Appeal No. 95-0972 Page 20
Application No. 07/650,453
In addition to the above-noted argument regarding the
application of Successful Farming, "Dollars from Filter
Strips," as prior art, the appellant argues (brief, pp. 6 and
9) that the planting depth limitation of claim 26 (i.e., the
lower ends of the tree stems are buried at a depth of at least
two feet) is not suggested by the applied prior art. We
agree. In that regard, we note that none of the applied prior
art teaches planting the lower end of a tree stem at least two
feet beneath the surface. Successful Farming, "Dollars from
Filter Strips," does not teach any planting depth. Organic
Gardening, "Taking Hardwood Cuttings," teaches a planting
depth less than 12 inches. Abstract of "Nitrogen Fixing
Research Reports" teaches a maximum planting depth of 30 cm
(i.e., less than 12 inches). It appears, therefore, that the
examiner's conclusion that the claimed method of claim 26
would have been obvious was based upon hindsight gleaned from
the appellant's disclosure, rather than from the teachings of
the applied prior art.
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