Ex Parte Vermeer

Patent Trial and Appeal Board

Jun 24, 2013

10572719 (P.T.A.B. Jun. 24, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte RONALD VERMEER1
__________

Appeal 2012-001642
Application 10/572,719
Technology Center 1600
__________

Before DEMETRA J. MILLS, MELANIE L. McCOLLUM, and
SHERIDAN K. SNEDDEN, Administrative Patent Judges.

McCOLLUM, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a
suspension concentrate. The Examiner has rejected the claims as obvious.
We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part.

1 Appellant identifies the Real Party in Interest as BAYER CROPSCIENCE
AG (App. Br. 3).
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STATEMENT OF THE CASE
Claims 11, 14, 15, 17, 22, and 26-36 are on appeal (App. Br. 3).2
Claim 11 is illustrative and reads as follows:
11. A suspension concentrate consisting of
(a) between 10 and 40% by weight, based on the suspension
concentrate, of at least one active compound that is solid at room
temperature selected from the group consisting of prothioconazole,
tebuconazole, metaminostrobin, and trifloxystrobin,
(b) between 5 and 20% by weight, based on the suspension
concentrate, of at least one penetration enhancer selected from the group
consisting of alkanolethoxylates of formula (I)
CH3-(CH2)m-O-(-CH2-CH2-O-)n-H (I)
wherein
m represents numbers from 9-13, and
n represents numbers from 8-12,
(c) between 3 and 8% by weight, based on the suspension
concentrate, of at least one dispersant mixture selected from the group
consisting of
(i) a polymer of methyl 2-methyl-2-propenoate and
α-(2-methyl-1-oxo-2-propenyl)-ω-methoxypoly(oxy-l,2-ethanediyl) and
tristyrylphenolethoxylate having an average of 50 to 60 oxyethylene units,
(ii) a polymer of methyl 2-methyl-2-propenoate and
α-(2-methyl-1-oxo-2-propenyl)-ω-methoxypoly(oxy-1,2-ethanediyl) and a
propylene oxide/ethylene oxide block copolymer having a molecular weight
between 8000 and 10,000 and an ethylene oxide proportion of between 40
and 60% by weight, and
(iii) a tristyrylphenolethoxylate having an average of 50 to 60
oxyethylene units and a propylene oxide/ethylene oxide block copolymer
having a molecular weight between 8000 and 10,000 and an ethylene oxide
proportion of between 40 and 60% by weight,

2 Claim 25 is also pending and is purported to be rejected (Ans. 3) and
appealed (App. Br. 3). However, claim 25 is not included in any of the
rejections (Ans. 4-17). It is, therefore, our understanding that claim 25 is not
currently subject to a rejection.
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d) between 40 and 65% by weight, based on the suspension
concentrate, of water, and
e) between 0 and 15% by weight, based on the suspension
concentrate, of one or more additives.
Claims 11, 14, 15, 17, 22, and 26-34 stand rejected under 35 U.S.C.
§ 103(a) as obvious over Strom3 in view of Grayson4 and Aven5 as
evidenced by Schlatter6 (Ans. 4).
Claim 35 stands rejected under 35 U.S.C. § 103(a) as obvious over
Strom in view of Grayson and Aven as evidenced by Schlatter and further in
view of Pullen7 (Ans. 15).
Claim 36 stands rejected under 35 U.S.C. § 103(a) as obvious over
Strom in view of Grayson, Aven, and Schlatter (Ans. 16).
Claim 11 stands rejected under 35 U.S.C. § 103(a) as obvious over
Strom in view of Grayson, Mauler-Machnik,8 and Heinemann9 (Ans. 11).10
I
The Examiner relies on Strom for disclosing “aqueous dispersions of
agricultural chemicals” (Ans. 4). The Examiner finds that “[e]xamples of
active agents that can be utilized include insecticides such as triazoles . . .

3 Strom et al., US 2001/0051175 A1, Dec. 13, 2001.
4 Grayson et al., Effect of Adjuvants on the Performance of New Cereal
Fungicide, Metconazole. I Glasshouse Trials, 45 PESTIC. SCI. 153-160
(1995).
5 Aven, EP 1,023,832 A1, Aug. 2, 2000.
6 Schlatter, US 2002/0040044 A1, Apr. 4, 2002.
7 Pullen, US 2003/0035852 A1, Feb. 20, 2003.
8 Mauler-Machnik et al., US 6,559,136 B1, May 6, 2003.
9 Heinemann et al., US 6,103,717, Aug. 15, 2000.
10 The Answer states that claim 16 is also rejected on this basis (Ans. 11).
However, claim 16 has been cancelled (Reply Br. 2).
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and fungicides such as azoles such as hexaconazole and strobilurins such as
azoxystrobin” and that the “pesticide is [included] in an amount from about
1 to about 60%” (id. at 4-5). The Examiner also finds that the “surface
active agent included may be anionic, cationic or nonionic, or combinations
of cationic and nonionic or anionic and nonionic,” that a “stabilizing amount
of the surfactant is used, preferably not less than about 1% and not more
than 30% by weight based on the total weight of the water, pesticide and
surfactant,” and that “[s]pecific examples of commercially available surface
active agents include Atlox 4991 and 4913 (methyl 2-methyl-2-propenoate
and α-(2-methyl-1-oxo-2-propenyl)- ω-methoxy-poly(oxy-1,2-ethanediyl)
surfactants (nonionic), Pluronic P104 (nonionic), and Soprophor FL
surfactant (tristyrylphenolethoxylates, anionic)” (id. at 5).
The Examiner relies on Grayson for disclosing “the effect of
adjuvants on the performance of the fungicide metconazole” (id.). In
particular, the Examiner finds:
It is taught that suspension concentrates which are generally
less active saw around a 35-fold enhancement with the addition
of Genapol C12/C14 alcohol ethoxylates. . . . Table 2 shows the
efficacy of the addition of the Genapol adjuvants to suspension
concentrates. Genapol adjuvants utilized are C050, C080, C100
and C200. . . . It is taught that Genapol adjuvants possess the
capability of drastically improving the performance of
particulate formulations of agrochemicals so that their activities
exceed those of solution formulations without adjuvants and
approach the activities of solution formulations with adjuvants.
(Id. at 5-6.)
The Examiner relies on Aven for disclosing aqueous suspension
concentrates comprising “50 to 400 g/L of a crop protection compound, 50
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to 500 g/L of an adjuvant and at least one surfactant selected from the group
consisting of (c1) 5 to 75 g/L of one or more non-ionic dispersant and
(c2) 10 to 100 g/L of one or more anionic dispersants” (id. at 6). The
Examiner finds that the “[f]ungicides taught include . . . metconazole,
[tebuconazole,] SSF-126 [metaminostrobin]11 and trifloxystrobin” (id. at 6 &
9). The Examiner also finds that “[s]urfactants/dispersants taught include
nonionic dispersants such as polyethyleneoxide-polypropyleneoxide block
copolymers,” that the “most preferred are the Pluronic type block
copolymers such as Pluronic PE 10500 (propylene oxide/ethylene oxide
block copolymers having molecular weights between 8000 and 10,000),”
that “[a]nionic dispersants taught include Soprophor FL,” and that “[b]oth
Pluronic PE 10500 and Soprophor FL are exemplified” (id. at 6). In
addition, the Examiner finds that it “is taught that appropriate relative
amount of active ingredient and adjuvants lie between 1:0.5 and 1:100” and
that, in “general, the pesticidal efficacy can be enhanced to a higher degree
by the addition of larger amount of adjuvant (b)” (id. at 6-7).
The Examiner concludes that it would have been obvious “to combine
the teachings of Strom et al. . . . , Aven and Grayson et al. and utilize an
ethoxylate alcohol as a surfactant adjuvant in order to enhance foliar uptake”
(id. at 7). The Examiner also concludes that it would have been obvious to
“utilize an anionic and nonionic surfactant in combination together such as
Atlox 4913 and Soprophor FL” and to “utilize Pluronic PE 10500 in
combination with Atlox 4913 or Soprophor FL” (id. at 8). In addition, the

11 The Examiner relies on Schlatter as evidence that SSF-126 is
metaminostrobin (Ans. 11).
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Examiner concludes that it would have been obvious to “utilize
tebuconazole, metaminostrobin and trifloxystrobin in the invention of
Strom” (id. at 9).
“Regarding the claimed amount of active compound, water and
dispersant mixture, [the Examiner finds that] Strom et al. . . . teach an
amount that overlaps that instantly claimed” and concludes, therefore, that
“a prima facie case of obviousness exists” (id. at 10). With regard to the
amount of alcohol ethoxylate, the Examiner concludes that it would have
been obvious “to engage in routine experimentation to determine optimal or
workable ranges that produce expected results” (id.).
Analysis
With regard to claim 11, we adopt the Examiner’s fact finding and
conclusions as set forth in the Examiner’s Answer on pages 4-11, which is
summarized above. We also adopt the Examiner’s response to arguments as
set forth in the Examiner’s Answer at pages 17-21. However, we include the
following additional analysis.
We recognize that Strom discloses that the “pesticide has (a) a water
solubility of less than 0.1 percent, and (b) a melting point sufficiently high
so as not to melt during milling” (Strom, ¶ [0004]). However, Appellants do
not present any evidence that tebuconazole, metaminostrobin, and
trifloxystrobin do not have these properties. We conclude that the Examiner
has set forth a prima facie case that it would have been obvious to include
these pesticides in Strom’s compositions (Ans. 9 & 18-19), which has not
been persuasively rebutted by Appellants.
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In addition, it is undisputed that Grayson does not teach the claimed
amount of alkanolethoxylate adjuvant (penetration enhancer) (App. Br. 8;
Ans. 20). However, we agree with the Examiner that it would have been
obvious “to engage in routine experimentation to determine optimal or
workable ranges” (Ans. 10). Moreover, as noted by the Examiner, Aven
provides guidance as to the amount of adjuvant that may be added to these
types of compositions (id. at 6-7). In particular, Aven discloses: “The
appropriate relative amounts of active ingredient (a) and the adjuvant (b) lie
. . . between 1:0.5 and 1:100. . . . In general and within certain limits, the
pesticidal efficacy can be enhanced to a higher degree by the addition of
larger amounts of the adjuvant (b).” (Aven, ¶ [0047]). We conclude that
this disclosure further supports the Examiner’s conclusion that it would have
been obvious to include the claimed penetration enhancer in an amount of 5
to 20% by weight.
With regard to claim 14, which recites that component (a) is
tebuconazole, we note that Aven discloses tebuconazole (id. at ¶ [0017]).
We agree with the Examiner that it would have been obvious to include
tebuconazole in Strom’s composition for the reasons discussed above.
With regard to claim 15, which recites that component (a) comprises
tebuconazole and trifloxystrobin, we note that Aven discloses both
tebuconazole and trifloxystrobin (id.). We agree with the Examiner that it
would have been obvious to include tebuconazole and trifloxystrobin in
Strom’s composition for the reasons discussed above.
With regard to claim 17, which recites that component (a) is
trifloxystrobin, we agree with Appellant that the Examiner has not
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adequately explained why it would have been obvious to include Grayson’s
alcohol ethoxylate adjuvant in a composition in which trifloxystrobin is the
active agent. The Examiner finds:
There is a reasonable expectation that the effect seen with
metconazole as taught by Grayson et al. would reasonably
apply to other azoles such as tebuconazole. One of ordinary
skill in the art would have a reasonable expectation of success
as both metconazole and tebuconazole are azole fungicides
(both species of the same genus) and therefore would
functionally be expected to behave similarly.
(Ans. 7-8.) However, as pointed out by Appellant, “trifloxystrobin is not an
‘azole’ compound” (App. Br. 11).
With regard to claim 22, which recites that m represents 11 and n
represents 10, the Examiner points out the Grayson teaches Genapol C100®
(Ans. 5-6), which meets this limitation (Spec. 4). In addition, we agree with
the Examiner that it would have been obvious to include this particular
adjuvant, even if it is inferior to other Genapol adjuvants (Ans. 20). A
finding that the prior art suggests the claimed invention “need not be
supported by a finding that the prior art suggests that the combination
claimed by the patent applicant is the preferred, or most desirable,
combination.” In re Fulton, 391 F.3d 1195, 1200 (Fed. Cir. 2004).
With regard to claim 26, which recites that component (a) is
metaminostrobin, we conclude that the Examiner has not adequately
explained why it would have been obvious to include Grayson’s alcohol
ethoxylate adjuvant in a composition in which metaminostrobin is the active
agent for the reasons discussed above with regard to claim 17.
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With regard to claim 31, which recites that the penetration enhancer is
present in an amount of between 10 and 15% by weight, we agree with the
Examiner that it would have been obvious “to engage in routine
experimentation to determine optimal or workable ranges” (Ans. 10).
Moreover, as discussed above, Aven provides guidance as to the amount of
adjuvant that may be added to these types of compositions (Aven, ¶ [0047]).
We conclude that Aven’s disclosure further supports the Examiner’s
conclusion that it would have been obvious to include the claimed
penetration enhancer in an amount of 10 to 15% by weight.
Conclusion
The evidence supports the Examiner’s conclusion that the
combination of Strom, Grayson, and Aven, as evidenced by Schlatter,
suggest the compositions of claims 11, 14, 15, 22, and 31. We therefore
affirm the obviousness rejection of claims 11, 14, 15, 22, and 31 over these
references. Claims 27-30 and 32-34 have not been argued separately and
therefore fall with claim 11. 37 C.F.R. § 41.37(c)(1)(vii).
The Examiner has not, however, set forth a prima facie case that
claims 17 and 26 would have been obvious over Strom, Grayson, and Aven
as evidenced by Schlatter. We are therefore compelled to reverse the
obviousness rejection of claims 17 and 26.
II
In rejecting claim 35, the Examiner additionally relies on Pullen for
teaching butylated hydroxytoluene, as recited in claim 35 (Ans. 15). The
Examiner concludes that “one of ordinary skill in the art would have been
motivated to add a preservative in order to preserve the final composition”
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and that it would have been obvious “to try preservatives known to be
utilized with fungicides and herbicides as a person with ordinary skill has
good reason to pursue known options within his or her technical grasp” (id.
at 21 & 15-16).
Appellant argues that “Pullen does not provide any motivation to add
butylated hydroxytoluene to a composition, let alone a composition
containing components (a) - (e) as set forth in the claims” (App. Br. 15).
However, as noted by the Examiner (Ans. 15), Aven discloses including
preservatives (Aven, Abstract) and Pullen discloses insecticide and fungicide
compositions that include butylated hydroxytoluene as a preservative
(Pullen, ¶ [0034]). These teachings support the Examiner’s position. We
therefore affirm the obviousness rejection of claim 35.
III
In rejecting claim 36, the Examiner additionally relies on Schlatter for
teaching including soybean oil, as recited in claim 36 (Ans. 17). The
Examiner concludes that “[o]ne of ordinary skill in the art would have been
motivated to add an oil in order to aid in the solubilization or suspension of
components of the suspension concentrate as taught by Schlatter” (id.).
Appellant argues that “Schlatter does not provide any motivation to
add a vegetable oil to a composition, let alone a composition containing
components (a) - (e) as set forth in the claims” (App. Br. 16). However, as
noted by the Examiner, Schlatter discloses pesticidal aqueous suspension
concentrates comprising soybean oil as a cosolvent (Ans. 17; Schlatter,
¶ [0046]). This teaching supports the Examiner’s position. We therefore
affirm the obviousness rejection of claim 36.
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IV
In rejecting claim 11 over Strom, Grayson, Mauler-Machnik, and
Heinemann, the Examiner relies on Strom and Grayson as discussed above
(Ans. 11). The Examiner also relies on Mauler-Machnik for teaching “that
utilizing fungicide compounds of general formula I in combination with
other fungicides such as tebuconazole (3), epoxiconazole (10),
metconazole (11), 2-(1-chloro-cyclopropyl)-1-(2-chlorophenyl)-
3(5-mercapto-1,2,4-triazol-1-yl)-propan-2-ol (aka prothioconazole) (69) and
trifloxystrobin (75) . . . have very good fungicidal properties” (id. at 12). In
addition, the Examiner relies on Heinemann for teaching “the compounds of
formula 1 from Mauler-Machnik” and that one of these compounds is
fluoxastrobin (id. at 12-13). The Examiner concludes that it would have
been obvious “to combine the teachings of Strom et al. . . . , Grayson et al.,
Mauler-Machnik et al. and Heinemann et al. and utilize fluoxastrobin and
prothioconazole in the invention of Strom” (id. at 13). The Examiner also
concludes that “one of ordinary skill in the art would have been motivated to
select any compound(s) from the list taught by . . . Mauler and Heinemann
(id. at 19).
Analysis
Appellant traverses this rejection for the reasons discussed above with
regard to the rejection of claim 11 over Strom, Grayson, and Aven as
evidenced by Schlatter (App. Br. 13). However, we were not persuaded by
these arguments for the reasons discussed above. In addition, Appellant has
not adequately explained why the combination of Strom and Grayson with
Mauler-Machnik and Heinemann require a different result.
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Conclusion
The evidence supports the Examiner’s conclusion that the
combination of Strom, Grayson, Mauler-Machnik, and Heinemann suggest
the composition of claim 11. We therefore affirm the obviousness rejection
of claim 11 over these references.
SUMMARY
We affirm the obviousness rejections of: claims 11, 14, 15, 22, and
27-34 over Strom in view of Grayson and Aven as evidenced by Schlatter;
claim 35 over Strom in view of Grayson and Aven as evidenced by Schlatter
and further in view of Pullen; claim 36 over Strom in view of Grayson,
Aven, and Schlatter; and claim 11 over Strom in view of Grayson, Mauler-
Machnik, and Heinemann.
However, we reverse the obviousness rejection of claims 17 and 26
over Strom in view of Grayson and Aven as evidenced by Schlatter. In
addition, claim 25 is not currently subject to a rejection.
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-IN-PART

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