Grow Solutions Tech LLC

Patent Trials and Appeals Board

Feb 3, 2022

2021003929 (P.T.A.B. Feb. 3, 2022)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 15/986,128 05/22/2018 Gary Bret Millar GRW0006PA/93671.124 4738 155217 7590 02/03/2022 Grow Solutions - Dinsmore & Shohl LLP Anthony F. Bonner 255 East Fifth Street Suite 1900 Cincinnati, OH 45202 EXAMINER ALGHAILANI, SHADA MOHAMED ART UNIT PAPER NUMBER 3643 NOTIFICATION DATE DELIVERY MODE 02/03/2022 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): CincyPAIR@dinsmore.com USPTOGRW@dinsmore.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte GARY BRET MILLAR, MARK GERALD STOTT, TODD GARRETT TUELLER, MICHAEL STEPHEN HURST, ALAN RAY BENTLEY, and TAYLOR JOHN WOODBURY ____________ Appeal 2021-003929 Application 15/986,128 Technology Center 3600 ____________ Before EDWARD A. BROWN, CHARLES N. GREENHUT, and MICHAEL J. FITZPATRICK, Administrative Patent Judges. BROWN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 seeks review under 35 U.S.C. § 134(a) of the Examiner’s decision rejecting claims 11-16 and 21-34, which are the pending claims. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM IN PART. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Grow Solutions Tech LLC as the real party in interest. Appeal Br. 1. Appeal 2021-003929 Application 15/986,128 2 CLAIMS Claims 11, 21, and 27 are independent. Appeal Br. 16-20 (Claims App.). Claim 11, reproduced below, illustrates the claimed subject matter. 11. An assembly line grow pod comprising: a track; a plurality of industrial carts adapted to translate along the track; at least one bed seed holder positioned on the industrial carts, each of the bed seed holders comprising: a body having a crown surface and a flange that define an elevation envelope; and at least one seed receptacle extending into the body, wherein the seed receptacle is adapted to maintain a fluid within the seed receptacle; and a watering component that evaluates the water level within the at least one seed receptacle and selectively controls distribution of water to and from the bed seed holder to maintain to a pre-determined level. REJECTIONS ON APPEAL2 1. Claims 27, 28, and 34 are rejected under 35 U.S.C. § 102(a)(1) as anticipated by D’Arcy (WO 02/078425 A1, published Oct. 10, 2002). 2. Claims 21 and 22 are rejected under 35 U.S.C. § 103 as unpatentable over Visser (US 2015/0107154 A1, published Apr. 23, 2015) and Collins (US 2015/0223418 A1, published Aug. 13, 2015). 3. Claims 23-26 are rejected under 35 U.S.C. § 103 as unpatentable over Visser, Collins, and Guy (US 2016/0309659 A1, published Oct. 27, 2016). 2 The rejection of claims 15 and 21-34 under 35 U.S.C. § 112(a), enablement requirement, has been withdrawn. Ans. 3; Final Act. Appeal 2021-003929 Application 15/986,128 3 4. Claims 11-14 and 16 are rejected under 35 U.S.C. § 103 as unpatentable over Visser and Guy. 5. Claim 15 is rejected under 35 U.S.C. § 103 as unpatentable over Visser, Guy, and Collins. 6. Claims 29-33 are rejected under 35 U.S.C. § 103 as unpatentable over D’Arcy and Guy. ANALYSIS Rejection 1 The Examiner rejects claims 27, 28, and 34 as anticipated by D’Arcy. Final Act. 4. As for claim 27, the Examiner finds that D’Arcy discloses a bed seed holder (growth tray 17) comprising a body (growth tray 17 and side wall 19) having a crown surface (reference “B” in annotated version of D’Arcy Fig. 2) and a flange that define an elevation envelope (in annotated D’Arcy Fig. 2, “references B and A define the elevation envelope 23”); and at least one seed receptacle (growth bed 41) extending into the body and adapted to receive at least one seed. Final Act. 4-5 (citing D’Arcy Figs. 2- 4). The Examiner finds that D’Arcy discloses a spigot (inlet 29) “adapted to maintain a level of the fluid within the body below the elevation envelope,” as recited in claim 27. Id. at 5. Appellant contends, inter alia, that D’Arcy does not disclose at least one seed receptacle, as claimed. Appeal Br. 9. D’Arcy discloses that “[t]he surface of the growth bed 41 is cambered transversely such as to provide a substantial upwardly convex surface between the weirs 45 and otherwise the surface of the growth bed is substantially smooth.” See D’Arcy p. 6, ll. 18- 21 (emphasis added). D’Arcy further discloses that “the apparatus of the Appeal 2021-003929 Application 15/986,128 4 first embodiment is used for the growth of feed. This is initiated by the introduction of a layer of seed onto the growth bed 41 of each of the trays 17.” See id. at p. 6, ll. 29-7, l.1 (emphasis added). The Examiner does not explain adequately, and it is not apparent on the record before us, how growth bed 41 extends into the “body” and “is adapted to receive at least one seed,” (emphasis added), as required by claim 27. In the Examiner’ Answer, the Examiner explains that the “at least one seed receptacle” reads on “the bed showed [sic] in (Figure 3, Reference Character 21).” Ans. 6. Appellant replies that D’Arcy discloses that reference number 21 is an end wall. Reply Br. 6. Appellant is correct. See, e.g., D’Arcy p. 5, ll. 22-24. The Examiner does not establish that D’Arcy’s end wall 21 meets the seed receptacle limitation. Particularly, the Examiner does not explain adequately, and it is not apparent on the record before us, how end wall 21 both extends into growth tray 17 and side wall 19 and “is adapted to receive at least one seed,” as required by claim 27. (Emphasis added.). We need not address Appellant’s additional contentions for the rejection of claim 27. Appeal Br. 8-9. For the above reasons, we do not sustain the rejection of claim 27, and claims 28 and 34 depending therefrom, as anticipated by D’Arcy. Rejection 2 The Examiner rejects claims 21 and 22 under 35 U.S.C. § 103 over Visser and Collins. Final Act. 6. As for claim 21, the Examiner finds that Visser discloses a bed seed holder (container 13) comprising a body having a crown surface and a flange (annotations “B” and “A,” respectively, in Appeal 2021-003929 Application 15/986,128 5 Examiner’s annotated version of Visser’s Fig. 9) which define an elevation envelope; and at least one seed receptacle (substrate 21) extending into the body and adapted to receive at least one seed. Final Act. 6-7 (citing Visser, Fig. 9, ¶ 40). The Examiner determines that Visser does not disclose a “spigot” and “a watering component that selectively controls distribution of water to the bed seed holder,” as claimed. Id. at 7. The Examiner relies on Collins as disclosing a bed seed holder (grow tubes 10), a spigot (fertigation emitter 8) adapted to maintain a level of fluid (5) within the body below the elevation envelope, and a watering component that selectively controls distribution of water to the bed seed holder. Final Act. 7-8 (citing Collins, Figs. 1, 2). The Examiner determines that, in view of Collins, it would have been obvious to one of ordinary skill in the art to modify Visser to include a spigot and a selective watering control adapted to maintain a level of the fluid within the body below the elevation envelope of the bed seed holder, to control watering to the plants. Id. at 8. The Examiner reasons that the modification “will allow for improved plant growth and additional water as needed in various stages of plant growth and development.” Id. Appellant asserts, “the Examiner argues that the grow tube 10 are ‘spigots’ [sic] as recited in claim 21.” Appeal Br. 11. Appellant also contends that Collins teaches that fluid inserted at the top of grow tubes 10 simply drains through the porous grow media via gravity, and thus, cannot teach a “spigot,” as claimed. Appeal Br. 11. Appellant further contends that according to the language of “‘a watering component that selectively controls distribution of water to the bed seed holder’ . . . it is clear that claim 21 recites a watering component for increasing the fluid level and a spigot Appeal 2021-003929 Application 15/986,128 6 for lowering the fluid level (or preventing increase of fluid level).” Id. Thus, Appellant contends, “Collins cannot teach a ‘spigot’ as recited in claim 21 because, like D’Arcy, Collins only teaches an inlet.” Id. Appellant’s contentions are unpersuasive. First, it is not the Examiner’s position that Collins’s grow tubes 10 are “spigots.” Rather, the Examiner determines that grow tubes 10 correspond to the claimed “at least one bed seed holder.” Appellant does not explain persuasively why “Collins does not teach a bed seed holder.” Reply Br. 7. The Examiner finds that Collins’s fertigation emitters 8 correspond to the claimed spigot. Final Act. 8. Appellant does not explain why Collins’s fertigation emitters 8 do not meet the spigot limitation of claim 21. Claim 21 recites “a watering component that selectively controls distribution of water to the bed seed holder.” Appeal Br. 18 (Claims App.). The claim does not, however, recite that the watering component is for “increasing the fluid level,” as Appellant contends. Id. at 11. Even though “the watering component adds fluid” to the bed seed holder, we do not agree that requires the fluid level to increase, as Appellant also contends. Reply Br. 7 (citing Spec. ¶ 30). We note that the disclosure in paragraph 30 of the Specification quoted by Appellant does not disclose increasing a fluid level. Id. Moreover, importing language from the written description into the claims is inappropriate. See SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004) (“Though understanding the claim language may be aided by the explanations contained in the written description, it is important not to import into a claim limitations that are not a part of the claim.”). Accordingly, we decline to construe claim 21 to require the watering component to increase a fluid level. Appeal 2021-003929 Application 15/986,128 7 As Appellant does not apprise us of Examiner error, we sustain the rejection of claim 21, and claim 22 which depends from claim 21 and is not separately argued, as unpatentable over Visser and Collins. Rejection 3 The Examiner rejects claims 23-26, which depend from claim 21, under 35 U.S.C. § 103 over Visser, Collins, and Guy. Final Act. 9. Appellant contends that these claims are patentable over the applied combination due to their dependence from claim 21. Appeal Br. 12. As Appellant does not apprise us of error in the rejection of claim 21, we likewise sustain the rejection of claims 23-26 as unpatentable over Visser, Collins, and Guy for the same reasons as those for claim 21. Rejection 4 The Examiner rejects claims 11-14 and 16 under 35 U.S.C. § 103 over Visser and Guy. Final Act. 12. The Examiner finds that Visser discloses all limitations of independent claim 11 except “a watering component that evaluates the water level within the at least one seed receptacle and selectively controls distribution of water to and from the bed seed holder to maintain to a pre-determined level.” Final Act. 12-13. The Examiner relies on Guy as teaching this limitation. Id. at 13-14. The Examiner concludes that It would have been obvious to one having ordinary skill in the art . . . to have assembly line grow pod of Visser as modified by Collins to comprise a watering component to evaluate and control the distribution of water to maintain a predetermined level as taught by Guy to automate the delivery of water to the plants without the need for human intervention. Appeal 2021-003929 Application 15/986,128 8 Id. at 14 (emphasis added).3 Claim 11 recites “at least one seed receptacle extending into the body, wherein the seed receptacle is adapted to maintain a fluid within the seed receptacle.” Appeal Br. 16 (Claims App.) (“seed receptacle limitation”). The Examiner finds that, in Visser, the body of container 13 corresponds to the claimed “body,” and substrate 21 meets the seed receptacle limitation. Final Act. 13. Appellant contends that Visser fails to disclose the seed receptacle limitation. Appeal Br. 13. Appellant asserts that Visser’s vapor-permeable film 15 does not maintain a fluid within a seed receptacle. Id. The Examiner responds that the rejection does not rely on the vapor-permeable film to maintain a fluid within a seed receptacle. Ans. 10. Rather, the Examiner finds that Visser’s substrate 21 teaches the seed receptacle limitation. Id. Accordingly, Appellant’s contention does not address the stated rejection, and thus, is unpersuasive. Appellant also contends that “Visser does not teach that the fluid level in the container is maintained because the fluid level in Visser is simply moved within the container 13, but is not moved out of the container 13.” Reply Br. 8 (emphasis added). Claim 11 does not, however, recite that the at least one seed receptacle maintains a “fluid level”; rather, the claim recites that “the at least one seed receptacle . . . is adapted to maintain a fluid within the seed receptacle.” Appeal Br. 16 (Claims App.) (emphasis added). Accordingly, Appellant’s contention is unpersuasive. 3 The rejection heading does not list Collins as an applied reference, and the body of the rejection does not mention Collins. Final Act. 12. Accordingly, we treat the Examiner’s reference to Collins as an inadvertent error. Appeal 2021-003929 Application 15/986,128 9 Appellant further asserts, “nowhere does Visser teach a seed receptacle extending into the body.” Reply Br. 8 (bold face omitted). We are unpersuaded by Appellant’s contention that Visser’s substrate 21, which is disposed in container 13, does not extend into the body of Visser’s bed seed holder, as found by the Examiner. See Visser, Fig. 9. We sustain the rejection of claim 11, and claims 12-14 and 16 depending from claim 11 and not separately argued, as unpatentable over Visser and Guy. Rejection 5 The Examiner rejects claim 15 under 35 U.S.C. § 103 over Visser, Guy, and Collins. Final Act. 17. Appellant contends that claim 15 is patentable based on its dependence from claim 11. Appeal Br. 14. As Appellant does not apprise us of error in the rejection of claim 11, we sustain the rejection of claim 15 as unpatentable over Visser, Guy, and Collins for the same reasons as those for claim 11. Rejection 6 The Examiner rejects claims 29-33 under 35 U.S.C. § 103 over D’Arcy and Guy. Final Act. 24. The Examiner’s reliance on Guy does not cure the deficiency in the rejection of parent claim 27, as discussed above. Accordingly, we do not sustain the rejection of claims 29-33 as unpatentable over D’Arcy and Guy for the same reasons as those for claim 27. Appeal 2021-003929 Application 15/986,128 10 CONCLUSION We affirm the rejections of claims 11-16 and 21-26 and reverse the rejections of claims 27-34. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 27, 28, 34 102(a)(1) D’Arcy 27, 28, 34 21, 22 103 Visser, Collins 21, 22 23-26 103 Visser, Collins, Guy 23-26 11-14, 16 103 Visser, Guy 11-14, 16 15 103 Visser, Guy, Collins 15 29-33 103 D’Arcy, Guy 29-33 Overall Outcome 11-16, 21-26 27-34 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED IN PART