Appeal No. 2004-0915 Page 10
Application No. 09/919,469
Claim 12, which depends from claim 4 and additionally recites that the plants are
culinary herbs, is rejected as being unpatentable over Spencer in view of Wareing and
Graham. Appellant does not dispute the examiner’s determination that it would have
been obvious to package culinary herbs using Spencer’s method and, instead, merely
reiterates arguments made with respect to claim 4. We find these arguments just as
unpersuasive with respect to claim 12. It follows that we shall sustain the rejection of
claim 12.
We shall not sustain the rejection of claim 13 as being unpatentable over
Spencer in view of Wareing and Groth. Groth simply discloses a shipping container
comprising a bottom supporting frame 12, a lower plant-containing frame 14, an upper
plant-containing frame 16 and a cover member 18 disposed above the top frame 16.
The top surface of each of the frames 12, 14 and 16 is provided with a peripheral
groove 52, 60, 70 for receiving a lower tongue 50, 62, 68 of the respective frame or
cover stacked above. Groth, in essence, teaches stacking a plurality of tray members
and a single cover and provides no teaching or suggestion to provide the top wall (cover
as modified in view of Wareing) and bottom wall of Spencer’s container with
complementary portions to facilitate stacking of the containers with their covers.
CONCLUSION
To summarize, the rejection of claims 1 and 3 under 35 U.S.C. § 102 as being
anticipated by Spencer is sustained. The rejections of claim 2 as being unpatentable
over Spencer in view of Graham and claim 12 as being unpatentable over Spencer in
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