Appeal No. 2004-0915 Page 5
Application No. 09/919,469
examiner (answer, page 5), that appellant’s specification and claims do not specify by
what species (e.g., humans only or animals generally) the seedlings are edible. With
this in mind, we agree with the examiner that the plants discussed by Spencer are
edible in their seedling stage and thus meet the limitations of claim 1.
With respect to argument (2), claim 1 does not require that the plants be grown
to a seedling stage on the growing medium before said medium is placed in the space
in the tray.2 In any event, even if claim 1 were interpreted as requiring that the growing
step be performed before the placing stage, Spencer discloses removing the growing
medium (root plug) comprising the seedling root system from the container for
inspection after the seeds have germinated into seedlings and placing the root plug with
seedlings thereon back into the container, thereby meeting such sequence limitation.
As for argument (3), Spencer contemplates sales (distribution) to individual
consumers (growers) for their use, which use may be growing, for example. See
column 4, lines 47-49.
Finally, with respect to argument (4), while Spencer does not use the terminology
“closely adjacent” or illustrate the growing medium or root plug within the container,
Spencer does disclose that the containers are “filled with a growing medium” (column
10, line 18), which would leave one of ordinary skill in the art reading Spencer’s
disclosure with the impression that the container be filled substantially up to the upper
2 Claim 1 does not specify that the steps be performed in the order or sequence in which they are
recited in the claim and it is well established that limitations not appearing in the claims cannot be relied
upon for patentability. In re Self, 671 F.2d 1344, 1348, 213 USPQ 1, 5 (CCPA 1982).
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