CRODA, INC.Download PDFPatent Trials and Appeals BoardMar 31, 20212020004333 (P.T.A.B. Mar. 31, 2021) Copy Citation 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 Copy with citationCopy as parenthetical citation