Ex Parte WhitcombDownload PDFBoard of Patent Appeals and InterferencesFeb 9, 200610075096 (B.P.A.I. Feb. 9, 2006) Copy Citation 1 The opinion in support of the decision being entered today was not written for publication and is not binding precedent of the Board. UNITED STATES PATENT AND TRADEMARK OFFICE _______________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES _______________ Ex parte CARL E. WHITCOMB _______________ Appeal No. 2005-2481 Application No. 10/075,096 _______________ ON BRIEF _______________ Before GARRIS, WALTZ, and TIMM, Administrative Patent Judges. GARRIS, Administrative Patent Judge. DECISION ON APPEAL This is a decision on an appeal which involves claims 1-65. The subject matter on appeal relates to a root growth barrier. With reference to the appellant’s drawing, the root growth barrier 12 comprises a layer of a root-tip-trapping material 18 bonded to a layer of a root-impenetrable material 16. The root-tip-trapping material may be a porous fabric made of polyester, polypropylene or cotton. Appeal No. 2005-2481 Application No. 10/075,096 2 This appealed subject matter is adequately represented by independent claims 1 and 49 which read as follows: 1. A root growth barrier, comprising a layer of a root-tip-trapping material bonded to a layer of a root-impenetrable material. 49. A root growth barrier, comprising: a polymer sheet having a surface bonded to a porous fabric. The references set forth below are relied upon by the examiner in the § 102 and § 103 rejections before us. Thomas 5,311,700 May 17, 1994 Flasch, Jr. (Flasch) 5,852,896 Dec. 29, 1998 Kalpin 3,094,810 Jun. 25, 1963 Reiger 6,202,348 Mar. 20, 2001 (Filed Jun. 22, 1998) Billings 6,223,466 May 01, 2001 (Filed Oct. 08, 1999) Berlit et al. (Berlit). GB 2,073,576 Oct. 21, 1981 Van der Goorbergh EP 300578 Jan. 25, 1989 Claims 1, 2, 4, 13-16, 18, 19, 29, 30, 41, 46, 48, 49, 53 and 63 are rejected under 35 U.S.C. § 102(b) as being anticipated by Berlit. Under 35 U.S.C. § 103(a), the remaining claims on appeal are rejected as being unpatentable over Berlit alone or in various combinations with the other applied references listed above. We refer to the brief and reply brief and to the answer (as well as the final action mailed January 14, 2004 which is alluded to on page 3 of the answer) for a complete exposition of the opposing viewpoints expressed by the appellant and by the examiner concerning the above noted rejections. Appeal No. 2005-2481 Application No. 10/075,096 3 OPINION For the reasons expressed below, we cannot sustain any of the rejections advanced by the examiner on this appeal. The examiner’s § 102 rejection cannot be sustained because it is based upon erroneous findings of fact. Specifically, it is the examiner’s finding that Berlit discloses “a root growth barrier comprising a layer of a root-tip-trapping material 11, 14" (Final Office action, page 2) and that Berlit further discloses “the root-tip-trapping material being polypropylene which is a porous fabric” (id). However, the Berlit reference contains no express teaching that layer 11 or layer 14 is formed of a “root-tip-trapping material” (e.g., claim 1) or a “porous fabric” (e.g., claim 49). It is true that Berlit’s layers 11 and 12 can be formed of certain polymers including polypropylene (e.g., see the paragraph bridging pages 1 and 2 of the Berlit reference). Apparently, the examiner believes the polypropylene layer taught by Berlit is tantamount to a root-tip-trapping material and a porous fabric because the here claimed root-tip-trapping material may be in the form of a porous fabric made of certain materials including Appeal No. 2005-2481 Application No. 10/075,096 4 polypropylene (e.g., see the paragraph bridging pages 3 and 4 of the answer). The examiner’s belief is meritless. There is absolutely no basis for considering the polypro- pylene layer disclosed by Berlit as a porous fabric. Based on the reference disclosure, this layer need not be either a porous material or a fabric material. It could, for example, be in the form of a nonporous polypropylene film. Analogously, no basis exists for considering Berlit’s polypropylene layer as possessing the root-tip-trapping capability claimed by the appellant. For the above stated reasons, we cannot sustain the examiner’s § 102 rejections of claims 1, 2, 4, 13-16, 18, 19, 29, 30, 41, 46, 48, 49, 53 and 63 as being anticipated by Berlit. The examiner has not attempted to cure the above discussed deficiency of Berlit in any of the § 103 rejections before us. Under these circumstances, we also cannot sustain any of the examiner’s § 103 rejections. Appeal No. 2005-2481 Application No. 10/075,096 5 The decision of the examiner is reversed. REVERSED BRADLEY R. GARRIS ) Administrative Patent Judge ) ) ) ) BOARD OF PATENT THOMAS A. WALTZ ) APPEALS AND Administrative Patent Judge ) INTERFERENCES ) ) ) CATHERINE TIMM ) Administrative Patent Judge ) BRG/vsh Appeal No. 2005-2481 Application No. 10/075,096 6 STREETS & STEELE 13831 NORTHWEST FREEWAY SUITE 355 HOUSTON, TX 77040 Copy with citationCopy as parenthetical citation