ALZCHEM AGDownload PDFPatent Trials and Appeals BoardFeb 10, 20212020003478 (P.T.A.B. Feb. 10, 2021) Copy Citation 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 Copy with citationCopy as parenthetical citation