Appeal No. 2005-2178
Application 09/969,882
growing seasons should be used in a reservoir container (brief, pages 6-9). Appellant further
submits that Tisdale “relates to the fertilization of soils in tilled fields” and “recognizes that there
is an insufficient amount of . . . fertilizer nutrients in the soil bed available for the second crop
since the reference teaches that additional nutrients must be added to the soil bed before the
second crop is planted,” contending that certain percentages of nutrients must be added to the
amount of the residual nutrients disclosed in the reference for next season’s crop, and “does not
teach a one time application of sufficient amounts of nutrients at the beginning of two or more
growing seasons in the context of” a reservoir container (id., page 9). Appellant argues that
Geraldson teaches away from the claimed invention “because the plant openings (6,6’) . . . are
intentionally situated laterally away fro the fertilizer source (17)” while the claimed invention
encompassed by claim 17 is “adjacent to and coextensive with the upper surface of the growing
medium” (id., pages 10-11 and 11). Appellant further argues that Whisenant does not use the
gradient concept for nutrient control, and teaches away from the use of a growing system for two
seasons by teaching that the growing medium must be flushed at the end of one growing season
before addition nutrients for the next growing season (brief, pages 13-14).
Appellant relies on the testimony of Dr. Geraldson (brief, pages 18-19 and 24). We find
that Dr. Geraldson states in his declaration that “the thrust” of Geraldson “is to replant the entire
container after the final harvest of the first crop” (¶ 12); that Tisdale teaches the addition of
fertilizer sources for the next year’s crops (¶ 13); and that Whisenant “does not teach or suggest
the preparation of a growing system that grows two seasons or more of plants with one initial
setup of growing medium and fertilizer, etc.” (¶ 15).8
the disclosure of Geraldson per se, whether or not appellant considers that disclosure consistent
with his ‘387 patent.
8 Appellant also relies on the Geraldson declaration for positions attributed to Dr. Geraldson for
which we find little basis in said declaration. For example, appellant states that “Dr. Geraldson
also points out that all of the references teach away from the claimed subject matter because they
all teach the addition of nutrients to the environment for the second batch of plants” (id., pages
18 and 24), and that “he confirms that persons of ordinary skill in the art have no motivation to
combine the references” (id., page 24). However, while Dr. Geraldson states his opinion with
respect to the disclosure of Geraldson, Tisdale and Whisenant per se (¶¶ 12, 13 and 15) (brief,
page 24), he states only that Whisenant “teaches away” (¶ 15). Even if in addition to such
statement with respect to Whisenant, there were statements in the declaration with respect to
whether the teachings of Geraldson and Tisdale would have taught away from the claimed
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