Appeal No. 1998-2726
Application 08/440,991
plate, side walls, means for attaching modules together and “a
fence attached to the top of said side walls and extending
outwardly beyond [the] outer periphery surface of said side
walls.” It is the examiner’s position that the European
reference discloses all of the subject matter recited in claim
1 except for the fence, but that such a fence is disclosed by
Ryder and it would have been obvious to one of ordinary skill
in the art to provide the modules of the European patent with
a fence “to provide a means for retaining growth medium within
the modules” (Answer, page 4). However, in our opinion there
is no evidence to support this conclusion.
Ryder discloses planting modules (boxes) which include
two pairs of spaced opposing walls, the first pair of which
terminates in horizontal upper edges while the second pair
terminates in curved upper edges which extend to a height
greater than those of the first pair. It is the curved
portion of each of the sides of the second pair that the
examiner has labeled as “fences.” There is no description in
Ryder of the sides of the boxes, much less why one pair
differs in height from the other. Moreover, since only one
pair of sides is taller than the other, and considering the
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