Appeal No. 2005-2178
Application 09/969,882
(economic factors alone would have motivated the artisan to improve upon the process of the
reference ); Clinton, 527 F.2d at 1228, 188 USPQ at 367 (economics alone would motivate a
person of ordinary skill in the art where there is a reasonable expectation of success in practicing
the modified process); see further, In re O’Farrell, 853 F.2d 894, 903-04, 7 USPQ2d 1673,
1680-81 (Fed. Cir. 1988) (“Obviousness does not require absolute predictability of success. . . .
There is always at least a possibility of unexpected results, that would then provide an objective
basis for showing the invention, although apparently obvious, was in law nonobvious. [Citations
omitted.] For obviousness under § 103, all that is required is a reasonable expectation of success.
[Citations omitted.]”).
We are not persuaded otherwise by appellant’s arguments. We find no requirement in
appealed claims 14 and 17 that the amount of seeds and seedlings planted and grown to harvest
must be the same in each of the two growing seasons or sessions. Indeed, all that the claims
require is any amount of fertilizer “sufficient for the growth of said at least two batches with one
initial set up” without limitation as to a preconceived planting/harvesting plan or schedule. As
the examiner essentially argues, one of ordinary skill in this art can practice the claimed
invention as encompassed by these claims by merely planting a second batch of seeds or
seedlings in an amount to reap the economic benefits of the residual fertilizers and potting mix
even if that was not the intent of this person when the initial potting mix, fertilizers and seeds or
seedlings were introduced into the reservoir container.
We have arrived at our opinion by finding in the references the same teachings thereof
argued by appellant and stated by Dr. Geraldson in his testimony. We do not agree with
appellant that the disclosure in any one or more of the references teaches away from combining
the disclosures of the references for indeed, there is no disclosure in any reference which
criticizes, discredits or otherwise discourages one of ordinary skill in the art from following the
disclosure of any other reference. See In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141,
1145-46 (Fed. Cir. 2004). With respect to appellant’s argument that Whisenant teaches that the
potting mix must be flushed at the end of one growing season, we found above that Geraldson
would have taught that the potting mix should “last for several seasons” without instructions that
it should be “cleansed” (col. 6, ll. 3-4), and that in this respect, Geraldson and Whisenant would
have taught that pest control, including fungicides, can be applied in the water supplied to the
- 14 -
Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Next
Last modified: November 3, 2007