Ex Parte Reuter

Patent Trial and Appeal Board

Feb 27, 2017

12658920 (P.T.A.B. Feb. 27, 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.
12/658,920 02/17/2010 Christopher J. Reuter Osprey 4.1-21 (141499-41) 6733
35684 7590
BUTZEL LONG, P.C.
IP DEPARTMENT
41000 Woodward Avenue
Stoneridge West
Bloomfield Hills, MI 48304
EXAMINER
AFREMOVA, VERA
ART UNIT PAPER NUMBER
1653
NOTIFICATION DATE DELIVERY MODE
03/01/2017 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
following e-mail address(es):
PATENT@BUTZEL.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER J. REUTER1
Appeal 2015-003108
Application 12/658,920
Technology Center 1600
Before DONALD E. ADAMS, RICHARD J. SMITH,
and JOHN E. SCHNEIDER, Administrative Patent Judges.
SCHNEIDER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a method
for treating a plant or soil with a species of Bacillus which have been
rejected as obvious. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
1 Appellant identified the real party in interest as Osprey Biotechnics, Inc.
Appeal Br. 3.
Appeal 2105-003108
Application 12/658.920
STATEMENT OF THE CASE
The Specification describes methods and compositions for providing
Bacillus spores in a liquid in which growth and germination of the spores are
inhibited. Spec. 13. In one embodiment, the liquid is a mixture of water
and acetic acid. Id.
Claims 1—10, 13—22, 33, and 34 are on appeal. Claim 1 is illustrative
and reads as follows:
1. A method for providing a Bacillus on agricultural soil or
plant material, which comprises the steps of:
(a) suspending Bacillus spores in a liquid consisting
essentially of water and acetic acid, wherein the acetic acid
lowers the pH so that the spores are inhibited from germination
and growth, and wherein the liquid does not contain a synthetic
chemical; and;
(b) neutralizing the liquid of step (a) to enable the spores
to provide an enabled Bacillus and applying the enabled
Bacillus to the soil or plant material, wherein the neutralizing
step is with an alkali metal base, an alkaline earth metal base,
and/or alkaline soil.
2
Appeal 2105-003108
Application 12/658.920
Claims 1—10, 13—22, 33, and 34 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Douillet2 in view of Gregory3, Buhr4, Wong5,
Emmert6, Ogasawara7, and Porubcan.8
DISCUSSION
Issue
The issue with respect to this rejection is whether the evidence of
record supports the Examiner’s rejection of the claims as obvious.
The Examiner finds that Douillet teaches “a method of providing
Bacillus to agricultural soil or plant as intended to treat soil and plant
pathogens by using biological activities of viable Bacillus.'’'’ Final Act. 2.
The Examiner also finds that Douillet teaches using a stabilized suspension
of Bacillus, (cite?) The Examiner finds that Gregory teaches Bacillus
suspensions containing 5% acetic acid which become active when applied to
soiled areas. Final Act. 3. The Examiner finds that Gregory teaches that the
liquid composition containing the Bacillus is diluted or neutralized before
application. Id. The Examiner finds that Buhr and Wong teach that low pHs
2 Douillet, US 6,589,524 Bl, issued July 8, 2003 (“Douillet”).
3 Gregory, WO 03/064755 A2, published Aug. 7, 2005 (Gregory”).
4 Buhr et al., US 2005/0191206 Al, published Sept. 1, 2005 (“Buhr”).
5 Wong and Chen, Effects of Lactic Acid Bacteria and Organic Acids on
Growth and Germination of Bacillus cereus, 54 Appl. Environ. Microbiol.
2179 (1988) (“Wong”).
6 Emmert and Handelsman, Biocontrol of plant disease: a (Gram-) positive
perspective, 171 FEMS Microbiol. Ltrs. 1 (1999) (“Emmert”).
7 Ogasawara et al., US 2009/0047383 Al, published Feb. 19, 2009
(“Ogasawara”).
8 Porubcan, US 2003/0099624 Al, published May 29, 2003 (“Porubcan”).
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Appeal 2105-003108
Application 12/658.920
inhibit germination of Bacillus. Final Act. 3^4. The Examiner concludes
that
it would have been obvious to one having ordinary skill in the
art at the time the claimed invention was made to exclude
synthetic chemicals from the stabilized compositions, wherein
the active ingredient is biological control agent Bacillus itself,
for the expected benefits of safe environmental practices and
for "organic" farming. One of skill in the art might have been
motivated to practice "organic" farming and, thus, to exclude
synthetic chemicals from the stabilized Bacillus spore-
containing preparations in the method of US 6,589,524
(Douillet) and from the stabilized Bacillus spore-containing
formulations in the method of WO 03/064755 because
biological control agent Bacillus is a powerful tool by itself
without additional synthetic chemicals and because biological
control agent Bacillus is also a powerful alternative to the use
of synthetic chemicals as adequately supported by the statement
by Emmert et al.
Final Act. 5.
Appellant contends that Douillet does not teach all of the limitations
of the claims. Appeal Br. 7. Appellant argues that Douillet does not teach a
suspension of Bacillus spores that are suspended in a liquid consisting
essentially of water and acetic acid. Id. Appellant argues that the dilution
steps taught by Gregory and Douillet are not the same as the neutralization
step called for in the claims. Appeal Br. 8—10. Appellant argues that the
Examiner has failed to set forth a rationale for combining the teaching of
Gregory and Douillet. Appeal Br. 12. Appellant also argues that none of the
references teach or suggest the “use of an alkali metal base, an alkaline earth
metal base, and/or alkaline soil to neutralize a liquid in which Bacillus
spores have been inhibited against germination and growth.” Appeal Br. 13.
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Appeal 2105-003108
Application 12/658.920
The evidence of record supports the Appellant’s position. The
Examiner has not pointed to anything in the references that teaches or
suggests using an alkali metal base, an alkaline metal base, and/or an
alkaline soil to neutralize a liquid containing the Bacillus spores to “enable
the spores to provide an enabled Bacillus.'’'’ Appeal Br. 15 (Claims App’x.)
A proper § 103 analysis requires “a searching comparison of the claimed
invention—including all its limitations—with the teaching of the prior art.”
In re Ochiai, 71 F.3d 1565, 1572 (Fed. Cir. 1995).
The Examiner points to Buhr as teaching the use of an alkali metal
base or an alkaline metal base to neutralize the suspension recited in the
claims. Ans. 8. We are unpersuaded. As Appellant points out, the example
cite by the Examiner teaches neutralizing water after any bacteria in the
water have been killed. Reply Br. 6. This example does not teach or
suggest neutralizing a suspension containing Bacillus so as to activate the
Bacillus.
The evidence of record does not support the Examiner’s rejection of
the claims as obvious.
We reverse the rejection under 35 U.S.C. § 103(a).
REVERSED
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