Ex Parte Whitcomb

Board of Patent Appeals and Interferences

Feb 9, 2006

10075096 (B.P.A.I. Feb. 9, 2006)

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is not binding precedent of the Board.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

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Ex parte CARL E. WHITCOMB

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Appeal No. 2005-2481
Application No. 10/075,096

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ON BRIEF
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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

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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

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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

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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

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