Appeal No. 2004-0915 Page 7
Application No. 09/919,469
be apparent that we find this argument unpersuasive of the nonobviousness of claim 2.
We sustain this rejection.
The examiner has rejected claims 4-11, 14 and 15 as being unpatentable over
Spencer in view of Wareing. We turn our attention first to claim 4. The examiner
concedes that Spencer’s container lacks a top portion having a top wall as called for in
claim 4 but determines that it would have been obvious to provide a cover having a top
wall as taught by Wareing “so as to provide protection to the seedlings to keep them
away from outside influences that may harm the seedlings” (final rejection, page 5).
Appellant has not disputed this determination, which appears reasonable on its face.
With respect to claim 4, appellant (brief, pages 9 and 10) argues that Spencer is
directed to a method of growing seedlings for reforestation and does not disclose a
method of packaging “edible seedlings for distribution to and use by consumers” (brief,
page 9) and that Spencer lacks disclosure of placing the top surface of the growing
medium closely adjacent to the upper surface of the container. Our discussion of these
arguments, supra, with respect to claim 1 applies equally to claim 4.
Appellant additionally argues that Spencer does not disclose “‘growing plants on
a growing medium to a seedling stage” and then ‘placing said medium in [the] bottom
portion of the container’ and then ‘closing said container, with said medium in said
bottom portion, into [a] closed position’” (brief, page 10). We observe, at the outset,
that claim 4 does not require that the recited steps be performed in the order in which
they are recited. Moreover, even if claim 4 were interpreted as requiring that the
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