‘183 Patent Claims
`
`Holton, Dog Patch, and Kessler
`
`8. A method of
`determining moisture
`content of soil and/or seed
`at soil surface comprising:
`
`Scotts cites to Holton for a paper mulch product
`applied to an area of the lawn that may be mixed
`with grass seed. Holton does not teach a method of
`determining moisture content of soil and/or seed at
`soil surface.
`
`Scotts does not refer to the Dog Patch label.
`
`
`
`Kessler teaches soil containing peat moss that
`changes color that can be used to determine when to
`water the sub-surface soil. Kessler solely relates to
`the sub-surface root systems of established, potted
`plants and not to the soil surface or seeds.
`
`None of the references alone or in combination
`teaches a method of determining moisture content of
`soil and/or seed at soil surface.
`
`placing a mulch product
`and seed together at
`surface of said soil;
`
`
`
`determining moisture
`content of said surface of
`said soil and/or seed by
`color intensity of said
`mulch product;
`
`Scotts refers to the conclusory declaration of Dr. Fain
`and not to any of the references for this element. Fain
`has no support for any of the statements made, and is
`not a proper basis for an inter partes review. 35
`U.S.C. 311(b); Dominion Dealer Solutions, Case IPR
`2014-00684, Paper No. 9 at *5 (“Thus, what Mr.
`Minotti states in his Declaration was known or well
`known cannot be applied independently, as teachings
`separately combinable with [prior art references] in
`this proceeding”).
`
`None of the prior art references determine the moisture
`content of the surface of the soil and/or seed by color
`intensity of the mulch product.
`
`Page 1
`Encap Exhibit 2005
`IPR2014-01110
`The Scotts Company, LLC v. Encap, LLC
`
`
`
`Holton, Dog Patch, and Kessler
`
`8. A method of
`determining moisture
`content of soil and/or seed
`at soil surface comprising:
`
`Scotts cites to Holton for a paper mulch product
`applied to an area of the lawn that may be mixed
`with grass seed. Holton does not teach a method of
`determining moisture content of soil and/or seed at
`soil surface.
`
`Scotts does not refer to the Dog Patch label.
`
`
`
`Kessler teaches soil containing peat moss that
`changes color that can be used to determine when to
`water the sub-surface soil. Kessler solely relates to
`the sub-surface root systems of established, potted
`plants and not to the soil surface or seeds.
`
`None of the references alone or in combination
`teaches a method of determining moisture content of
`soil and/or seed at soil surface.
`
`placing a mulch product
`and seed together at
`surface of said soil;
`
`
`
`determining moisture
`content of said surface of
`said soil and/or seed by
`color intensity of said
`mulch product;
`
`Scotts refers to the conclusory declaration of Dr. Fain
`and not to any of the references for this element. Fain
`has no support for any of the statements made, and is
`not a proper basis for an inter partes review. 35
`U.S.C. 311(b); Dominion Dealer Solutions, Case IPR
`2014-00684, Paper No. 9 at *5 (“Thus, what Mr.
`Minotti states in his Declaration was known or well
`known cannot be applied independently, as teachings
`separately combinable with [prior art references] in
`this proceeding”).
`
`None of the prior art references determine the moisture
`content of the surface of the soil and/or seed by color
`intensity of the mulch product.
`
`Page 1
`Encap Exhibit 2005
`IPR2014-01110
`The Scotts Company, LLC v. Encap, LLC
`
`
`
`‘183 Patent Claims
`
`Holton, Dog Patch, and Kessler
`
`changing color intensity of
`said mulch product when
`moisture is removed from
`said mulch product;
`
`changing color intensity of
`said mulch product when
`moisture is added to said
`mulch product;
`
`Scotts points to the declarations of Fain and Nelson,
`not to any cites of the prior art references. There is
`no support for the statements of Fain. Nelson
`statements relate to the testing of the product which
`cannot be used in the IPR proceeding. Only printed
`publications and patents can be used as prior art in
`an IPR proceeding.
`
`
`
`None of the prior art references alone or in
`combination teach color intensity of the mulch when
`moisture is removed from the mulch.
`Holton’s product is wetted with water by rainfall or
`irrigation. There is nothing taught in Holton with
`regards to a change in color intensity with regard to
`mulch product when water is added to the mulch.
`
`Scotts further cites to the Fain declaration wherein no
`support for these statements are provided. Fain only
`refers to the Nelson declaration with regards to
`testing which cannot be accepted in an IPR
`proceeding. 35 U.S.C. 311(b); Dominion Dealer
`Solutions, Case IPR 2014-00684, Paper No. 9 at *5
`(“Thus, what Mr. Minotti states in his Declaration
`was known or well known cannot be applied
`independently, as teachings separately combinable
`with [prior art references] in this proceeding”).
`
`None of the prior art references alone or in
`combination teach that the mulch teaches changing
`color intensity when moisture is added to the mulch.
`
`Page 2
`Encap Exhibit 2005
`IPR2014-01110
`The Scotts Company, LLC v. Encap, LLC
`
`
`
`‘183 Patent Claims
`
`adjusting moisture level of
`said surface of said soil
`and/or seed in response to
`said color intensity of said
`mulch product;
`
`said seed consisting
`essentially of grass,
`vegetable and/or flower
`seed;
`
`Holton, Dog Patch, and Kessler
`Holton’s product is wetted with water by rainfall or
`irrigation. This is not adjusting the moisture level of the
`surface of the soil and/or seed with regards to the color
`intensity of the mulch product, this is simply providing
`moisture by rain or irrigation without any regards to the
`color intensity of the mulch product.
`
`Kessler does not teach adjusting moisture levels on
`the surface of the soil and only relates to the sub-
`surface root systems of established. Potted plants and
`the moisture levels below the surface of the soil.
`
`Dog Patch teaches watering twice daily regardless of
`color intensity. Again, there is no relationship with
`regards to adjusting the moisture level on the surface
`of the soil with regards to the color intensity of the
`mulch product.
`
`Scotts relies on the Fain declaration which has no
`support for any of the statements made, and relies on
`the Nelson declaration with regards to testing that
`cannot be used in an IPR proceeding. 35 U.S.C.
`311(b); Dominion Dealer Solutions, Case IPR 2014-
`00684, Paper No. 9 at *5 (“Thus, what Mr. Minotti
`states in his Declaration was known or well known
`cannot be applied independently, as teachings
`separately combinable with [prior art references] in
`this proceeding”).
`
`
`Scotts does not cite to Dog Patch or Kessler for this
`element.
`
`Page 3
`Encap Exhibit 2005
`IPR2014-01110
`The Scotts Company, LLC v. Encap, LLC
`
`
`
`‘183 Patent Claims
`
`Holton, Dog Patch, and Kessler
`
`said color coming from a
`pigment and/or dye in said
`mulch product;
`
`said mulch product
`comprising a fiber,
`cellulose, clay, loam, sand,
`and/or a combination of
`same;
`
`said color intensity of said
`mulch product has a
`relationship to said
`moisture content of said
`surface of said soil and/or
`seed, indicating watering
`needs of said seed.
`
`Scotts does not cite to Dog Patch or Kessler for this
`element.
`
`Scotts reliance on Holton is misplaced. As Holton
`teaches an aesthetically acceptable green color to
`resemble that of actual grass. Scotts points to no
`evidence that the color of Holton changes. The
`claims teach that the pigment and/or dye must
`change color based on moisture content which goes
`against the teaching of Holton.
`
`Scotts does not cite to Dog Patch or Kessler for this
`element.
`
`None of the prior art references teach that there is a
`relationship between the color intensity of the mulch
`product and the moisture content of the soil or surface
`of the seed that indicating the watering needs of the
`seed.
`
`Holton teaches to water by irrigation or rain.
`
`Dog Patch teaches to water twice daily.
`
`Kessler teaches the watering of the sub-surface of the
`soil with regards to established potted plants.
`
`None of the references alone or in combination teach
`this element of the claims.
`
`9. The method of claim 8
`wherein said pigment
`and/or dye is added to said
`mulch product.
`
`Scotts does not cite to Dog Patch or Kessler.
`
`Scotts relies on Holton but the pigment and/or dye of
`Holton that is added teaches away from changing color
`intensity.
`
`Page 4
`Encap Exhibit 2005
`IPR2014-01110
`The Scotts Company, LLC v. Encap, LLC
`
`
`
`‘183 Patent Claims
`
`Holton, Dog Patch, and Kessler
`
`10. The method of claim
`8 wherein said mulch
`product further comprises
`NPK fortifiers.
`
`12. The method of claim
`1 further comprising:
`producing said mulch
`product by methods that
`include an
`agglomeration/granulation
`operation.
`
`13. The method of claim
`8 wherein said dye
`changes color and/or
`becomes visible in
`response to moisture
`levels added to said
`surface of said soil.
`
`14. The method of claim
`1 wherein said color fades
`and/or disappears in
`response to a lack of
`moisture in said mulch
`product.
`
`
`
`Scotts does not rely on Dog Patch.
`
`Scotts reliance on Kessler is not appropriate since it
`only teaches that plants (not seeds) have a
`requirement for fertilizer.
`
`Scotts does not rely on Dog Patch and Kessler for
`this element.
`
`None of the prior art teaches this element. Holton
`teaches that the dye changes color or becomes visible
`with response to moisture levels.
`
`
`
`Dog Patch does not teach that the dye changes color
`and/or becomes visible with response to moisture
`levels added to the surface of the soil.
`
`
`
`Kessler does not teach moisture levels at the surface
`of the soil.
`
`None of the prior art teaches this element. Holton
`teaches away from a dye that changes color or
`becomes visible with response to moisture levels.
`
`
`
`Dog Patch does not teach that the dye changes color
`and/or becomes visible with response to moisture
`levels added to the surface of the soil
`
`
`
`Kessler does not teach moisture levels at the surface
`of the soil.
`
`Page 5
`Encap Exhibit 2005
`IPR2014-01110
`The Scotts Company, LLC v. Encap, LLC
`
`
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