Ex parte Kitten

Board of Patent Appeals and Interferences

Sep 28, 1999

08149766 (B.P.A.I. Sep. 28, 1999)

Application for patent filed November 10, 1993. 1
According to the official records of the Patent and Trademark
Office (PTO), said application is a continuation-in-part of
Serial Number 08/000,224, filed on January 4, 1993, and now
abandoned.
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the
Board.
Paper No. 26
UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte JERRY KITTEN
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Appeal No. 1996-0513
Application 08/149,7661
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HEARD: SEPTEMBER 16, 1999
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Before METZ, JOHN D. SMITH and LIEBERMAN, Administrative
Patent Judges.
METZ, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the
Appeal No. 96-0513
Application No. 08/149,766
2
examiner's refusal to allow claims 1, 5, 6, 8 through 17, 19
and 20, the only claims remaining in this application.
THE INVENTION
The claimed invention is directed to a method for
combating sugar-eating, slow-moving, soft-bodied insects which
thrive on sugar-containing plant leaves. The method comprises
spraying on leaves infested with said insects fertilizer
composition comprising humic acid, nitrogen, phosphorus,
calcium and boron. Appellant alleges to have discovered that
the fertilizer, so-applied, significantly alters the sugar
concentration in the plant leaves making the plant leaves
undesirable to said insects.
Claims 1 and 13 are believed to be adequately
representative of the appealed subject matter and are
reproduced below for a more facile understanding of the
claimed invention.
1. A method for combatting sugar-eating, slow-
moving, soft-bodied insects which thrive on sugar-
containing plant leaves, which comprises spraying on
such leaves, infested with the insects, an effective
Appeal No. 96-0513
Application No. 08/149,766
This U.S. patent is the equivalent of Belgian Patent2
744,379.
3
amount of a fertilizer composition comprising a
combination of humic acid with nitrogen, phosphorus,
calcium and boron, each of which is present therein
in an effective amount, and the humic acid is of a
type which is suitable, in the presence of an
effective amount of nitrogen, phosphorus, calcium
and boron, to alter significantly the sugar
concentration in the plant leaves on which said
fertilizer composition is sprayed.
13. A method
of claim 1 in which the composition comprises 2
parts by volume of each of Foli-zyme and Sett forTM TM
each part by volume of Charge .TM
The references of record which are being relied on by the
examiner as evidence of obviousness are:
Nagasawa et al. (Nagasawa) 3,617,237 Nov. 2,
19712
Arnold 4,652,294 Mar. 24,
1987
Bellanger, French Patent 75 19160, published January 14, 1977
Claims 1, 5, 6, 8 through 17, 19 and 20 stand rejected
under 35 U.S.C. § 103 as being unpatentable from the
disclosure in Arnold considered with Nagasawa and Bellanger.
Appeal No. 96-0513
Application No. 08/149,766
4
We reverse.
OPINION
The primary reference on which the examiner relies as
evidence of obviousness is Arnold. Arnold is directed to a
staged application of two foliar fertilizers at different
stages of plant growth. We agree with appellant's argument
that Arnold does not discuss anywhere in his disclosure sugar-
eating, slow-moving, soft-bodied insects let alone combating
such insects. We also agree with appellant that Arnold does
not teach appellant's claimed fertilizer as useful in a method
for combating insects in a single application on plants
infested with sugar-eating, slow-moving, soft-bodied insects.
While Arnold may be considered to disclose the individual
ingredients used by appellant in the fertilizer composition of
his method, those ingredients are described in Arnold for
separate, sequential application to plants in different stages
of growth (see Tables 1 and 2 of Arnold). Whether or not such
separate, sequential application of the two, separate
fertilizer compositions disclosed in Arnold would have been
expected to combat sugar-eating, slow-moving, soft-bodied
insects is entirely conjectural. This is especially true in
Appeal No. 96-0513
Application No. 08/149,766
5
light of the narrow construction appellant urges we give the
appealed claims. Specifically, appellant urges that his
claims are limited to particular insects, particular plants
and particular times of application. Suffice it to say that,
in order to establish prima facie obviousness in the first
instance, the examiner must present evidence of obviousness,
not conjecture.
We agree with the examiner's conclusion that Bellanger is
merely cumulative to Arnold and, therefore, does not, either
alone or in combination with Arnold, render the claims on
appeal unpatentable. We also agree with the examiner that
Nagasawa discloses that the particularly prepared humic acid
required by claim 9 was well-known at the time appellant's
invention was made. However, Nagasawa alone or in combination
with Arnold and Bellanger does not render obvious, in the
sense of 35 U.S.C.
§ 103, the subject matter here on appeal.
Accordingly, on this record, because the examiner has
failed to establish that appellant's claimed method would have
been obvious to a person of ordinary skill in the art, we need
not address appellant's evidence of nonobviousness.
Appeal No. 96-0513
Application No. 08/149,766
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In passing, we observe that claim 13 requires that the
fertilizer used in the method of claim 1 is obtained by mixing
in particular parts per volume 3 (three) proprietary products
identified by only their trademarks. Nevertheless, appellant
has filed in the record of this application product sheets for
each of the aforementioned proprietary products which
identifies their respective makeup and uses. Based on these
product sheets and because claim 13 further limits the
fertilizer used in claim 1 to a fertilizer prepared from these
well-identified proprietary products, we do not find the use
of the trademarks renders claim 13 unclear or confusing.
Compare, Ex parte Simpson, 218 USPQ 1020-23 (Pat. & Tdmk. Off.
Bd. App. 1982).
SUMMARY
The rejection of claims 1, 5, 6, 8 through 17, 19 and 20
under 35 U.S.C. § 103 is reversed.
Appeal No. 96-0513
Application No. 08/149,766
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The decision of the examiner is reversed.
REVERSED
ANDREW H. METZ )
Administrative Patent Judge )
)
)
)
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JOHN D. SMITH )BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
)INTERFERENCES
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PAUL LIEBERMAN )
Administrative Patent Judge )
AHM/gjh
Appeal No. 96-0513
Application No. 08/149,766
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