CRODA, INC.

Patent Trials and Appeals Board

Mar 31, 2021

2020004333 (P.T.A.B. Mar. 31, 2021)

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.
15/024,567 03/24/2016 GREGORY JAMES LINDNER CDA-110US 6367
23122 7590 03/31/2021
RATNERPRESTIA
2200 Renaissance Blvd
Suite 350
King of Prussia, PA 19406
EXAMINER
SHIN, MONICA A
ART UNIT PAPER NUMBER
1616
NOTIFICATION DATE DELIVERY MODE
03/31/2021 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):
PCorrespondence@ratnerprestia.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GREGORY JAMES LINDNER
Appeal 2020-004333
Application 15/024,567
Technology Center 1600
Before JEFFREY N. FREDMAN, RACHEL H. TOWNSEND, and
MICHAEL A. VALEK, Administrative Patent Judges.
TOWNSEND, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 6–11 and 15–22. See Non-Final Act. 1.
We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
STATEMENT OF THE CASE
Appellant’s Specification explains that “[a]n adjuvant is generally
defined as a chemical or a mixture of chemicals (commonly surfactants)

1 We use the term “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Croda Inc.
(Appeal Br. 1.)
Appeal 2020-004333
Application 15/024,567
2
capable of improving the biological activity or effectiveness of an
agrochemical active.” (Spec. 1) However, “the quantity of adjuvant added
to the agrochemical formulation may be limited as above certain amounts
the formulation may become undesirably thickened or destabilised.” (Id. at
2.) “The present invention seeks to provide compounds suitable for use as
adjuvants in agrochemical formulations.” (Id.)
Claim 6, reproduced below, is illustrative of the claimed subject
matter:
6. An agrochemical formulation comprising:
i) an adjuvant; and
ii) at least one agrochemical active;
wherein said adjuvant has general structure (I):

Sorb. (AO1)H)n1(AO2H)n2(AO3H)n3(AO4R1)n4 (I)

wherein:
Sorb represents a residue of a sorbitan or sorbitan
derivative;
AO1, AO2, AO3, and AO4 each independently represents
an oxyalkylene group formed from oxyethylene units or
from oxyethylene and oxypropylene units, wherein each
of AO1, AO2, AO3, and AO4 is a block copolymer of
oxyethylene and oxypropylene, wherein a molar
proportion of oxyethylene units in the block copolymer is
in the range between 20% and 90%; and
the total sum of oxyethylene units and oxypropylene units
per molecule of general structure (I) is in the range from 5
to 38;
nl, n2, n3, and n4 each represent an integer having a value
of 1;
R1 represents an alkanoyl group -C(O)R2 wherein R2
represents a C4 to C28 hydrocarbyl;
and
Appeal 2020-004333
Application 15/024,567
3
the number of oxyethylene units in each oxyalkylene
group present is independently an integer in the range from
1 to 8.
Appeal Br. 11 (Claims Appendix).
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Iwasaki US 4,851,421 July 25, 1989
Lindner WO 2012/024276 A1 Feb. 23, 2012

REJECTIONS
The following grounds of rejection by the Examiner are before us on
review:
Claims 6–11 and 15–22 are rejected under 35 U.S.C. § 103 as
being unpatentable over Lindner and Iwasaki. (Non-Final Action 3.)
Claims 6–11 and 15–22 are rejected on the ground of
nonstatutory double patenting as being unpatentable over claims 1–12
of U.S. Patent No. 9,089,132 and Iwasaki. (Non-Final Action 15.)
DISCUSSION
I. 103
The Examiner finds that Lindner discloses sorbitan based adjuvants
for use in agrochemical formulations that have the following formula:
Sorb (EO n1R1) (EOn2R2)(EO n3R3)(EO n4R4)
wherein
Sorb represents a residue obtained by removing four
hydroxyl H atoms from sorbitan;
EO represents an ethyleneoxy residue
Appeal 2020-004333
Application 15/024,567
4
nl, n2, n3, and n4 each independently represent average
values from 0 to 10, preferably 0.5 to 5;
the total nl + n2 + n3 + n4 has an average value form 7 to
16, particularly 8 to 12; and
R1, R2, R3, and R4 each independently represents H or an
acyl group -C(O)-R5, where R5 is a C7 to C12 hydrocarbyl,
more usually C9 to C13 hydrocarbyl, particularly about C11
hydrocarbyl, particularly alkyl or alkenyl, especially linear
alkyl or alkenyl, group.
(Non-Final Action 3–4.) The Examiner explains that the formulation
“comprises a number of moles of oxyethylene in each oxyalkylene group
present that overlaps with the instantly claimed range.” (Id. at 4.) In
addition, the Examiner notes that the “carbon chain length of the fatty acid
of the ethoxylated acid mono-esters of the sorbitan may preferably be from
10 to 14, most preferably 12, such as lauric acid. (Id.)
The Examiner finds that Lindner “does not appear to explicitly
disclose” the AO1 -AO4 of the claimed composition where these are “a block
copolymer of oxyethylene and oxypropylene units.” (Id. at 5.) The
Examiner, however, finds that Iwasaki’s disclosure renders such block
copolymer formulations for AO1 -AO4 obvious.
In particular, the Examiner finds that Iwasaki teaches a composition
that includes an agricultural active in combination with an adjuvant, where
the adjuvant can be a nonionic surfactant such as a polyoxyalkylene sorbitan
fatty acid ester. (Id.) The Examiner indicates that Iwasaki teaches that the
fatty acid of such a sorbitan “should be a higher fatty acid containing 8 to 22
carbon atoms. The degree of esterification is 1 to 4. Either one of
oxyethylene, oxypropylene, and oxybutylene or one of their mixtures is used
as oxyalkylenes.” (Id.) The Examiner finds Iwasaki Example 16 discloses
using a “polyoxyethylene (20) polyoxypropylene (5) sorbitan monolaurate,
Appeal 2020-004333
Application 15/024,567
5
which was shown to improve the insecticidal rate [when applied on rice
plants] compared to the insecticide alone.” (Id.) The Examiner explains that
the exemplified sorbitan monolaurate of Example 16 has 80% of the
oxyalkylene groups being oxyethylene groups. (Id.)
In addition to the foregoing polyoxyalkylene sorbitan fatty acid ester
adjuvant, the Examiner finds that Iwasaki discloses another type of
polyoxyalkylene-type non-ionic surfactant as an adjuvant, which is
“obtained by causing an alkylene oxide to react with a mixture composed of
a fatty acid triglyceride and a polyhydric alcohol through addition reaction.”
(Id.) The Examiner notes that “[i]n this embodiment, [Iwasaki teaches that] .
. . a combination of ethylene oxide and propylene oxide” is preferred, and
may be “either block or random copolymers . . . produced by the addition
reaction.” (Id. at 5–6.)
The Examiner also finds that Iwasaki discloses
polyoxyethylene/polyoxypropylene block polymers are known to be used as
polyoxyalkylene-type nonionic surfactants. (Id. at 6.)
In light of those teachings, the Examiner concludes that it would have
been obvious to one of ordinary skill in the art “to try mixtures of
oxyethylene and oxypropylene in lieu of the oxyethylene groups on the
structure shown in Lindner in the proportions disclosed by Iwasaki, as a
person with ordinary skill has good reason to pursue known options within
his or her technical grasp.” (Id.) Regarding the claim requirement of “block
copolymers,” the Examiner concludes that even though Iwasaki “does not
appear to explicitly disclose that each of the oxyalkylene groups [in the
sorbitan fatty acid ester adjuvant] have a mixture of oxyethylene and
oxypropylene arranged as a block copolymer” such would have been
Appeal 2020-004333
Application 15/024,567
6
obvious to try in light of Iwasaki’s other teachings of block copolymers. (Id.
at 7.)
We do not find the Examiner’s evidence establishes a prima facie case
of obviousness. In particular, we agree with Appellant that Iwasaki’s
disclosure of a polyoxyethylene (20) polyoxypropylene (5) sorbitan
monolaurate does not teach or suggest the claimed block copolymer, given
that the term “block copolymer” was specifically used in describing other
groups of polyoxyalkylene-type adjuvants. (Appeal Br. 5–6.) For example,
Iwasaki identifies “polyoxyethylene/polyoxypropylene block polymers” as a
category of adjuvants that are “specially favorable because a further
increased biological effect of the agricultural agent of the invention can be
achieved.” (Iwasaki 8:5–6; 6:8–12).) And, in Table 12 of Iwasaki,
“polyoxyethylene (10) polyoxypropylene (80) block polymer” is specifically
mentioned.
Iwasaki does identify that a product obtained by causing an alkylene
oxide to react with a mixture composed of a fatty acid triglyceride
and a polyhydric alcohol through addition reaction can be a block copolymer
when “at least two” of ethylene oxide, propylene oxide and butylene oxide
“are jointly used,” though it could also be “random” copolymers. (Id. at
6:54–62.) Unlike Iwasaki’s disclosure in Table 12, Iwasaki’s disclosure in
Table 13 of polyoxyethylene(20) polyoxypropylene(5) sorbitan monolaurate
does not recite that the mixture of alkeylene oxides is a block copolymer.
Thus, we agree with Appellant that Iwasaki’s disclosure in Table 13 of
polyoxyethylene(20) polyoxypropylene(5) sorbitan monolaurate does not
teach a “molar proportion of oxyethylene units in the block copolymer . . . in
the range of between 20% and 90%” as required by the claim. (Appeal Br.
6.) Likewise, we agree with the Appellant that the disclosure in Iwasaki that
Appeal 2020-004333
Application 15/024,567
7
the preference for the “proportion of oxyethylene [to be] at least 50 wt % of
the total quantity of oxyalkylenes” (id. at 7: 42–44) does not teach or suggest
that this is a desired molar proportion of oxyethylene units in a block
copolymer. (Appeal Br. 6.)
Given the foregoing, we determine that the Examiner’s conclusion of
obviousness is an improper hindsight driven reconstruction unsupported by
the teachings of Iwasaki regarding the selection of a sorbitan or sorbitan
derivative (1) block copolymer of oxyethylene and oxypropylene having the
molar proportion of oxyethylene units within the range of 20 to 90% as
claimed (2) where the total sum of oxyethylene units and oxypropylene units
per molecule of general structure (I) is in the range of from 5 to 38, and (3)
the number of oxyethylene units in each oxyalkylene group present is
independently an integer in the range from 1 to 8. For this reason, we do not
affirm the Examiner’s rejection of claims 6–11 and 15–22 as being
unpatentable under 35 U.S.C. § 103 over Lindner and Iwasaki.

II. Nonstatutory Double Patenting
In this rejection, the Examiner recognizes that the claims of the
Lindner U.S. Patent 9,089,132, which teach an agrochemical formulation
that includes an adjuvant “does not incorporate oxypropylene units or
disclose wherein the oxyethylene and oxypropylene units are arranged as a
block copolymer.” (Non-Final Action 15.) The Examiner relies on Iwasaki
for the obviousness of substituting such a block copolymer based on the
same reasoning discussed above. (Id. at 15–16.) The Examiner’s rejection
here, thus, fails for the same reasons discussed above.
Appeal 2020-004333
Application 15/024,567
8
Thus, we do not affirm the Examiner’s rejection of claims 6–11 and
15–22 as being unpatentable on the ground of nonstatutory double patenting
over claims 1–12 of U.S. Patent No. 9,089,132 and Iwasaki.
DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
6–11, 15–22 103 Lindner, Iwasaki 6–11, 15–22
6–11, 15–22 Nonstatutory
double patenting
6–11, 15–22
Overall
Outcome
6–11, 15–22

REVERSED