13337640 (P.T.A.B. Mar. 5, 2014)

Ex Parte Sanders et al

Patent Trial and Appeal BoardMar 5, 2014

13337640 (P.T.A.B. Mar. 5, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 13/337,640 12/27/2011 John Larry Sanders 39992-CIP1-CNT3-DIV1 8135 23589 7590 03/05/2014 Hovey Williams LLP 10801 Mastin Blvd., Suite 1000 Overland Park, KS 66210 EXAMINER SMITH, JENNIFER A ART UNIT PAPER NUMBER 1731 MAIL DATE DELIVERY MODE 03/05/2014 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte JOHN LARRY SANDERS, GRIGORY MAZO, and JACOB MAZO ____________________ Appeal 2013-000707 Application 13/337,640 Technology Center 1700 ____________________ Before CATHERINE Q. TIMM, BEVERLY A. FRANKLIN, and N. WHITNEY WILSON, Administrative Patent Judges. TIMM, Administrative Patent Judge. DECISION ON APPEAL Appellants seek review of the Examiner’s decision to reject claims 1- 16 under 35 U.S.C. § 103(a) as obvious. Claims 1-10, and 14-16 stand rejected as obvious over AAPA1 or Sanders2 or Nutrisphere-N MSDS (2006) or Nutrisphere-N (SFP, 2006) in view of Duvdevani.3 Claims 11-13 stand 1 Description of the Prior Art, Original Specification filed Dec. 27, 2011 (Spec.) at 1:22 to 2:22. 2 Sanders et al., US 6,515,090 B1, patented Feb. 4, 2003. 3 Duvdevani et al., US 4,801,498, patented Jan. 31, 1989. Appeal 2013-000707 Application 13/337,640 2 rejected over those references further in view of Burnham.4 We have jurisdiction under 35 U.S.C. §§ 6(b) and 134. We REVERSE. The claims are directed to a method of treating soil (see, e.g., claim 1). The method involves applying a composite to soil (claim 1). The composite comprises an agriculturally useful solid product, such as a fertilizer, coated with a solid, dried residue of a polymer-containing composition (Spec 1:12- 21). In the prior art, it was known to apply a polymer-containing composition as a dispersion of a copolymer in water to fertilizer (Spec. 1:23 to 2:2). However, in the conventional process of coating and drying, water is evaporated to leave a solid polymer residue, and if the composition drying time is excessive such that drying is incomplete, the coated products can be difficult to handle and spread across fields (Spec. 2:3-12). In order to improve drying, Appellants add a drying agent to the polymer-containing composition. After applying the aqueous polymer- containing composition to the solid product (e.g., fertilizer), Appellants allow the drying agent, and a substantial part of the water present in the composite, to evaporate to create a fertilizer product that, when applied to an agricultural field, does not contain either the drying agent or water to any substantial degree (Spec. 3:1-5). Claim 1 is illustrative and reproduced below with the claim limitations of particular interest emphasized: 1. A method of treating soil comprising the steps of: 4 Burnham, US 2002/0098982 A1, pub. July 25, 2002. Appeal 2013-000707 Application 13/337,640 3 applying to soil a composite comprising an agriculturally useful solid product coated with a solid, dried residue of a polymer-containing composition, said composite prepared by initially applying to said solid product an aqueous polymer-containing composition including a substantially water-soluble copolymer containing individual quantities of maleic and itaconic moieties, water, and an organic compound drying agent, said composition having a pH of from about 1-4, and thereafter allowing said drying agent and a substantial part of the water present in the composite to evaporate, so that the composite does not contain said drying agent or water to any substantial degree, whereby the composite as applied to soil does not have any substantial presence of the drying agent and water which formed a part of the polymer-containing composition initially applied to said solid product. (Claims App’x at Br. 27.) The AAPA, Sanders, and Nutrisphere references are all directed to the prior art water-soluble, aqueous copolymer-containing composition that Appellants acknowledge was known in the art (Br. 8). It was also known in the art to apply such compositions to solid products such as fertilizer (Spec. 1:30 to 2:2). As acknowledged by the Examiner, the prior art does not teach that the composition contains an organic drying agent, nor does the prior art teach the claimed step of evaporating such a drying agent along with the water from the composite (Ans. 4). The Examiner finds that Duvdevani teaches forming a composite structure by applying a carboxylate polymer solution including an organic solvent system (drying agent) to the surface of a substrate and permitting the Appeal 2013-000707 Application 13/337,640 4 solvent to evaporate in a drying process (Ans. 4). According to the Examiner: At the time the invention was made, it would have been prima facie obvious for one of ordinary skill in the art to utilize an organic solvent-type drying agent for the formation of a stable polymer coated fertilizer granule. One of ordinary skill in the art, at the time the invention was made, would have been motivated to do so because the polymer film forming process allows the coatings to act as barrier to water soluble constituents of the fertilizer, thus shielding them from premature release in aqueous environments and the Duvdevani reference demonstrates a way to achieve defect-free coatings using the solvent drying system described therein [See Column 1, line 66 - Column 2, line 38]. One of ordinary skill in the art, at the time the invention was made, would have had a reasonable expectation of success for utilizing a drying agent for the formation of a fertilizer granule as in the Duvdevani reference because the solvent system, containing a solvent and cosolvent breaks up associated domains resulting from aggregation of ionic species [See Column 2, lines 58-61]. (Ans. 4-5.) However, because the teachings within Duvdevani are not adequately relevant to the teachings of the admitted prior art, the teachings of Duvdevani do not provide an adequate reason for modifying the known aqueous-polymer containing water-based composition of the admitted prior art with the organic solvent of Duvdevani. Duvdevani is directed to forming a polymeric coating having improved barrier properties that can be used to create a controlled release fertilizer (Duvdevani, col. 1, l. 66 to col. 2, l.1). The coating acts as a barrier to water soluble constituents of the fertilizer, shielding them from premature release in aqueous environments (Duvdevani, col. 2, ll. 2-6). Importantly, the coating is formed using a water-insoluble, preferably neutralized, Appeal 2013-000707 Application 13/337,640 5 carboxylated polymer dissolved in an organic solvent system (Duvdevani, col. 2, ll. 51-58). Duvdevani’s water-free insoluble composition is different from Appellants’ water-based soluble composition. In describing the solvent system, Duvdevani states that “[t]he solvent system comprises an organic solvent with or without a cosolvent.” (Duvdevani, col. 2, ll. 56-58.) According to Duvdevani, “[t]he solvent can be an organic liquid which is capable of dissolving the polymeric backbone.” (Duvdevani, col. 2, ll. 58-59.) Duvdevani further states that “the cosolvent may be needed to break up associated domains resulting from aggregation of ionic species.” (Duvdevani, col. 2, ll. 59-61.) In other words, the solvent and optional cosolvent function to dissolve the water- insoluble polymer of Duvdevani. While Duvdevani eventually evaporates the solvent and cosolvent to dry the coating, the cosolvent is present in the solvent system to promote dissolution of the polymer in the organic solution. The Examiner provides no rational reason why a solvent used to promote the dissolution of a water- insoluble polymer in an organic solvent system would have been expected to have the same function in a water-based system in which a water-soluble copolymer is dissolved in water. Nor has the Examiner established that there is a suggestion in the prior art to add the organic solvent and/or cosolvent of Duvdevani to the polymer system of the admitted prior art to obtain a barrier-type polymer as taught by Duvdevani. The Examiner has not established that the solvent system is the component of Duvdevani’s composition that results in the barrier properties. Common sense indicates that it is the water-insoluble polymer of Duvdevani that results in the barrier properties. Appeal 2013-000707 Application 13/337,640 6 We cannot say that the Examiner has provided a rational basis to support a reason for combining the teachings of the references in the manner set forth by the Examiner. The defect discussed above pervades both rejections. CONCLUSION We do not sustain the Examiner’s rejections. DECISION The Examiner’s decision is reversed. REVERSED bar