Ex Parte Harwood

Patent Trial and Appeal Board

Mar 14, 2018

13683700 (P.T.A.B. Mar. 14, 2018)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/683,700 11/21/2012 Edward D. Harwood 123857.00007 5233
72535 7590 03/15/2018
MCCARTER & ENGLISH, LLP STAMFORD
CANTERBURY GREEN
201 BROAD STREET, 9TH FLOOR
STAMFORD, CT 06901
EXAMINER
NGUYEN, SON T
ART UNIT PAPER NUMBER
3643
MAIL DATE DELIVERY MODE
03/15/2018 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EDWARD D. HARWOOD
Appeal 2017-002139
Application 13/683,700
Technology Center 3600
Before: STEVEN D.A. MCCARTHY, SCOTT C. MOORE, and
BRENT M. DOUGAL, Administrative Patent Judges.
Opinion for the Board filed by Administrative Patent Judge DOUGAL.
Opinion dissenting filed by Administrative Patent Judge McCARTHY.
DOUGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a final rejection of
claims 1—17, 19-36, 38, and 39. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
Appeal 2017-002139
Application 13/683,700
CLAIMED SUBJECT MATTER
The claims are directed to aeroponic farming systems and methods
which utilize a cloth or fabric in the growth chamber with particular wicking
height and absorbance parameters. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. An aeroponic system, comprising:
an aeroponic growth chamber,
a cloth or fabric positioned within the aeroponic growth
chamber, the cloth or fabric exhibiting
(i) a wicking height parameter characterized by a
wicking height range from 1.1 cm to 4.5 cm, and
(ii) an absorbance parameter characterized by an
absorbance range from 0.10 g/cm2 to 0.29 g/cm2.
EVIDENCE
The evidence relied on by the Examiner is:
Das Comfort Characteristics of Fabrics
Containing Twist-less and Hollow Fibrous
Assemblies in Weft, JTATM, V. 3,1. 4,
1-7
Harwood US 2008/0295400 A1
Das (Das Moisture Flow through Blended Fabrics —
Moisture) Effect of Hydrophilicity, J. Engineered
Fibers and Fabrics, V. 4,1. 4, 20—28
Winter 2004
Dec. 4, 2008
2009
REJECTIONS
Claims 1—6, 8—17, 19-25, 27—36, 38, and 39 are rejected under
35 U.S.C. §103(a) as being unpatentable over Harwood and Das.
Claims 7 and 26 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Harwood, Das, and Das Moisture.
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OPINION
Claims 1,17, 20, and 36 are independent. Appellant argues the
rejections of claims 1—6, 8—17, 19—25, 27—36, 38, and 39 together. We
select independent claim 1 as representative. See 37 C.F.R. § 41.37(c)(1)
(iv). Appellant argues the rejection of claims 7 and 26 together. We select
claim 7 as representative.
Claim 1
The Examiner finds that Harwood teaches an aeroponic system
including a cloth or fabric within an aeroponic growth chamber, “the cloth or
fabric exhibiting (i) a wicking height parameter . . . and (ii) an absorbance
parameter” as required by claim 1. Final Act. 2 (citing Harwood 40-41).
The Examiner determines that “[i]t is well known in the agriculture industry
that water absorption and wicking are important characteristics to consider
for a cloth/fabric used in the industry to enhance plant growth and/or to
provide proper irrigation or watering.” Id. at 11—12.
The Examiner finds that Das teaches that wicking height and
absorbance of fabrics were known characteristics of fabric, and that it was
known to select fabric “depending on the user’s preference of desired
characteristics for his/her application of the fabric.” Id. at 3. The Examiner
also finds that Das teaches fabric with a wicking height in the range of 1.1
cm to 4.5 cm; and that Das teaches fabric with a number of different water
absorbency rates. Ans. 3. The Examiner acknowledges however that the
water absorbency rates are given as percentage rather than in g/cm2. Id.
The Examiner determines that “one of ordinary skill in the art would
rely on Das et al.’s cloth/fabric for use in Hardwood . . . because [Das’s]
cloth/fabric . . . would be beneficial in Hardwood ... for better wicking and
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Application 13/683,700
water absorbency to enhance plant growth and/or to provide proper
irrigation or watering.” Final Act. 12.
The Examiner also determines that:
“It would have been obvious ... to consider a wicking height
range and an absorbance range as taught by Das et al. for
selection of the cloth or fabric employed in the system of
Hardwood et al., for these characteristics in cloth/fabric are
important in determining the amount of desired wicking and
absorbancy as need[ed] in the system.”
Final Act. 3. The Examiner also determines that the claimed wicking height
and absorbance ranges would have been obvious “since it has been held that
where routine testing and general experimental conditions are present,
discovering the optimum or workable ranges until the desired effect is
achieved involves only routine skill in the art.” Id.
The Examiner further explains that the desired ranges would be
derived through routine testing and experimentation as they “depend[] on the
user’s preference to have more or less water absorbency and wicking
parameters based on the type of plants being grown because each plant
require[s a] different degree of watering.” Id. at 12.
Appellant argues that claim 1 is allowable because it is “predicated on
. . . unexpected experimental results.” Appeal Br. 6. In particular, Appellant
argues that the Specification
discloses data demonstrating an unexpected benefit to growing
systems/methods in growing environments that simultaneously
satisfy two distinct and independent parameters, namely
simultaneous satisfaction of (i) a wicking height parameter -
characterized by a wicking height range from 1.1 cm to 4.5 cm -
and (ii) an absorbance parameter - characterized by an
absorbance range from 0.10 g/cm2 to 0.29 g/cm2.
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Application 13/683,700
Id. Appellant does not further describe the unexpected results, but asserts
that they “are described in detail in Appellant’s specification (see, e.g.,
Tables 1—8 and accompanying text).” Id. at 12.
Tables 1—8 of Appellant’s specification describe the results of
experiments designed to “determin[e] ... a range of absorbance parameters
and/or wicking parameters that describe satisfactory performance for
aeroponically germinating and/or growing plants.” Spec. 1103. The
Specification further teaches that experimental protocols were developed to
optimize seed germination by measuring “[t]he ability of a cloth/fabric
material to provide moisture to the seed coating persistently without
drowning the seed,. . . [i.e.] absorbance parameters.” Id. at 174. Wicking
parameters, “the travel of moisture relative to a cloth/fabric,” were also
measured as they “may correlate with seed germination behavior.” Id.
The Specification states that the “testing protocols unexpectedly
demonstrated the existence of an optimal combination of absorbance and
wicking parameters for optimally germinating seeds and yielding desired
plant life in aeroponic applications.” Id. The Specification lists a number of
different ranges of wicking height and absorbance for optimal yield, as well
as for optimal germination. Id. at 1106. The Specification then lists a broad
range and a narrow range for each of wicking height and absorbance for
optimal yield and germination. Id. 1107. Each of the independent claims
includes the broader range for the absorbance parameter, but the narrower
range for the wicking height.
However, the Specification does not state why “the existence of an
optimal combination of absorbance and wicking parameters for optimally
germinating seeds and yielding” was unexpected. As noted by the Examiner
(Final Act. 2), the prior art teaches that “wicking and water retention
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Application 13/683,700
properties” of a material were important properties to consider in aeroponic
farming (Harwood 141). Thus, the combination of “absorbance and
wicking parameters” by itself does not appear to be unexpected. But again,
this is not discussed in Specification, nor is it address by Appellant in the
briefs. As a result, Appellant’s assertions that the results were unexpected
without more are insufficient to show nonobviousness over the prior art.
We further note that the Specification makes clear that the listed
optimal results and preferred ranges are dependent on various features of the
aeroponic method, none of which are included in claim 1. Id. at 1107 (“It
should be noted that the preferred ranges of the wicking parameter and the
absorbance parameter can vary depending on, e.g., the methods implemented
for supplying nutrient solution to the cloth/fabric such that the proper level
of nutrient solution is maintained during the gelmination and/or growing
periods.”). Thus, even if Appellant had demonstrated unexpected results of
the claimed ranges under the conditions described in the Specification, those
results are not commensurate in scope to the claims as the conditions are not
claimed. For example, we note that claim 1 does not even require the “cloth
or fabric positioned within the aeroponic growth chamber” be used to
germinate seeds.
Appellant also argues that “Harwood — is silent as to parameters that
might be used to select particularly advantageous fabric and/or cloth
substrates for use in growing environments.” Appeal Br. 6. However, as
noted above, the Examiner found that Harwood teaches “the cloth or fabric
exhibiting (i) a wicking height parameter . . . and (ii) an absorbance
parameter.” Final Act. 2 (citing Harwood 40-41). Further, the Examiner
determined that “[i]t is well known in the agriculture industry that water
absorption and wicking are important characteristics to consider for a
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Application 13/683,700
cloth/fabric used in the industry to enhance plant growth and/or to provide
proper irrigation or watering.” Id. at 11—12. Harwood paragraphs 40 and 41
teach that “cloth is preferred because of its water absorbing and retention
properties” and that “[t]he wicking and water retention properties of the
micro-fleece make it ideal for the system of aeroponic farming.” These
teachings support the Examiner’s findings and contradict Appellant’s
assertion that Harwood does not teach which type of parameters “might be
used to select particularly advantageous fabric and/or cloth substrates for use
in growing environments.” Appeal Br. 6. Thus, we are not informed of
error in the Examiner’s rejection.
Appellant argues that Das is non-analogous art because it is “not
directed to growth media applications of cloth/fabric.” Id. at 6—7. However,
the Examiner never relies on Das for growth media applications of
cloth/fabric. See generally Final Act. 2—3, 11—12. As discussed above,
Harwood teaches that it was known to select material for growth media
applications based on wicking and absorbency parameters. Harwood
1140-41. Das provides further detail concerning known wicking and
absorbency parameters of fabrics. Thus, we are not informed of error in the
Examiner’s rejection.
Appellant also argues that the teachings of Das “would [not] motivate
a skilled practitioner to believe that a combination of wicking height
parameter . . . and an absorbance parameter . . . would be effective in
selecting a cloth/fabric for effective use in farming operations.” Appeal Br.
7. This argument fails for similar reasons to those previously discussed.
Harwood teaches that it was known to select material for growth media
applications based on wicking and absorbency parameters. Harwood
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40-41. In view of Harwood’s teachings, Appellant’s argument regarding
Das alone does not inform us of error in the Examiner’s rejection.
Appellant argues that Das does not disclose a cloth or fabric
exhibiting the claimed ranges of wicking height or absorbance. Appeal Br.
7. Appellant also discusses the law on ranges generally. Id. at 8—12.
Though the Examiner finds that Das teaches fabric with a wicking
height in the claimed range of 1.1 cm to 4.5 cm (Ans. 3), the rejection
ultimately relies on a determination that the claimed ranges of wicking
height and absorbance are the obvious result of routine testing (Final Act 3).
Thus, Appellant’s argument is not addressed to the rejection as set forth by
the Examiner. Arguments presented in an appeal must address the grounds
of rejection set forth by the Examiner. 37 C.F.R. § 41.37(c)(l)(iv).
For all of the reasons discussed above, we are not informed of error in
the Examiner’s rejection.
Claim 7
Claim 7 depends from claim 1 and further recites: “wherein the cloth
or fabric is selected from a group consisting of a polyester material, an
acrylic material, and a nonbiodegradable synthetic material.” The Examiner
finds that the added limitations of claim 7 are taught by Das Moisture. Final
Act. 8.
Appellant argues that “[t]he reasons for selecting a specific type of
fabric for clothing [Das and Das moisture] are fundamentally different as
compared to the reasons one selects a specific type of fabric for farming
applications,” as claimed. Appeal Br. 13. Though this may be true, the
“good wicking and absorbancy characteristics” exhibited by polyester, as
taught by Das Moisture per the Examiner’s finding can be equally applicable
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to clothing and farming applications. Known work in one field of endeavor
may prompt variations of it for use in either the same field or a different one
based on design incentives or other market forces if the variations would
have been predictable to one of ordinary skill in the art. KSR International
Co. v. Teleflex Inc., Ill S. Ct. 1727, 1740 (2007). Thus, we are not
informed of error in the Examiner’s rejection.
DECISION
The Examiner’s rejections of claims 1—17, 19-36, 38, and 39 are
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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Application 13/683,700
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EDWARD D. HARWOOD
Appeal 2017-002139
Application 13/683,700
Technology Center 3600
Before: STEVEN D.A. McCARTHY, SCOTT C. MOORE, and
BRENT M. DOUGAL, Administrative Patent Judges.
McCARTHY, Administrative Patent Judge, dissenting.
The Appellant appeals from the Examiner’s final decision rejecting
claims 1—6, 8—17, 19-25, 27—36, 38 and 39 under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Harwood (US 2008/0295400 Al, publ.
Dec. 4, 2008) and Das/Comfort (Das et al., Comfort Characteristics of
Fabrics Containing Twist-less and Hollow Fibrous Assemblies in Weft, 3 J.
Textile & Apparel Tech. & Mgt. 1-7 (N.C. State Univ., Raleigh, Winter
2004)); and claims 7 and 26 under §103(a) as being unpatentable over
Harwood, Das/Comfort, and Das/Moisture (Das et al., Moisture Flow
through Blended Fabrics—Effect of Hydrophilicity, 4 J. EnG’RED Fibers &
Fabrics 20—28 (2009), reproduced at http://www.jeffjoumal.org/papers
/Volume4/4.4.4Das.pdf (last visited Mar. 9, 2018)). I agree with the
Examiner and my colleagues that the subject matter of appealed claims 1—6,
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8—17, 19—25, 27—36, 38 and 39 would have been obvious from the teachings
of Harwood. Nevertheless, because my reasoning differs from that of the
Examiner, I would designate my conclusion a new ground of rejection. I
would reverse the rejection of claims 7 and 26.
STATEMENT OF THE CASE
The claims on appeal are directed to “aeroponic” systems and
methods. “Aeroponics” is a type of hydroponic agriculture, in which a
growing medium supports plants within a growth chamber. An aeroponic
system sprays a liquid containing nutrients onto plant roots that are
suspended from the growing medium so as to expose the roots to both the
nutrients and oxygen. See Harwood, para. 3. Harwood taught the use of a
fabric or cloth as a growing medium. See generally Harwood, 3 5 42.
Independent claim 1 recites an aeroponic system comprising “an
aeroponic growth chamber, [and] a cloth or fabric positioned within the
aeroponic growth chamber.” Independent claim 20 recites a system for
farming comprising “a growth chamber, [and] a cloth or fabric positioned
within the growth chamber.” The Examiner finds that Harwood describes a
system incorporating these limitations. See Final Office Action, mailed June
10, 2015 (“Final Act.”), at 2. The Appellant does not appear to dispute this
finding.
Independent claim 17 recites a method of aeroponic farming
comprising steps of “providing an aeroponic system that includes a growth
chamber, selecting a cloth or fabric for positioning within the growth
chamber, . . . supporting the selected cloth or fabric within the growth
chamber; and depositing seeds on the selected cloth or fabric that is
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Application 13/683,700
supported within the growth chamber.” Independent claim 36 recites a
method of farming comprising steps of “providing a system for farming that
includes a growth chamber, supporting a cloth or fabric for positioning
within the growth chamber, . . . supporting the selected cloth or fabric within
the growth chamber; and depositing seeds on the selected cloth or fabric that
is supported within the growth chamber.” The Examiner finds that Harwood
describes a method incorporating these steps. See Final Act. 6. The
Appellant does not appear to dispute this finding, either.
All four independent claims additionally recite that “the cloth or fabric
exhibits] (i) a wicking height parameter characterized by a wicking height
range from 1.1 cm to 4.5 cm, and (ii) an absorbance parameter characterized
by an absorbance range from 0.10 g/cm2 to 0.29 g/cm2.” The Examiner
finds that Harwood does not teach these ranges. See, e.g., Final Act. 2.
“[W]here the general conditions of a claim are disclosed in the prior
art, it is not inventive to discover the optimum or workable ranges by routine
experimentation.” In re Alter, 220 F.2d 454, 456 (CCPA 1955). As the
facts of Alter illustrate, this rule may apply even where the prior art does not
disclose either an example falling within the recited range, or a range
overlapping or touching the recited range. One exception to this rule is that
the discovery of the optimum or workable range of a variable will not be
deemed to have been obvious unless the variable was known to be “result-
effective.” See In re Antonie, 559 F.2d 618, 620 (CCPA 1977). The proof
required to find that a variable was “result-effective” is not high: “In those
cases in which the disclosure in the prior art was insufficient to find a
variable result-effective, there was essentially no disclosure of the
relationship between the variable and the result in the prior art.” In re
Applied Materials, Inc., 692 F.3d 1289, 1297 (Fed. Cir. 2012). Another
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exception to the rule of Aller is that the “outcome of optimizing a result-
effective variable may still be patentable if the claimed ranges are ‘critical’
and ‘produce a new and unexpected result which is different in kind and not
merely in degree from the results of the prior art.” Id.
The Examiner bears the burden of proving a sufficient factual
underpinning to support the conclusion that the subject matter of the
appealed claims would have been obvious. On the other hand, the Appellant
bears the burden of proving that the recited ranges are critical, so as to fall
within the exception to the rule of Aller. See Aller at 456; see also In re
Dillon, 919 F.2d 688, 694 (Fed. Cir. 1990) (The Appellant bears the burden
of proving unexpected results in order to overcome a prima facie case of
obviousness).
Therefore, I address three issues. First, would the combined teachings
of Harwood and Das/Comfort have provided one of ordinary skill in the art
sufficient guidance to optimize the wicking height parameter and the
absorbance parameter, so as to obtain the recited ranges? Second, has the
Appellant shown that the recited ranges are critical? Third, would the
subject matter of claims 7 and 26 have been obvious from the combined
teachings of Harwood, Das/Comfort and Das/Moisture?
HARWOOD
Harwood, the primary reference cited by the Examiner, describes an
aeroponic system including a growth chamber 5 and a flat 10 made from
cloth or fabric positioned within the aeroponic growth chamber. See
Harwood, 7, 9, 49 & 62; see also id., Figs. 6a, 8 & 9A. Harwood also
teaches supporting or carrying the selected cloth or fabric within the growth
chamber; and depositing seeds on the selected cloth or fabric that is
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supported within the growth chamber. See Harwood, 1 65. Therefore, the
Examiner correctly finds that Harwood teaches a system including each
limitation of independent claims 1, 17, 20 and 36 except the wicking height
range and the absorbance range of the cloth or fabric. See Final Act. 2. As
noted earlier, the Appellant does not appear to contest this finding.
More specifically, Harwood teaches that there are a number of
advantages to the use of certain types of cloth or fabric as growing media for
supporting aeroponically-grown plants. See Harwood, 35, 38 & 62. In
particular, Harwood teaches that:
In summary, cloth is preferred because of its water absorbing and
retention properties, its porosity allowing root growth, its
construction preventing spray from directly penetrating the cloth,
its handling properties facilitating space optimization, machine
washing, seeding and harvesting, its reusability, its ability to
provide plant support, and its non-contamination of the harvested
product.
Harwood, 140. In fact, Harwood describes a micro-fleece such as 100-
weight POLARTEC® fleece as an especially preferred material for a
growing medium. Harwood explains that the “wicking and water retention
properties of the micro-fleece make it ideal for the system of aeroponic
farming” described in the reference. Id. at 141.
DAS/COMFORT
Das/Comfort reports a study related to the comfort characteristics of
fabrics used in clothing. More specifically, the article reports the results of a
study “investigat[ing] the comfort characteristics of woven fabrics made out
of staple twist-less and hollow fibrous assemblies [as] compare [d] with the
characteristics of DREF-III core-sheath type of yam.” Das/Comfort 2. The
comfort characteristics investigated included air permeability, thermal
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conductivity, water vapor permeability, wicking and water absorbance. See
id. at 3 & 4.
Table 2, reproduced on page 7 of Das/Comfort, reports wicking and
water absorbance measurements for three tested fabrics. Each fabric had a
wicking height along the warp direction at the end of three minutes’
exposure1 of 2.8 cm or 2.9 cm, within the range from 1.1 cm to 4.5 cm. Two
of the three fabrics had a wicking height along the weft direction at the end
of three minutes’ exposure within that range.
Table 2, on page 7 of Das/Comfort, lists water absorbance
measurements in percentages rather than in g/cm2. The Examiner makes no
persuasive findings as to the comparability of the water absorbances
reported in Table 2 with the range recited in claims 1, 17, 20 and 36. See,
e.g., Examiner’s Answer, mailed Oct. 5, 2016 (“Ans.”), at 3.
DAS/MOISTURE
Das/Moisture also reports a study related to the comfort
characteristics of fabrics used in clothing. More specifically, the article
reports the results of a study “of the influence of the hydrophilic nature of a
blended material on its moisture transmission properties.” Das/Moisture 21.
The study concentrated on polyester/viscose blends because such blends
were commonly used in the apparel industry. See id. The moisture
transmission mechanisms studied included absorbency and wicking. See id.
at 23, 24 & 26.
1 The Specification similarly reports wicking height parameters
measured after three minutes’ exposure of fabrics to a fluid dye mixture.
See Spec., 1 84.
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Table III, on page 25 of Das/Moisture, lists absorbency measurements
for each of eight polyester/viscose blends in percentages rather than in
g/cm2. The Examiner does not appear to articulate persuasive findings as to
the comparability of the absorbency measurements reported in Table III with
the absorbance range recited in claims 1, 17, 20 and 36.
Table IV, reproduced on page 26 of Das/Moisture, reports vertical
wicking measurements for each of the eight blends tested in both the weft
and warp directions. The wicking measurements were taken for each blend
at one minute, five minutes and ten minutes, respectively, after exposure to
an aqueous dye mixture. Wicking measurements were not taken at three
minutes after exposure to the dye mixture.
EXAMPLES IN THE SPECIFICATION
The Appellant reports the results of four experiments in their
Specification. The Appellant asserts that these “test protocols unexpectedly
demonstrated the existence of an optimal combination of absorbance and
wicking parameters for optimally germinating seeds and yielding desired
plant life in aeroponic applications.” Spec., 1 74.
Experiment 1, reported on pages 15—21 of the Specification, measured
a wicking height parameter and an absorbance parameter of each of twenty-
four cloth samples. See Spec., Tflf 76 & 78. According to the Specification:
For Experiment 1, a soaking pan [100] was filled with water and
a small amount of red food coloring (e.g., a food coloring
including water, glycerin, FD&C red 40, citric acid, and sodium
benzoate). ... A strip measuring approximately 1 inch by 3.5
inches was cut for each cloth tested. [Although not mentioned in
the Specification, the strips presumably were weighed on a scale
before being exposed to the red dye mixture 106.] Two strips
were placed on clips and were dropped at the same time into the
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soaking pan 100. It was desired that water would be absorbed
and retained by the cloth while spreading evenly. The wick
height was measured at approximately 3 minutes and
approximately 6 minutes after dropping. The strips of cloth were
allowed to soak in the soaking pan 100, removed from the
soaking pan 100 and allowed to drip, i.e., drops were allowed to
drip off each cloth until more than about five seconds passed
between each drip. The soaked cloth was then weighed on the
scale 102.
Spec., 81 & 82; see also id. Fig. 35. A spline roller 108 was used to
compress soaked strips of napped cloth for viewing and measurement. See
id. at 1 84.
Table 1, reproduced on page 20 of the Specification, lists the wicking
height parameters for each of the twenty-four samples, measured after three
minutes. Table 2, reproduced on page 21 of the Specification, lists the
absorbance parameter for each of the twenty-four samples. (See id. at H 84
& 86).
Experiments 2, 3 and 4, reported on pages 21—32 of the Specification,
studied, among other objectives, the relationships between germination
percentage and plant yield, on the one hand; and wicking height parameter
and absorbance parameter, on the other. See generally Spec., H 21—32. The
three experiments were conducted by seeding flats formed from eight of the
cloth samples studied in Experiment 1; supporting the flats within a growth
chamber; and then exposing opposite sides of the flats to light and nutrient
sprays to induce plant germination and growth. See id. at 190. Each flat
was prepared so as to have four quadrants, each quadrant being made from a
different cloth sample. The quadrants formed from napped samples were
divided in half, the napped side facing up in one of those halves and the
napped side facing down in the other of those halves. See id. at | 88; see
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also id., Figs. 36A & 36B. Lighting and spray conditions were varied
between experiments.
Experiment 2, reported at pages 21—25 of the Specification, “focused
on determining a germination percentage accounting for light variation. . . .
In addition, Experiment 2 determined the relationship between wicking,
absorbance, and seed germination.” Spec., 192. Each flat was seeded with
approximately twenty grams of “Astro” aragula (Eruca sativa) and placed in
the growth chamber. Each flat was covered with either (a) a translucent
white cover, (b) a black opaque cover or (c) no cover. After suitable period,
one inch strips were taken from the flats to count seeds germinated on each
quadrant. See id. at 191.
Table 3, reproduced on page 24 of the Specification, lists the
germination percentage produced by flat quadrants made from each of the
eight samples subject to Experiment 4. See Spec., 1100. For flat quadrants
made from napped samples, germination percentages and densities of grown
plants were measured separately for napped sides facing upwardly and
napped sides facing downwardly.
Five of the cloth samples used to makes the flats employed in
Experiments 1—4 had wicking height parameters and absorbance parameters
within the ranges recited in claims 1, 17, 20 and 36. According to Table 3,
the seeds on the quadrants made from those cloths, oriented with napped
sides down, covered initially by a black opaque cover, had germination
percentages ranging between 61% and 98%. Of the other three cloths, the
use of sample T (white SPANDEX), having a wicking height parameter of
8.1 cm and an absorbance parameter of 0.04 g/cm2, covered initially by a
black opaque cover, produced a germination percentage of 100%. The use
of sample N (“pop bottle” fabric), having a wicking height parameter of 0.6
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Application 13/683,700
cm and an absorbance parameter of 0.26 g/cm2, covered initially by a black
opaque cover, produced a germination percentage of 10%;. The use of
sample O (polar fleece 300 cloth), having a wicking height parameter of 2.6
cm and an absorbance parameter of 0.32 g/cm2, covered initially by a black
opaque cover, produced a germination percentage of 85%.
Experiment 3, reported at pages 21—23, 25 and 26 of the Specification,
“generally focused on determining plant yield as a function of cloth type.”
Spec., 199. Each flat was seeded with approximately twenty grams of
“Astro” aragula (Eruca sativa); placed in the growth chamber; and covered
for approximately two days. The plants were permitted to grow within the
growth chamber for an additional seventeen days after the covers were
removed. The plants were then cut from the flats and weighed to determine
the density of the harvested plants on each quadrant. See id. at || 96 & 97.
Table 4, reproduced on page 26 of the Specification, lists the
germination percentage and density of harvested plants produced by flat
quadrants made from each of the eight samples subject to Experiment 3. See
Spec., 197. According to Table 4, the seeds on the quadrants made from the
five cloth samples having wicking height parameters and absorbance
parameters within the ranges recited in claims 1, 17, 20, and 36, oriented
with the napped sides down, had germination percentages ranging between
94% and 98%; and densities of harvested plants ranging between 0.240 and
0.640. Of the other three cloths, the use of sample T produced a germination
percentage of 100% and a density of harvested plants of 0.095; the use of
sample N produced a germination percentage of 33% and a density of
harvested plants of 0.105; and the use of sample O produced a germination
percentage of 85% and a total weight of harvested plants of 0.305.
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Experiment 4, reported at pages 21—23, 26 and 27 of the Specification,
also “generally focused on determining plant yield as a function of cloth
type.” Spec., 199. At the beginning of the experiment, the cloth flats were
washed in a washing machine with detergent. Each flat was seeded with
approximately ten grams each of Fun Jen (Brassica rapa var. chinesis) and
Komatsuna (Brassica rapa var. perviridis); placed in the growth chamber;
and covered with an opaque cover. After a suitable period the covers were
removed to expose the plants to light within the growth chamber. Once the
plants reached harvest size, seventeen plants were pulled from each quadrant
with the roots intact. The plants were weighed and the total weight for each
quadrant was recorded. See id. at 1100. In Experiments 4, variations in
light and nutrient exposure present in Experiment 3 were removed. See id.
at 199.
Table 5, reproduced on page 27 of the Specification, lists the
germination percentage and total weight of harvested plants produced by flat
quadrants made from each of the eight samples subject to Experiment 4. See
Spec., 1100. According to Table 5, the seeds on the quadrants made from
the five cloth samples having wicking height parameters and absorbance
parameters within the ranges recited in claims 1, 17, 20 and 36, oriented
with the napped sides down, had germination percentages ranging between
94% and 98%; and total weights of harvested plants ranging between 4.60 g
and 11.46 g. Of the other three cloths, the use of sample T produced a
germination percentage of 86% and a total weight of harvested plants of
6.48g; the use of sample N produced a germination percentage of 93% and a
total weight of harvested plants of 12.49g; and the use of sample O produced
a germination percentage of 93% and a total weight of harvested plants of
7.57g.
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In the discussion appearing on pages 27—31 of the Specification, the
Appellant ranks the experimental results for the eight cloth samples tested in
Experiments 2-A; and uses that ranking to determine ranges for the wicking
height parameter and the absorbance parameter that optimize germination
percentage and plant yield. See, e.g., Spec., 1103. The Appellant also
observes that:
The experimental results provide preferred wicking parameter
and absorbance parameter ranges and [show] that wicking and
absorbance characteristics of cloth/fabric may be used to select
optimal cloth/fabric materials for use in aeroponic systems.
Cloth materials having a wicking parameter and/or an
absorbance parameter greater than those listed above may be too
damp and can drown seedlings and/or create conditions which
enhance fungal growth. Cloth materials having a wicking
parameter and/or an absorbance parameter less than those listed
above may create poor germination conditions. Although the
results discussed herein were determined from experimentation
with a water-based solution, it is believed that the results and
preferred ranges for the wicking parameter and the absorbance
parameter are predictive for aeroponic systems implementing a
nutrient solution.
Id. at 1107.
ANALYSIS
Prima Facie Obviousness over the Teachings of Harwood
Paragraph 41 of Harwood establishes that the wicking height
parameter and the absorbance parameter were recognized as result-effective
variables with respect to the germination of seed and the yield of plants in an
aeroponic system. Harwood characterized its aeroponic systems as
“structure^] for seed germination and growth.” Harwood, 110; see also id.,
cl. 37. When Harwood taught that the “wicking and water retention
properties of the micro-fleece make it ideal for the system of aeroponic
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farming” described in the reference (Harwood, 141), the implication was
that the wicking and water retention properties of the micro-fleece make the
micro-fleece desirable for promoting seed germination and growth. This
teaching is sufficient, under the holding of Applied Materials, to establish
that wicking and water retention (that is, absorbance) were result-effective
variables.
The Examiner finds that “it is notoriously well known in the plant
industry that wicking and absorbency parameters are very important in
considering] what fabric to select for growing plants.” Ans. 4; see also id.
at 2 (“In addition, the plant industry is notoriously well known to use fabric
or cloth from the textile industry for use in wicking and absorbency.”). This
finding is supported by the evidence only to the extent that the finding
summarizes Harwood’s teachings, which indicate that one of ordinary skill
in the pertinent art would have recognized that the wicking height parameter
and the absorbance parameter were result-effective variables. A broader
finding would not be supported by a preponderance of the evidence, nor
would it be a proper subject for official notice. See In re Ahlert, 424 F.2d
1088, 1091 (CCPA 1970) (“Allegations concerning specific ‘knowledge’ of
the prior art, which might be peculiar to a particular art should also be
supported and the appellant similarly given the opportunity to make a
challenge.”).
The Examiner correctly concludes, prima facie, that it would have
been obvious to improve the aeroponic system described by Harwood by
choosing a cloth or fabric growing medium having a wicking height
parameter and an absorbance parameter that optimized the seed germination
and the plant yield of the system. Individual trials might be conducted by
growing plants on flats formed from test fabrics in accordance with the
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ordinary use of an aeroponic system. Harwood’s preference for micro-fleece
would have provided one of ordinary skill in the art a place to start, a
reference, for further trials. Harwood provided sufficient guidance to enable
one skilled enough to read Harwood with understanding to ascertain the
desirability of the wicking height range and the absorbance range recited in
claims 1, 17, 20, and 36 through routine experimentation. See Final Act. 3.
The Teachings of Das/Comfort are Not Non-Analogous, but are of Limited
Probative Value
The Appellant argues that Das/Comfort is non-analogous art. See
App. Br. 6 & 7. The argument is not persuasive.
Two separate tests define the scope of analogous prior art: (1)
whether the art is from the same field of endeavor, regardless of
the problem addressed and, (2) if the reference is not within the
field of the inventor’s endeavor, whether the reference still is
reasonably pertinent to the particular problem with which the
inventor is involved.
In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). The Appellant in the
present appeal was involved with the problem of “enhanc[ing] the
performance of cloth/fabric material for seed and plant support.” Spec., 1 5.
More particularly, the Appellant was involved with the problem of creating
“aeroponic systems and methods that incorporate cloth and/or fabric
materials that promote advantageous germination properties and plant
yield.” Id. Based on the teachings of Harwood, one of ordinary skill in the
art seeking to address those problems would have looked to literature
teaching cloth or fabric materials having desirable wicking or absorbance
properties. Thus, Das is reasonably pertinent to the particular problem with
which the Appellant was involved.
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The Appellant admits in the Specification that at least a few studies
determining the absorption properties of cloth material were known in the
industry, that is, presumably, in the art or arts pertinent to the claimed
subject matter. See Spec., 14. Thus, a report of a study, such as of the study
reported in Das, is a type of document with which one of ordinary skill in
the art likely would have been familiar. See Ans. 5. The Examiner correctly
finds that Das is not non-analogous art.
That said, I agree with the Appellant (see App. Br. 7) that Das
/Comfort adds little to the analysis. Das/Comfort proves that there existed
fabrics having wicking height parameters falling within the range recited in
claim 1. See Das/Comfort 7 (Table 2). On the other hand, Das/Comfort
discusses properties such as wicking height and absorbance in the context of
improving the comfort of garments made from such fabrics rather than in the
context of improving growing media used in aeroponics. As the Appellant
correctly points out (see Reply Brief, dated Dec. 5, 2016, at 7), Das/Comfort
does not address aeroponics. It does not suggest that wicking height
parameters and absorbance parameters within particular ranges were
desirable properties for fabrics or cloths used as growing media in an
aeroponic system; nor does it suggest the use of any of the fabrics it
describes in an aeroponic system.
On page 5 of the Answer, the Examiner invokes the Supreme Court’s
instruction that, “[w]hen a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it, either in the
same field or in a different one. If a person of ordinary skill can implement
a predictable variation, § 103 likely bars its patentability.” KSR Int’l Co. v.
Teleflex, Inc., 550 U.S. 398, 417 (2007). That statement does not provide a
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convincing rationale for combining the teachings of Das/Comfort with those
of Harwood.
As observed earlier, Das/Comfort discusses properties such as
wicking height and absorbance in the context of improving the comfort of
garments made from such fabrics rather than in the context of improving
growing media used in aeroponics. Had one of ordinary skill in the art
embraced the teachings of Harwood and performed the experimentation
necessary to determine the optimal wicking height range and absorbance
range for a cloth or fabric forming a growing medium, he or she might have
had reason to adopt one of the fabrics described by Das/Comfort for use in
an aeroponic system. That said, had one of ordinary skill in the art
embraced the teachings of Harwood and performed the experimentation
necessary to determine the optimal wicking height range and absorbance
range for a cloth or fabric forming a growing medium, he or she would have
possessed the subject matter of claims 1,17, 20, and 36 without reference to
the teachings of Das/Comfort. On the other hand, had one of ordinary skill
in the art not performed the experimentation suggested by Harwood, the
teachings of Das/Comfort would not have provided a reason to use a cloth or
fabric falling within the ranges recited in independent claims in an aeroponic
system.
The Appellant Has Not Shown the Ranges Recited in the Independent
Claims to be “Critical ”
As discussed earlier, the Appellant reports the results of four
experiments on pages 15—31 of their Specification. The Appellant argues
that this experimental data “demonstrate[s] an unexpected benefit to growing
systems/methods in growing environments that simultaneously satisfy” the
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wicking height range and the absorbance range recited in claims 1, 17, 20
and 36. App. Br. 6. In other words, the Appellant contends that this case
falls within an exception to the rule of Aller because the experimental results
reported in the Specification demonstrate that the ranges recited in claims 1,
17, 20 and 36 are critical.
The Appellant has not proven that the recited ranges are critical for at
least two reasons. First, the Appellant has not made a persuasive showing
that the results of Experiments 2-4 are different in kind from the results one
would have expected from optimizing the wicking height parameter and the
absorbance parameter in accordance with the suggestion of paragraph 41 of
Harwood. In fact, the Specification itself describes the results of
Experiments 2—A as optimizing the wicking height and absorbance, that is, as
identifying wicking height ranges and absorbance ranges that optimize the
germination percentage and plant yield of the aeroponic system. See, e.g.,
Spec., 1106; see also id. at 1107 (asserting that the experimental results
show “that wicking and absorbance characteristics of cloth/fabric may be
used to select optimal cloth/fabric materials for use in aeroponic systems”).
Merely demonstrating that two parameters identified by Harwoood as
making a cloth an ideal growing medium can be optimized does not
diminish the probative effect of the prior art teachings indicating that one of
ordinary skill in the art would have had both reason and sufficient skill to
perform that optimization.
Second, I agree with my colleagues that the Appellant has not made a
persuasive showing that the germination percentages and plant yields
obtained by growing the plants aeroponically on flats made from fabrics or
cloths satisfying the recited wicking height range and the recited absorbance
range were unexpectedly superior to the germination percentages and plant
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yields obtained using fabrics or cloths that do not satisfy the recited ranges.
The Appellant bears the burden of proving that allegedly unexpected results
are, in fact, unexpected. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir.
1997). In order to meet this burden, the Appellant must assert, either in the
Specification or in a declaration under 37 C.F.R. § 1.132, that the results are
unexpected; and then back up that assertion with evidence. See id. at 1471.
The Appellant alleged in the Specification that the “testing protocols
unexpectedly demonstrated the existence of an optimal combination of
absorbance and wicking parameters for optimally germinating seeds and
yielding desired plant life in aeroponic applications.” Spec., 174.
Nevertheless, the experimental results appear to be what one would have
expected, given the teachings of paragraph 41 of Harwood. The results do
not support the Appellant’s allegations.
For these reasons, I find that the Appellant has not proven the recited
ranges are, or that the experimental results would have been, unexpected.
The Examiner correctly finds that Harwood discloses each limitation of
claims 1, 17, 20 and 36 except that “the cloth or fabric exhibits] (i) a
wicking height parameter characterized by a wicking height range from 1.1
cm to 4.5 cm, and (ii) an absorbance parameter characterized by an
absorbance range from 0.10 g/cm2 to 0.29 g/cm2.” Paragraph 41 of
Harwood shows that the recited wicking height parameter and the recited
absorbance parameter were recognized as result effective parameters; and
the Examiner correctly finds that the recited ranges could have been
obtained by routine experimentation. The Appellant has not proven the
criticality of the ranges. Therefore, I agree with the Examiner that the
subject matter of claims 1, 17, 20 and 36 would have been obvious.
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That said, I note that the bases on which I find that the Appellant has
not proven the criticality of the recited ranges differs from the basis on
which the Examiner made the same finding. The Examiner finds that:
While [A]ppellant[s] may have provided data demonstrating an
unexpected benefit, [Das/Comfort] provided that same data on
their fabric.... The data demonstrating an unexpected benefit as
provided by [A]ppellant[s] is NOT really unexpected because
[Das/Comfort has] already conducted experiments and found
these data, such as wicking height and absorbency, for various
fabrics.
Ans. 3. As the Appellant points out on pages 6 and 7 of the Reply Brief,
Das/Comfort discusses properties such as the wicking height and absorbance
of fabrics in the context of improving the comfort of garments made from
such fabrics rather than in the context of improving growing media used in
aeroponics. The Examiner explicitly “[does] not rel[y] on Das[/Comfort] for
test data relating to plant germination.” Ans. 6. Thus, the teachings of
Das/Comfort (as opposed to the teachings of Harwood) do not rebut the
Appellant’s assertion that the use of flats made from cloth satisfying the
recited ranges results in unexpected improvements in germination
percentage and plant yield.
I would sustain the Examiner’s finding that the Appellant has not
proven the criticality of the wicking height range and the absorbance range
recited in claims 1, 17, 20, and 36 for reasons different from those
articulated by the Examiner. I would affirm the Examiner’s decision
rejecting claims 1—6, 8—17, 19—25, 27—36, 38 and 39 under § 103(a) as being
unpatentable over Harwood and Das/Comfort. Nevertheless, I would
designate the affirmance a new ground of rejection to provide the Appellant
a fair opportunity to respond to the findings and reasoning on which I would
affirm the rejection.
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The Subject Matter of Claims 7 and 26 Would Not Have Been Obvious from
the Teachings of Harwood, Das/Comfort and Das/Moisture
Claim 7 recites the “aeroponic system of claim 1, wherein the cloth or
fabric is selected from a group consisting of a polyester material, an acrylic
material, and a non-biodegradable synthetic material.” Claim 26 similarly
recites the “system of claim 20, wherein the cloth or fabric is selected from a
group consisting of a polyester material, an acrylic material, and a non-
biodegradable synthetic material.” The Examiner concludes that the subject
matter of claims 7 and 26 would have been obvious from the combined
teachings of Harwood, Das/Comfort and Das/Moisture. I disagree.
The Examiner correctly finds that Harwood discloses each limitation
of parent claims 1 and 20 except that “the cloth or fabric exhibits] (i) a
wicking height parameter characterized by a wicking height range from 1.1
cm to 4.5 cm, and (ii) an absorbance parameter characterized by an
absorbance range from 0.10 g/cm2 to 0.29 g/cm2.” Paragraph 41 of
Harwood shows that the recited wicking height parameter and the recited
absorbance parameter were recognized as result effective parameters; and
the Examiner correctly finds that the recited ranges could have been
obtainable by routine experimentation. Neither Harwood nor Das/Comfort
teaches the use of a flat made from a cloth or fabric selected from a group
consisting of a polyester material, an acrylic material, and a
non-biodegradable synthetic material.
The Examiner finds that Das/Moisture teaches that polyester material
“has good wicking and absorbency characteristics.” Final Act. 8.
Nevertheless, Das/Moisture, like Das/Comfort, discusses properties such as
wicking height and absorbance in the context of improving the comfort of
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garments made from such fabrics rather than in the context of improving
growing media used in aeroponics. Das/Moisture does not address
aeroponics. See App. Br. 12 & 13. Furthermore, The Examiner does not
find that any of the polyester blends described by Das/Moisture satisfies the
optimal wicking height range or absorbance range recited in claims 1 and 20.
In the absence of either a finding that Das/Moisture described a fabric or
cloth satisfying the optimal wicking height range or absorbance range
recited in claims 1 and 20; or a finding that Das/Moisture would have
suggested the use of a polyester blend as a growing medium in an aeroponic
system, the Examiner has not shown that one of ordinary skill in the art
would have had reason to select a polyester material for use in a flat in an
aeroponic system. Therefore, I would reverse the rejection of claims 7 and
26 under § 103(a) as being unpatentable over Harwood, Das/Comfort and
Das/Moisture.
30