Appeal No. 2005-2178
Application 09/969,882
tomato yield of 11.3 kg/plant (see Table 1)” because with the reservoir container, water is
required only for transpiration, maintaining the water table and pest control procedures, and thus,
“leaching and evaporation are eliminated as contributing variables” to diminished crop
productivity over a growing season (col. 7, ll. 31-39, and col. 8, ll. 1-7 and 15-37).
We find that Tisdale would have taught one of ordinary skill in this art that residual
amounts of fertilizer from the high rate, optimum application of fertilizer sources for nitrogen,
phosphorous and potassium applied in field operations, remain in the soil following a growing
season, the amounts depending on such factors as crops, soil characteristics, the amount of lime
in the soil, weather and leaching, and contribute to the growth of the next season’s crops (pages
609-10).
We find that Whisenant would have taught one of ordinary skill in this art a reservoir
container with a cover or lid with an opening for a plant grown in plant growing medium, the
opening kept small to prevent evaporation of water; a means to supply the reservoir with water
which can contain”[n]utrients, minerals, fungicides and the like;” a cup-shaped partition 32
defining plant growth area 34 is under the opening in the cover or lid, and is at least partially
filled with plant growing medium, with the remainder of the plant growing medium outside of
plant growth area 34 in interior volume 18; and the upper edge of container 12 has one or more
vents 44 for the evaporation of liquid (e.g., col. 1, l. 36, to col. 2, l. 2; col. 2, l. 21, to col. 3, l. 17;
and FIGs. 1 and 2). Whisenant teaches that “[s]alt deposits resulting from evaporation will be
maintained at the container vents which are remote from the developing roots,” and that the
remote vents 44 along with “root confining partition 32” confining the roots to growing area 34,
“accumulation of these mineral or salt deposits will have no affect on the growth or health of the
plant” (col. 2, ll. 2-5, and col. 3, ll. 17-24). Whisenant further teaches that “[a]fter the
completion of the growing season, . . . the container 12 . . . [is] completely filled with water for a
period of time to kill off any accumulated fungi or parasites that may have developed during the
growing season” so that “[t]he subsequent addition of suitable nutrients to the sterilized medium
can than be effected so that the necessity for removing the plant growing medium from the plant
growing area 34 is avoided” (col. 3, ll. 30-38).
1992); In re Preda, 401 F.2d 825, 826, 159 USPQ 342, 344 (CCPA 1968), presuming skill on
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