Appeal No. 2004-0915 Page 4
Application No. 09/919,469
in its container is moved to a semi-controlled outdoors area or unheated greenhouse to
acclimatize or harden the seedling for outdoor conditions. See column 10, line 12, to
column 11, line 14. Spencer also teaches that the disclosed containers are useful “for
many kinds of plants, from trees to wild grasses, to shrubs, to vegetables” (column 12,
lines 7-12).
Appellant argues that claim 1 is not anticipated by Spencer because (1) Spencer
teaches packaging small trees for reforestation, not edible seedlings for distribution and
use by consumers, as called for in appellant’s claim 1, (2) Spencer does not disclose
growing plants on a growing medium and then placing said medium in said space in
said tray, (3) Spencer does not disclose distribution of the seedlings to consumers while
the plants are still in the seedling stage and (4) Spencer lacks disclosure of a
predetermined height dimension as called for in claim 1 such that a top surface of the
growing medium is “closely adjacent” to the upper edge surface of the tray when the
medium is placed in the tray to allow easy snipping (brief, page 8).
With respect to argument (1), we note that Spencer’s teachings are clearly not
limited to seedling trees for reforestation, inasmuch as Spencer teaches (column 12,
lines 7-12) that the disclosed containers are useful “for many kinds of plants, from trees
to wild grasses, to shrubs, to vegetation.” Moreover, while we recognize that appellant
has defined “seedling stage” on page 2 of the specification as “a stage of development
of the plants which follows and does not include the sprout stage and in which both the
stems and leaves of the plants remain soft and edible,” we also observe, as has the
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