Ex Parte Ashmead et al

Patent Trial and Appeal Board

Feb 14, 2017

11706870 (P.T.A.B. Feb. 14, 2017)

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.
11/706,870 02/14/2007 H. DeWayne Ashmead 00015-32472.B 5887
20551 7590 02/16/2017
THORPE NORTH & WESTERN, LLP.
P.O. Box 1219
SANDY, UT 84091-1219
EXAMINER
PALLAY, MICHAEL B
ART UNIT PAPER NUMBER
1617
NOTIFICATION DATE DELIVERY MODE
02/16/2017 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte H. DEWAYNE ASHMEAD and STEPHEN D. ASHMEAD1
Appeal 2016-001064
Application 11/706,870
Technology Center 1600
Before DONALD E. ADAMS, RICHARD J. SMITH, and
DEVON ZASTROW NEWMAN, Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to an amino
acid chelate composition for plant nutrition. We have jurisdiction under 35
U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is Albion International,
Inc. (Br. 3.)
Appeal 2016-001064
Application 11/706,870
STATEMENT OF THE CASE
Claims on Appeal
Claims 1-7, 9, 11, 12, 14, 15, 19, 20, 23-29, 33-39, 41^13, 47^19,
and 81 are on appeal.2 (Claims Appendix, Br. 47—53.) Claim 26 is
illustrative and reads in pertinent part as follows:
26. An amino acid chelate composition for plant nutrition, comprising:
(a) an amino acid chelate including a metal and an amino acid ligand
having at least two nitrogen atoms;
(b) a second nitrogen-containing compound selected from the group
consisting of nitrogen-containing salts . . . ; and
(c) a vehicle or carrier formulated, along with the amino acid chelate
and the second nitrogen-containing compound, which is suitable for delivery
to a plant.
(Id. at 50.)
Examiner’s Rejections
1. Claims 1-7, 9, 11, 12, 14, 15, 19, 20, 23, 24, 26-29, 33-39, 41^13,
47, 48, and 81 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Ashmead3 and Vetanovetz.4 (Final Act. 3—13.)
2 Claims 8, 10, 13, 21, 22, 30-32, 40, 44^46, and 50-80 are withdrawn from
consideration as drawn to nonelected inventions and species. (Final Act.
dated Jan. 28, 2014, at 2.) The claims on appeal are subject to an election of
species; namely, iron (first metal), arginine (first amino acid), copper
(second metal), glycine (second amino acid), nitrogen-containing salts
(nitrogen containing compounds), source of iron (sources), plant leaves for
flowers (delivery targets), hydrolyzed manure (additional ingredients), and
nitrates (anionic counterions). (See Election/Restriction Response dated
Mar. 30, 2011, at 2-3.)
3 Ashmead et al., US 6,710,079 Bl, issued Mar. 23, 2004 (“Ashmead”).
4 Vetanovetz et al., US 5,171,349, issued Dec. 15, 1992 (“Vetanovetz”).
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Application 11/706,870
2. Claims 1-7, 9, 11, 12, 14, 15, 19, 20, 23-29, 33-39, 41^13, 47^19,
and 81 stand rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable
over Ashmead, Vetanovetz, and Tippmer.5 (Id. at 13—15.)
The claims were not separately argued, and we limit our discussion of
each rejection to independent claim 26.
DISCUSSION
We adopt and agree with the Examiner’s findings, analysis, and
conclusions as set forth in the Final Action (Final Act. 2—17) and Answer
(Ans. 2—6). For the reasons of record and as discussed below, we discern no
error in the Examiner’s rejection of the appealed claims as obvious.
Issue
Whether a preponderance of the evidence of record supports the
Examiner’s conclusion of obviousness under 35 U.S.C. § 103(a).
Analysis
Rejection No. 1
Appellants take issue with the Examiner’s statement that “Ashmead []
does not specifically disclose a nitrogen containing salt in the composition.
However, such was known in the prior art.” (Br. 34—35.) In particular,
Appellants state that “without support in the prior art, a broad conclusory
statement as used by the Examiner is not to be considered as ‘evidence.’”
(Id. at 35.) However, as explained by the Examiner, that statement is not
recited as evidence per se, “but is merely recited to indicate that a discussion
of evidence and reasoning regarding such element is being presented next.”
(Ans. 2.)
5 Tippmer, EP 0377832 A2, published July 18, 1990, English translation of
record (“Tippmer”). References herein are to the English translation.
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Application 11/706,870
Appellants agree that “the amino acid chelates as taught and used in
the present application are not novel per se. The ligands and metals
enumerated have all been previously utilized as amino acid chelates for
various biological purposes.” (Br. 35.) Rather, according to Appellants, it is
the combination of ingredients “asserted to be novel and patentable.” (Id.)
In particular, Appellants argue that Ashmead “does not specifically disclose
a nitrogen-containing salt, and copper nitrate in particular, in any
composition,” and that “Vetanovetz is improperly combined with
Ashmead.” (Id. at 36.) However, as discussed below, we are not persuaded
by Appellants’ arguments.
Nitrogen-containing salts
Appellants argue that one skilled in the art would not consider the
nonchelated nitrogen-containing salts (i.e., copper nitrate) of Vetanovetz
“when chelates per se are the thrust of what is claimed.” (Br. 36.) However,
the Examiner found that Ashmead suggests that its product can be blended
“with other metal salts,” and Vetanovetz discloses that nonchelated
micronutrient nitrate salts, such as copper nitrate, are used in fertilizers for
precision plant nutrition and have certain benefits, including being less
expensive than chelated micronutrients. (Ans. 3, citing Ashmead col. 10,11.
43—45 and Vetanovetz Abstract, claim 8, col. 1,11. 10—13, 58—60, and col. 2,
11. 19-45.) Moreover, the Examiner found that nitrogen containing salts as
claimed encompass nonchelated micronutrients. (Ans. 4.)
pH of compositions
Appellants argue against the combination of Ashmead and Vetanovetz
because “the pH of the Vetanovetz compositions must be acidic, i.e.
protonated, while the Ashmead compositions are neutral or basic, i.e. free of
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Application 11/706,870
interfering ions.” (Br. 37, 41.) However, the Examiner found that
Vetanovetz suggests “the addition of copper nitrate to the composition of
Ashmead,” and that other acidic components of the Vetanovetz composition
are neither contemplated nor needed for such addition. (Ans. 4—5.)
Selection of copper nitrate
Appellants argue that one skilled in the art would not “select copper
nitrate to the exclusion of all the other metal salts listed in Vetanovetz.” (Br.
37—38.) However, the listing of copper nitrate within a larger list does not
diminish the suggested selection of copper nitrate. See Merck & Co., Inc. v.
Biocraft Labs, Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (“That the [prior art]
patent discloses a multitude of effective combinations does not render any
particular formulation less obvious”). Moreover, the Examiner found that
claim 8 of Vetanovetz is limited to the recitation of copper sulfate or copper
nitrate. (Ans. 5, citing Vetanovetz claim 8.)
Analogous art
Appellants argue that Ashmead and Vetanovetz are not combinable
just because they are both drawn to fertilizer compositions, particularly
because Appellants were “concerned with high nitrogen containing
fertilizers.” (Br. 38 and 43 44.) However, the Examiner found that both
references are directed to the field of fertilizers, and are thus analogous art
and combinable in an obviousness rejection. (Ans. 6.) See In re Bigio, 381
F.3d 1320, 1325 (Fed. Cir. 2004). Here, the combination is clearly
suggested, and not only because both references are drawn to fertilizer
compositions. (See Final Act. 2—17.)
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Application 11/706,870
Metal salts
Appellants argue against the combination of Ashmead and Vetanovetz
because “Ashmead’s reference to metal salts is included as a component []
in a catch all phrase which may be included in the claimed composition.
Metal salts are not even discussed in any detail nor is a specific metal salt
even mentioned.” (Br. 38.) However, this argument fails to take into
account that a prior art reference may be read for all that it teaches. See In
re Mouttet, 686 F.3d 1322, 1331 (Fed. Cir. 2012). Moreover, the Examiner
found that the absence of a particular example of a metal salt in Ashmead
would lead a person of ordinary skill to other references (such as
Vetanovetz) for the metal salt. (Ans. 6.)
Rejection No. 2
The Examiner relies on Tippmer for teaching hydrolyzed manure,
which Appellants acknowledge “has been used for decades for purposes of
fertilization.” (Br. 40.) Appellants otherwise contest the combination of
references for essentially the same reasons as set forth above {id. at 39-45),
and those arguments are unpersuasive for the reasons set forth above.
Conclusion of Law
A preponderance of the evidence of record supports the Examiner’s
conclusion that claim 26 is obvious under 35 U.S.C. § 103(a) based on
Ashmead and Vetanovetz (Rejection No. 1) and Ashmead, Vetanovetz, and
Tippmer (Rejection No. 2). Claims 1—7, 9, 11, 12, 14, 15, 19, 20, 23—25,
27-29, 33-39, 41^13, 47-A9, and 81 fall with claim 26.
SUMMARY
We affirm the rejections of all claims on appeal.
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Application 11/706,870
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
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