Appeal Number: 2006-2098
Application Number: 10/315,817
sources, whether real or artificial, to assist in the germination of seedlings or otherwise support
plant growth. [See Harman col. 1 lines 10-32]. As to the use to which the appellants’ invention
pertains, we are persuaded that the examiner is correct in stating that this is not part of the
claimed subject matter. Further, "[o]ne of ordinary skill in the art need not see the identical
problem addressed in a prior art reference to be motivated to apply its teachings" Cross Medical
Products Inc. v. Medtronics Sofamor Danek Inc., 424 F.3d 1293, 76 USPQ2d 1662 (Fed. Cir.
2005). Therefore, we find the appellants' arguments as to lack of wheels and as to the use of the
claimed invention to be unpersuasive.
Next the appellants argue that Mekler’s shell insert does not “conform generally in size and
disposition to the inner sides of said shell portion.” [See Brief at p. 7]. We note that Fig. 2 of
Mekler shows the contour of drain surface (68) generally following that of the inside wall
contour of the housing (50). Therefore, we find the appellants' arguments as to the size and
disposition of the shell portion to be unpersuasive.
This is where we find we part company with the examiner. The appellants next argue that
Mekler fails to show a “shell portion adapted to receive said shell insert and to receive water
draining therefrom, and to hold it therein, and said shell portion also having a controlled water
drainage system permitting said shell portion to be drained at the will of the user.” [See Brief at
p. 7-8]. We note that the water falling through the outlet drain (81) connects directly to the
drainage unit (72), thus diverting such water from the housing (50) that corresponds to the shell.
Seeing this, the examiner argues that water could spill over the sides of the shell insert or from
the drainage unit and into the housing (shell). [See Answer at p. 7]. The examiner never shows
how any water that should thus be received into the shell is then drained through a controlled
water drainage system. Thus, water drainage may be via either Mekler’s drainage system, in
which case the water is not received in the shell as claimed, or water is received in the shell, but
in which case such water is never drained through a controlled drainage system. In no
circumstance are both claimed elements met by Mekler. The examiner points to no feature of
Harman to make up for this omission, and we can find none in Harman. Therefore, we find the
examiner's arguments as to the drainage elements to be unpersuasive.
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