Ex parte Johnson

Board of Patent Appeals and Interferences

Nov 29, 2000

08772480 (B.P.A.I. Nov. 29, 2000)

1
The opinion in support of the decision being entered today was
not written for publication and is not binding precedent of
the Board.
Paper No. 14
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte LOUIE H. JOHNSON
_____________
Appeal No. 2000-1339
Application 08/772,480
______________
ON BRIEF
_______________
Before McQUADE, NASE, and GONZALES, Administrative Patent
Judges.
McQUADE, Administrative Patent Judge.
DECISION ON APPEAL
Louie H. Johnson appeals from the final rejection of
claims 1 through 12 and 22. Claims 23 through 28, the
only other claims pending in the application, stand
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Application 08/772,480
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objected to as depending from a rejected base claim.
THE INVENTION
The invention relates to a method for “applying a
growth regulating chemical to a cotton crop via a wick
applicator” (specification, page 1). Claim 1 is
representative of the subject matter on appeal and reads
as follows:
1. A method of applying a growth regulating
composition to a cotton crop for reducing and controlling
the rapid growth of the cotton crop, comprising: moving a
wick applicator having a growth regulating composition
therein over a field of cotton plants, and engaging an
upper portion of certain cotton plants with the wick
applicator and applying the growth regulating composition
to the cotton plants as the wick applicator is moved over
the cotton crop so as to reduce and control the rapid
growth of the cotton plan [sic, plant].
THE PRIOR ART
The references relied upon by the examiner as
evidence of obviousness are:
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Application 08/772,480
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Van Steen 5,297,358 Mar.
29, 1994
Clark et al. (Clark) 5,705,648 Jan. 6,
1998
Robertson 5,720,127 Feb.
24, 1998

THE REJECTION
Claims 1 through 12 and 22 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Robertson
in view of Clark and Van Steen.
Attention is directed to the brief (Paper No. 12)
and to the final rejection and answer (Paper Nos. 10 and
13) for the respective positions of the appellant and the
examiner with regard to the merits of this rejection.
DISCUSSION
I. Grouping of claims
On page 3 in the brief, under the “GROUPING OF
CLAIMS” heading, the appellant indicates that claims 1
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through 3, 5 through 11 and 22 stand or fall together,
and that claims 4
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Application 08/772,480
5
and 12 stand or fall alone. Therefore, and in accordance
with 37 C.F.R. § 1.192(c)(7), we have chosen
representative claim 1 from the first group, and shall
decide the appeal on the basis of claims 1, 4 and 12,
with claims 2, 3, 5 through 11 and 22 standing or falling
with claim 1.
II. The rejection of claim 1
Robertson, the examiner’s primary reference,
discloses “a method for distributing a liquid chemical to
foliage and/or a substrate surface” (column 1, lines 8
and 9). The method involves the use of a contact
distributor 1 attached to the back of a towing vehicle.
Contact distributors of this sort avoid the
unpredictability and safety hazards of spraying devices
(see column 1, lines 13 through 18). In Robertson’s
words, the distributor
comprises a frame 4 having a plurality of
applicators 5 attached thereto. The applicators
are of the type having an elongate body with a
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Application 08/772,480
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covering of absorbent material, wetted with a
liquid chemical. This may be embodied utilizing
conventional techniques, such as providing a
hollow body having end closures for containing a
liquid chemical thereon, the elongate body
having a plurality of openings therethrough to
allow the egress of the liquid chemical through
the openings. The exterior of the elongate body
is then provided with an absorbent material,
such as carpet-like material therearound, which
absorbs the liquid chemical emitted through the
holes. The absorbent material is therefore
wetted with the liquid chemical, such that when
foliage is contacted by the absorbent material,
the liquid chemical is applied to the foliage.
As illustrated in the drawings, the applicators
may be provided in a plurality of rows, relative
to the direction of travel [column 3, lines 3
through 18].
As for the manner in which this distributor may be
used, Robertson teaches that
[a] useful application of the invention is for
chemical application distribution to cotton
plants, where fairly rigid plants are planted on
raised peaks between troughs.
The provision of flexible connections or
spring means between the various components of
the device is particularly advantageous in such
applications applying chemicals to such rigid
foliage [column 3, lines 52 through 59].
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The appellant acknowledges (see page 4 in the brief)
that the applicators disclosed by Robertson are “wick”
applicators. Robertson’s method of using such
applicators meets all of the limitations in claim 1
except for those requiring (1) the application of a
growth regulating composition which reduces and controls
the rapid growth of cotton and (2) the engagement of the
upper portion of certain cotton plants with the wick
applicator. The appellant’s contention that Robertson
fails to teach the application of any composition to a
cotton crop (see pages 6 and 7 in the brief) is clearly
refuted by the second of the above reproduced passages
from the reference.
Clark discloses the use of mepiquat chloride as a
plant growth regulator in the cultivation of cotton.
According to Clark,
[m]epiquat chloride has the effect on cotton
plants of stunting vegetative growth thereby
forcing the plant to redirect its energies into
fruit (cotton boll) production. With
appropriate application of mepiquat chloride to
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plants that are beginning to exhibit excessive
vegetative growth, cotton plant yields can be
maintained or increased without harm to the
plant.
. . . Cotton plants that have directed the
majority of the available plant energy to
vegetative growth are referred to as “rank”
cotton and produce little or no cotton bolls.
Cotton that exhibits signs of going rank are
readily
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visible by abnormal plant height relative to the
boll loads. Mepiquat chloride is used to stop
cotton from going rank by modifying the cotton
plant’s growth characteristics [column 1, lines
46 through 65]
Van Steen discloses a method for applying liquid to
a crop using a wick applicator composed of a tubular
member 10 provided with openings 11 and covered with
textile material or cloth 12. The textile material or
cloth 12 is wetted with liquid flowing out of the
openings 11 and moved over the crop to distribute the
liquid thereto via direct contact. Van Steen makes it
clear that this applicator may be utilized to treat both
weeds and cultivated crops (see column 1, lines 8 through
11; and column 3, line 66, through column 4, line 4).
The test for obviousness is not whether the features
of a secondary reference may be bodily incorporated into
the structure of the primary reference; nor is it that
the claimed invention must be expressly suggested in any
one or all of the references. Rather, the test is what
the
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combined teachings of the references would have suggested
to those of ordinary skill in the art. In re Keller, 642
F.2d 413, 425, 208 USPQ 871, 881 (CCPA 1981). In the
present case, the examiner’s conclusion (see pages 2 and
3 in the final rejection) that the combined teachings of
Robertson, Clark and Van Steen would have suggested the
subject matter recited in claim 1 to one of ordinary
skill in the art is well founded.
More particularly, Robertson’s disclosure of the use
of a wick applicator to apply chemicals to cotton plants
in a relatively predictable and safe manner and Clark’s
disclosure of the beneficial effects of using mepiquat
chloride as a growth regulating composition for cotton
would have furnished the artisan with ample suggestion or
motivation to combine the two by employing Robertson’s
wick applicator to apply Clark’s growth regulating
composition to the cotton. Furthermore, the teaching in
Clark that mepiquat chloride is particularly effective in
treating “rank” cotton plants which are abnormally high
would have suggested engaging an upper portion of certain
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Application 08/772,480
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cotton plants with the wick applicator. Van Steen
buttresses Robertson’s teaching that wick applicators of
the type at issue here can be used to apply chemicals to
cultivated plants (such as the cotton plants disclosed by
Robertson). Thus, the appellant’s position (see pages 3
through 10 in the brief) that the proposed combination of
Robertson, Clark and Van Steen rests on impermissible
hindsight is not persuasive. The various arguments
advanced by the appellant in support of this position are
predicated on the individual deficiencies of each of the
references with respect to the claimed subject matter.
It is well settled, however, that non-obviousness cannot
be established by attacking references individually where
the rejection is based upon the teachings of a
combination of references. In re Merck & Co., Inc., 800
F.2d 1091, 1097, 231 USPQ 375, 380 (Fed. Cir. 1986).
Thus, the combined teachings of Robertson, Clark and
Van Steen justify the examiner’s conclusion that the
differences between the subject matter recited in claim 1
and the prior art are such that the subject matter as a
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Application 08/772,480
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whole would have been obvious at the time the invention
was made to a person having ordinary skill in the art.
Hence,
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we shall sustain the standing 35 U.S.C. § 103(a)
rejection of claim 1, and of claims 2, 3, 5 through 11
and 22 which stand or fall therewith, as being
unpatentable over Robertson in view of Clark and Van
Steen.
III. The rejection of claim 4
Claim 4 depends from claim 1 and recites the step of
controlling the rate of application of the growth
regulating composition by incorporating an orifice into
the wick applicator. As correctly pointed out by the
examiner (see page 6 in the answer), this recitation
would be met by the inherent action of the openings in
the elongate body of Robertson’s wick applicator through
which the liquid chemical egresses.
Therefore, we shall sustain the standing 35 U.S.C.
§ 103(a) rejection of claim 4 as being unpatentable over
Robertson in view of Clark and Van Steen.
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IV. The rejection of claim 12
Claim 12 depends ultimately from claim 1 and
requires a denim wicking material disposed around the
wicking applicator. As indicated above, the wicking
material disclosed by Robertson is an absorbent material
such as a carpet material and the wicking material
disclosed by Van Steen is a textile material. Although
neither of these references specifies denim as a wicking
material, the examiner nonetheless concludes that the use
of denim as the wicking material on Robertson’s wick
applicator would have been obvious to one of ordinary
skill in the art because “denim is a well known fabric
which would meet the requirement of the unspecified
material of Robertson and would provide the well known
benefits of being relatively cheap and durable” (answer,
page 7). The examiner’s finding that denim is a well
known, relatively cheap and durable material is
reasonable on its face and has not been disputed by the
appellant. Given this finding, the heavy duty nature of
Robertson’s exemplary carpet-like wicking material, the
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textile nature of Van Steen’s wicking material, and the
lack of any basis in the record establishing that the use
of denim as broadly recited in claim 12 presents a new or
unexpected result or solves a stated problem, the use of
denim as a wicking material on Robertson’s wick
applicator would have been an obvious matter of choice
within the skill of the art, notwithstanding the failure
of the applied references to expressly disclose same (see
In re Kuhle, 526 F.2d 553, 555, 188 USPQ 7, 8-9 (CCPA
1975)).
Accordingly, we shall sustain the standing 35 U.S.C.
§ 103(a) rejection of claim 12 as being unpatentable
over Robertson in view of Clark and Van Steen.
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Application 08/772,480
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SUMMARY
The decision of the examiner to reject claims 1
through 12 and 22 is affirmed.
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

JOHN P. McQUADE )
Administrative Patent Judge )
)
)
)
) BOARD OF
PATENT
JEFFREY V. NASE ) APPEALS
Administrative Patent Judge ) AND
)
INTERFERENCES
)
)
)
JOHN F. GONZALES )
Administrative Patent Judge )
Appeal No. 2000-1339
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Appeal No. 2000-1339
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LARRY L. COATS
RHODES, COATS & BENNETT
909 GLENWOOD AVENUE
P.O. BOX 5
RALEIGH, NC 27602
JPM/dal