Ex Parte KRALL et al

Patent Trial and Appeal Board

Aug 29, 2018

12480613 (P.T.A.B. Aug. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/480,613 06/08/2009
25225 7590 09/05/2018
MORRISON & FOERSTER LLP
12531 HIGH BLUFF DRIVE
SUITE 100
SAN DIEGO, CA 92130-2040
FIRST NAMED INVENTOR
Michael L. KRALL
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
631342000800 3729
EXAMINER
CHOI, FRANK I
ART UNIT PAPER NUMBER
1616
NOTIFICATION DATE DELIVERY MODE
09/05/2018 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):
PatentDocket@mofo.com
EOfficeSD@mofo.com
pair_mofo@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte MICHAEL L. KRALL and ANDREWB. ARATA
Appeal2016-008167
Application 12/480,613
Technology Center 1600
Before DONALD E. ADAMS, ULRIKE W. JENKS, and
TA WEN CHANG, Administrative Patent Judges.
JENKS, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellants 1 appeal from the
Examiner's decision to reject claims directed to a method of treating a plant
having a disease as obvious. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
STATEMENT OF THE CASE
Claims 1-3, 11-16, and 18-20 are on appeal, and can be found in the
Claims Appendix of the Appeal Brief. Claim 1 is representative of the
claims on appeal, and reads as follows:
1 Appellants identify the real party in interest as Pure Bioscience. Appeal
Br. 1.
Appeal 2016-008167
Application 12/480,613
1. A method for treating a plant while said plant is growing in
soil and which plant has a plant disease caused by a virus, a
bacteria, a fungus, a nematode, a parasitic plant, a protozoan, or
a combination thereof, the method comprising contacting at
least one of the plant, or the soil or any groundwater proximal
to the plant, or a combination thereof with a composition
comprising silver dihydrogen citrate (SDC) and citric acid
wherein said SDC is present in an amount effective to at least
reduce the level of said disease, wherein an effective amount of
the SDC is absorbed by the plant.
Appeal Br. 7 (Claims Appendix).
The Examiner rejected claims 1-3, 11-16, and 18-20 under 35 U.S.C.
§ I03(a) as unpatentable over Van Der Krieken, 2 Matsuo, 3 Arata '066, 4
Arata '605, 5 Arata '374, 6 Grab,7 Simmons, 8 Koontz,9 Brooks, 10 and
Inouye. 11
Upon consideration of the evidence on this record and each of
Appellants' contentions, we find that the preponderance of evidence on this
2 Van Der Krieken et al., US 2006/0247130 Al, publ. Nov. 2, 2006 ("Van
Der Krieken").
3 Matsuo et al., US 4,755,268, issued July 5, 1988 ("Matsuo").
4 Arata, US 2005/0202066 Al, publ. Sept. 15, 2005 ("Arata '066").
5 Arata, US 2005/0245605 Al, publ. Nov. 3, 2005 ("Arata '605").
6 Arata, US 2003/0178374 Al, publ. Sept. 25, 2003 ("Arata '374").
7 Grab et al., US 2006/0147549 Al, publ. July 6, 2006 ("Grab").
8 Simmons et al., US 3,287,209, issued Nov. 22, 1966 ("Simmons").
9 Harold V. Koontz and Karen L. Berle, Silver Uptake, Distribution, and
Effect on Calcium, Phosphorus, and Sulfur Uptake, 65 Plant Physiol. 336-
339 (1980) ("Koontz").
10 Brooks, Plant Parasitic Algae, 5 American Samoa Community College,
Community & Natural Resources, Cooperative Research & Extension 2003.
11 Isao Inouye and Noriko Okamoto, Changing concepts of a plant: current
knowledge on plant diversity and evolution, 22 Plant Biotechnology 505-
514 (2005) ("Inouye").
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Appeal 2016-008167
Application 12/480,613
record supports the Examiner's conclusion that the subject matter of
Appellants' claims 1-3, 11-16, and 18-20 is unpatentable over the
combination of Van Der Krieken, Matsuo, Arata '066, Arata '605,
Arata '374, Grab, Simmons, Koontz, Brooks, and Inouye. Accordingly, we
sustain the Examiner's rejection of these claims for the reasons set forth in
the Answer and Final Office Action mailed July 10, 2015, both of which we
incorporate herein by reference.
For emphasis only, we provide the following: Van Der Krieken
disclosed a method for treating a plant while said plant is growing in soil and
which plant has or is susceptible to a plant disease. See, e.g., Van Der
Krieken Abstract, see id. ,r 1. Van Der Krieken disclosed treating such
plants by contacting the plant with a composition comprising two active
ingredients, silver and lignosulfonate (LS). Van Der Krieken ,r 26, see also
id. ,r 34 ("Silver lignosulfonates release Ag-ions in an aqueous environment.
Ag-ions are toxic for micro-organisms and therefore contribute to the
effectivity of the composition"). Van Der Krieken also disclosed that "the
composition can be used for protection of growing crop plants but can also
be used for decontamination and subsequent preservation and protection of
plant parts, such as seeds and bulbs, against pathogenic micro-organisms."
Id. ,r 50. Van Der Krieken additionally disclosed applying the composition
to fruit before harvest (i.e, while the fruit is still on the plant). Id. ,r 73. The
application of a metal antimicrobial agent (e.g., silver ion) onto a plant or
fruit for a time sufficient to reduce the microbial population is also
supported by Grab. See Grab ,r,r 4, 5, 25, 47, see also id. ,r 24 ("The citrus
fruit can be on the tree or can be off the tree (i.e., it can already have been
picked).").
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Appeal 2016-008167
Application 12/480,613
Motivation to provide the silver as silver dihydrogen citrate (SDC),
along with citric acid, is suggested by at least Arata '066, which discloses
using the antimicrobial composition comprising SDC and citric acid to
safely and effectively treat a number of food items, including vegetables and
fruits. Arata '066 ,r,r 18, 22, 48. Further, Arata '066 taught that SDC is a
salt, and thus "will exist in a dissociated state in solution" (id. ,r,r 19, 20),
thereby allowing some silver ions to associate with LS in a combined
composition solution sprayed upon a growing plant, as taught in Van Der
Krieken.
None of the record evidence supports Appellants' contention that a
skilled artisan at the time of the invention would not have been motivated to
apply a composition comprising SDC and citric acid to a plant growing in
soil due to a concern that such application would have been unsafe or
ineffective.
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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