COMMISSIONER'S DECISION
UNOBVIOUS: In View of Prior Art.
The use of first and second means predetermining discrete seed
growing locations in greenhouse soil trays; the growing locations
of each means being different from the other and the second means
being used for planting after the planting using the first means
has been harvested, is unobvious over the prior practice of
haphazard over-planting, such as growing chrysanthemums between
dormant daffodil bulbs.
FINAL ACTION: Affirmed in part; amendment accepted.
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This decision deals with a request for review by the Commissioner
of Patents of the Examiner's Final Action dated January 16, 1973
on application 057,743. This application was filed on July 23, 1969
in the name of Yull G. Poon and refers to a "Greenhouse Space-Saving
Device". The Patent Appeal Board conducted a Hearing on February 13,
1974, at which Mr. J.A. Enstone and Mr. C. Curphey represented the
applicant.
The application relates to a method and apparatus for growing
successive cycles of plants in greenhouse soil trays which eliminate
aeration and cleaning of the soil between cycles. The soil is
first covered with a multiperforated paper layer which will retain
moisture in the soil and inhibit weed growth. At the time of
planting the paper is covered with a layer of rigid material through
which are drilled holes according to a predetermined plan. Seeds
are planted in the holes, the rigid material removed, and the
plants grown through the paper layer and subsequently harvested.
The process is repeated using a fresh paper layer and a different
rigid layer in which the drilled holes are located in a different
position than in the first. The process may be repeated several
times to utilize new growing locations for other plants.
In the prosecution terminated by the Final Action the examiner
refused claims 1, 2 and 5 as being obvious in view of the
following references:
Home Vegetable Growing Canada Department of Agriculture
Publication #1059, 1959, Tables 1 and 2, and pags 9.
The Beginning Knowledge Book of Backyard Flowers by
folly Hathaway ... Rutledge Book, Inc. 1965.
This art shows methods of planting showing different growing
cycles of plants in gardens and other outside areas (rather
than in greenhouse trays).
In the Final Action the Examiner stated in part:
tt is conceded that the publications do not directly teach
the applicant's method or apparatus. However the claims
are rejected as being obvious in view of the cited references
since the use of the principle in soil trays in greenhouses
is not considered patentably distinct from the principle
as used in outdoor gardens or as used in reforestation
areas. Tire principle of planting successive crops wherein
the second crop is planted after the first crop is harvested
but in different discrete locations from the first crop
while leaving the roots of the first crop in the soil is
known in reforestation areas. The principle is known in
reforestation and aprears to be well known in outdoor
gardening. The use of this principle in soil trays to
be used in greenhouses is obvious and is not patentably
different. Likewise planting seeds is not inventive ovar
planting seedlings or bulbs and applicant may not rely on
the fact that he is planting seeds as a factor in patentability.
Publication #1059 discloses on page 9 at lines 10-12 that
planting successive crops after an earlier crop is harvested
is known and Tables 1 and 2 could be used in selecting the
crops. It would be obvious that the second crop need not
be at the same discrete growing locations as the first crop
and in all probability would be at slightly different
locations. Roots from the first crop, unless deliberately
pulled out, would remain in the soil, and it is common to
leave roots of many crops in the soil.
The Hathaway reference discloses a Garden Plan which shows
alternate flowers in one row i.e. daffodil and chrysanthemums.
Daffodils are planted in the fall and bloom in early spring
The chrysanthemums are planted in May. In the plan the
chrysanthenums are shown between the daffodil bulbs which
indicates that the chrysanthemums are planted while leaving
the roots of the daffodils in the soil. As pointed out
previonsly, it is not inventive to plant seeds instead of
bulbs or in trays in a greenhouse instead of outdoors.
The applicant in his response dated April 12, 1973 to tho Final Action
stated in part:
With respect to Publication #1059, the Examiner relies upon the
teachings on page 9 at lines 10 and 12. The Examiner states
that this part of the publication teaches that planting suc-
cessive crops after an earlier crop is harvested is known and
Tables I and II could be used in selecting the crops. All the
reference teaches in this isolated passage is that successive
crops of lettuce, carrots, beets, radish, cress and spinach
may be obtained by successive sowings, and that these should
be planted after early crops of lettuce, radish, spinach or
peas are harvested. The Examiner concludes that it would be
obvious that the second crop need not be at the same discrete
growing locations as the first crop and in all probability
would be a slightly different locations. The Examiner also
deduces that the roots from the first crop, unless deliberately
pulled out, would remain in the soil. However, there is
absolutely no positive teaching of deliberately leaving the
roots in the soil or of choosing different discrete locations
for successive plantings.
Applicant questions how, in the absence of the teachings of his
specification, one can proceed to harvest the first crop and
then select a second plurality of discrete growing locations,
with each of the second growing locations being different from
each of the first growing locations. Once the first crop has
been harvested in an outdoor garden, there is simply no way
to know where the roots of the first crop are. Thus, Publication
#1059 totally fails to even remotely suggest the novel method
and apparatus described and claimed by applicant.
The Examiner also cites the Hathaway reference making particular
reference to its disclosed garden plan showing alternate flowers
in one row i.e. Daffodils and Chrysanthemums. The Examiner
points out that the plan shows Chrysanthemums between the
Daffodil bulbs, and he concludes that this indicates that the
Chrysanthemums are planted while leaving the roots of the
Daffodils in the soil. There is absolutely no such teaching
to warrant such a conclusion. Furthermore, there is certainly
no teaching that the Daffodils are "harvested" prior to planting
the Chrysanthemums. If such harvesting does not take place,
then it would be very easy to locate where the Chrysanthemums
should be planted. However, once harvesting has taken place,
the stems of the Daffodils have been removed and the soil
reworked, it would be most difficult to ensure that the
Chrysanthemums were planted in discrete growing locations
that are different from each of the growing locations of the
Daffodils. In fact, there would be no certainty that the
Chrysanthemums would not be planted right over the Daffodil
roots and bulbs underneath the soil.
A Hearing was held on February 13, 1974 at which time several
important issues were discussed, and as a result the applicant
indicated his willingness to make certain amendments to the claims.
One of the issue raised was that amended claims 8 and 9, which were
to replace claims 1 and 5, would read on other modifications not
intended to be covered by the applicant. A second issue was the
question of the breath of claiming in claims 8 and 9. On February
18, 1974 the applicant was requested by telephone to forward in
writing the amendments he proposed for consideration by the Board.
The applicant responded by submitting an amendment, dated February
25, 1974, which reads in part:
Since the hearing, I have had the benefit of a discussion
with the Assistant Chairman of the Patent Appeal Board
concerning one of the points which was raised at the
Hearing. Following upon that discussion I now submit
for your consideration two fresh copies of the claims
with some amendments as noted below. I believe that
these amendments will overcome the problem raised at
the Hearing.
Claim 1:
This claim is the newly proposed claim 8 (the method
claim) renumbered as claim 1 with the following suggested
amendments.
L. 3 The clause "utilizing substantially the total
area of each tray" has been added.
L. 6 (L. 1 of sub-paragraph (a)) The clause "utilizing
selection means to select" has been added and it
will replace the word 'selecting'.
Claim 2:
L. 3 The reference to steps (d), (e) and (f) of
claim 1 has been changed to steps (e), (f) and
(g) consequent upon the changes in claim 1.
Claim 3:
L. 1 The reference to step (a) of claim 1 has been
changed to step (b) consequent upon the changes
in claim 1.
Claim 4:
L. 1 The reference to steps (c), (d) and (f) of claim
3 has been changed to steps (d), (e), and (g)
consequent upon the changes in claim 1.
Claim 5:
This claim is the newly proposed claim 9 (the apparatus claim)
renumbered as claim 5 with the following suggested amendments:
1.. 3 The clause "utilizing substantially the total
area of each tray" has been added.
Claims 6 and 7:
These claims remain unaltered.
I believe that these suggested amendments clear away the
difficulty raised for the first time at the Hearing.
The first question which must be considered is what is the scope
and contents of the prior art cited.
The Hathaway reference discloses a "Garden Plan" which shows alternate
flowers in one row,i.e. daffodils and chrysanthemums. The daffodils
are planted in the fall and bloom in early spring. The chrysanthemums
are planted in the spring, after the daffodils have bloomed and are cut
back. In the plan the chrysanthemums are shown between the daffodil
bulbs, which indicates that the chrysanthemums are planted while leaving
the roots of the daffodils in the soil. This reference discloses that
the basic concept of planting between the roots of other plants is
known in the art.
The publication #1059 reference relates to the planting of successive
crops after an earlier crop is harvested. According to tables 1 and
2 the second crop need not be grown in the same location as the first.
The next question to be decided is whether claims 1 and 5 as amended
are directed to a patentable advance in the art over the prior art
cited. Rejected claim 2, which depends on amended claim 1, adds
additional procedural steps, and will stand or fall with claim 1.
Amended claims 1 and 5 read:
1. A method of growing plants in a greenhouse from seeds in
soil trays in which each soil tray can be used for at least
two growing cycles utilizing substantially the total area
of each tray without the necessity of cleaning the trays
or aerating the soil comprising the steps of:
(a) utilizing selection means to select first and second
predetermined pluralities of discrete growing locations
in at least one soil tray, each of the predetermined
second growing locations being different from each of
the first predetermined growing locations;
(b) placing seeds in said first predetermined plurality
of discrete growing locations;
(c) carrying out a first plant growing cycle in the tray
in the greenhouse under controlled growing conditions;
(d) harvesting plants from the tray at the end of the first
growing cycle while leaving the roots of the plants just
grown in the soil;
(e) placing seeds in said second predetermined plurality of
discrete growing locations;
(f) carrying out a second plant growing cycle in the tray
in the greenhouse under controlled growing conditions;
and
(g) harvesting plants from the tray at the end of the second
growing cycle.
5. An apparatus for growing plants in a greenhouse from seeds in
soil trays in which each soil tray can be used for at least two
growing cycles utilizing substantially the total area of each
tray without the necessity of cleaning the trays or aerating the
soil comprising:
(a) means for selecting first and second predetermined
pluralities of discrete growing locations for seeds
in at least one soil tray, each of the predetermined
second growing locations being different from each
of the first predetermined growing locations;
(b) means for carrying out first and second sequential
plant growing cycles in the tray in the greenhouse
under controlled growing conditions; and
(c) the said tray including means for enabling plants
to be harvested from it after each growing cycle
has been completed while leaving the roots of the
plants just grown in the soil.
It is noted that the method of claim 1 involves at least two growing
cycles without cleaning or aerating the soil. The claim also covers
"selection means to select first and second predetermined pluralities
of discrete growing locations...." There is no means for selecting
first and second predetermined areas shown in the art cited. The
"Garden Plan" reference discloses only thea basic idea of planting
without removing the roots from the previous crop. This, however,
is not a predetermined planting procedure, but is more on the idea
of putting a plant in an open area, as is a common procedure in most
small flower gardens. The method of claim 1 when taken as a whole
is not taught, nor suggested by the art cited. In our view, there-
fore, claim 1 discloses a patentable advance in the art. Claim 2
which depends on clam 1 is also considered to be acceptable.
Amended claim 5, which is an apparatus claim, is of substantially
the same scope as amended claim 1, and avoids the prior art by
including the saner basic limitations. Accordingly, the same
arguments apply to claim 5 as were applied to claim 1, and claim
5 should also be acceptable.
The Board is satisfied that the claims as amended overcome the
rejection made in the Final Action, and recommends that the amended
claims be accepted.
J.F. Hughes,
Assistant Chairman,
Patent Appeal Board.
I concur with the findings of the Patent Appeal Board. Accordingly,
I accept the amended claims and return the application to the examiner
for resumption of prosecution.
Decision accordingly,
A.M. Laidlaw,
Commissioner of Patents.
Dated and signed in
Hull, Quebec this
5th day of March, 1974.
Agent for Applicant
Mr. J.A. Enstone,