Ex Parte WilderDownload PDFPatent Trial and Appeal BoardMay 23, 201814720782 (P.T.A.B. May. 23, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 141720,782 05/23/2015 85444 7590 05/23/2018 Bay Area Technolgy Law Group PC 2171 E. Francisco Blvd., Suite L San Rafael, CA 94901 FIRST NAMED INVENTOR Albee Wilder 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. 208.03 7812 EXAMINER SMITH, JENNIFER A ART UNIT PAPER NUMBER 1731 MAILDATE DELIVERY MODE 05/23/2018 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 ALBEE WILDER Appeal2017-007392 Application 14/720, 782 Technology Center 1700 Before MICHAEL P. COLAIANNI, GEORGE C. BEST, and N. WHITNEY WILSON, Administrative Patent Judges. BEST, Administrative Patent Judge. DECISION ON APPEAL The Examiner finally rejected claims 2, 4, 6, 10-12, 16, 19-22, and 25 1 of Application 14/720,782 under 35 U.S.C. § 103(a) as obvious. Final Act. (mailed September 12, 2016). Appellant2 seeks reversal of the rejections pursuant to 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6(b ). For the reasons set forth below, we affirm. 1 Claims 9 and 14 are withdrawn from consideration by the Examiner pursuant to 37 C.F.R. § l.142(b) as drawn to a non-elected invention. Final Act. 2. 2 Albee Wilder is identified as the real party in interest. Appeal Br. 1. Appeal2017-007392 Application 14/720, 782 BACKGROUND The '782 Application describes a method of increasing the grade values of plant nutrients. Spec. 4. According to the Specification, the agricultural community provides grade values to nutrients, which are applied as fertilizer through liquid or dry powder spraying. Id. at 1. These values are said to enable the determination of the amounts of nutrients to employ in any particular situation. Id. at 1. Claims 2 and 25 are representative of the '782 Application's claims and are reproduced below from the Claims Appendix to the Appeal Brief: 2. A method of increasing grade value of a plant nutrient, said method comprising mixing a plant nutrient in an amount between approximately 15% to 78% by weight having a first grade value with approximately 30% to 85% by weight of a colloidal micelle solution forming a mixture, said micelle having a particle size between approximately 1 to 500 nm, subjecting said mixture to a colloidal mill and milling said mixture until said mixture is of a temperature of at least approximately 65°F forming a solution having between approximately 22% to 85% solids, said solution having a second grade value wherein the second grade value is greater than the first grade value. Appeal Br. 6 (Claims App.). 25. A method of increasing the grade value of a plant nutrient, said method comprising mixing a plant nutrient in an amount between approximately 15% to 78% by weight having a first grade value with approximately 30% to 85% of a colloidal micelle solution by weight forming a mixture, said micelle having a particle size between approximately 1 to 500 nm, subjecting said mixture to a colloidal mill and milling said mixture above atmospheric pressure forming a solution having between approximately 22% to 85% solids and having a second grade value, wherein the second grade value of the solution is greater than the first grade value. Id. at 7. 2 Appeal2017-007392 Application 14/720, 782 REJECTIONS On appeal, the Examiner maintains3 the following rejections: 1. Claims 2, 4, 10-12, 16, and 19-22 are rejected under 35 U.S.C. § 103(a) as unpatentable over the combination ofKowite, 4 Buscall, 5 and Blouin. 6 Answer 2. 7 2. Claims 6 and 25 are rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Kowite, as evidenced by Adams, 8 Buscall, and Blouin. Answer 7. 9 3 The Examiner has withdrawn the rejections of claims: (i) 12, 14, 16, and 19-22 under 35 U.S.C. § 112, i-f 2 as indefinite; and (ii) 10 and 11 under 35 U.S.C. § 112, i-f 4. Answer 6. 4 US 4,840,660, issued June 20, 1989. 5 US 5,002,601, issued Mar. 26, 1991. 6 US 5,435,822, issued July 25, 1995. 7 The Examiner's Answer included grounds for the rejection of claim 25 in Rejection 1. Answer 5. The Examiner, however, omitted claims 6 and 25 from the statement of Rejection 1. Id. at 2; compare with Final Act. 4. The Examiner also entered new grounds for the rejection of claims 6 and 25 in Rejection 2. Answer 7. Accordingly, we view the Answer's inclusion of grounds for the rejection of claim 25 in Rejection 1 as a clerical error. We further view the final rejection of claims 6 and 25 in Rejection 1 as withdrawn by the Examiner. 8 US 3,788,565, issued Jan. 29, 1974. 9 After the Examiner entered new ground of Rejection 2, Appellant opted to maintain this appeal, rather than reopening prosecution. Reply Br. 1-3. 3 Appeal2017-007392 Application 14/720, 782 DISCUSSION Rejection 1. The Examiner rejected claims 2, 4, 10-12, 16, and 19- 22 under 35 U.S.C. § 103(a) as unpatentable over the combination of Kowite, Buscall, and Blouin. Answer 2. With the exception of the final rejection of claim 25, 10 Appellant argues for the reversal of the obviousness rejection of claims 4, 10-12, 16, and 19-22 on the basis of limitations present in independent claim 2. See Appeal Br. 3-5. We, therefore, limit our analysis to claim 2 for these dependent claims. Claims 4, 10-12, 16, and 19-22 will stand or fall with claim 2. 37 C.F.R. § 41.37(c)(l)(iv). Appellant argues that the rejection of claim 2 as unpatentable over the combination of Kowite, Buscall, and Blouin should be reversed because: ( 1) neither of these references teaches each step of the claimed method for increasing the grade value of a plant nutrient, Appeal Br. 3; (2) "[t]here is no teaching that Kowite would benefit from [Buscall' s] particle size reduction and neither reference teaches the desirability of milling to a desired temperature," id.; (3) Blouin' s "particular solids content is somewhat irrelevant," id.; (4) Kowite lacks any disclosure of nutrient values and is unrelated to the claimed method, id. at 4; (5) Buscall is only concerned with improving fertilizer suspension storage stability, id.; (6) the ordinary skilled artisan would have had no reason to apply Buscall' s crystalline fertilizer milling to Kowite' s unrelated composition, id.; and (7) "not a single reference suggests that the milling of a plant nutrient with a colloidal micelle 1° For the reasons set forth in n.7, we view the final rejection of claim 25 in Rejection 1 as withdrawn by the Examiner. 4 Appeal2017-007392 Application 14/720, 782 would increase the grade value of the nutrient or that the process of increasing grade values is temperature or pressure dependent." Id. at 4--5. Specifically, in connection with arguments (1 ), (2), and (3), Appellant argues that neither reference teaches "a method for increasing the grade value of a plant nutrient by beginning with a nutrient having a first grade value and carrying out a series of ... steps to provide a nutrient having a second grade value ... greater than the first grade value." Id. at 3. Appellant's arguments are not persuasive. First, arguments (1 ), (2), and (3) are not persuasive because the Examiner has found that the combination of Kowite, Buscall, and Blouin teaches or suggests every step or limitation recited in claim 2, with the exception of: (i) milling a plant nutrient and colloidal micelle mixture to the desired temperature in a colloidal mill and (ii) the milled mixture's solids content. Answer 2-3. With respect to step (i), the Examiner found that Kowite teaches "subjecting the [plant nutrient and colloidal micelle] mixture to mixing with sufficient vigor until the microemulsion solution forms, heating to about 122 °F." Id. at 2 (citing Kowite 2:50-67; 6:64---68). The Examiner further found that Buscall discloses mixing a fertilizer suspension in a colloidal mill to reduce the particle size of the nutrients. Answer 3 (citing Buscall 3 :30- 36). The Examiner determined that it would have been obvious for the ordinary skilled artisan to utilize Buscall' s colloidal mill for Kowite' s vigorous mixing step at the desired heating temperature because reducing particle size of the nutrients and micelles allows for a mixture with properties appropriate to form a storage stable suspension. Answer 3 (citing Buscall 4: 10-12). 5 Appeal2017-007392 Application 14/720, 782 With regard to limitation (ii), the Examiner found that Blouin discloses "a spray-dried free-flowing fertilizer," with a 40% solids content, "that is capable of being dispersed or applied directly to plant foliage." Answer 3 (citing Blouin Abstract). The Examiner determined that it would have been obvious for the ordinary skilled artisan to "form a solution having a solids content similar to ... Blouin['s] because the solids content in this range allows the plant nutrient fertilizer to be relatively stable and have sufficient fluidity to be fed into a spray dryer if used." Answer 3 (citing Buscall 3:18-25). We agree with the Examiner. The applied prior art teaches that fertilizer stability and spraying issues may be overcome by employing various techniques. A person of ordinary skill in the art at the time of the invention would have reasonably inferred that Buscall's colloidal mill technique and Blouin's 40% solids content may overcome such issues. It has been established that "the [obviousness] analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ." KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007); see also In re Fritch, 972 F.2d 1260, 1264-- 65 (Fed. Cir. 1992) (a reference stands for all of the specific teachings thereof as well as the inferences one of ordinary skill in the art would have reasonably been expected to draw therefrom). Appellant's arguments are not directed to the Examiner's rationale set forth above and in the Answer for modifying Kowite to incorporate Buscall's and Blouin's teachings. Thus, Appellant's arguments do not identify reversible error in the Examiner's determination. 6 Appeal2017-007392 Application 14/720, 782 Second, Appellant's arguments (4) and (7) are not persuasive because the Examiner explained that "the combination of references teaches substantially the same method as claimed and grade value is considered an inherent feature." Answer 11. As the Examiner found, the Specification provides evidence "that performing the method as claimed will necessarily result in this increase in grade value." Id.; see also id. at 2. Because the Examiner's found that Kowite' s modified plant nutrient and colloidal micelle mixture would have had the claimed increase in nutrient grade value, the burden is on Appellant to provide evidence or reasoning sufficient to rebut the findings. In re Best, 562 F.2d 1252, 1255 (CCP A 1977) ("Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical, processes the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of ... [the] claimed product."). In this instance, however, Appellant has not provided any evidence or reasoning that would support a conclusion that Kowite's modified plant nutrient and colloidal micelle mixture would not have possessed the increased nutrient grade value recited in claim 2. We note that claims 6 and 25 recite pressure limitations for the requisite milling step, but the Examiner does not maintain the rejection of these claims in Rejection 1. See n.7. Accordingly, Appellant's argument (7) is moot with respect to the allegation that the applied prior art does not teach or suggest that the claimed method is pressure dependent. Third, Appellant argues in connection with arguments ( 5) and ( 6) that Buscall's fertilizers "are markedly different from those of Kowite." Appeal Br. 4. Appellant further argues in support of argument (6) that Kowite's 7 Appeal2017-007392 Application 14/720, 782 composition comprises an unrelated water and oil formulation containing ethephon. Id. In other words, Appellant argues that the Examiner has impermissibly applied the non-analogous art of Kowite and Buscall. To rely upon a reference as a basis for an obviousness rejection of Appellant's claims, the reference must either (i) be in the field of the inventor's endeavor or (ii) be reasonably pertinent to the particular problem with which the inventor was concerned. In re Kahn, 441 F .3d 977, 986-87 (Fed. Cir. 2006); In re Oetiker, 977 F.2d 1443, 1447 (Fed. Cir. 1992). In this case, the Examiner correctly determined that Kowite and Buscall are in the field of the inventor's endeavor. As the Examiner explained, both Kowite and Buscall are concerned with "plant growth regulating compositions containing micelles and [a] method for making them." Answer 11 (see, e.g., Kowite 2:50-60; Buscall 3:30-36; 4:10-12). In view of the foregoing, we agree with the Examiner that both Kowite and Buscall are in the field of the inventor's endeavor and, therefore, are analogous art. For the reasons set forth above and in the Answer, we are not persuaded by any of Appellant's arguments for reversal of the obviousness rejection of claims 2, 4, 10-12, 16, and 19-22. 37 C.F.R. § 41.37(a)(l)(iv). We, therefore, affirm Rejection 1. Rejection 2. The Examiner rejected claims 6 and 25 under 35 U.S.C. § 103(a) as unpatentable over the combination of Kowite, as evidenced by Adams, Buscall, and Blouin. Answer 7. Appellant presents arguments for the reversal of the rejection of claims 6 and 25 as a group. Reply Br. 1-3; see also Appeal Br. 4--5. Accordingly, we select claim 25 as representative of this group. Claim 6 will stand or fall with claim 25. 37 C.F.R. § 41.37(c)(l)(iv). 8 Appeal2017-007392 Application 14/720, 782 The Examiner's findings with respect to claim 25 in Rejection 2 are substantially similar to the Examiner's findings in Rejection 1, with the exception that the Examiner relies on Adams for evidentiary purposes. Compare Answer 7-9 with id. at 2-3. The Examiner found that neither Kowite nor Buscall teaches or suggests subjecting Kowite's plant nutrient and colloidal micelle mixture to milling in Buscall's colloidal mill at a pressure above atmospheric. Id. at 8. The Examiner, however, found that, [a]s evidenced by the Adams reference, a colloid mill is characterized by a stator and a rotor disposed along an axis. The arrangement is such that the high speed rotation of the rotor causes fragmentation of colloid particles in a fluid that is driven under pressure . . . . Adams demonstrates that an ultrafine colloidal mill, as required by Appellant's claim, and as demonstrated by Kowite, operates under elevated pressures (i.e.[,] milling above atmospheric pressure). Id. at 8-9 (citing Adams Abstract). The Examiner determined that "it lies within the level of one of ordinary skill in the art to determine optimal temperature and pressure for the purposes of milling and homogenization of the mixture." Answer 8. Appellant argues "that the Examiner's rationale ... is faulty as it assumes that one skilled in the art knowing of Kowite, Buscall[,] and Blouin would know to tum to Adams when none of the references would individually or collectively suggests any motivation for doing so." Reply Br. 2. Appellant's additional arguments for reversal of this rejection of claim 25 are essentially the same arguments urging reversal of claim 2 in Rejection 1. See Reply Br. 2-3. Appellant concludes that "[t]he Examiner has combined four references involving unrelated compositions intended for contrasting purposes and has picked from each reference, through the 9 Appeal2017-007392 Application 14/720, 782 exercise of hindsight, snippets concluding that, in doing so, Applicant's invention is inherently taught." Id. at 3. Appellant's arguments are unpersuasive because the Examiner merely relies on Adams as evidence that a colloidal mill incorporated into Kowite's modified method would have operated above atmospheric pressure. Thus, the Examiner is not required to find that Kowite, Buscall, or Blouin, either alone or in combination, provide(s) a motivation for turning to Adams' "particular colloidal mill." Id. at 2. All that is required is that the Examiner identify a rational basis for a person of ordinary skill in the art without knowledge of the claimed invention to combine the teachings of Kowite, Buscall, and Blouin in the proposed manner. See, e.g., Kahn, 441 F .3d at 988; In re Rouffet, 149 F.3d 1350, 1356-57 (Fed. Cir. 1998). On the record before us, we conclude that the Examiner has met this burden. Furthermore, the Examiner's findings do not rely upon hindsight and Appellant has not demonstrated error in these findings. For the reasons set forth above and in the Answer, we are not persuaded by any of Appellant's arguments for reversal of the obviousness rejection of claims 6 and 25. 37 C.F.R. § 41.37(a)(l)(iv). We, therefore, affirm Rejection 2. DECISION For the reasons set forth above, we affirm the§ 103(a) rejections of claims 2, 4, 6, 10-12, 16, 19-22, and 25 of the '782 Application. 10 Appeal2017-007392 Application 14/720, 782 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 11 Copy with citationCopy as parenthetical citation