observe
that the law of anticipation does not require that the
reference specifically teach what the appellant has disclosed
and is claiming but only that the claims on appeal "read on"
Appeal No. 96-1323
Application 08/295,118
8
something disclosed in the reference, i.e., all limitations of
the claim are found in the reference. See Kalman v. Kimberly-
Clark Corp., 713 F.2d 760, 772, 218 USPQ 781, 789 (Fed. Cir.
1983), cert.
denied, 465 U.S. 1026 (1984). In the present case, all the
limitations of claims 1 through 5 on appeal are found in
Hinds, either expressly or under principles of inherency, and
those claims are clearly anticipated thereby. Accordingly, we
will sustain the examiner's rejection of claims 1 through 5
under 35 U.S.C. § 102(b) based on Hinds.
We will also sustain the examiner's rejection of
claims 1 through 5 under 35 U.S.C. § 103 based on Hinds in
view of Todd, wherein Todd (e.g., Figures 1 and 2) merely
gives us a better visual impression of what the above
expressly described embodiment of Hinds would look like with
square plant cells, as is already described in Hinds at page
2, lines 40-45, but not shown in the drawings thereof.
Neither Hinds nor Todd actually shows in their drawings the
grooves in the bottom surface as required in the claims on
Appeal No. 96-1323
Application 08/295,118
9
appeal, but as noted above, it is clear to us that the
flanges discussed in the paragraph bridging pages 1 and 2 of
Hinds would result in the bottom surface of the tray therein
having essentially the same groove arrangement as seen in
appellants' Figures 1 through 4, except with slightly more
squared U-shaped grooves.
The examiner's alternative rejection of claims 1
through 5 under 35 U.S.C. § 103 based on Todd in view of Hinds
is also sustained. Like the examiner, we are of the view that
the collective teachings of Todd and Hinds would have made it
obvious to one of ordinary skill in the art at the time of
appellant's invention to provide the molded tray of Todd with
the flanged portions discussed in Hinds so as to gain the
advantages expressly noted in Hinds regarding such flanged
portions being positioned about the drain holes of the plant
cells of the tray. See Hinds page 1, line 84, through page 2,
line 8. Again, it is our opinion that the resulting molded
plant tray structure of the combination of Todd and Hinds
would be identical to that set forth in appellant's claims on
Appeal No. 96-1323
Application 08/295,118
10
appeal, with the grooves formed in the bottom surface of the
tray of the combination having a somewhat more squared U-
shaped configuration.
To summarize:
We have affirmed the examiner's rejection of claims
1 through 5 under 35 U.S.C. § 102(b) as being anticipated by
Hinds.
We have also affirmed the examiner's rejection of
claims 1 through 5 under 35 U.S.C. § 103 as being unpatentable
over Hinds in view of Todd, and the alternative rejection
based on Todd in view of Hinds.
The decision of the examiner is accordingly
affirmed.
Appeal No. 96-1323
Application 08/295,118
11
No time period for taking any subsequent action in
con- nection with this appeal may be extended under 37 CFR §
1.136(a).
AFFIRMED
HARRISON E. McCANDLISH )
Senior Administrative Patent Judge )
)
)
) BOARD OF
PATENT
CHARLES E. FRANKFORT ) APPEALS
AND
Administrative Patent Judge )
INTERFERENCES
)
)
)
JEFFREY V. NASE )
Administrative Patent Judge )
Appeal No. 96-1323
Application 08/295,118
12
Nathaniel A. Humphries
Reid & Priest LLP
Market Square
701 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Appeal No. 96-1323
Application 08/295,118
13
APPENDIX
1. A molded plant tray comprising a main body
member having a top surface, a bottom surface and a plurality
of side walls extending between said top surface and said
bottom surface;
a plurality of intermediate walls interconnecting
said side walls and positioned in substantially perpendicular
relationship to said side walls with a plurality of open-ended
plant cells defined between said intermediate walls and said
side walls;
said plant cells being arranged in a rectangular
grid and each including a drain hole located at the bottom
surface of said main body member and a plant medium receiving
opening located at the top surface of said main body member;
drive member receiving groove means being defined on
the bottom surface of said main body member by portions of
said intermediate walls and portions of said side walls; and
alignment means being defined on the bottom surface
of said main body member by portions of said intermediate
walls and portions of said side walls.