CRODA, INC.

Patent Trials and Appeals Board

Dec 11, 2020

2020001242 (P.T.A.B. Dec. 11, 2020)

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.
14/910,846 02/08/2016 GREGORY JAMES LINDNER CDA-107US 5730
23122 7590 12/11/2020
RATNERPRESTIA
2200 Renaissance Blvd
Suite 350
King of Prussia, PA 19406
EXAMINER
SHIN, MONICA A
ART UNIT PAPER NUMBER
1616
NOTIFICATION DATE DELIVERY MODE
12/11/2020 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):
PCorrespondence@ratnerprestia.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________
Ex parte GREGORY JAMES LINDNER and KEVIN WADE PENFIELD

Appeal 2020-001242
Application 14/910,846
Technology Center 1600
____________

Before ANTON W. FETTING, ULRIKE W. JENKS,
RACHEL H. TOWNSEND, Administrative Patent Judges.

JENKS, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 files this appeal from
Examiner’s decision to reject claims directed to a sprayable agrochemical
formulation. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Appellant identifies the real party in interest as Croda Inc. Appeal Br. 1.
We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a).
Appeal 2020-001242
Application 14/910,846
2
STATEMENT OF THE CASE
The Specification describes that
the effectiveness of any drift reduction technology (DRT) is a
function not only of the spray system design and operating
parameters, but that each selection of design and engineering
parameters (nozzle type, fluid pressure, flow rate or orifice size,
and spray angle) is influenced, in many cases differently, by the
composition and properties of the spray mixture applied.
Spec. 1:21–24.
[T]he use of compounds in agrochemical compositions in
combination with one or more agrochemical active and/or
nutrient, where the compounds may provide comparable (i.e. by
not degrading the spray pattern) or improved properties with
regard to spray drift compared to formulations used without
spray drift reductants, or in comparison to existing spray drift
reductants.
Id. 3:16–20.
Claims 1–6, 10–16, 19–24, 33, and 34 are on appeal, and can be found
in the Claims Appendix of the Appeal Brief. Claim 12 is representative of
the claims on appeal, and reads as follows:
1. A sprayable agrochemical formulation comprising;
i) at least one spray drift reductant comprising a fatty ester
of a C3 to C8 polyol, or an oligomer thereof having from 2 to 5
repeat units;
ii) at least one agrochemical active and/or nutrient,
wherein the at least one agrochemical active and/or nutrient is
selected from the group consisting of fungicides, herbicides,
insecticides, algicides, moluscicides, rodenticides, germicides,
antibiotics, antibacterials, antivirals, antifungals, antiprotozoals,
antiparasites, macronutrients, and micronutrients;

2 Claims 1–16 and 19–34 are pending, claims 17 and 18 are cancelled, and
claims 7–9 and 25–32 are withdrawn from consideration. Ans. 3.
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Application 14/910,846
3
iii) a clathrate compound, wherein the clathrate compound
contains the spray drift reductant and is present in an amount of
at least 40 wt.% based on the total weight of the spray drift
reductant and the clathrate; and
iv) at least one non-ionic alkoxylate comprising an
alkoxylated alcohol of the general formula (II):

wherein
R3 is a straight or branched chain, saturated or
unsaturated, substituted or unsubstituted hydrocarbon group
having from 4 to 30 carbon atoms;
AO is an oxyalkylene group; and
x represents an integer in the range from 1 to 30.
Appeal Br. 9 (Claims Appendix).
In the Election/Restriction requirement mailed January 11, 2017,
Examiner required Appellant to elect a single invention with a further
species election of (1) a single fatty acid ester of C3 to C8 polyol, or an
oligomer thereof having from 2 to 54 repeat unites, and (2) a single non-
ionic alkoxylated fatty alcohol. In the response of April 5, 2017, Appellant
elected a mono/di-oleate ester of diglyceride as the oligomer mixture, and
elected laurel alcohol (4EO) ethoxylate as the non-ionic alkoxylated fatty
alcohol. See Ans. 2. We limit discussion and consideration to the elected
species, and take no position respecting the patentability of the broader
generic claims, including the remaining, non-elected species. See Ex parte
Ohsaka, 2 USPQ2d 1460, 1461 (BPAI 1987).

Appeal 2020-001242
Application 14/910,846
4
REJECTIONS
The following grounds of rejection are before us for review:
I. Claims 1–6, 10–16, 19–21, 23, 24, and 33 under 35 U.S.C.
§ 103 as being unpatentable over Fefer3 and Brown4 as
evidenced by Petro-Canada5 and Bogran;6
II. Claims 1–6, 10–13, 15, 16, 19–23, and 33 under 35
U.S.C. § 103 as being unpatentable over Mainx7 and
Brown;
III. Claims 1–6, 10–13, 15, 16, 19–23, 33, and 34 under
35 U.S.C. § 103 as being unpatentable over Brown and
Mainx; and
IV. Claims 1–6, 10–16, 19–24, 33, and 34 provisionally on
the ground of non-statutory obviousness type double
patenting over U.S. Application No. 14/910,830 in view
of Brown.
I. Obviousness over Fefer, Brown, Petro-Canada, and Bogran
Does the preponderance of evidence relied upon by Examiner support
a conclusion of obviousness?
A. Findings of Fact (FF)
FF1. Fefer teaches that “[p]etroleum oils have long been sprayed on
agricultural crops as a means of pest control.” Fefer ¶ 2; see also
Petro-Canada (Spray Oil 10 “as a carrier for formulated agricultural
insecticide spray oils.”); Bogran 2 (“Regardless of the source or type,

3 Fefer, US 2002/0161057 A1, publ. Oct. 31, 2002.
4 Brown et al., US 2014/0031467 Al, Jan. 30, 2014 (“Brown”).
5 Petro-Canada, Material Safety Data Sheet — Spray Oil 10 (July 25, 2011).
6 Carlos E. Bográn et al., Using oils as Pesticides, Texas A&M AgriLife
Extension (“Bogran”).
7 Mainx et al., US 2013/0053349 A1, publ. Feb. 28, 2013 (“Mainx”).
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5
all oil-based products have a similar mode of action. Insecticidal oils
kill insects on contact by disrupting gas exchange (respiration), cell
membrane function or structure. . . . Their toxic action is more
physical than chemical and is short-lived.”); see Final Act. 4–5 (spray
oil is a known insecticide).
FF2. Fefer teaches that “hydrocracked and/or hydroisomerized fluids are not
readily usable as spray oils because they are often less soluble then
conventional oils.” Fefer ¶ 9. Fefer teaches emulsion blends that “are
particularly useful when mixed with hydrocracking and/or
hydroisomerized oils and water, which may be subsequently employed
as a spray oil for agricultural purposes.” Fefer ¶ 44.
FF3. Fefer teaches emulsifier blends that contain “C12-C16 carbon chains
and contains ethoxylated alcohols and glycerol mono- and/or dioleates
in a ratio of 9:1 to about 6:4. A most preferred ratio of ethoxylated
alcohols and glycerol mono- and/or dioleates is 4:1.” Fefer ¶ 14.
FF4. One example of Fefer’s compositions contains 50 g spray oil 10, 0–1g
ethoxylated alcohol (Rhodasurf L-4 ethoxylated alcohol), 0–1 g glycol
dioleate (Alkamuls GMR-55-LG mono/diglyercide product), 1 ml
oil/emulsifier blend, in a total volume of 100 ml. Fefer ¶¶ 20–21
(Example II (Table II)); Final Act. 4.
FF5. Examiner finds that “that lauryl alcohol (4EO) ethoxylate is an
ethoxylated alcohol containing a C12 carbon chain and having 4 EO
groups.” Final Act. 4.
FF6. Examiner acknowledges that Fefer does not disclose a clathrate
compound. Final Act. 6.
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FF7. Brown teaches the use of a complex forming component that can be
added to agricultural sprays. Brown ¶ 5. One example of a complex
forming component is a urea-based complex-forming component that
is part of an antidrift composition and “provides a source of fertilizer
apart from and in addition to any other fertilizer(s) with which the
antidrift composition may be combined.” Id.
FF8. Brown teaches that the term “complex” is understood to be
synonymous with “clathrate,” “clathrate complex,” or “cage
compound.” Brown ¶ 14.
FF9. Brown teaches
urea-based complex-forming component (i), in addition to
being complexed with antidrift component (ii), is
complexed with a superspreader surfactant [(iii)]. The
superspreader surfactant of the preferred antidrift
composition functions in an aqueous agricultural spray
composition to improve the wetting and spreading of the
droplets of the spray composition on the target plants.
Brown ¶ 30.
FF10. Brown teaches a composition containing 70–90% complex forming
component, 0.5–10% antidrift component, and an optional adjuvant
component at a concentration of 1–20%. Brown ¶ 60 (see composition
B).
FF11. Brown’s antidrift components include:
polymeric antidrift agents such as polysaccharides,
acrylamide homopolymers and copolymers and their salts,
e.g., their alkali metal salts, in particular, those of sodium
and potassium, their ammonium salts, their di- and
trialkylamine salts, their di- and trialkanolamine salts, and
the like, copolymers of maleic acid and conjugated diene
including their salts such as those aforementioned,
polyalkylene oxides such as polyethylene oxide,
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7
polypropylene oxide and poly(ethylene oxide-co-
propylene oxide), polyvinylpyrrolidone, and their
mixtures.
Brown ¶ 23.
FF12. Brown teaches that the term “adjuvant” includes “any optional
component that when incorporated in the antidrift composition of the
invention imparts a functionally useful property thereto, e.g.,
dispersing, wetting, spreading, etc., and/or enhances a functionally
useful property already possessed in some degree by the antidrift
composition.” Brown ¶ 15.
FF13. Brown teaches non-ionic surfactants such as fatty alcohol ethoxylates
(Emulan® emulsifiers (BASF)), alcohol ethoxylates (Rhodasurf®
surfactants (Rhodia)). Brown ¶ 50. Brown teaches that depending on
the structure of the nonionic surfactant, the surfactant may or may not
be superspreading. Id.
FF14. Brown teaches including pesticides, fungicides, and/or insecticide
with the agricultural spray. Brown ¶¶ 71–74.
FF15. Examiner finds that
Brown does not does not appear to explicitly disclose the
inclusion of (i) at least one spray drift reductant (elected
species: mixture of mono/di-oleate ester of diglyceride)
or (ii) at least one non-ionic alkoxylate[] comprising an
alkoxylated alcohol of the general formula (II) as shown
in claim 1 (elected species: lauryl alcohol (4EO)
ethoxylated).
Final Act. 16.
B. Analysis
Based on the combination of Fefer and Brown, Examiner concludes
that, at the time Appellant’s invention was made, it would have been prima
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Application 14/910,846
8
facie obvious to incorporate the clathrate disclosed in Brown into the
agricultural spray taught in Fefer. Final Act. 3–9; FF1–FF15.
Examiner concludes that one of ordinary skill in the art would have
added Brown’s antidrift composition into Fefer’s sprayable formulations in
order to obtain “the advantage of reducing drift when applying Fefer’s spray
formulation and [at the same time get] the advantage of providing a source
of fertilizer for the crops the spray is applied to.” Final Act. 8. Specifically,
Examiner explains that “mixing in Fefer’s mixture of mono- and di-oleate
ester of diglyceride (adjuvant) with Brown’s urea-based complex forming
component (i) and Brown’s antidrift component (ii) prior to forming the
complex so that some or all of the adjuvants are also complexed by the urea-
based complex-forming component” meets the limitation of “the clathrate
compound contains the spray drift reductant.” Ans. 4. According to
Examiner, “Brown explicitly discloses the complexing of adjuvants to their
urea-based complex-forming component (urea clathrate).” Ans. 4.
Furthermore, Examiner finds that the lauryl alcohol (4EO) ethoxylate
disclosed in Fefer as meeting the presently claimed limitation of “spray drift
reductant.” Final Act. 4; FF5. Just because Fefer does not disclose that lauryl
alcohol (4EO) ethoxylate functions as a spray drift reductant does not mean
that the disclosed compound cannot perform the intended use. Final Act. 4.
(citing MPEP 2111.02); see also In re Schreiber, 128 F.3d 1473, 1477 (Fed.
Cir. 1997) (“It is well settled that the recitation of a new intended use for an
old product does not make a claim to that old product patentable.”).
Appellant contends that the combination of Fefer and Brown fails to
provide a reasonable expectation of success. Appeal Br. 3–5; Reply Br. 2–3.
Specifically, Appellant contends that “the purpose of these glycerol esters
Appeal 2020-001242
Application 14/910,846
9
described in Fefer is to function as an emulsifier in an emulsion, i.e., to
stabilize the emulsion.” Appeal Br. 4. Appellant contends that one of
ordinary skill in the art would not incorporate Brown’s clathrate with Fefer’s
glycerol esters because then they would be unable to function as emulsifier
as described by Fefer. Id. at 5.
We are not persuaded. “Obviousness does not require absolute
predictability of success . . . all that is required is a reasonable expectation of
success.” In re Droge, 695 F.3d 1334, 1338 (Fed. Cir. 2012) (quoting In re
Kubin, 561 F.3d 1351, 1360 (Fed. Cir. 2009) (citing In re O’Farrell, 853
F.2d 894, 903–04 (Fed. Cir. 1988)). “The reasonable expectation of success
requirement refers to the likelihood of success in combining references to
meet the limitations of the claimed invention.” Intelligent Bio-Systems, Inc.
v. Illumina Cambridge Ltd., 821 F.3d 1359, 1367 (Fed. Cir. 2016) (emphasis
added).
Examiner explains that “Brown explicitly discloses the complexing of
adjuvants to their urea-based complex-forming component (urea clathrate).”
Ans. 4. Examiner notes that suitable adjuvants disclosed in Brown also
include emulsifiers. Ans. 5 (citing Brown ¶¶ 29, 30, 50). Brown suggests
that one or more of the optional adjuvant components, for example a
surfactant, may be mixed with the urea complex forming component and
antidrift component. Brown ¶ 30. Therefore, Brown teaches that the
surfactant still improves the wetting and spreading of the droplets even if it
is complexed with the urea complex-forming component. Id. From this
disclosure in Brown, Examiner concludes that “[t]here appears to be no
indication that complexing the superspreader surfactant [, in other words an
emulsifier,] to the urea based complex-forming component renders the
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Application 14/910,846
10
superspreader surfactant unable to perform its intended adjuvant function.”
Ans. 5. The evidence of record, therefore, supports Examiner’s position that
the complexing of the emulsifier to the complex-forming components does
not inhibit the function of the emulsifier.
We are also not persuaded by Appellant’s contention that “if the
glycerol esters are complexed by the clathrate described by Brown . . . [they]
would be unable to function as emulsifiers as described by Fefer.” Appeal
Br. 5. Appellant fails to identify an evidentiary basis on this record that
rebuts Examiner’s reasoning based on Brown’s teachings discussed above
that complexing of the emulsifier to the complex-forming components does
not inhibit the function of the emulsifier. See Ans. 5; In re Geisler, 116 F.3d
1465, 1471 (Fed. Cir. 1997) (Argument of counsel cannot take the place of
evidence).
C. Conclusion
The preponderance of evidence relied upon by Examiner supports a
conclusion of obviousness. The rejection of claim 1 under 35 U.S.C. § 103
as unpatentable over the combination of Fefer and Brown as evidenced by
Petro-Canada, and Bogran is affirmed. Claims 2–6, 10–16, 19–21, 23, 24,
and 33 are not separately argued and fall with claim 1.
II.–III. Obviousness over Mainx and Brown
Does the preponderance of evidence relied upon by Examiner support
a conclusion of obviousness?
A. Findings of Fact (FF)
FF16. Mainx teaches formulations containing biocides such as pesticides,
fungicides, and herbicides. Mainx ¶¶ 21–22.
FF17. Mainx teaches biocide formulation comprising (a) alkoxylated
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Application 14/910,846
11
oligoglycerol esters, (b) biocides and optionally (c) oil components
and/or co-solvents and/or (d) emulsifiers. Mainx Abstract, ¶ 5, claim
12 (reciting ranges of the components); Final Act. 10.
FF18. Mainx teaches oligomers of glycerol with an average degree of
oligomerization between 2 and 4. Mainx ¶ 13. The alkoxylated
oligoglycerol esters may be fully esterified or in part. Mainx ¶ 15. A
preferred species is diglycerol ester. Mainx ¶ 17. “Particularly
preferred are of course those species combining all three features
which means ethoxylated diglycerol esters derived from saturated and
unsaturated fatty acids.” Mainx ¶ 20. The alkoxylated oligoglycerol
esters are used as adjuvants for biocides. Mainx ¶ 191.
FF19. Mainx teaches non-ionic and anionic surfactants as emulsifies. Mainx
¶ 165. Suitable examples of non-ionic surfactants include for example:
“products of the addition of 2 to 30 mol ethylene oxide and/or 0 to 5
mol propylene oxide onto linear C8-22 fatty alcohols, onto C12-22 fatty
acids and onto alkyl phenols containing 8 to 15 carbon atoms in the
alkyl group.” Mainx ¶ 166.
B. Analysis
Examiner provides two different rationales for making the
combination of Mainx and Brown. See Final Act. 10–19; FF7–FF19. Based
on the combination of Mainx and Brown, Examiner concludes that, at the
time Appellant’s invention was made, it would have been prima facie
obvious to incorporate Brown’s antidrift composition into the agricultural
spray taught in Mainx. Final Act. 12; FF7–FF19. Specifically, Examiner
concludes that “[o]ne of ordinary skill in the art would have been motivated
to do so in order to obtain the advantage of reducing drift when applying
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Application 14/910,846
12
Mainx’s formulations and the advantage of providing a source of fertilizer
[from Brown] for the crops the spray is applied to.” Final Act. 12.
Alternatively, based on the combination of Brown and Mainx,
Examiner concludes that, at the time Appellant’s invention was made, it
would have been prima facie obvious to incorporate Mainx’s alkoxylated
oligoglycerol esters into Brown’s antidrift composition as Brown’s
component (iii). Final Act. 16–17. According to Examiner, “[o]ne of
ordinary skill in the art would have been motivated to do so as the
alkoxylated oligoglycerol esters were shown to exhibit superior adjuvant
performance and improve the weed control properties of many biocides.” Id.
at 17.
Appellant contends that “the anti-drift compounds disclosed by Mainx
and Brown do not have similar structures” and therefore there is no reason to
make the modifications as suggested by Examiner. Appeal Br. 6; Reply Br.
4. Appellant contends that “[b]ecause the composition of Mainx is already a
liquid composition, there does not appear to be any reason why one of
ordinary skill in the art would add the complexing agent of Brown to the
composition of Mainx.” Appeal Br. 6.
Inquiry into motivation to combine considers whether a person having
ordinary skill in the art would have believed that there was a reason to
combine the references and thus reach the claimed invention. Intelligent Bio-
Systems, 821 F.3d at 1368; see also KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 418 (2007) (“[I]t can be important to identify a reason that would have
prompted a person of ordinary skill in the relevant field to combine the
elements in the way the claimed new invention does”).
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13
Examiner explained that by adding Brown’s antidrift component into
Mainx’s formulations, one of skill in the art would have first “obtain[ed] the
advantage of reducing drift when applying Mainx’s formulations and
[second Examiner explained that the combination would have had] the
advantage of providing a source of fertilizer for the crops the spray is
applied to.” Final Act. 12. Here, Examiner articulated two different reasons
for making the combination.
Appellant contends that “Mainx is already a liquid composition,”
therefore, there is no reason to add the complexing agent of Brown to more
readily dissolve the anti-drift component in that liquid composition. Appeal
Br. 6; Reply Br. 4. Appellant’s response, however, addresses only one of
Examiner’s articulated reasons. Appellant does not explain why Examiner’s
identified motivation of providing fertilizing properties is in error.
Accordingly, we are not persuaded that Examiner’s articulated reason for
making the combination is in error.
Examiner’s alternative argument is based on the combination of
Brown and Mainx. Examiner relies on Brown’s disclosure of incorporating
adjuvants as a motivation to incorporate the superior adjuvant of Mainx that
has been “shown to exhibit superior adjuvant performance and improve the
weed control properties of many biocides.” Final Act. 17. Examiner finds
that Mainx’s alkoxylated oligoglycerol esters were shown to exhibit superior
adjuvant performance and improve the weed control properties of many
biocides. Final Act. 17.
Surprisingly it has been observed that alkoxylated oligoglycerol
esters, and in particular ethoxylated diglycerol esters based on
unsaturated fatty acids exhibiting superior adjuvant performance
compared to similar non-alkoxylated compounds[.] The products
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improve the weed control properties of many aqueous biocide
formulations, especially of well known biocides like for example
glyphosate or epoxiconazole.
Mainx ¶ 6. Here, Examiner identifies the superior adjuvant performance as a
reason to make the combination. Final Act. 17.
Rather than address the Examiner’s substitution reasoning, Appellant
argues, “there is no evidence that would suggest that the complexing
compounds of Brown would still be necessary to render the compounds
soluble.” Appeal Br. 7. Appellant contends that “the anti-drift compounds
disclosed by Mainx and Brown do not have similar structures and one of
ordinary skill in the art would not expect them to exhibit similar properties.”
Reply Br. 4.
Examiner explains that
Brown discloses an additive that is known in the art to be added
into agricultural compositions, and Mainx does not appear to
preclude the inclusion of the structures disclosed by Brown.
Further, Brown does not appear to disclose any limitations on the
types of adjuvants their antidrift composition may be used in
combination with.
Ans. 6. Thus, even if the antidrift compounds in Mainx and Brown are
different, as Examiner explains there appears to be no limitation with respect
to the incorporation of different antidrift compounds into Mainx’s
composition.
Additionally, Examiner identifies that another reason for making the
combination was to “provid[e]a source of fertilizer for the crops the spray is
applied to.” Ans. 6. Appellant does not explain why Examiner’s identified
motivation of adding a source of fertilizer is in error.
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C. Conclusion
The preponderance of evidence relied upon by Examiner supports a
conclusion of obviousness. The rejection of claim 1 under 35 U.S.C. § 103
as unpatentable over the combination of Mainx and Brown is affirmed.
Claims 2–6, 10–13, 15, 16, 19–23, 33, and 34 are not separately argued and
fall with claim 1.
IV. Non-statutory obviousness type double patenting
Does the preponderance of evidence relied upon by Examiner support
a conclusion that the claims are not patentably distinct?
A. Analysis
The copending claims of U.S. Application No. 14/910,8308 are
directed to an agrochemical formulation that comprises an adjuvant
encompassing an agrochemical active, a fatty ester oligomer for example an
oligomer of glycerol is diglycerol, as well as a co-adjuvant comprising
alkoxylated alcohol.
“[A]dding Brown’s antidrift composition into the agrochemical
formulation of the claims of Copending 830 [Application] was in order to
obtain the advantages of reducing drift when applying the formulation of
Copending 830 [Application] and providing a source of fertilizer for the
crops the formulation is applied to.” Ans. 7.
Appellants contend that “[t]here is no evidence that the spray drift
reductants in the claims of the co-pending application are difficult to
dissolve components or that complexing compound as taught by Brown

8 A notice of allowance in this application was mailed on September 23,
2020, we refer to the last set of amended claims submitted on July 7, 2020.
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would aid in the dissolution of the spray drift reductants of the co-pending
application.” Appeal Br. 8.
The law does not require that the teachings of the reference be
combined for the reason or advantage contemplated by the inventor, as long
as some suggestion to combine the elements is provided by the prior art as a
whole. In re Beattie, 974 F.2d 1309, 1312 (Fed. Cir. 1992); In re Kronig,
539 F.2d 1300, 1304 (CCPA 1976). MPEP 2144 (IV) states
the reason or motivation to modify the reference may often
suggest what the inventor has done, but for a different purpose
or to solve a different problem. It is not necessary that the prior
art suggest the combination to achieve the same advantage or
result discovered by Applicant. See, e.g., In re Kahn, 411 F.3d
977, 987 [] (Fed. Cir. 2006).
Here, Examiner finds that adding Brown’s antidrift composition to the
agrochemical taught in the copending claims provides the benefit of
incorporating fertilizer which would benefit the plants that are treated with
the composition. See Ans. 7 (“providing a source of fertilizer for the crops
the formulation is applied to.”). Appellant does not explain why Examiner’s
identified motivation of adding a source of fertilizer is in error. Accordingly,
we affirm the rejection for the reasons set out by Examiner in the Final
Action and Answer.
B. Conclusion
The preponderance of evidence relied upon by Examiner supports a
conclusion the claims of the co-pending ’830 Application in conjunction
with the teachings of Brown are not patentably distinct over the present
claims. The rejection of claims 1–6, 10–16, 19–24, 33, and 34 on the
grounds of non-statutory obviousness type double patenting is affirmed.
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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–6, 10–16,
19–21, 23,
24, 33
103 Fefer, Brown,
Petro-Canada,
Bogran
1–6, 10–16,
19–21, 23,
24, 33

1–6, 10–13,
15, 16, 19–
23, 33
103 Mainx, Brown 1–6, 10–13,
15, 16, 19–
23, 33

1–6, 10–13,
15, 16, 19–
23, 33, 34
103 Brown, Mainx 1–6, 10–13,
15, 16, 19–
23, 33, 34

1–6, 10–16,
19–24, 33,
34
non-statutory
obviousness type
double patenting
1–6, 10–16,
19–24, 33,
34

Overall
Outcome
1–6, 10–16,
19–24, 33,
34

TIME PERIOD FOR RESPONSE
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