Appeal No. 2004-0942 Page 5
Application No. 08/718,573
being that the roots of the plants are freed from the soil (column 6, line 43 et seq.).
Figure 6 shows the device “in operation” (column 3, lines 47-51), and from our
perspective one of ordinary skill in the art would have been taught by this showing that
the nozzles are not positioned “above” the surface of the bed during operation, as is
required by claim 36, but are in contact with or below the initial surface of the bed.
The foregoing interpretation is supported by several passages from the
specification. In this regard, we initially point out that the examiner’s reliance upon the
term “adjacent” to support the position of the nozzles in the rejection is not well taken,
for Cousineau clearly states that it is discharge member 14 that is “adjacent” to the
surface of the bed, and not nozzles 18, which are mounted in the underside of member
14 and extend below it. Thus, there is no teaching in Cousineau of locating the nozzles
a distance above the surface of the bed while the jets of water are being discharged
therefrom. Additional confirmation of the interpretation that the Cousineau nozzles are
not positioned a distance above the bed during operation is provided by the explanation
of the advantage of utilizing a discharge member having a elliptical cross-section rather
than a circular one because it would “rest upon the soil rather than tending to burrow
into it during operation, as might happen with narrow circularly cross-sectioned
discharge members” (column 4, lines 45-50; emphasis added). Of course, if the
discharge member rests upon the surface of the bed, the downwardly oriented nozzles
clearly are not spaced a distance above the surface. Finally, we note Cousineau’s
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