BASF SE

Patent Trials and Appeals Board

Jan 19, 2021

2020003408 (P.T.A.B. Jan. 19, 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.
14/383,665 09/08/2014 Wen Xu 32471/73384 6316
4743 7590 01/19/2021
MARSHALL, GERSTEIN & BORUN LLP
233 SOUTH WACKER DRIVE
6300 WILLIS TOWER
CHICAGO, IL 60606-6357
EXAMINER
HIRT, ERIN E
ART UNIT PAPER NUMBER
1616
NOTIFICATION DATE DELIVERY MODE
01/19/2021 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):
mgbdocket@marshallip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte WEN XU and MATTHIAS POHLMAN
__________

Appeal 2020-003408
Application 14/383,665
Technology Center 1600
__________

Before JEFFREY N. FREDMAN, ULRIKE W. JENKS, and
RACHEL H. TOWNSEND, Administrative Patent Judges.

FREDMAN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal1,2 under 35 U.S.C. § 134 involving claims to a liquid
concentrate formulation containing a pyripyropene insecticide. The
Examiner rejected the claims as obvious. 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 the Real Party in Interest as BASF SE
(see Appeal Br. 3).
2 We have considered the Specification of September 8, 2014 (“Spec.”);
Final Office Action of Apr. 18, 2019 (“Final Act.”); Appeal Brief of Oct. 18,
2019 (“Appeal Br.”); Examiner’s Answer of Feb. 3, 2020 (“Ans.”); and
Reply Brief of Apr. 2, 2020 (“Reply Br.”).
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Statement of the Case
Background
“The pyripyropene derivative of formula I . . . is known . . . as
exhibiting insecticidal activity and being useful for crop protection” (Spec.
1:7–11). “One problem associated with liquid formulations of the
pyripyropene derivative of formula I, is their low stability. In particular
when trying to provide agricultural formulations comprising the
pyripyropene derivative I solubilized in an aromatic hydrocarbon solvent,
the formation of a crystalline material is observed upon storage” (id. at 1:23–
26). The Specification teaches “to provide stable liquid concentrate
formulations of pyripyropene derivative I which besides an aromatic
hydrocarbon solvent or solvent mixture also contain an activity enhancing
polyalkoxylated alcohol as adjuvant and which have advantageous
properties for applications in invertebrate pest control” (id. at 2:8–12).
The Claims
Claims 30–34 and 36–56 are on appeal. Claim 30 is an independent
claim, is representative, and reads as follows:
30. A liquid concentrate formulation, which comprises
a) 2 to 10 wt%, based on the total weight of the
formulation, of a compound of formula I;

b) 25 to 75 wt%, based on the total weight of the
formulation, of an aromatic hydrocarbon solvent or aromatic
hydrocarbon solvent mixture,
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c) 15 to 50 wt%, based on the total weight of the
formulation, of at least one alkoxylated aliphatic alcohol of
formula (A)

Ra-O-(CmH2mO)x-(CnH2nO)y-(CpH2pO)z-Rb (A)

in which
Ra represents C8-C36-alkyl, C8-C36-alkenyl or a mixture
thereof;
Rb represents H or C1-C12-alkyl;
m, n, p represent, independently of one another, an integer
from 2 to 16;
x, y, z represent, independently of one another, a number
from 0 to 50; and
x+y+z corresponds to a value from 2 to 50,
further comprising
e) at least one anionic surfactant, and
f) at least one non-ionic surfactant S which is selected
from the group consisting of C2-C3-polyalkoxylates of C10-C22-
hydroxy fatty acid triglycerides and C2-C3-polyalkoxylates of
C10-C22-fatty acid mono- or diglycerides, in an amount from 1 to
20 wt%, based on the total weight of the formulation.

The Rejections
A. The Examiner rejected claims 30–34, 36, 38–44, and 50–56 under
U.S.C. § 103(a) as obvious over Horikoshi,3 Rosenfeldt,4 and Arimoto5
(Final Act. 3–7).
B. The Examiner rejected claims 37, 38, and 45–47 under U.S.C.
§ 103(a) as obvious over Horikoshi, Rosenfeldt, Arimoto, and Byrne6 (Final
Act. 7–10).

3 Horikoshi et al., US 2010/0281584 A1, published Nov. 4, 2010
4 Rosenfeldt et al., US 2004/0157743 A1, published Aug. 12, 2004.
5 Arimoto, Y., US 2006/0165748 A1, published July 27, 2006.
6 Byrne et al., US 2008/0300313 A1, published Dec. 4, 2008.
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C. The Examiner rejected claims 48 and 49 under U.S.C. § 103(a) as
obvious over Horikoshi, Rosenfeldt, Arimoto, and Zhang7 (Final Act. 10–
11).

A. 35 U.S.C. § 103(a) over Horikoshi, Rosenfeldt, and Arimoto
The issues with respect to this rejection are:
(i) Does a preponderance of the evidence of record support the
Examiner’s conclusion that Horikoshi, Rosenfeldt, and Arimoto render the
claims obvious?
(ii) If so, has Appellant provided evidence of unexpected results that
outweighs the evidence supporting the prima facie case of obviousness?
Findings of Fact
1. Horikoshi teaches, regarding element a), a compound 4 that is
identical to the compound of formula I:

(Horikoshi ¶ 83).

7 Zhang et al., WO 2011/113052 A2, published Sept. 15, 2011.
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2. Horikoshi teaches the “suitable content of the active ingredient
in these formulations is generally 1 to 75% by weight for emulsifiable
concentrate” (Horikoshi ¶ 60).
3. The Specification teaches, regarding element b), that “[s]uitable
aromatic hydrocarbons . . . [include] Solvesso® (ExxonMobil Chemical), in
particular Solvesso® 100, Solvesso® 150” (Spec. 5:17–26).
4. Horikoshi teaches a specific formulation in Example 5,
reproduced below:

The example in the Table shows element a) composed of 1% Compound 4
by weight, element b) an aromatic hydrocarbon solvent, specifically 82.5%
Solvesso 150, and element f) a non-ionic surfactant, specifically 8.25%
SORPOL CA-42 (Horikoshi ¶ 97).
5. The Specification teaches, regarding element e), that
“[e]xamples of such anionic surfactants are . . . alkylarylsulfonates” (Spec.
10:19–24).
6. Horikoshi teaches element e), anionic surfactants, specifically
disclosing “[s]urfactants or dispersants usable, for example, for emulsifying,
dispersing, or spreading include . . . alkyl(aryl)sulfonic acid salts”
(Horikoshi ¶ 57).
7. Horikoshi teaches “compounds of formula (1) or salts thereof as
such may be used as an active ingredient of the systemic insecticide, but are
generally mixed with . . . liquid carriers . . . and formulated into any suitable
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dosage forms, for example . . . emulsifiable concentrates, EW agents, liquid
formulations . . . for use as compositions” (Horikoshi ¶ 53).
8. Hirokoshi teaches the “effective amount can be properly
determined by taking into consideration, for example, the properties of
compounds, the type and amount of the application object, the length of the
subsequent systemic translocation step, and the temperature” (Horikoshi
¶ 74).
9. The Examiner acknowledges that “Horikoshi does not expressly
teach wherein the composition/concentrate comprises the fatty alcohol
alkoxylates of applicant’s formula A in amounts 15 to 50 wt%” (Final Act.
6).
10. Rosenfeldt teaches the “use of fatty alcohol ethoxylates as
penetrants for certain active compounds having insecticidal properties”
(Rosenfeldt ¶ 1).
11. Rosenfeldt teaches “fatty alcohol ethoxylates of the formula
CH3–(CH2)m–CH2–(–O–CH2–CH2–)n–OH (I) in which m represents average
values from 8.0 to 13.0, n represents average values from 6.0 to 17.0, can be
used as penetrants for insecticidally active compounds” (Rosenfeldt ¶¶ 5–9).
12. Rosenfeldt teaches using “from 0.1 to 30% by weight of fatty
alcohol ethoxylate of the formula (I)” (Rosenfeldt ¶ 11).
13. The Examiner finds “it would have been obvious to include
[Rosenfeldt’s] fatty acid alkoxylates in the claimed amounts in order to
produce emulsion concentrates which are more stable at lower temperatures
and which have increased penetration due to the fatty acid ethoxylates of
applicant’s component (c) as taught by Rosenfeldt” (Final Act. 6–7).
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Principles of Law
The Examiner has the initial burden of establishing a prima facie case
obviousness under 35 U.S.C. § 103. In re Oetiker, 977 F.2d 1443, 1445
(Fed. Cir. 1992). “The combination of familiar elements according to
known methods is likely to be obvious when it does no more than yield
predictable results.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416
(2007).
Prima facie obviousness can be rebutted by presenting evidence of
secondary considerations and when such evidence is submitted, all of the
evidence must be considered anew. In re Piasecki, 745 F.2d 1468, 1472–73
(Fed. Cir. 1984). Secondary considerations include: long-felt but unsolved
needs, failure of others, unexpected results, commercial success, copying,
licensing, and praise. In re Rouffet, 149 F.3d 1350, 1355 (Fed. Cir. 1998).
Analysis
We adopt the Examiner’s findings of fact and conclusion of law (see
Final Act. 3–7, FF 1–13) and agree that Horikoshi, Rosenfeldt, and Arimoto
render the claims obvious. We address Appellant’s arguments below.
Obviousness
Appellant contends “nothing in paragraphs [0053] and [0060] of
Horikoshi is particularly instructive to the skilled artisan and the artisan is
essentially told to formulate Horikoshi compounds in anyway known and to
use in essentially any amount conceivable in a formulation” (Appeal Br. 14).
We find this argument unpersuasive because Horikoshi teaches, in
Formulation Example 5, an insecticide concentrate composed of 1% formula
I (compound 4), 82.5% Solvesso 150 (aromatic hydrocarbon solvent), and
8.25% SORPOL CA-42 (non-ionic surfactant S) (FF 4). Horikoshi further
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directly suggests the use of anionic surfactants (FF 6) and the Examiner
provides persuasive reasons for combining Rosenfeldt’s penetration agent
with Horikoshi’s insecticidal formulation (FF 10–13).
As to the specific ranges, in “cases involving overlapping ranges,
[courts] have consistently held that even a slight overlap in range establishes
a prima facie case of obviousness.” In re Peterson, 315 F.3d 1325, 1329
(Fed. Cir. 2003). Horikoshi and Rosenfeldt teach overlapping ranges (FF 2,
4, 12) and exemplify either overlapping or adjacent ranges. See In re
Brandt, 886 F.3d 1171, 1177 (Fed. Cir. 2018) (“[P]rima facie rejections may
be appropriate ‘where there is a teaching in the prior art that the end points
of the prior art range are approximate, or can be flexibly applied.’”)
Hirokoshi teaches that an “effective amount can be properly
determined by taking into consideration, for example, the properties of
compounds, the type and amount of the application object, the length of the
subsequent systemic translocation step, and the temperature” (FF 8). Thus,
Hirokoshi recognizes that the effective amount of the components may be
flexibly applied, depending upon a variety of factors. This is consistent with
Appellant’s own Specification, which teaches a “pesticidally effective
amount of the formulations and preparations will also vary according to the
prevailing conditions such as desired pesticidal effect and duration, weather,
target species, locus, mode of application, and the like” (Spec. 28:13–16).
Appellant contends
As evident from Hirokoshi’s formulations, an emulsifiable
concentrate of pyripyropene derivative may include 1 wt% of
the active. Given the low solubility of pyripyropene derivative,
there is no reasonable suggestion in increasing the amount of
the active in an emulsifiable concentrate. Thus, even if the
skilled artisan was to include alkoxylated alcohols into
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formulations of pyripyropene (I), there is no rational for
increasing the amount of pyripyropene (I) in the formulation
especially when the alkoxylated alcohols further decrease the
solubility of pyripyropene derivatives in the solvent.
(Appeal Br. 15).
We find this argument unpersuasive as it is inconsistent with the
direct teaching of Hirokoshi that the “suitable content of the active
ingredient in these formulations is generally 1 to 75% by weight for
emulsifiable concentrate” (FF 2). As we balance a direct teaching of the
prior art with attorney argument, we find that “[u]nsubstantiated attorney
argument regarding the meaning of technical evidence is no substitute for
competent, substantiated expert testimony.” Invitrogen Corp. v. Clontech
Labs., Inc., 429 F.3d 1052, 1068 (Fed. Cir. 2005). We therefore conclude
that the balance of the evidence supports the Examiner’s position that 2 wt%
of active in the concentrate would have been obvious as falling within a
disclosed overlapping range and adjacent to a working example. Peterson,
315 F.3d at 1329.
Appellant contends that:
Given the variation and complexity of formulating lipophilic
pesticides such as pyripyropene (I), the Examiner’s reliance that
a claimed product can be reconstructed from the broad field of
the prior art and one might arrive at it by selecting specific
items and conditions is improper as the Examiner’s arguments
are at best an invitation to experiment using the prior art.
(Appeal Br. 16).
We find this argument unpersuasive because “[o]bviousness does not
require absolute predictability of success . . . all that is required is a
reasonable expectation of success.” In re Kubin, 561 F.3d 1351, 1360 (Fed.
Cir. 2009) (citation omitted). Here, Horikoshi expressly suggests the use of
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amounts of insecticidal components that overlap those claimed, except for
the penetration enhancer, which is suggested by Rosenfeldt (FF 1–13).
Appellant provides no evidence that the ordinary practitioner would have
had any difficulty in selecting components from those disclosed by the prior
art as useful in insecticidal compositions. And “attorney argument [is] not
the kind of factual evidence that is required to rebut a prima facie case of
obviousness.” In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997).
Appellant contends that the Xu Declaration8
provides further evidence that Horikoshi formulations
comprising pyripyropene compound lack solubility (at 5%
loading) and stability in the presence of Solvesso 150. Indeed,
the data demonstrate that the liquid formulations described in
Horikoshi do not exhibit stability even at temperature of 22°C
and that the compound of formula (I) of the present invention
when formulated as per the Example 5 of Horikoshi does not
exhibit solubility and stability in Solvesso 150 at 5% loading.
In contrast thereto, the experimental data presented in the
present application demonstrate that a formulation comprising
the components a) to e) as defined in claim 30 stay stable for a
prolonged storage periods.
(Appeal Br. 16–17; cf. Reply Br. 3–5).
We find this argument and the Xu Declaration unpersuasive for
several reasons. First, Dr. Xu asserts to have tested two formulations. The
first, Sample A, is identical to the formulation of Example 5 of Horikoshi
(FF 4, Xu Decl. ¶ 8). The second, Sample B, purports to combine, by
weight, 5% of active agent, 82.5% of Solvesso 150, 8.25% of Tayca Power
BC2070M, and 8.25% Soprol CA-42 (see Xu Decl. 9). Adding up these
weight percentages 5% + 82.5% + 8.25% + 8.25% results in a total of 104%

8 Declaration of Dr. Wen Xu, dated Jan. 9, 2019.
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weight percent. Because the total weight cannot exceed 100% of the total
weight, this statement is logically impossible. Therefore, we discount Dr.
Xu’s statements9 based on the comparison of Horikoshi’s Example 5 with an
impossible to formulate composition because no such comparison is
possible. See In re American Academy of Science Tech Center, 367 F.3d
1359, 1370 (Fed. Cir. 2004) (“[T]he Board is entitled to give such weight to
declarations as it deems appropriate.”)
Second, the Xu Declaration asserts that 1% resulted in a clear solution
while 5% resulted in compound of formula (I) not dissolving (see Xu
Declaration ¶ 9). However, the Xu Declaration does not measure how much
of the compound of formula (I) dissolved in the 5% example. Even if the
impossible 5% formulation was actually tested as proposed, which we find
unlikely, the claim is drawn to a “liquid concentrate formulation, which
comprises a) 2 to 10 wt%” of the compound of formula I. The claim does
not exclude the presence of undissolved crystals in the liquid concentrate
formulation due to the open “comprising” language. See Georgia-Pacific
Corp. v. US Gypsum Co., 195 F.3d 1322, 1327 (Fed. Cir. 1999) (The
transitional term “comprising” is “inclusive or open-ended and does not
exclude additional, unrecited elements or method steps”). The Xu
Declaration does not test or determine how much of the 5% of the compound
of formula (I) was dissolved, and how much was in crystal form. Thus, the
Xu Declaration fails to establish that 2% of formula (I), in an appropriate
solvent system, would not dissolve.

9 To be clear, we do not assert that the statements are fraudulent, only
erroneous.
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Third, to the extent that the Xu declaration is argued as showing
unexpected results, it does not. It is unclear whether the composition with
Example 5 was a proper comparison. Moreover, even if the composition
was somehow reasonable, and somehow included 5% active agent, and
showed insolubility, all facts not reasonably in evidence currently, claim 30
encompasses a range from 2 to 10 wt%. Consequently, this result would not
overcome the rejection because claim 30 includes amounts of 2 to 4 wt%
active as disclosed by Horikoshi (FF 2) that would remain obvious because
the results are not commensurate in scope with the claim. Unexpected
results must be “commensurate in scope with the degree of protection sought
by the claimed subject matter.” In re Harris, 409 F.3d 1339, 1344 (Fed. Cir.
2005).
Appellant contends
the Examiner has not shown that the skilled artisan would have
been motivated to optimize any of the prior art parameters and
prepare the claimed formulation. Indeed, the art relied upon
does not provide any indication as to which parameters are
critical to formulate a lipophilic pyripyropene derivative as
claimed in the present application and does not provide any
direction as to which of many possible choices is likely to be
successful in formulating a pyripyropene derivative. Thus, the
fact that the components of claimed combination may fall
within the scope of the cited art does not render the claims
obvious.
(Appeal Br. 17).
We find this argument entirely unpersuasive. Claim 30 is nothing
more than the combination of components expressly disclosed by Hirokoshi
and Rosenfeldt, suggested as useful in insecticidal formulations, and shown
by Hirokoshi to be insecticidal (FF 1–13; Hirokoshi Test Examples 1–10).
“The combination of familiar elements according to known methods is likely
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to be obvious when it does no more than yield predictable results.” KSR,
550 U.S. at 416. As to optimization, Hirokoshi expressly teaches that the
effective amount can be optimized (FF 8) and that the amounts of
components are optimizable based on the wide ranges disclosed (FF 2, 4,
11). The ordinary artisan is well aware that “discovery of an optimum value
of a result effective variable . . . is ordinarily within the skill of the art.” In
re Boesch, 617 F.2d 272, 276 (CCPA 1980).
Indeed, claim 30 merely “recites a combination of elements that were
all known in the prior art, and all that was required to obtain that
combination was to substitute one well-known . . . agent for another.” Wm.
Wrigley Jr. Co. v. Cadbury Adams USA LLC, 683 F.3d 1356, 1364 (Fed.
Cir. 2012). Therefore, it is fair to say that there were a finite number of
identified, predictable solutions to the problem of finding functional
insecticidal compositions, and the combination of Horikoshi’s compound 4
with the other agents disclosed in Horikoshi, along with the penetration
enhancer of Rosenfeldt, was “the product not of innovation but of ordinary
skill and common sense.” Id. at 1364–65.
Secondary considerations
Appellant contends
that the data in the specification and in the Declaration support
that the claimed formulation has unexpectedly superior
properties than what the skilled artisan would have expected
based on the ingredients of the formulation and based on the
prior art relied upon. The Office has not provided a reason to
doubt that the observed enhanced stability would be present in
the entire scope of the claimed formulation.
(Appeal Br. 18).
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We find this argument unpersuasive. As already noted above, the
evidence of the Xu Declaration suffers from severe flaws, and cannot be
relied upon to establish anything, much less unexpected results. As to
Examples 3 and 4 in the Specification, these are not commensurate in scope
with the claim, as they test single values of 4.98% insecticide, single values
of 6% surfactant, and single values of 4% non-ionic surfactant (see Spec.
35:15–19). Harris, 409 F.3d at 1344.
In addition, the evidence was not a comparison with the closest cited
prior art of Example 5 of Hirokoshi. See In re Baxter Travenol Labs., 952
F.2d 388, 392 (Fed. Cir. 1991) (“[W]hen unexpected results are used as
evidence of nonobviousness, the results must be shown to be unexpected
compared with the closest prior art.”).
Moreover, the Specification never identifies the results as surprising
or unexpected. “[A]ny superior property must be unexpected to be
considered as evidence of non-obviousness.” Pfizer, Inc. v. Apotex, Inc.,
480 F.3d 1348, 1371 (Fed. Cir. 2007). “[I]t is well settled that unexpected
results must be established by factual evidence. Mere argument or
conclusory statements . . . [do] not suffice.” In re Soni, 54 F.3d 746, 750
(Fed. Cir. 1995) (citation omitted). The only indication that any of these
properties constitute an unexpected result is attorney argument in the brief.
However, “attorney argument [is] not the kind of factual evidence that is
required to rebut a prima facie case of obviousness.” Geisler, 116 F.3d at
1470.
Lastly, Appellant provides no evidence that the changes shown are
different in kind. See In re Huang, 100 F.3d 135, 139 (Fed. Cir. 1996)
(holding that claimed ranges must “produce a new and unexpected result
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which is different in kind and not merely in degree from results of the prior
art”). The Court explained that a “32–43% increase in stress-rupture life,
however, does not represent a ‘difference in kind’ that is required to show
unexpected results.” Harris, 409 F.3d at 1344. Here, no evidence of the
magnitude of the change is provided, and certainly there is no showing of a
“difference in kind.”
Appellant does not separately argue the dependent claims (see Appeal
Br. 18). Therefore, these claims fall with independent claim 30. 37 C.F.R.
§ 41.37(c)(1)(iv).
Conclusion of Law
(i) A preponderance of the evidence of record supports the Examiner’s
conclusion that Horikoshi, Rosenfeldt, and Arimoto render the claims
obvious.
(ii) Appellant has not provided evidence of unexpected results that
outweighs the evidence supporting the prima facie case of obviousness.

B. and C. U.S.C. § 103(a) rejections including Byrne and Zhang
Appellant does not separately argue these further rejections including
Byrne or Zhang, instead relying upon overcoming the rejection over
Horikoshi, Rosenfeldt and Arimoto (see Appeal Br. 19–20). Having found
no deficiency in the rejection of claim 30 based on Horikoshi, Rosenfeldt
and Arimoto for the reasons given above, we also find that the further
combinations with Byrne and Zhang render the dependent claims obvious
for the reasons given by the Examiner (see Final Act. 7–11).
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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
30–34, 36,
38–44,
50–56
103 Horikoshi, Rosenfeldt,
Arimoto
30–34, 36,
38–44, 50–
56

37, 38,
45–47
103 Horikoshi, Rosenfeldt,
Arimoto, Byrne
37, 38, 45–
47

48, 49 103 Horikoshi, Rosenfeldt,
Arimoto, Zhang
48, 49
Overall
Outcome
30–34, 36–
56

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