Appeal No. 2005-2178
Application 09/969,882
The principal issue in this appeal is whether one of ordinary skill in this art, armed with
the knowledge in the art that the residual amounts of the high rate, optimum application of
fertilizer sources for nitrogen, phosphorous and potassium remain in the soil following a growing
season, considering factors affecting carryover, and contribute to the growth of the next season’s
crop, as evinced by Tisdale (pages 609-10) as well as by the known “gradient-oriented
nutritional procedures” acknowledged by Geraldson, in routinely following Geraldson would
have reasonably inferred from the disclosure of this reference that a second crop can be planted
without further addition of fertilizer to a covered reservoir container in which a first crop had
been planted in growth medium 7 that is covered in part away from the plants by fertilizer 17,
using “gradient-oriented nutritional procedures,” and harvested.
The examiner contends, with respect to this issue, that Tisdale establishes that it was
well-known in the art to have residual nutrients in the soil in two successive growing seasons,
and thus one of ordinary skill would have modified the process of Geraldson using the reservoir
container for one crop by using the container for a second crop without adding additional
fertilizer in the reasonable expectation of cost efficient crop production (advisory action).
Appellant submits that Geraldson7 and Whisenant do not teach that fertilizer for two
the part of this person. In re Sovish, 769 F.2d 738, 743, 226 USPQ 771, 774 (Fed. Cir. 1985).
7 Appellant contends that his United States Patent 5,524,387 is incorporated-by-reference in
Geraldson at col. 1, l. 20 et seq., and thus Geraldson “reference teachings must be read consistent
with the disclosure in the appellant’s ‘387 patent” (brief, page 7; reply brief, pages 2-4). We do
not agree. We do not find in Geraldson any evidence relevant to the inquiry here which was
incorporated-by-reference from appellant’s ‘387 patent, including the disclosure of the use of
“[a] commercial embodiment of the reservoir container” of the ‘387 patent in Geraldson
Example 2 (col. 7, ll. 11-17), and indeed, the examiner does not rely on appellant’s ‘387 patent
for any evidence in support of her position. We also do not find in Geraldson the statements that
appellant attributes to this reference in the brief and reply brief, citing to his own ‘387 patent.
For example, appellant argues that Geraldson “teaches the reduction of residual nutrients after
the crop by leaching the growing medium and the disclosure expressly states that suitable
nutrients are then added to the cleansed growth medium before the planting for another season.
See Col. 3, line 13 et seq. of appellant’s’ 387 patent” (brief, page 12). We find no such teaching
anywhere in Geraldson. Indeed, Geraldson would have taught that leaching is “eliminated” when
using the reservoir container (col. 8, ll. 22-23), and that the potting mix should “last for several
seasons” without instructions that it should be “cleansed” (col. 6, ll. 3-4). Accordingly, we
consider the teachings and inferences that one of ordinary skill in this art would have found in
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