Ex Parte 5700460 et al

Board of Patent Appeals and Interferences

May 16, 2011

90008317 (B.P.A.I. May. 16, 2011)

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.
90/008,317 12/12/2006 5700460 2903925-002000RE 2471
84331 7590 05/16/2011
Baker Donelson Bearman, Caldwell & Berkowitz, PC
920 Massachusetts Ave, NW
Suite 900
Washington, DC 20001
EXAMINER
KUNZ, GARY L
ART UNIT PAPER NUMBER
3991
MAIL DATE DELIVERY MODE
05/16/2011 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte BAYER CROPSCIENCE, LP
Appellant
____________

Appeal 2011-005039
Reexamination Control 90/008,317
Patent 5,700,460
Technology Center 3900
____________

Before RICHARD E. SCHAFER, RICHARD M. LEBOVITZ, and
JEFFREY B. ROBERTSON, Administrative Patent Judges.

LEBOVITZ, Administrative Patent Judge.

DECISION ON APPEAL

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This is a decision on the appeal by the Patent Owner of U.S. Patent
No. 5,700,460 from the Patent Examiner’s rejections in an ex parte
reexamination proceeding. The Board’s jurisdiction in this appeal is based
on 35 U.S.C. §§ 6(b), 134, and 306. We affirm the Examiner.

STATEMENT OF THE CASE
U.S. Patent No. 5,700,460 (hereinafter “the ‘460 patent”) issued
December 23, 1997. A Request for ex Parte reexamination of the claims of
the ‘460 patent was filed by Third-Party Requester (“Requester”) pursuant to
35 U.S.C. §§ 302-307 and 37 C.F.R. § 1.510. In a final office action dated
June 15, 2010, the Examiner indicated that claims 4-6, 8, 10-14, 17-19, 21,
23, 28-30, and 32-36 were patentable, but maintained the rejections of
claims 1, 3, 7, 9, 15, 20, 22, and 24-27 (Ans. 2, mailed Nov. 22, 2010). The
Patent Owner (“Appellant”) appeals the rejection of these claims as follows:
Claims 1, 3, 7, 9, 15, 20, 22, and 24-26 under 35 U.S.C. § 102(b) as
anticipated by Hatton1 (Ans. 4); and
Claims 1, 15, 26, and 27 under 35 U.S.C. § 102(b) as anticipated by
Colliot2 (id. at 11).

1 U.S. Patent No. 5,232,940 issued Aug. 3, 1993.
2 F. Colliot et al., Fipronil: A New Soil and Foliar Broad Spectrum
Insecticide, in BRIGHTON CROP PROTECTION CONFERENCE, PESTS AND
DISEASES 29-34 (1992).
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Claims 1 and 15 are representative and read as follows (with
underlining and bracketing showing additions and deletions relative to the
original patent claims):
1. A method for attracting insects, said method comprising
offering to said insects for ingestion an effective attractant
amount of a compound having the formula:

[wherein Rl is CN or methyl;

R2 is –S(O)nR3;
R3 is alkyl or haloalkyl;
R4 is hydrogen, halogen, –NR5R6, –S(O)mR7, alkyl, haloalkyl, –
OR8 or –N=C(R9)(R10);
each of R5 and R6,which are the same or different, is hydrogen,
alkyl, haloalkyl, –C(O)alkyl or –S(O)rCF3; or R5 and R6
together form a divalent lower alkylene radical which is
optionally interrupted by one or more heteroatoms selected
from O, S and N;
R7 is alkyl or haloalkyl;
R8 is alkyl, haloalkyl or hydrogen;
R9 is hydrogen or alkyl;
R10 is phenyl or heteroaryl, each of which is unsubstituted or is
substituted with one or more substituents selected from the
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group consisting of hydroxy, halogen, –O– alkyl, –-S–alkyl,
cyano and alkyl;
each of R11 and R12 which are the same or different, is halogen
or hydrogen;
R13 is halogen, haloalkyl, haloalkoxy, –S(O)qCF3 or –SF5;
each of m, n, q and r, which are the same or different, is 0, 1 or
2; and X is nitrogen or C–R12;
provided that when R1 is methyl, R3 is haloalkyl, R4 is NH2, R11
is Cl, R13 is CF3, and X is N]
wherein the compound is 5-amino-3-cyano-l-(2,6-dichloro-4-
trifluoromethyl)phenyl-4-trifluoromethylsulfinylpyrazole.

15. A method for attracting and killing insects comprising
offering to said insects for ingestion a compound having the
formula:

[wherein: Rl is CN or methyl;
R2 is S(O)nR3;
R3 is alkyl or haloallcyl;
R4 is hydrogen, halogen, –NR5R6, –S(O)mR7, alkyl, haloalkyl, –
OR8 or –N=C(R9)(R10);
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each of R5 and R6, which are the same or different, is hydrogen,
alkyl, hal alkyl, –C(O)alkyl or –S(O)rCF3; or R5 and R6
together form a divalent lower alkylene radical which is
optionally interrupted by one or more heteroatoms selected
from O, S and N;
R7 is alkyl or halo alkyl;
R8 is alkyl, haloalkyl or hydrogen;
R9 is hydrogen or alkyl;
Rl0 is phenyl or heteroaryl, each of which is unsubstituted or is
substituted with one or more substituents selected from the
group consisting of hydroxy, halogen, –O–alkyl, –S–alkyl,
cyano and alkyl;
each of R11 and R12 which are the same or different, is halogen
or hydrogen;
R13 is halogen, halo alkyl, haloalkoxy, –S(0)qCF3 or –SF5;
each of m, n, q and r, which are the same or different, is 0, 1 or
2; and X is nitrogen or C–RI2;
provided that when R1 is methyl, R3 is haloalkyl, R4 is NH2, R11
is C1, R13 is CF3, and X is N;]
wherein the compound is 5-amino-3-cyano-l-(2,6-dichloro-4-
trifluoromethyl)phenyl-4-trifluoromethylsulfinylpyrazole; and
said compound [of formula (I)] is offered in an amount which is
effective both as an attractant and as an insecticide.

(App. Br. 18, 19, 22, 23.)
Oral arguments were heard on April 19, 2011. A written transcript of
the oral arguments will be entered into the electronic record in due course.

FINDINGS OF FACT (“FF”)
Hatton
1. Hatton describes N-phenylpyrazole derivatives of general formula
I and their use to control arthropod, plant nematode, helminth, and protozoan
pests (col. 1, ll. 19-22; col. 15, ll. 42-48).
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2. Among a list of 236 specifically identified N-phenylpyrazole
derivatives is 5-amino-3-cyano-1-(2,6-dichloro-4-trifluoromethyl-phenyl)-4-
trifluoromethylsulphinylpyrazole (col. 6, ll. 17-18; compound 52), also
known as fipronil.
3. Hatton discloses that the N-phenylpyrazole compounds can be
used to control Periplanta spp., Periplanta americana; Blatella spp.,
cockroaches, ants, etc. (col. 15, l. 56 to col. 17, l. 34, especially col. 15, l. 68
to col. 16, l. 1; col. 16, l. 23; col. 33, l. 55).
4. Hatton teaches that the compounds can be used “in the control of
cockroaches, ants and termites and similar arthropod pests in infested
domestic and industrial premises” (col. 16, ll. 23-25).
5. Hatton discloses that the compounds can be applied in various
forms (col. 19, ll. 19-20), including as a solid or liquid to soil (col. 17, l. 65-
66); in solid or liquid baits (col. 20, ll. 19-23); and in granules, pellets,
briquettes, or capsules (col. 20, ll. 32-35).
6. Compositions comprising an N-phenylpyrazole compound of
formula I can contain wetting, dispersing, and emulsifying agents (col. 20, ll.
24-26, 43-52, & 63-65; col. 21, ll. 7-12).
7. Hatton describes several examples in which a specific formula I
compound is formulated as a water-soluble concentrate (col. 23, Example 1);
as a wettable powder (col. 24, Example 3), as an emusifiable suspension
(col. 24, Example 5), as water-dispersible granules (col. 24-25; Example 6),
as a dusting powder (col. 25; Example 7), and as an edible bait comprising
wheat flour and molasses (col. 25; Example 8).
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8. Hatton teaches that the compounds of formula I “are of value in
controlling pests which feed on parts of the plant remote from the point of
application, e.g., leaf feeding insects are killed by the subject compounds
applied to roots.” (Col. 18, ll. 3-7.)
9. Hatton teaches that “[i]n addition the compounds may reduce
attacks on the plant by means of antifeeding or repellant effects.” (Col. 18,
ll. 8-9.)

Colliot
10. Colliot teaches that the “insecticidal properties of fipronil were
discovered . . . in 1987” (p. 29).
11. “Fipronil is a highly effective insecticide against both piercing-
sucking and chewing insects, and can be effectively delivered via soil, foliar,
bait, or seed treatment application.” (Id.)
12. Colliot describes application of fipronil to the soil (p. 32).

DISCUSSION
It is undisputed that fipronil, the compound recited in all of the
rejected claims, was a known insecticide (FF1, FF2, FF10, & F11).
Appellant asserts to have discovered that fipronil is also an insect attractant,
a compound which attracts insects from a distance (Appeal Brief (“App.
Br.”) 9, dated August 17, 2010). To reflect this discovery, Appellant
claimed methods for “attracting insects” and “attracting and killing insects”
comprising “offering” fipronil to said insects for ingestion (id. at 18, VIII.
Claims Appendix; claims 1 & 15). Appellant asserts that the claimed
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methods are patentable over the cited prior art publications3 because the
publications do not describe fipronil as an insect attractant nor use it as one.
Thus, the issue in this proceeding is whether the claimed preamble of a
“method for attracting” insects and the claimed step of “offering” fipronil to
insects “for ingestion” distinguish the claims from the known uses of fipronil
as an insecticide.
It is hornbook patent law 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); In re
Omeprazole Patent Litig., 483 F.3d 1364, 1373 (Fed. Cir. 2007).
[A] prior art reference may anticipate when the claim limitation
or limitations not expressly found in that reference are
nonetheless inherent to it. . . . Inherency is not necessarily
coterminous with the knowledge of those of ordinary skill in
the art. Artisans of ordinary skill may not recognize the
inherent characteristics or functioning of the prior art.
MEHL/Biophile Int’l Corp. v. Milgraum, 192 F.3d 1362, 1365 (Fed. Cir.
1999).
In MEHL, the patentee claimed a “method of hair depilation” utilizing
steps which had been described in a prior art publication. The prior art
method did not perform the steps for the purpose of hair depilation, but it
was determined that hair depilation would have been a necessary, albeit
unrecognized and inherent, consequence of carrying out the steps. Id. at
1366. Although the claim preamble expressly required the method to be
performed for the purpose of hair depilation, the court did not find it

3 Hatton and Colliot.
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necessary that the publication’s authors “appreciate[d] the results” of their
process to constitute an anticipation of the claimed process (id.). Thus, the
purpose for which the method was accomplished was insufficient to
distinguish it from the prior art.
Similarly, in Perricone v. Medicis Pharm. Corp., 432 F.3d 1368,
1378-79 (Fed. Cir. 2005), a method claim preamble, which required
“preventing sunburn damage to exposed skin surfaces,” was found satisfied
by a prior art process which applied the same composition as claimed to
exposed skin surfaces, but for a different purpose. “[T]he new realization
alone [that the old composition would prevent sunburn damage] does not
render the old invention patentable.” Perricone at 1377.
Claims 1 and 15 stand on the same ground. Both Hatton and Colliot
describe providing fipronil to insects in the conventional forms in which
insecticides are used. For example, Hatton described applying its N-
phenylpyrazole compounds, of which fipronil is specifically identified, to
soil in solid and liquid forms, and describes concentrates, powders, and
granules (FF2, FF5, FF6, & FF7). Colliot also teaches various conventional
applications, including applying fipronil to the soil (FF11 & FF12). While
neither Hatton nor Colliot discloses that fipronil would attract insects when
present in the soil or at other locations (FF8 & FF11), the attractant
properties are inherent to fipronil and thus would necessarily occur. See In
re Papesch, 315 F.2d 381, 391 (CCPA 1963) (“From the standpoint of
patent law, a compound and all of its properties are inseparable; they are one
and the same thing.”). The fact that Appellant discovered that fipronil
attracts insects does not distinguish the claimed method from the prior art
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because once fipronil was applied to the soil, plant part, etc., it would attract
insects, regardless of whether the method was carried out for this purpose or
whether the attractant result was recognized. Mere appreciation of a
necessary result of a known process does not impart patentability to that
process.
The methods also comprise the step of “offering” fipronil to insects
“for ingestion.” We interpret this step to mean that fipronil is presented to
the insects in such a way or form that it would be ingested by them.
Appellant has not provided sufficient evidence that a narrower or different
interpretation is warranted. Providing fipronil on soil or on plants, or to any
other location described in the Hatton and Colliot publications (FF5, FF8, &
FF11, FF12), would leave fipronil accessible to the insect for ingestion and
thus meet the claimed requirement of offering fipronil for ingestion.
Appellant has not articulated a difference between “offering” fipronil for
ingestion, as recited in the claims, and applying fipronil to the soil or a plant
in a solid or liquid form as taught by the cited Hatton and Colliot
publications.
In sum, while the claimed purpose of attracting insects with fipronil
was not described in either Hatton or Colliot, the latter publications describe
the same compound, the same method steps, and therefore the result of
attracting insects would have inherently been accomplished – anticipating
the claimed subject matter.
Referring to Example 8 of Hatton, Appellant argues that fipronil
would not attract insects because its attractant properties would be
overwhelmed or drowned out by the molasses with which it was combined
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(App. Br. 9-10). Therefore, Appellant contends the claimed method of
attracting insects “is not a ‘natural result flowing from’ any of the methods
disclosed by Hatton.” (Id. at 9.)
This argument ignores Hatton’s teaching that its compounds can be
utilized in solid and liquid forms which do not involve baits comprising
molasses (FF5, FF7, & FF8). The same can be said of Colliot which
describes baits, but also other fipronil forms (FF11 & FF12). Thus, even
were it true that the bait components would somehow mask fipronil’s
attractant properties, there is disclosure in each of Hatton and Colliot of non-
bait fipronil forms in which fipronil is not associated with molasses or
another food ingredient.
Appellant attempts to distinguish Hatton from the claimed method
because Hatton discloses that “the compounds may reduce attacks on the
plant by means of antifeeding or repellant effects.” (FF9.) This argument is
not persuasive. While Hatton may have believed that its compounds
repelled insects, such belief does not change the fact that, when fipronil is
applied to the soil, a plant, etc., as taught in the Hatton and Colliot
publications, it would inherently have attracted insects, even if such a result
was unappreciated and unrecognized. As mentioned above, appreciation of
a result is not required to establish inherent anticipation.
Appellant contends that insects would not ingest fipronil. However,
because the prior art teaches applying the same compound to soil and on
plants, the Examiner had a reasonable basis to believe that it would be
ingested. Appellant has not provided sufficient evidence that ingestion
would not occur.
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Appellant contends that Jansen v. Rexall Sundown, Inc., 342 F.3d
1329 (Fed. Cir. 2003) demands a different result (Reply Brief (“Reply Br.”)
8, dated January 21, 2011).
The preambles “for attracting insects” and “for attracting and
killing insects” set forth the objective of the method, and the
body of each claim directs that the method be performed on
“said insects.” The recitation of “said insects” In [sic] both
claims 1 and 15 gives life and meaning to the preambles'
statement of purpose.
In Jansen, the claims were directed to methods of treating or
preventing macrocytic-megaloblastic anemia comprising administering
effective amounts of folic acid and vitamin B12 “to a human in need
thereof.” Jansen at 1333. The Federal Circuit stated that the claim must be
interpreted to require the method be practiced with the intent to achieve the
objective stated in the preamble. Id. “The preamble is therefore not merely
a statement of effect that may or may not be desired or appreciated. Rather,
it is a statement of the intentional purpose for which the method must be
performed.” Id.
The reason why Jansen does not require a different result has already
been addressed in Ex parte Batteux, Appeal No. 2007-0622, 2007 WL
5211675 (BPAI, Mar. 27, 2007, Informative Opinion).
Jansen was an infringement case, requiring the court to
construe the subject claim “so as to sustain [its] validity, if
possible.” Whittaker Corp. v. UNR Indus., 911 F.2d 709,712, 15
USPQ2d 1742, 1743 (Fed. Cir. 1990) (citing ACS Hosp. Sys.,
Inc. v. Montefiore Hosp., 732 F.2d 1572, 1577, 221 USPQ 929,
932 (Fed. Cir. 1984). In contrast, during prosecution, a claim
must be given its broadest reasonable interpretation. Unlike the
case here, in Jansen, the patentee was arguing a broad
construction to establish infringement. 342 F.3d at 1331, 68
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USPQ2d at 1156. However, the court “strictly construed” the
claim against the inventor, in view of statements made during
prosecution. Id. at 1334, 68 USPQ2d at 1158.
Batteux, 2007 WL 5211675 at *5.
The “terms appearing in a [claim] preamble may be deemed
limitations of a claim when they give meaning to the claim and properly
define the invention.” In re Paulsen, 30 F.3d 1475, 1479 (Fed. Cir. 1994).
“Conversely, where a patentee defines a structurally complete invention in
the claim body and uses the preamble only to state a purpose or intended use
for the invention, the preamble is not a claim limitation.” Rowe v. Dror, 112
F.3d 473, 478 (Fed. Cir. 1997). In other words, a claim preamble is to be
treated as a necessary claim limitation when it imparts some structure or
other feature to the claimed invention. Thus, in Rowe v. Dror, a claim to a
“balloon angioplasty catheter” was interpreted in view of the application
specification to mean a catheter that could be “inflated radially outward to
dilate a narrowed region in a blood vessel,” distinguishing it from the more
general class of balloon catheters. Id. at 479-80. The phrase “balloon
angioplasty catheter” breathed “life, meaning, and vitality” into the claim
because it accrued structural features to the catheter, in addition to those
recited in the body of the claim, that enabled it to be used in the context of
an angioplasty procedure. In this case, Appellant has not established that the
“attracting” feature of the claim adds a structure or step which distinguishes
the claim from the identical compound and identical method steps described
in the Hatton and Colliot publications.

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Claims 3, 7, 9, 20, and 22
Appellant also contends that the ‘460 patent shows the “unexpected
result that fipronil acts as an attractant for cockroaches, which are well-
known as insects that are able to enter or inhabit buildings.” (App. Br. 11.)
Appellant states that “Hatton does not suggest or disclose, either expressly
of inherently, using fipronil to attract insects which are enable to enter or
inhabit buildings.” (Id.)
Claim 3 is drawn to the method of claim 1 where the insects “are
insects which are able to enter or habit buildings.” Hatton teaches that the
compounds can be used “in the control of cockroaches, ant and termites and
similar arthropod pests in infested domestic and industrial premises” (col.
16, ll. 23-25; FF4). When fipronil is used in such a context, in one of its
conventional liquid or solid forms, the fipronil would inherently attract the
insects.
As to the assertion of “unexpected results,” we note that the latter is a
secondary consideration available to rebut obviousness under Section 103,
but not anticipation under Section 102, the rejections at issue in this appeal.

Claim 24
Claim 24 is drawn to the method of claim 15, where the fipronil “is
offered with a carrier or surface-active agent.” Appellant contends that
Hatton describes the diluent or carrier with a food substance to induce
consumption by an arthropod (App. Br. 11-12).
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To the contrary, Hatton describes various examples in which fipronil
is combined with carriers in non-bait forms (FF5 & FF7). Appellant’s
argument is not supported by the evidence.

None of the Examples in Hatton Contains Fipronil
Appellant contends Hatton discloses 236 compounds, only one of
which is fipronil, and that none of the specific examples described in Hatton
contains fipronil (Reply Br. 4). Appellant argues that the Examiner may not
pick and choose among various teachings from a cited reference, but rather
the reference must described the claimed invention as arranged in the claim
(id. at 4-5).
Here, fipronil is specifically described in Hatton, albeit in a list of 236
compounds (FF2). However, the length of the list does not negate the
express disclosure by Hatton of fipronil. A species which is specifically
disclosed in a prior art reference is anticipatory even though it appears
“without special emphasis in a longer list.” Perricone, 432 F.3d at 1376.
There does not appear to be a specific example in Hatton of a
formulation comprising fipronil. However, specific examples of the claimed
subject matter are not necessary to establish anticipation. Rather, to
anticipate, one skilled in the art must be able to “at once envisage” the
claimed subject matter in the prior art disclosure. In re Petering, 301 F.2d
676, 681 (CCPA 1962).
In this case, Hatton has broad disclosure of utilizing a formula I
compound to control arthropods (which includes insects) and provided a list
of different formulations, all of which appear to be simply conventional
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forms in which insecticides are used to control pests (FF1 & FF3-FF7).
Persons of ordinary skill in the art would have immediately recognized that
fipronil, which is expressly disclosed in Hatton, can be used in any of these
forms, including non-bait forms. Appellant has not introduced sufficient
evidence that Hatton’s disclosure would be read more restrictively.
Appellant contends that “picking and choosing” would be necessary to
arrive at the claimed invention, but fipronil is expressly disclosed and thus
the skilled worker would be led directly to it. Its ability to attract insects is
an inherent property that would necessarily result from using it. All that
remains is for the person of ordinary skill in the art to envisage it applied in
any one of the conventional forms disclosed in Hatton, the latter which is
expressly taught by Hatton (FF1, FF4, & FF5).

Kukorowski Declaration
Appellant cited a declaration by Dr. Kenneth A. Kukorowski, an
author of the Colliot publication, who stated that fipronil was being
researched in Colliot as a bait formulation and would not have attracted
insects (¶ 6). This testimony ignores express disclosure in Colliot that
fipronil “can be effectively delivered via soil.” Colliot did not limit fipronil
to the bait formulation, but expressly disclosed other applications (see, e.g.,
F11).

Summary
We affirm the rejection of claims 1, 3, 7, 9, 15, 20, 22, and 24-26
under 35 U.S.C. § 102(b) as anticipated by Hatton; and claims 1, 15, 26, and
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27 under 35 U.S.C. § 102(b) as anticipated by Colliot. Claims not argued
separately fall with claims 1 and 15. See 37 C.F.R. § 41.37(c)(1)(vii).

TIME PERIOD FOR RESPONSE
Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).

AFFIRMED

bim

FOR PATENT OWNER:

BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C.
920 MASSACHUSETTS AVENUE, NW
SUITE 900
WASHINGTON, DC 20001

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FOR THIRD-PARTY REQUESTER:

JEFFREY S. MELCHER
MANELLI, DENISON &SELTER, PLLC
2000 M STREET, NW
SUITE 700
WASHINGTON, DC 20036