Appeal No. 2005-2178
Application 09/969,882
Appellants further submit that “the Examiner has failed to grasp the fact that container in
is a different environment than growing crops in an open field,” pointing to the problem of
cleaning the growing medium at the end of a growing season disclosed by Whisenant and
arguing that Tisdale does not solve this problem (brief, pages 22-23); that there is no reason to
combine the references because Tisdale adds additional nutrients for growing a second crop (id.,
page 23); and that the examiner has shown no reasonable expectation of success because the
three references show the addition of nutrients for growing a second crop (id., pages 24-25).
The examiner responds that “applicant has merely claimed providing a source of fertilizer
sufficient for the ‘growth’ of at least two batches of seedlings with one initial set up” without
specifying “the quantity of fertilizer that achieves this” and does not “claim ‘optimal growth’”
(answer, page 3, original emphasis deleted). The examiner points out that as shown by Tisdale,
residual amount of nutrients remain “from one year of crops to the next year of crops,” and
therefore, some residual fertilizer would inherently remain “enough for ‘growth’ of a second
batch/crop” which “does not have to be an optimum amount of fertilizer” (id., page 4). The
examiner thus submits that “[o]ne of ordinary skill in the art would be motivated to take
advantage of the residual fertilizer for the advantage of cost efficient crop production,” and thus
“growing two crops either simultaneously or consecutively is an obvious modification” (id.).
Appellant replies that the appealed claims require harvesting successive crops and the
crops of the first batch must be harvested before the second batch of seeds or seedlings are
planted; and that “expressly call for a sufficient quantity of fertilizer to provide the nutrients
during both growing seasons,” and argues that “the word ‘sufficient’ . . . is used in a limited
context – ‘providing a source of fertilizer . . . sufficient for the growth of said at least two
batches [of plants] with one initial set up of growing medium and fertilizer’ – and clearly avoids
the Tisdale reference” (reply brief, pages 4-5).
We have carefully considered the language of appealed claims 14 and 17 as we have
interpreted them above, and the application of the combined teachings that one of ordinary skill
invention, or whether one of ordinary skill in the art would not have combined the references,
Dr. Geraldson’s opinion in these respects addresses the ultimate legal issue of obviousness in
this case and thus, is entitled to no weight. In re Reuter, 651 F.2d 751, 759, 210 USPQ 249, 256
(CCPA 1981).
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