Ex Parte Umbaugh

Board of Patent Appeals and Interferences

Feb 19, 2008

10621618 (B.P.A.I. Feb. 19, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte RAYMOND E. UMBAUGH, JR.
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Appeal 2006-2201
Application 10/621,618
Technology Center 3600
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Decided: February 19, 2008
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Before DONALD E. ADAMS, DEMETRA J. MILLS, and
LORA M. GREEN, 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 1-20. We have jurisdiction under 35
U.S.C. § 6(b). Independent claims 1, 9, and 15 are representative of the
claims on appeal, and reads as follows:
Appeal 2006-2201
Application 10/621,618

1. A seed germination and plant supporting utility comprising:
a spacer having a central opening therethrough between first and
second sides of said spacer; and
mesh secured on both of said sides of said spacer, wherein said mesh
is held spaced apart a selected distance by said spacer and enshrouds said
central opening, said mesh having mesh openings of a size small enough to
directly support a seed thereon at said first side of said spacer and to be
securely engaged by plant root growth therethrough at said second side of
said spacer.

9. A seed germination and plant supporting utility comprising:
a first spacer having a passageway therethrough between first and
second ends of said first spacer;
a first mesh swathe positioned at said first end of said first spacer and
having mesh openings of a size small enough to directly support a seed
thereon, and a second mesh swathe positioned at said second end of said first
spacer and having mesh openings of a size small enough to be securely
engaged by plant root growth therethrough; and
first and second retainers securable to said first spacer at said first and
second ends thereof, respectively, adjacent to said first and second mesh
swathes positioned thereat to retain said first and second mesh swathes at
said first and second ends of said first spacer, each of said retainers having
an opening therethrough in correspondence with said first spacer
passageway when associated with said first spacer.

15. A seed germination and plant supporting utility comprising:
a spacer ring having a central opening therethrough between opposite
ends of said spacer ring, said spacer ring having an inside diameter adjacent
said central opening and outside diameter;
first and second mesh each with a diameter greater than said inside
diameter of said spacer ring and each positioned at a different one of said
opposite ends of said spacer ring, said first mesh having mesh openings of a
size small enough to directly support a seed thereon and said second mesh
having mesh openings of a size small enough to be securely engaged by
plant root growth therethrough; and
retaining means at each of said opposite ends of said spacer ring for
retaining said first and second mesh at said opposite ends of said spacer ring;
wherein said first and second mesh are held spaced apart a selected
distance by said spacer ring and enshroud said central opening.
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Appeal 2006-2201
Application 10/621,618

The Examiner relies upon the following references:
Barham US 4,057,930 Nov. 15, 1977
Farrell US 5,225,342 July 6, 1993

Hillel EP 00/52264 May 26, 1982
Takahashi (translation) JP 4-88928 March 23, 1992

We reverse.
DISCUSSION
Claims 1-3, 6, 7, 9-11, 13, and 15-18 stand rejected under 35 U.S.C. §
102(b) as being anticipated by Takahashi.
Relying primarily on Figure 6 of Takahashi, the Examiner states that
Takahashi
discloses a seed germination plant supporting utility comprising
a spacer—at the middle of items 1-2 as seen in Figure 6, having
a central opening therethrough between first and second sides
of the spacer—see for example figure 6, and mesh—at 3-5,
secured on both sides of the spacer—see figure 6, wherein the
mesh is held spaced apart a selected distance by the spacer and
enshrouds the central opening—see for example figure 6, the
mesh having mesh openings of a size small enough to directly
support a seed thereon—see figures 1-7 and the English
abstract, at the first side of the spacer and to be securely
engaged by plant root growth therethrough at the second side of
the spacer—see for example figures 1-7 and the English
abstract. The Japanese patent further disclose[s] a first
retainer—at 1d, 2c, 5a, 4a, associable with the spacer at one of
the sides thereof for holding the mesh thereat with each of the
retainers having an opening therethrough in correspondence
with the spacer opening—see for example figure 6. The
Japanese patent further disclose[s that] the first and second
mesh each have a diameter greater than the inside diameter of
the spacer ring and each positioned at different ends of the
spacer—see for example figures 4-6.

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Appeal 2006-2201
Application 10/621,618

(Answer 3-4.)
The burden is on the examiner to set forth a prima facie case of
unpatentability. See In re Glaug, 283 F.3d 1335, 1338 (Fed. Cir. 2002). To
anticipate, every element and limitation of the claimed invention must be
found in a single prior art reference, arranged as in the claim. Karsten Mfg.
Corp. v. Cleveland Golf Co., 242 F.3d 1376, 1383 (Fed. Cir. 2001).
With respect to Independent claim 1, Appellants argue that the mesh
of Takahashi is not secured on both ends of the spacer, that is, the frame 2 of
Takahashi (Br. 17). Appellants assert further that the filter 5 is not secured
at all, but merely lies on the bottom of the frame (id. at 18).
Figure 6 of Takahashi is reproduced below:

Figure 6 shows vegetable cultivating containers, (1), stacked together,
wherein the bottom face of the vegetable cultivating container (1) is
connected at the upper side of vegetable cultivating container (1) (Takahashi
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Appeal 2006-2201
Application 10/621,618

translation, p. 6). It is unclear from the figure what is at the middle of items
1-2, but it is assumed it is the edge of the vegetable cultivating container (1).
Figure 1 of Takahashi shows a disassembled diagonally viewed
diagram of the vegetable cultivating container (1), and is reproduced below:

Figure (1) is a vegetable cultivating container (1), consisting of a rectangular
container frame (2) and a cultivating bed (2) that connects to the bottom face
of the container frame (2) (id. at 5).
The cultivating bed (3) consists of the main part (4) and a filter (5),
and a cross-frame (4b) that is integrally formed within a bed frame (4a) (id.).
A step part (4d) is formed at the upper part of the bed frame (4a) of the main
part of the cultivating bed (4z) and the frame part (5a) of the filter (5) fits
into the step part (4d).
Claim 1 requires “mesh secured on both of said sides of said spacer.”
At most, Takahashi teaches mesh secured at only the bottom of the spacer,
which would be the edge of the container frame (2). Takahashi teaches that
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Appeal 2006-2201
Application 10/621,618

the vegetable cultivating container only contains one filter. The second filter
would be provided by stacking of the vegetable cultivating container (1),
with the second filter being at the bottom of the second, stacked, container.
Thus, the second filter would not be secured to the top end of spacer
provided by the edge of the container frame (2), as the containers are merely
stacked one upon the other (Takahashi translation, p. 6). Thus, as Takahashi
does not teach every element and limitation, arranged as in claim 1, the
rejection is reversed as to claims 1-3, 6 and 7.
With respect to independent claim 9, Appellants argue that Takahashi
does not teach the additional structure specified in claim 9 for the retainers,
that is “retaining means at each of said opposite ends of said spacer ring for
retaining said first and second mesh at said opposite ends of said spacer
ring.” (Br. 22.) The Examiner, Appellants argue, relies on 1d, 2c, 4a, and
5a in Figure 6, “without specifying what specifically about these reference
numerals might be interpreted as equivalent structure to the claimed
structure.” (Id.)
Even if 1d, 2c, 4a, and 5a could be interpreted as a retaining means, it
would only be at the bottom of the spacer provided by the edge of the
container frame (2). Thus, Takahashi does not teach “retaining means at
each of said opposite ends of said spacer” as required by claim 9, and the
rejection must be reversed as to claims 9 and 11-13.
With respect to independent claim 15, Appellants argue that
Takahashi does not teach a “ring shaped spacer” as required by claim 1 (Br.
24). We agree as the container of Takahashi is the shape of a rectangle, and
the rejection is reversed as to claims 15-18. Moreover, claim 15 also
requires “retaining means at each of said opposite ends of said spacer ring
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Appeal 2006-2201
Application 10/621,618

for retaining said first and second mesh at said opposite ends of said spacer
ring.” As noted above with respect to claim 9, Takahashi does not teach
“retaining means at each of said opposite ends of said spacer,” and the
rejection must be reversed for that reason as well.
Claims 15-18 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by, or, in the alternative, under 35 U.S.C. § 103(a) as being
obvious over Takahashi.
Takahashi is relied upon as above. According to the Examiner,
Takahashi “does not disclose that the spacer has a circular shape of a ring
and the mesh has a circular diameter.” (Answer 10). The Examiner
concludes, however, “it would have been obvious to take the spacer and
mesh of [Takahashi] and change its shape into a round ring-like shape, for
aesthetic purposes.”
As noted above with respect to the rejection of claims 1-3, 6, 7, 9-11,
13, and 15-18 under 35 U.S.C. § 102(b) as being anticipated by Takahashi,
Takahashi does not teach “retaining means at each of said opposite ends of
said spacer” as required by claim 15, and the rejection must be reversed.
Claims 4 and 5 stand rejected under 35 U.S.C. § 103(a) as being
rendered obvious by Takahashi as combined with Barham.
Barham is relied upon to teach fiber mesh (Answer 9). Thus, Barham
does not remedy the deficiencies of Takahashi, and the rejection is reversed.
Claims 8, 12, 14, and 19 stand rejected under 35 U.S.C. § 103(a) as
being rendered obvious by Takahashi as combined with Farrell.
Farell is relied upon for teaching a maintenance platform (Answer 6-
7, see also at 11). Thus, as Farell does not remedy the deficiencies of
Takahashi, the rejection is reversed.
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Appeal 2006-2201
Application 10/621,618

Claim 20 stands rejected under 35 U.S.C. § 103(a) as being obvious
over the combination of Takahashi and Farrell as further combined with
Hillel.
Hillel is relied upon for teaching containment and feeding apparatus.
As Hillel does not remedy the deficiencies of Takahashi as combined with
Farrell, the rejection is reversed.

CONCLUSION
In summary, as the Examiner has failed to set forth a prima facie case
that 1-3, 6, 7, 9-11, 13, and 15-18 are anticipated by Takahashi; that claims
15-18 are anticipated by, or, in the alternative, obvious over Takahashi; that
claims 4 and 5 are obvious over Takahashi as combined with Barham; that
claims 8, 12, 14, and 19 are obvious over Takahashi as combined with
Farrell claims; or that claim 20 is obvious over Takahashi and Farrell as
further combined with Hillel; all of the rejections on appeal are reversed.

REVERSED

saj

THE LAW FIRM OF HARRIS & BURDICK
HAROLD BURDICK AND ROBERT HARRIS
6676 GUNPARK DRIVE
SUITE E
BOULDER, CO 80301
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