ALZCHEM AG

Patent Trials and Appeals Board

Feb 10, 2021

2020003478 (P.T.A.B. Feb. 10, 2021)

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.
15/122,451 08/30/2016 Thomas G¿THNER 048498-1021917 5623
23370 7590 02/10/2021
Kilpatrick Townsend & Stockton LLP - East Coast
MAILSTOP: IP DOCKETING - 22
1100 PEACHTREE STREET
SUITE 2800
ATLANTA, GA 30309
EXAMINER
HAGHIGHATIAN, MINA
ART UNIT PAPER NUMBER
1616
NOTIFICATION DATE DELIVERY MODE
02/10/2021 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):
KTSDocketing2@kilpatrick.foundationip.com
ipefiling@kilpatricktownsend.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte THOMAS GÜTHNER
____________

Appeal 2020-003478
Application 15/122,451
Technology Center 1600
____________

Before RACHEL H. TOWNSEND, CYNTHIA M. HARDMAN, and
MICHAEL A. VALEK, Administrative Patent Judges.

VALEK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 submits this appeal under 35 U.S.C. § 134(a) involving
claims to an emulsifiable or self-emulsifying liquid composition for
regulating plant growth comprising cyanamide (CH2N2). We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Alzchem Trostberg GMBH as the real
party in interest. Appeal Br. 3. Herein, we refer to the Final Action mailed
March 25, 2019 (“Final Act.”); Appellant’s Appeal Brief filed October 25,
2019 (“Appeal Br.”); Examiner’s Answer mailed February 5, 2020 (“Ans.”);
and Appellant’s Reply Brief filed April 6, 2020 (“Reply Br.”).
Appeal 2020-003478
Application 15/122,451

2
STATEMENT OF THE CASE
According to the Specification,
aqueous cyanamide solutions are not stable over longer periods
of storage, i.e. . . . the cyanamide in aqueous solution undergoes
decomposition reactions, in particular at storage temperatures of
above 20 °C. Studies of this have shown that, here, urea
essentially forms within a pH range of below pH 3 and above
pH 12, while dimerisation to form dicyandiamide prevails from
pH 8 to pH 10.0.
Spec. 2. The Specification purports to “provide a storage-stable cyanamide-
containing composition” in the form of an “emulsifiable or self-emulsifying
liquid.” Id.
Claims 13 and 16–37 are on appeal and can be found in the Claims
Appendix of the Appeal Brief. See Appeal Br. 30–32. Claim 13 is
representative and reads as follows:
13. An emulsifiable or self-emulsifying liquid composition
for regulating plant growth, comprising:
a) 5 to 50 wt.% based on the total weight of the
composition of cyanamide CH2N2;
b) 10 to 90 wt.% based on the total weight of the
composition of a mixture of at least one oil and at least one
organic solvent that is miscible with water, wherein the organic
solvent is selected from the group consisting of ethanol,
isopropanol, n-propanol, acetonitrile, propionitrile, formamide
and dimethylformamide, and mixtures thereof; and,
c) 0.1 to 10 wt.% based on the total weight of the
composition of at least one emulsifier, wherein the cyanamide
is present in the composition in dissolved form.
Id. at 30.
Appeal 2020-003478
Application 15/122,451

3
Appellant seeks review of the following rejections:
I. Claims 13, 18–25, 28, 29, 31–35, and 37 under 35 U.S.C. § 103 as
unpatentable over Dairiki,2 in view of Gorden,3 Lindner,4 and
Kiguchi;5
II. Claims 16, 17, 26, 27, 30, and 36 under 35 U.S.C. § 103 as
unpatentable over Dairiki, in view of Gorden, Lindner, Kiguchi, and
Hajek;6
III. Claims 13, 18–25, 28, 29, 31–35, and 37 under 35 U.S.C. § 103 as
unpatentable over Rodriguez-Kabana,7 in view of Kiguchi, and
Lindner; and
IV. Claims 16, 17, 26, 27, 30, and 36 under 35 U.S.C. § 103 as
unpatentable over Rodriguez-Kabana, in view of Kiguchi, Lindner,
and Hajek.
Appeal Br. 7.
Findings of Fact
FF1. Dairiki describes “an emulsion composition capable of preparing an
agrochemical emulsion composition having good emulsifiability which is not
affected by the ionicity of an agrochemical active ingredient to be used
together with the emulsion composition.” Dairiki ¶ 1. Dairiki teaches that
such compositions comprise:

2 US 2010/0234232 A1, published Sept. 16, 2010 (“Dairiki”).
3 US 2010/0099565 A1, published April 22, 2010 (“Gorden”).
4 US 2007/0129254 A1, published June 7, 2007 (“Lindner”).
5 Examiner cites “Kiguchi” as WO 2012/050234 A2, published April 19,
2012, or US 2013/0190406 A1, published July 25, 2013. Final Act. 3.
Herein, we cite to the latter.
6 US 4,562,289, issued Dec. 31, 1985 (“Hajek”).
7 US 2009/0275474 A1, published Nov. 5, 2009 (“Rodriguez-Kabana”).
Appeal 2020-003478
Application 15/122,451

4
a component (A) which is at least one selected from the group
consisting of alkanol having 6 to 20 carbon atoms, alkenol
having 6 to 20 carbons, polyoxyethylene alkyl ester,
polyoxyethylene alkyl diester, polyoxyethylene alkenyl ester,
polyoxyethylene dialkenyl ester, polyoxyethylene.
polyoxypropylene.block copolymer and a silicon-based
surfactant, a component (B) which is at least one
polyoxyalkylene aryl phenyl ether, and a component (C) which
is an aromatic hydrocarbon-based nonpolar solvent, wherein the
emulsion composition contains neither anionic surfactant nor
cationic surfactant.
Id. ¶¶ 16. Dairiki teaches such compositions further “compris[e] a
component (D) which is a polar solvent” and “at least one agrochemical
active ingredient.” Id. ¶¶ 16–17.
FF2. Dairiki teaches that
the content of the component (A) is 0.5 to 10% by weight, the
content of the component (B) is 0.5 to 15% by weight, the
content of the component (C) is 5 to 80% by weight, the content
of the component (D) is 0 to 60% by weight, and the content of
the agrochemical active ingredient is 1 to 80% by weight.
Dairiki ¶ 17.
FF3. Dairiki teaches that the active ingredient in its compositions includes
both “pesticides” and “plant growth regulators.” Dairiki ¶ 60. Dairiki
identifies “cyanamide” as a plant growth regulator active ingredient for use in
its emulsion compositions. Id. ¶ 65.
FF4. Dairiki teaches that the polar solvent in component (D) is preferably a
ketone or lactone. Dairiki ¶¶ 46–51. Dairiki further teaches that “[o]ther
organic solvents,” including “vegetable oil,” may be added. Id. ¶¶ 54–55.
Appeal 2020-003478
Application 15/122,451

5
FF5. Gorden teaches an “aqueous storage-stable composition comprising
from about 10 to about 35% by weight hydrogen cyanamide.” Gorden,
Abstr.
FF6. Kiguchi teaches a “pest controlling composition” comprising a
mixture of two active ingredients, i.e., the compound in “Formula (1)” and
the “cyanamide compound of Formula (2).” Kiguchi ¶¶ 2–3. Kiguchi
teaches that such compositions may, inter alia, be formulated into the form of
an “emulsifiable concentrate.” Id. ¶ 25. Kiguchi further teaches that
exemplary “liquid carrier[s]” for such formulations include “alcohols (e.g., 2-
propanol[)],” “ketones,” and “acetonitrile.” Id. ¶ 27.
FF7. Lindner teaches “[o]il based emulsifiable concentrates” comprising an
“oil component,” “liquid saccharide,” and a “non-ionic surfactant” that
“emulsify readily on dilution into water” and are applied “in combination
with agrochemically active ingredients.” Lindner, Abstr. Lindner teaches
that the emulsions formed with these concentrates are applied to plants and
that the agrochemical may be a plant growth regulator. Id. ¶¶ 73, 77–78.
FF8. Lindner describes emulsifiable concentrates comprising “0.5-50% by
weight surfactant” (Lindner ¶ 14) or “about 99 to about 45” parts by weight
of oil component (Id. ¶ 30).
FF9. Lindner teaches that the oil component in such concentrates may be a
mineral oil or “an optionally hydrogenated vegetable oil” such as cotton seed
oil, olive oil, safflower oil, or peanut oil. Lindner ¶ 28.
FF10. Rodriguez-Kabana describes pesticidal applications of dimethyl
cyanamide. Rodriguez-Kabana explains that hydrogen cyanamide has been
commercially used since the 1950’s as an “herbicide” and “plant growth
regulator.” Rodriguez-Kabana ¶ 4. Rodriguez-Kabana compares the activity
Appeal 2020-003478
Application 15/122,451

6
of hydrogen cyanamide to that of dimethyl cyanamide, concluding that, like
hydrogen cyanamide, dimethyl cyanamide “has herbicidal and nematicidal
properties.” Id. ¶ 24; see also id. ¶¶ 42–49 (Ex. 1 determining that “delivery
of dimethyl cyanamide at the same rate (kg/ha) as hydrogen cyanamide
produced very similar results overall”).
FF11. Rodriguez-Kabana teaches that dimethyl cyanamide can be
formulated as an emulsion by dissolving the dimethyl cyanamide in an
“organic solvent” such as “isopropyl alcohol” and combining it with a
“dispersing” or “surface-active agent” that may be of “cationic, anionic, or
non-ionic type.” Rodriguez-Kabana ¶¶ 32–33; see also id. ¶ 34 (teaching
formulations as “[e]mulsifiable concentrates” comprising the active
compound with “a liquid or solid emulsifying agent” and a “liquid carrier”).
FF12. Rodriguez-Kabana teaches that its compositions contain from “0.01%
to 90% by weight of the dimethyl cyanamide” with “20-70%” being
preferred for concentrated compositions. Rodriguez-Kabana ¶¶
Analysis
I. OBVIOUSNESS REJECTIONS INVOLVING DAIRIKI
Both rejections involving Dairiki rely on the same combination of
references as applied to the independent claims. Appellant does not argue
any of the claims separately from claim 13. Accordingly, we consider these
rejections together, focusing on claim 13 as representative of the claims on
appeal. See 37 C.F.R. § 41.37(c)(1)(iv). The issue is whether a
preponderance of the evidence supports Examiner’s conclusion that cited
prior art renders the composition of claim 13 obvious.
Examiner finds that Dairiki teaches an emulsion composition
comprising an agrochemical active ingredient, such as cyanamide, a mixture
Appeal 2020-003478
Application 15/122,451

7
of an oil and a polar organic solvent, e.g., a ketone (Dairiki component (D)),
and an emulsifier in the form of a non-ionic surfactant such as
“polyoxyethylene alkyl ester, polyoxyethylene alkyl diester, etc.” and
“polyoxyalkylene aryl phenyl ether” (Dairiki components (A) and (B)).8 See
Final Act. 11–12. Examiner determines that a skilled artisan “would have
been motivated to have substituted Dairiki’s ketone with an alcohol or
acetonitrile as taught by Kiguchi” because “the substitution of one known
element [i.e., the polar solvent taught in Kiguchi] for another would have
yielded predictable results to one of ordinary skill in the art at the time of the
invention.” Id. at 13–14.
As for the recited weight percentage ranges, Examiner determines that
Dairiki, Gorden, and Lindner disclose similar or overlapping ranges for the
corresponding components in their compositions. See Final Act. 11, 13.
Given these teachings, Examiner determines that optimization of the recited
concentration ranges “would have been obvious because the technique for
improving a particular formulation was part of the ordinary capabilities of a
person of ordinary skill in the art.” Id. at 13; see also In re Aller, 220 F.2d
454, 456 (CCPA 1955) (“[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 Boesch, 617 F.2d 272,

8 Appellant does not dispute Examiner’s finding that Dairiki discloses an
“emulsifier,” as recited in claim 13 in its Appeal Brief. Moreover, we note
that Appellant’s Specification broadly describes “emulsifiers” as “non-ionic,
anionic, cationic, amphoteric or zwitterionic, or mixtures thereof” and
identifies “[p]referred non-ionic emulsifiers” that appear to encompass at
least some of the ingredients in Dairiki components (A) and (B). See Spec.
7–8.
Appeal 2020-003478
Application 15/122,451

8
276 (CCPA 1980) (“[D]iscovery of an optimum value of a result effective
variable . . . is ordinarily within the skill of the art.”).
We agree with, and adopt Examiner’s findings and reasoning in
support of the rejections involving Dairiki as set forth in the Final Action
and Answer. See FF1–FF9; Final Act. 10–16; Ans. 11–12. We are not
persuaded by Appellant’s arguments to the contrary.
Appellant’s argument that Dairiki discloses a “laundry list of possible
agrochemical active ingredients” while not providing a “motivation to select
cyanamide” specifically from this “extensive list” is not persuasive. See
Appeal Br. 25–27. Dairiki teaches that its compositions provide good
emulsifiability for formulations of a broad range of agrochemical active
ingredients, including cyanamide. FF1, FF3. The fact that Dairiki identifies
other possible active ingredients does not make its teaching of an
emulsifiable composition comprising cyanamide, a polar solvent, oil, and
emulsifier any less obvious. See Merck & Co., Inc. v. Biocraft Labs., Inc.,
874 F.2d 804, 807 (Fed. Cir. 1989) (explaining that a reference’s disclosure
of “a multitude of effective combinations does not render any particular
formulation less obvious”).
Appellant’s argument that the “Examples of Dairiki do not describe
cyanamide-containing compositions” is similarly unavailing. Appeal Br. 25.
“[I]n a section 103 inquiry, ‘the fact that a specific [embodiment] is taught to
be preferred is not controlling, since all disclosures of the prior art, including
unpreferred embodiments, must be considered.” Merck, 874 F.2d at 807
(quoting In re Lamberti, 545 F.2d 747, 750 (CCPA 1976)). Thus, even
though the authors of Dairiki chose to exemplify other active ingredients, it
Appeal 2020-003478
Application 15/122,451

9
does not negate the express teaching elsewhere in the reference that
cyanamide may also be formulated in the described compositions.
Appellant’s argument that Dairiki does not specifically teach any of
the polar solvents in the recited Markush group of water-miscible “organic
solvents” is not persuasive. As Examiner found, Dairiki teaches the use of a
“polar solvent” such as a “ketone[].” FF4. Examiner further determined
that Kiguchi teaches ketones, 2-propanol,9 and acetonitrile as examples of
liquid carriers for certain agrochemical compounds. See Final Act. 13–14.
Based on these teachings, Examiner concluded that it would have been
obvious for a skilled artisan to substitute 2-propanol or acetonitrile as the
polar solvent in Dairiki’s emulsion composition because “the substitution of
one known element for another would have yielded predictable results.” Id.
Appellant does not point to any evidence to the contrary.
Accordingly, we agree with Examiner that it would have been obvious
to combine the teachings in Dairiki and Kiguchi, both of which describe
formulating agrochemicals in emulsifiable compositions and identify
overlapping examples of polar solvents, for this purpose. Because the
rejection is premised on the combination of 2-propanol or acetonitrile, as
taught in Kiguchi, the fact that Dairiki does not itself teach those species of
polar solvents does not overcome the rejection. Soft Gel Techs., Inc. v.
Jarrow Formulas, Inc., 864 F.3d 1334, 1341 (Fed. Cir. 2017) (“[N]on-
obviousness cannot be established by attacking references individually
where the rejection is based on the teachings of a combination of

9 2-propanol is another name for “isopropanol,” as recited in claim 13.
Appeal 2020-003478
Application 15/122,451

10
references.”) (quoting In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir.
1986)).
Appellant’s arguments concerning Gorden and Lindner, fail for
similar reasons. Appellant argues that Gorden and Lindner individually fail
to teach certain ingredients recited in claim 13. See Appeal Br. 18–19
(Lindner); 24–25 (Gorden). But Examiner’s rejections rely on other
references, largely Dairiki, for these limitations. Examiner relies on Gorden
for its teaching regarding the amount of cyanamide (FF5) and Lindner for its
teachings regarding the relative amount of oil to surfactant (FF8). See Final
Act. 12–13. These amounts overlap to some extent with both the ranges
taught in Dairiki (FF2) and the ranges recited in claim 13. This overlap
between the prior art and recited ranges is sufficient to demonstrate a prima
facie showing of obviousness. In re Peterson, 315 F.3d 1325, 1329 (Fed.
Cir. 2003) (“[W]e and our predecessor court have consistently held that even
a slight overlap in range establishes a prima facie case of obviousness.”). In
addition, the record supports that the “general conditions” of such
emulsifiable compositions were known in the art; the discovery of workable
ranges for ingredient amounts would have been obvious for one of skill in
the art. See Aller, 220 F.2d at 456.
Finally, contrary to Appellant’s contention, Examiner’s conclusions of
obviousness are not premised on impermissible hindsight. See Appeal Br.
28–29. Dairiki teaches emulsion compositions comprising the claimed
ingredients and, as explained above, Examiner has articulated a motivation
for combining the other references that is sufficient to meet the burden to
establish a prima facie showing of obviousness. Thus, Examiner’s reasoning
“takes into account only knowledge which was within the level of ordinary
Appeal 2020-003478
Application 15/122,451

11
skill at the time the claimed invention was made and does not include
knowledge gleaned only from applicant’s disclosure.” In re McLaughlin,
443 F.2d 1392, 1395 (CCPA 1971).
Appellant’s argument that “none of the cited references teaches that
the claimed components in the claimed amounts result in a cyanamide
(CH2N2) composition with high storage stability” is unpersuasive. Appeal
Br. 24 (emphasis in original). Storage stability is not recited as a limitation
of claim 13. And Examiner has presented a sufficient prima facie showing
that a composition comprising the claimed components in the claimed
amounts would have been obvious over the cited references. Moreover,
Appellant has not presented sufficient evidence of unexpected results or
other objective indicia of non-obviousness to rebut Examiner’s prima facie
showing.10 Thus, the fact that Dairiki and various other of the cited

10 Appellant refers to statements in the Specification describing “advantages
of the high storage stability provided by the claimed composition” and
“[i]mproved reduction of dimerization to the dicyandiamide . . . shown by
the experimental data presented in Example 2.” Appeal Br. 9; see also
Reply Br. 11 (referring to Specification Example 2). It is not clear from the
Appeal Brief whether Appellant contends such results are sufficient to rebut
Examiner’s prima facie showing. Id. Even if Appellant had clearly
advanced such an argument, we agree with Examiner that the Specification
does not provide persuasive evidence of unexpected results. See Ans. 6–7.
In particular, the data in Example 2 is not reasonably commensurate with the
scope of Appellant’s claims because it is limited to testing a single
formulation of the claimed composition comprising only one type of
emulsifier, one type of oil, and one of the organic solvents from the recited
Markush group, each in a single, specified amount. Spec. 11–12. Thus,
Appellant’s data do not demonstrate improved reduction of dimerization for
the full scope of recited ingredients, nor do the data suggest the “criticality”
of any of the recited weight percentage ranges.
Appeal 2020-003478
Application 15/122,451

12
references do not address “the stabilization of cyanamide” (see Appeal Br.
25, 27) does not overcome Examiner’s rejection.
For these reasons, we determine that Examiner’s rejection of claim 13
as obvious over Dairiki in combination with the other cited references is
supported by a preponderance of the evidence. Therefore, we affirm.
Appellant’s other claims are not argued separately and thus fall with
representative claim 13 for the same reasons addressed above. 37 C.F.R. §
41.37(c)(1)(iv).
II. OBVIOUSNESS REJECTIONS INVOLVING RODRIGUEZ-
KABANA
Both rejections involving Rodriguez-Kabana rely on the same
combination of references as applied to the independent claims and
Appellant does not argue any of the claims separately from claim 13.
Accordingly, we consider these rejections together, focusing on claim 13 as
representative of the claims on appeal. See 37 C.F.R. § 41.37(c)(1)(iv). The
issue is whether a preponderance of the evidence supports Examiner’s
conclusion that cited prior art renders the composition of claim 13 obvious.
Examiner finds that Rodriguez-Kabana teaches emulsifiable
compositions comprising dimethyl cyanamide, an organic solvent such as
“isopropyl alcohol,” and a cationic, anionic or non-ionic “surface-active
agent” (i.e., an “emulsifier” as recited in claim 13). See Final Act. 3–4.
Examiner further determines that Rodriguez-Kabana discloses tests
comparing hydrogen cyanamide and dimethyl cyanamide formulations and
concludes that the two active ingredients produce “very similar results
overall.” Id. at 4. Based on these teachings, Examiner concludes that it
would have been obvious to formulate hydrogen cyanamide (i.e.,
Appeal 2020-003478
Application 15/122,451

13
“cyanamide CH2N2” as recited in claim 13) in an emulsifiable form as taught
in Rodriguez-Kabana. Id. at 7.
Regarding the recited weight percentage ranges, Examiner relies on
the active ingredient range taught in Rodriguez-Kabana (see Final Act. 3–4)
and the relative amount of oil to non-ionic surfactant (i.e., an “emulsifier” as
recited in claim 13) taught in Lindner (id. at 6). Examiner finds that it would
have been obvious to combine Lindner’s teachings with Rodriguez-Kabana
because Lindner teaches “suitable ratios” and “amounts” of such ingredients
for “emulsions and self-emulsifying formulations comprising plant growth
regulators.” Id. at 7–8. Examiner concludes that optimization of the recited
ranges “would have been obvious because the technique for improving a
particular formulation was part of the ordinary capabilities of a person of
ordinary skill in the art.” Id. at 8; see also Aller, 220 F.2d at 456.
We agree with Examiner’s findings and reasoning that it would have
been obvious for a skilled artisan to combine Rodriguez-Kabana and
Lindner to arrive at the composition of claim 13, as explained above. See
FF7–FF12. As with the other rejections, we are not persuaded by
Appellant’s arguments to the contrary
Appellant argues that Rodriguez-Kabana “relates to compositions
comprising dimethyl cyanamide (i.e., (CH3)2N-CN) and not to compositions
comprising cyanamide (i.e., CH2N2).” Appeal Br. 12. According to
Appellant, “[d]imethyl cyanamide is considerably more stable compared to
cyanamide” and the present claims are “directed to specially formulated
compositions that impart storage stability to cyanamide.” Id. at 12–13.
“Thus,” Appellant contends, “one of ordinary skill in the art would have no
motivation to select cyanamide based on Rodriguez-Kabana and its
Appeal 2020-003478
Application 15/122,451

14
consistent teaching that dimethyl cyanamide should be used. Id. at 13; see
also id. at 14–15 (arguing that the examples in Rodriguez-Kabana
comparing hydrogen cyanamide and dimethyl cyanamide “fail to convey to
one of ordinary skill in the art that hydrogen cyanamide is a more suitable
active agent than dimethyl cyanamide”).
Appellant’s argument is unpersuasive. It is true that much of the
disclosure in Rodriguez-Kabana concerns dimethyl cyanamide, but in an
obviousness analysis, “all disclosures of the prior art, including unpreferred
embodiments, must be considered.” Merck, 874 F.2d at 807 (quoting In re
Lamberti, 545 F.2d at 750). In addition to its teachings concerning dimethyl
cyanamide, Rodriguez-Kabana teaches that cyanamide was known in the
prior art and that cyanamide and dimethyl cyanamide exhibited similar
results in the comparative testing described therein. See FF10. Based on
these teachings, Examiner determined that it would have been obvious to
formulate cyanamide in an emulsion comprising the ingredients taught
therein for dimethyl cyanamide formulations. While Rodriguez-Kabana
suggests that dimethyl cyanamide may be even more effective than
cyanamide in some respects, we see no error in Examiner’s finding that it
would have been obvious to substitute cyanamide for dimethyl cyanamide.
See In re Mouttet, 686 F.3d 1322, 1334 (Fed. Cir. 2012) (“[J]ust because
better alternatives exist in the prior does not mean that an inferior
combination is inapt for obviousness purposes.”).
Appellant’s argument that Rodriguez-Kabana does not recognize the
dimerization or storage stability problem noted in Appellant’s Specification
does not distinguish claim 13. See Appeal Br. 20–22. Examiner has shown
that it would have been prima facie obvious to use cyanamide in place of
Appeal 2020-003478
Application 15/122,451

15
dimethyl cyanamide in the emulsifiable compositions taught in Rodriguez-
Kabana and to include an oil in such compositions as taught in Lindner
because both references teach “emulsions and self-emulsifying formulations
comprising plant growth regulators.” Final Act. 7–8; see also id. at 6
(finding that Lindner teaches oil-based concentrates that emulsify readily in
agricultural spray mixtures). That combination fully reads on the
composition recited in claim 13. As explained above, claim 13 does not
require that the composition exhibit any particular degree of stability, nor
has Appellant provided sufficient evidence of unexpected results relating to
storage stability or a reduction in dimerization to rebut Examiner’s prima
facie case.
For these reasons, Appellant’s reliance on Leo Pharmaceutical Prod.,
Ltd. v. Rea, 726 F.3d 1346, 1353 (Fed. Cir. 2013) is misplaced. See Appeal
Br. 20–22. Unlike the claims in Leo Pharmaceutical, Appellant’s claim 13
does not recite storage stability as a limitation. See 726 F.3d at 1350
(representative claim 1 reciting a composition that “is storage stable”).
Thus, Appellant cannot rely on such a limitation to distinguish the prior art.
More importantly, unlike the patentee in Leo Pharmaceutical, Appellant has
not offered evidence that rebuts the prima facie showing of obviousness.
See 726 F.3d at 1353–54 (relying on prior art “medical research articles” and
“experimental evidence” provided by the patentee discouraging the claimed
combination); 1358 (describing “extensive experimental evidence of
unexpected results that contradict the . . . obviousness finding”) (internal
quotations omitted). For these reasons, Appellant’s attempt to analogize this
case to Leo Pharmaceuticals by urging that the present claims solve an
Appeal 2020-003478
Application 15/122,451

16
“unrecognized” problem and were “not obvious to try” (see Appeal Br. 20–
22) is unpersuasive.
Appellant further asserts that the rejection should be reversed because
“there is no mention whatsoever of component bi) (i.e., at least one organic
solvent selected from ethanol, isopropanol, n-propanol, acetonitrile,
proprionitrile, formamide and dimethylformamide)” in Rodriguez-Kabana.
Appeal Br. 13. We disagree. As Examiner points out, Rodriguez-Kabana
specifically teaches that emulsion compositions may be formed by
dissolving the active ingredient in an “organic solvent” such as “isopropyl
alcohol,” i.e., one of the solvents listed in the Markush group of claim 13.
Ans. 6; FF11. Accordingly, the record fully supports Examiner’s finding
that Rodriguez-Kabana teaches the organic solvent limitation of claim 13.11
Finally, Appellant’s arguments that Lindner “makes no mention of
cyanamide” and does not disclose an emulsion comprising the recited
“organic solvent” are unpersuasive because the rejection relies on
Rodriguez-Kabana’s teachings for these claim limitations. Appellant cannot
overcome the rejection by attacking Lindner individually. See Soft Gel, 864
F.3d at 1341.

11 Appellant argues that Examiner has not articulated a sufficient rationale
for combining Kiguchi with Rodriguez-Kabana. See Appeal Br. 15–17. We
need not reach that argument because the combination of Rodriguez-Kabana
and Lindner is sufficient to render claim 13 obvious without the additional
teachings Examiner points to in Kiguchi. See In re Bush, 296 F.2d 491, 496
(CCPA 1961) (explaining that the Board may rely on less than all of the
references applied by the Examiner in an obviousness rationale without
designating it as a new ground of rejection).

Appeal 2020-003478
Application 15/122,451

17
For these reasons, Examiner’s rejection of claim 13 as obvious over
Rodriguez-Kabana and Lindner is supported by a preponderance of the
evidence. Therefore, we affirm. Appellant’s other claims are not argued
separately and thus fall with representative claim 13 for the same reasons
addressed above. 37 C.F.R. § 41.37(c)(1)(iv).

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
13, 18–25,
28, 29,
31–35, 37
103 Dairiki, Gorden,
Lindner, Kiguchi
13, 18–25,
28, 29, 31–
35, 37

16, 17, 26,
27, 30, 36
103 Dairiki, Gorden,
Lindner, Kiguchi,
Hajek
16, 17, 26,
27, 30, 36

13, 18–25,
28, 29,
31–35, 37
103 Rodriguez-Kabana,
Kiguchi, Lindner
13, 18–25,
28, 29, 31–
35, 37

16, 17, 26,
27, 30, 36
103 Rodriguez-Kabana,
Kiguchi, Lindner,
Hajek
16, 17, 26,
27, 30, 36

Overall
Outcome
13, 16–37

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED