Appeal No. 2004-0915 Page 6
Application No. 09/919,469
edge surface thereof with the growing medium. Moreover, Spencer teaches that ledges
53a, 54a “act as a standardizing level for screening off excess growing medium during
the filling stage” (column 9, lines 51-53). As illustrated in Figure 10, these ledges, and
hence the top surface of the growing medium, are closely adjacent the upper edge
surface of the container. Accordingly, Spencer’s container, with the root plug therein,
meets the “closely adjacent” limitation of claim 1.
For the foregoing reasons, appellant’s arguments fail to persuade us of any error
on the part of the examiner in rejecting claim 1 as being anticipated by Spencer. The
rejection is thus sustained.
The only arguments in appellant’s brief (see page 9) as to the patentability of
claim 3 are the same as those discussed above with respect to claim 1. It should be
apparent that we find these arguments as unpersuasive with respect to claim 3 and
thus sustain the rejection of claim 3 as well.
The obviousness rejections
Turning next to the rejection of claim 2, which depends from claim 1 and further
recites that the plants are culinary herbs, as being unpatentable over Spencer in view of
Graham, appellant’s only argument is that Graham does not overcome the above-
discussed alleged deficiencies of Spencer.3 In light of our discussion above, it should
3 Appellant does not challenge the examiner’s determination (final rejection, page 4) that Graham
would have suggested the use of Spencer’s seedling packaging method for packaging culinary herbs.
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