ENHOLD B.V.

Patent Trials and Appeals Board

Aug 3, 2021

2021001406 (P.T.A.B. Aug. 3, 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.
15/107,206 06/22/2016 Johannes Antonius Marie JANSSEN 069818-3920 1057
22428 7590 08/03/2021
FOLEY & LARDNER LLP
3000 K STREET N.W.
SUITE 600
WASHINGTON, DC 20007-5109
EXAMINER
HAGHIGHATIAN, MINA
ART UNIT PAPER NUMBER
1616
NOTIFICATION DATE DELIVERY MODE
08/03/2021 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):
ipdocketing@foley.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHANNES ANTONIUS MARIE JANSSEN
Appeal 2021-001406
Application 15/107,206
Technology Center 1600
Before ERIC B. GRIMES, RICHARD M. LEBOVITZ, and
ULRIKE W. JENKS, Administrative Patent Judges.
JENKS, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from Examiner’s
decision to reject claims directed to a kit and a method for rose preservation
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(a). Appellant identifies the real party in interest as Enhold B.V.
Appeal Br. 3. We have considered, and herein refer to, the Specification of
June 22, 2016 (“Spec.”); Non-Final Office Action of April 1, 2020 (“Non-
Final Act.”); Appeal Brief of August 28, 2020 (“Appeal Br.”); Examiner’s
Answer of October 20, 2020 (“Answer”); and Reply Brief of December 14,
2020 (“Reply Br.”).
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2
CLAIMED SUBJECT MATTER
The claims are directed to kit and a method for a preserving cut roses
for transport. Claims 17–37 are on appeal. Claims 17 and 26, reproduced
below, are illustrative of the claimed subject matter:
17. A flower shipment kit, comprising:
(a) a container defining an inner chamber; and
(b) one or more cut roses contained within the inner
chamber;
wherein a preservation composition comprising (i) 5-200
ppm of plant hormone, selected from the group consisting of
cytokinins, gibberellins and combinations thereof; and (ii) and
an antifungal compound has been applied onto the flower buds
or bloomed flowers of the one or more cut roses;
wherein stems of the cut roses are not immersed or
inserted into a hydration system; and
wherein the treated roses have been kept in the container
without water supply under refrigeration conditions for at least
1 day.
Appeal Br. 17 (Claims Appendix).
26. A method of preserving cut roses during transportation or
storage, comprising:
(a) packaging one or more cut roses having a stem and a
flower bud or a bloomed flower in a container without
immersing or inserting the stems in a hydration system;
(b) applying a preservation composition, before or during
the packaging, onto the flower buds or bloomed flowers of the
cut roses, wherein the preservation composition comprises (i) 5-
200 ppm of plant hormone selected from cytokinin, gibberellins
and combinations thereof and (ii) an anti-fungal compound;
(c) keeping the treated roses in the packaging for at least
1 day under refrigeration conditions and without water supply.
Id. at 18–19.
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REFERENCES
The prior art relied upon by Examiner is:
Name Patent Document Date
Feichtmeir US 3,112,192 Nov. 26, 1963
Weder US 6,357,207 B1 Mar. 19, 2002
Hong WO 02/37953 A1 May 16, 2002
Jaiswal WO 2007/127238 A2 Nov. 8, 2007

Name Non-Patent Literature Document
del Rio Effect of pretreatment and storage conditions on
cut rose flowers, 246 Acta Horticulture 319–26
(1989)
Ferrante Effect of thidiazuron and gibberellic acid on
leaf yellowing of cut stock flowers, 4 Cent. Eur.
J. Biol. 461–68 (2008)

REJECTIONS
The following grounds of rejection made by Examiner are before us
on appeal:
I. claims 17–21 and 23–35 under 35 U.S.C. § 103(a) as unpatentable
over Weder in view of Feichtmeir (Ans. 3);
II. claims 22 and 34–37 under 35 U.S.C. § 103(a) as unpatentable over
Weder in view of Feichtmeir and Ferrante (id.);
III. claims 21 and 22 under 35 U.S.C. § 103(a) as unpatentable over
Weder in view of Feichtmeir and Hong (id.);
IV. claims 17–21 and 23–37 under 35 U.S.C. § 103(a) as unpatentable
over Jaiswal in view of Weder (id.); and
V. claims 17–21 and 23–33 under 35 U.S.C. § 103(a) as unpatentable
over del Rio in view of Jaiswal and Weder (id.).

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4
OPINION
Ground I.-III.- Obviousness rejections relying on Weder and Feichtmeir
The issue presented is whether the preponderance of the evidence of
record supports Examiner’s conclusion that the combination of Weder and
Feichtmeir renders obvious the kit and method for preserving cut roses for
transportation as recited in claims 17 and 26.
Findings of Fact
We agree with and adopt the Examiner’s findings of fact and
reasoning regarding the scope and content of the prior art. See Non-Final
Action 3–8. For emphasis only we highlight the following:
FF1. Weder teaches methods of packaging floral groupings. See
Weder 2:24–47; Non-Final Act. 3. Weder teaches applying floral
preservation solutions on floral groupings, wherein the preservation
solutions “contain water, a carbohydrate, a disinfectant, a growth
regulator, an ethylene inhibitor, an acidifier, a wetting agent and
combinations thereof.” Weder 12:13–16, 13:8–12 (“brief exposure [to
preservation solution], from one to 24 hours by growers prior to
packaging and transportation will extend shelf life and thus
appearance, and assist in subsequent bud opening of certain flowers
such as . . . roses”); see Non-Final Act. 5. Floral groupings identified
by Weder include roses. See Weder 11:5–22 (Table 1), 12:10–13:12;
Non-Final Act. 5.
FF2. Weder teaches that the disinfectant in the preservation solution
is selected from the group including prochloraz, copper sulfate, and
thiobendazole, among others. Weder 6:29–43; Non-Final Act. 4.
FF3. Weder teaches the use of anti-ethylene agents to inhibit
ethylene production. The anti-ethylene agents in the preservation
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solution include “gibberellins, and cytokinins.” Weder 7:34–40; Non-
Final Act. 4. Weder also recognizes that cytokinins, auxins, and
gibberellins also function as growth regulators. Weder 12:31–32;
Non-Final Act. 5.
FF4. Weder teaches that “[d]ry storage permits a longer storage
period for some flower species and space savings in storage rooms.”
Weder 11:55–57; Non-Final Act. 4.
Cut flowers, whether stored wet or dry, may be treated by
a grower prior to storage. Treatment methods include, but
not by way of limitation, spraying or dipping in
disinfectants, pulsing with a floral preservative solution
containing carbohydrates, disinfectants, and/or anti-
ethylene agents, rapid precooling, and brief exposure to a
modified/ controlled atmosphere having a substantially
high carbon dioxide concentration (over 30%).
Weder 12:59–66; see Non-Final Act. 5.
FF5. Weder teaches that the floral grouping can be maintained “at a
temperature in the range of from about 32 to about 60 degrees
Fahrenheit.” Weder 13:31–33; Non-Final Act. 5.
FF6. Examiner acknowledges that Weder does not teach the precise
amount of growth hormone applied to the plant. Non-Final Act. 5.
Examiner finds that Weder suggests that “the precise amounts of
growth regulators used is dependent upon the results sought and the
items to be packaged.” Id. (citing Weder 12:10–13:12).
FF7. Feichtmeir teaches applying adenine compounds to cut flowers
in order to “slow proteolysis and other chemico-physiological
processes which cause the flower to mature and then wilt.” Feichtmeir
1:34–36; see Non-Final Act. 6. Feichtmeir teaches that specific
compounds include N6-benzyladenine. Feichtmeir 4:47; Non-Final
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Act. 6. Feichtmeir teaches that the general concentration of the
adenine compound is from about 20 to about 200 parts per million by
weight. Feichtmeir 7:3–5. “[A]s little as 5 parts by weight of the
adenine compound per million parts by weight of the composition will
have a definite effect upon the bud or flower to be treated.”
Feichtmeir 6:73–74; Non-Final Act. 7. Feichtmeir teaches that “it is
desirable to employ as low a concentration of the preservative as is
possible to effect the desired prolongation of flower life, since this
will minimize the possibility of damage to the flower by the
preservative.” Feichtmeir 7:6–10; Non-Final Act. 7.
FF8. Feichtmeir teaches that the liquid adenine containing solution
can be applied to the plant. Specifically, “the stem can be immersed in
the liquid, the entire bud or flower, stem, and leaves, if any, can be
dipped or soaked in the liquid, or the liquid can be sprayed on the bud,
flower, stem and leaves, if any.” Feichtmeir 5:70–75.
Analysis
Grounds I –III rely on the combination of Weder and Feichtmeir
either alone or in further combination with Ferrante (Ground II) and Hong
(Ground III).
Examiner finds that Weder teaches all the limitations recited in the
claim 17 but for the specific disclosure of the concentration of plant
hormone to apply to the cut flowers. FF1–FF6. Examiner relies on
Feichtmeir for teaching this limitation. FF7–FF8. Based on the teachings of
Weder and Feichtmeir Examiner concludes:
It would have been obvious to one of ordinary skill in the
art at the time of invention given the teachings of Weder on a
method of preserving dry cut flowers with a preservative
composition comprising a sufficient amount of a growth
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hormone such as cytokinins and antifungal agents such as
thiobendazole and prochloraz before packaging them to have
looked in the art for more specific guidance on the amount of
such agents as taught by Felchtmeir [sic] et al. It would have
been obvious to do so because following guidance on the
suitable concentrations of growth hormones for preserving cut
flowers as taught by Felchtmeir [sic] et al would result in less
experimentation and better and faster results. It further would
have been obvious for one of ordinary skill in the art to have
implemented Felchtmeir [sic] et al on spraying the flower buds
as a suitable method of treating them before packaging to
improve their life during storage with a reasonable expectation
of success.
Non-Final Act. 8.
Appellant contends that Examiner erred in finding that the results
presented in the declarations are not “unexpected” (see Appeal Br. 6–7), and
that the prior art does not recognize that plant hormones function in
preventing infections or reducing severity of infection (see Appeal Br. 7–
12).
After considering the evidence and the arguments, we conclude that
the weight of the evidence favors Examiner’s conclusion of obviousness.
Accordingly, we agree with and adopt Examiner’s reasoning (see Grounds
of Rejection, Non-Final Act. 3–8, 13–15), and agree that Examiner properly
found Appellant’s arguments unpersuasive (see Response to Argument,
Non-Final Act. 18–25; Ans. 4–14). We address Appellant’s contentions
below:
Unexpected results
Appellant contends that Examiner erroneously concluded that the
results are expected. See Appeal Br. 6 (“The Examiner does not question the
experimental design or its results per se, but has determined—without any
evidence—that the results cannot be ‘unexpected.’”).
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We are not persuaded and agree with Examiner’s conclusion that the
data presented in the Declarations2 is insufficient to overcome Examiner’s
prima facie case of obviousness because the Declarations do not compare the
claimed composition to the prior art compositions nor do they show an
improvement over the prior art. See Ans. 10–11. At best, the data “show that
the combination of some antifungal agents and some plant hormones show
improved incidents of botrytis and vase life for cut roses compared to the
same components used alone.” Ans. 10.
The Janssen-1 Declaration shows that when antifungal compositions
alone are applied to the flowers the vase life is extended by either 5.8 or 6.1
days and when the hormone alone is applied to the flower the vase life is
extended by 2.8 days. Janssen-1 Dec. ¶ 11. Thus, it is not surprising to see
that when both anti-fungal and hormone are applied to the flowers that the
vase life is extended by 7.2 days. Id.; see Ans. 10 (“The data shows that the
combination of a plant hormone and an antifungal agent results in lower
incidents of botrytis infection and higher vase life in cut roses in storage.”)
Similar results were shown in Tables 1–9 of the Janssen-2 Declaration using
different anti-fungal and hormone combinations. See Janssen-2 Dec. ¶ 8.
The data presented in the Declarations is insufficient because it does not
demonstrate that the dose responses of the active agents are linear, so the
evidence resulting from combining two active agents at a single dose does
not necessarily mean that even an improved result is additive or synergistic.
Thus, based on the disclosures in the declarations, we agree with Examiner,
that the data at best show an additive effect when the antifungal agent is

2 Declarations under 37 C.F.R. § 1.132 by Johannes Antonius Marie Janssen
signed Aug. 14, 2019 (“Janssen-1 Dec.”) and March 9, 2020 (“Janssen-2
Dec.”).
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9
combined with the plant hormone. Therefore, we agree with Examiner that
the evidence provided in the declarations is insufficient to demonstrate that
the allegedly beneficial properties of Appellant’s composition would have
been unexpected and different in kind from the compositions taught by the
prior art. See Iron Grip Barbell Co. v. USA Sports, Inc., 392 F.3d 1317, 1322
(Fed. Cir. 2004) (holding that unexpected results that are probative of
nonobviousness are those that are “different in kind and not merely in degree
from the results of the prior art”). Accordingly, we find that the alleged
improvement in the flower preservation for transportation by the claimed
invention does not represent the “difference in kind” that is required to show
unexpected results, and therefore does not overcome the Examiner’s
conclusion that the claims are obvious over the combined cited prior art. See
In re Harris, 409 F.3d 1339, 1344 (Fed. Cir. 2005).
Here, the art suggests combining disinfectants and anti-ethylene
agents including plant hormones for the application to cut flowers in order to
extend the shelf life. See FF1–FF3, FF7, FF8. The burden of demonstrating
unexpected results rests on the party asserting them. In re Klosak, 455 F.2d
1077, 1080 (CCPA 1972). That burden has not been carried here because
Appellant has not established that the results achieved using the recited plant
hormone and anti-fungal compositions were unexpectedly superior
compared to the closest prior art, which are the compositions disclosed by
Weder. See In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991).
Appellant does not adequately respond to Examiner’s conclusion that the
evidence in the declarations is insufficient because no comparison to the
closest prior art was provided. See generally Reply Br.; Ans. 10–12.
Accordingly, we are not persuaded by Appellant’s contention that the results
described in the Janssen Declarations are sufficient to overcome Examiner’s
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prima facie conclusion of obviousness based on the combination of Weder
and Feichtmeir.
Reduction of Botrytis infection by plant hormones
Appellant contends that “the prior art had not hinted at any role for
plant hormones in preventing infections—that is, as an anti-microbial—of
any kind, let alone Botrytis infection, or reducing its severity.” Appeal Br. 8.
“So the claimed application of a combination of plant hormone and anti-
fungal compound onto the flower buds or bloomed flowers of cut roses prior
to dry storage or dry distribution cannot be obvious as plant hormones were
not known to have an anti-fungal effect and because the synergistic
fungicidal action resulting from the combined use of plant hormone and
antifungal compound is unexpected.” Appeal Br. 12; see Reply Br. 2.
We are not persuaded by Appellant’s contention. “Whether the
rejection is based on ‘inherency’ under 35 U.S.C. § 102, on ‘prima facie
obviousness’ under 35 U.S.C. § 103, jointly or alternatively, the burden of
proof is the same, and its fairness is evidenced by the PTO’s inability to
manufacture products or to obtain and compare prior art products.” In re
Best, 562 F.2d 1252, 1255 (CCPA 1977) (footnote omitted). Here, Examiner
explained that “the prior art references of record teach the claimed shipment
kit and a method of preserving cut flowers including cut roses by applying a
preservation composition to the flower buds before or during packaging.”
Ans. 5; see FF1–FF8. Thus, any additional properties would have been
inherent to following the guidance in the prior art.
We are not persuaded by Appellant’s contention that the art needs to
recognize that plant hormones also exhibit anti-fungal properties before the
combination can be rendered obvious. See Appeal Br. 12; Reply Br. 2. The
prior art suggests applying a composition containing a disinfectant and plant
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hormone to cut flowers, including roses. FF1–FF8. It is well-established that
merely recognizing something that was not known before is insufficient to
render an old process again patentable. In re Cruciferous Sprout Litig., 301
F.3d 1343, 1351 (Fed. Cir. 2002); see also In re Woodruff, 919 F.2d 1575,
1578 (Fed. Cir. 1990); Perricone v. Medicis Pharm. Corp., 432 F.3d 1368,
1378–79 (Fed. Cir. 2005); In re Omeprazole Patent Litig., 483 F.3d 1364,
1373 (Fed. Cir. 2007). Therefore, Appellant’s showing that some plant
hormones also exhibit anti-fungal properties does not persuade us that
Examiner erred in concluding that the combination of Weder and Feichtmeir
renders claim 17 obvious.
Appellant further contends that Examiner is not giving “due
consideration to the evidence ‘on the totality of the record, by a
preponderance of the evidence with due consideration to the persuasiveness
of the arguments.’” Appeal Br. 14–15. Appellant contends that the evidence
of unexpected results in an inherency-based obviousness context must be
properly considered, citing Millennium Pharmaceuticals, Inc. v. Sandoz Inc.,
862 F.3d 1356 (Fed. Cir. 2017), and Honeywell International Inc. v.
Mexichem Amanco Holding S.A. DE C.V., 865 F.3d 1348 (Fed. Cir. 2017),
in support. See Appeal Br. 12–15.
We are not persuaded by Appellant’s contention that Examiner failed
to properly weigh Appellant’s evidence of unexpected results. Examiner
explains that Appellant’s Declaration evidence is insufficient to show
unexpected results because “the data [in the Janssen Declarations] is not
comparing the claimed compositions to that of the closest prior art, rather the
combination of the compounds is compared to the compounds used
individually.” Ans. 10. As discussed above, we agree with Examiner that the
results presented in both Janssen Declarations at best show an additive effect
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when the anti-fungal and plant hormones are combined. Such a showing,
however, is insufficient to show a difference in kind in order to establish
unexpected results.
The facts in Millennium can be distinguished from the facts in the
present appeal. In Millennium, the evidence in the record supported a
showing that a new compound was created upon lyophilizing a bulking
agent with bortezomib. Millennium, 862 F.3d at 1364 (“Although mannitol
was a known bulking agent, and lyophilization was a known method of drug
formulation, nothing on the record teaches or suggests that a person of
ordinary skill should have used mannitol as part of a synthetic reaction to
make an ester through lyophilization.”). In the present case, there is no
evidence that mixing an anti-fungal agent and plant hormone produces a new
compound of any kind. And as discussed above, the evidence provided in
the Janssen Declarations at best shows an additive effect when combing the
anti-fungal agent and plant hormone. These results, however, are insufficient
to persuade us that they are different in kind rather than different in degree
to support a conclusion of nonobviousness.
Appellant’s reliance on Honeywell also does not persuade us that
Examiner’s conclusion of obviousness is in error. Here, there is no evidence
in the record that the application of anti-fungal agent and plant hormone is
unpredictable. And as discussed above, the evidence presented in the
Janssen Declarations does not show that the combination of the anti-fungal
agent and plant hormone produces a synergistic result as urged by Appellant.
See Reply Br. 2. The data presented in the Declarations insufficient because
it does not demonstrate that the dose responses of the active agents are
linear, so the evidence resulting from combining two active agents at a
single dose does not necessarily mean that even an improved result is
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additive or synergistic. As discussed above, at best the Janssen Declarations
show that the mixture of anti-fungal agent and plant hormone produces an
additive effect on the vase life of the cut roses. Showing an additive effect,
however, is not sufficient to overcome a conclusion of obviousness because
such an effect is expected when you combine two compositions that are
shown in the prior art be used for the same purpose—in this case extending
the shelf life of cut flowers. See Ans. 14. Here, the evidence in the record
supports the position that Examiner considered the declaration evidence but
reasonably concluded that the evidence is unpersuasive. See Ans. 10–11.
In summary, we agree with Examiner that Weder and Feichtmeir
support a prima facie case of obviousness and Appellant’s showing of
unexpected results when balanced with the prima facie case, does not render
the claims nonobvious. Claims 18–21 and 23–35 were not argued separately
and therefore fall with claim 17. 37 C.F.R. § 41.37(c)(1)(iv).

Ground IV.- Obviousness over Jaiswal and Weder
Appellant offers specific arguments only with respect to claim 17
based on the combination of Weder and Feichtmeir, and argue “the evidence
of unexpectedness in the synergistic cooperation of an antifungal compound
with a plant hormone in the incidence and severity of Botrytis infection” is
equally applicable to the combination of Jaiswal and Weder. See Appeal Br.
15. For the reasons discussed above, we are not persuaded by Appellant’s
unexpected results argument. Accordingly, we affirm the rejection for the
reasons articulated by Examiner in the Final Office Action and Answer. See
37 C.F.R. § 41.37(c)(1)(iv).

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Ground V. - Obviousness over del Rio, Jaiswal and Weder
Appellant offers specific arguments only with respect to claim 17
based on the combination of Weder and Feichtmeir, and argue “the evidence
of unexpectedness in the synergistic cooperation of an antifungal compound
with a plant hormone in the incidence and severity of Botrytis infection” is
equally applicable to the combination of del Rio, Jaiswal, and Weder. See
Appeal Br. 15. For the reasons discussed above, we are not persuaded by
Appellant’s unexpected results argument. Accordingly, we affirm the
rejection for the reasons articulated by Examiner in the Final Office Action
and Answer. See 37 C.F.R. § 41.37(c)(1)(iv).
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
17–21, 23–
35
103 Weder, Feichtmeir 17–21, 23–
35

17–21, 23–
37
103 Jaiswal, Weder 17–21, 23–
37

22, 34–37 103 Weder, Feichtmeir,
Ferrante
22, 34–37
21, 22 103 Weder, Feichtmeir,
Hong
21, 22
17–21, 23–
33
103 del Rio, Jaiswal,
Weder
17–21, 23–
33

Overall
Outcome
17–37

AFFIRMED