Ex Parte Gold et al

Patent Trial and Appeal BoardFeb 6, 2019

14952509 (P.T.A.B. Feb. 6, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/952,509 11/25/2015 Brian D. Gold 24247 7590 02/08/2019 TRASKBRITT, P.C. P.O. BOX 2550 SALT LAKE CITY, UT 84110 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 3708-Pl3072US 8801 EXAMINER LANGEL, WAYNE A ART UNIT PAPER NUMBER 1736 NOTIFICATION DATE DELIVERY MODE 02/08/2019 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): USPTOMail@traskbritt.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BRIAND. GOLD and ALBERT R. WILDE Appeal2018-005244 Application 14/952,509 Technology Center 1700 Before KAREN M. HASTINGS, JEFFREY R. SNAY, and DEBRA L. DENNETT, Administrative Patent Judges. SNAY, Administrative Patent Judge. DECISION ON APPEAL 1 Appellants appeal under 35 U.S.C. Â§ 134(a) from the Examiner's decision rejecting claims 1-7 and 9-25. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. 1 We refer to the Specification ("Spec.") filed November 25, 2015, as amended February 8, 2016; Final Office Action ("Final Act.") dated November 8, 2017; Appellants' Appeal Brief ("App. Br.") filed January 25, 2018; Examiner's Answer ("Ans.") dated March 22, 2018; and Appellants' Reply Brief ("Reply Br.") dated April 20, 2018. Appeal2018-005244 Application 14/952,509 BACKGROUND The subject matter on appeal relates to wool pellets for use in providing nutrients and water to plants. Spec. ,r 1. Claim 1 reads as follows: 1. A pellet for fertilizing and watering plants, compnsmg: wool comprising: fibers having lengths between about 1.5 cm and about 17 cm; and natural lanolin; and a binding agent comprising at least one of sawdust, grain, coir, blood meal, animal manure, and poultry manure. App. Br. 29 (Claims Appendix). Claim 10 generally is directed to a soil composition containing a plurality of specified wool pellets. Claim 18 recites a method of providing substance to a plant using wool pellets. Each remaining claim on appeal depends from claim 1, 10, or 18. REJECTIONS I. Claims 1-7 and 9 stand rejected under 35 U.S.C. Â§ 112(b) as indefinite. II. Claims 1-7 and 9-25 stand rejected on the ground of nonstatutory obvious-type double patenting over US Application Serial No. 14/952,475. II. Claims 1-7 and 9-25 stand rejected under 35 U.S.C. Â§ 103 as unpatentable over IFN. 2 III. Claims 1-7 and 9-25 stand rejected under 35 U.S.C. Â§ 103 as unpatentable over IFN and Thompson. 3 2 DE 20 2007 002 569 Ul, published June 6, 2007 ("IFN"), as translated. 3 US 2014/0235438 Al, published August 21, 2014 ("Thompson"). 2 Appeal2018-005244 Application 14/952,509 OPINION Rejections I and II Appellants present no argument addressing either Rejection I or II. Accordingly, each of these Rejections is summarily sustained. Rejection III With regard to Rejection III, Appellants separately address each of claims 1, 6, 10, 13-16, 18, and 21-25. See App. Br. 10-26. The remaining claims on appeal are not separately argued and stand or fall with claim 1. Claim 1 Relevant to Appellants' arguments on appeal, the Examiner finds that IFN discloses a wool pellet for fertilizing and watering plants which, when formed using unwashed sheep wool, advantageously includes extraneous constituents including feces which serves as a binding agent. Ans. 4. Appellants argue that IFN teaches forming wool pellets without need of a binder and, on that basis, teaches away from the claimed pellet which includes a binder. App. Br. 11-12; Reply Br. 2-3. Appellants also argue that the phrase, "binding agent," in the claims would not have been construed as encompassing natural impurities included in unwashed wool. App. Br. 12; Reply Br. 3--4. Appellants' arguments are unpersuasive of reversible error. IFN states that feces which is not removed from unwashed wool "promote[ s] the production of stable moldings." IFN 2. For that reason, according to IFN, such unwashed wool "can advantageously be processed by pelleting ... by pressing." Id. "The additional use of binders is not required." Id. ( emphasis added). We view these disclosures in IFN as characterizing feces 3 Appeal2018-005244 Application 14/952,509 in unwashed wool as a natural binder sufficient for forming pellets by pressing. As such, we are not persuaded that IFN teaches away or otherwise discourages use of any binder. Nor are we persuaded that the phrase "binding agent" in Appellants' claims should be narrowly construed to exclude IFN' s naturally occurring feces. Appellant points to paragraphs 19 and 34 of the Specification for support of such a narrow construction. App. Br. 12. Paragraph 19 states that the binding agent "may include ... animal or poultry manures, or any other known natural binding agents." Spec. ,r 19. ( emphasis added). Paragraph 34 repeats the above-quoted language, and adds that the use of such binding agent is optional. Spec. ,r 34. These passages are not consistent with Appellants' proposed narrow construction. For the foregoing reasons, we are not persuaded of reversible error in the Examiner's Rejection I as applied to claim 1. Claim 6 Claim 6 requires a pellet outer diameter "within a range of about 1.5 cm to about 6 cm." Appellants argue that IFN discloses a diameter up to 1 cm, and further argue that "IFN does not recognize the dimensions of the pellets as a result-effective variable." App. Br. 13. See also Reply Br. 5. We are not persuaded of error. Appellants do not point to any criticality associated with pellet diameter. In the context of IFN' s pellets for use in fertilizing plants, we see little substantive difference between a diameter of 1 cm and the claimed value of "about 1.5 cm." Moreover, IFN's teaching that the disclosed wool pellets provide nitrogen for plants (IFN 3), as well as variable water absorption capacity (id. at 5), is sufficient to support a finding that one of ordinary skill in the art would have viewed the pellet size as selectively variable, such that larger pellets would provide a 4 Appeal2018-005244 Application 14/952,509 greater nitrogen source and increased water absorption capacity. As such, Appellants do not persuade us of reversible error in the Examiner's determination that the claimed pellet diameter would have been obvious. Claim 10 and 13 Claim 10 requires a plurality of wool pellets distributed within a "growing media (sic.)." Appellants argue that "IFN does not teach or suggest anything in regard to a soil composition." App. Br. 14; Reply Br. 6. We disagree. IFN expressly refers to agricultural and horticultural soils as media in which the introduction of sheep wool has been desired. IFN 1-2. IFN teaches use of the disclosed fertilizer "for outdoor cultivation as well as for under-glass cultivation or for indoor greening." Id. at 2. We find no reversible error in the Examiner's determination that one of ordinary skill would have found it obvious to distribute IFN' s plant fertilizer pellets in a plant growth medium such as soil. Each of claims 13 and 23 further requires that pellets are distributed "throughout the growing media." The Examiner finds that one of ordinary skill would have had a reason to provide such a distribution "to maximize access of the fertilizing nutrients to the plant roots." Ans. 7. Appellants characterize the Examiner's reasoning as impermissible hindsight. App. Br. 16; Reply Br. 8. Appellants' argument is not persuasive of error. IFN' s teaching of fertilization for cultivation suggests that the disclosed fertilizer pellets should be provided wherever fertilization is desired. For a plant located within a growth medium (soil), it is reasonable to expect that the desired fertilization would have existed throughout the growth medium. "A person of ordinary skill is also a person of ordinary creativity, not an automaton." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,421 (2007). 5 Appeal2018-005244 Application 14/952,509 Claims 14-16, 24, and 25 Claims 14--16, 24, and 25 recite compositional amounts of pellets in soil, ranging from about 1 % to about 75% by volume. The Examiner determines that it would have been obvious to provide any suitable or optimal concentration of pellets in a given soil. Ans. 7. Appellants contend that concentration has not been shown to have been recognized as a result- effective variable. App. Br. 16-19; Reply Br. 9. Appellants' argument is devoid of merit. Increasing fertilization pellet concentration increases the level of fertilization as well as cost associated with the provided fertilizer. The level of fertilization versus cost represents a readily apparent basis for optimization. Claim 18 With regard to claim 18, Appellants rely on the same arguments presented in connection with claim 10. App. Br. 19-20. We find these arguments unpersuasive of reversible error for the reasons given above. Claims 21 and 22 Claims 21 and 22 require that the pellets store 10-times and 20-times, respectively, the dry weight of the pellets. The Examiner determines that it would have been obvious to provide any suitable or optimal water absorption capacity to provide a desired level of water retention and release over time. Ans. 8. Appellants contend that "IFN does not teach or suggest anything in regard to a water storage capacity of the pellets," and therefore does not recognize water storage capacity as a result-effective variable. App. Br. 21: Reply Br. 11. We disagree. IFN states that the disclosed fertilizer pellets "can also store and maintain water for an extended period of time." IFN 3. IFN further teaches that "the water absorption capacity per 6 Appeal2018-005244 Application 14/952,509 pressing can be varied." Id. at 6. IFN additionally teaches that the disclosed fertilizer "is intended to take full advantage of the phyto-physiological properties of the sheep wool with regard to the metered nutrient supply according to the field of application in ecological or conventional horticulture." Id. at 2. All of the foregoing disclosures in IFN support the Examiner's determination that one of ordinary skill would have found it obvious to select and provide any desired or optimal water absorption capacity for a given application. Rejection III is sustained. Rejection IV The Examiner alternatively rejects each claim on appeal based on IFN's disclosure, discussed above, and Thompson's recognition that it was known to use binders to granulate fertilizer pellets. Ans. 8-9. Appellants rely on the same arguments presented with regard to Rejection III. App. Br. 26-27; Reply Br. 12-13. Because we find Appellants' arguments unpersuasive for the reasons given above, Rejection IV also is sustained. DECISION The Examiner's decision rejecting claims 1-7 and 9-25 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). AFFIRMED 7