Daniel Wright et al.

Patent Trials and Appeals Board

Jan 31, 2022

2021002569 (P.T.A.B. Jan. 31, 2022)

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. 13/634,093 01/25/2013 Daniel R. Wright MTC 7010.US (55268)B/US 8223 45738 7590 01/31/2022 STINSON LLP (MTC) 7700 FORSYTH BOULEVARD, SUITE 1100 ST LOUIS, MO 63105 EXAMINER PEEBLES, KATHERINE ART UNIT PAPER NUMBER 1617 NOTIFICATION DATE DELIVERY MODE 01/31/2022 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): stl.uspatents@stinson.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DANIEL R. WRIGHT, XAVIER BELVAUX, BRIAN MIDGLEY, and WILLIAM ABRAHAM 1 Appeal 2021-002569 Application 13/634,093 Technology Center 1600 Before DONALD E. ADAMS, ERIC B. GRIMES, and JOHN E. SCHNEIDER, Administrative Patent Judges. GRIMES, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134(a) involving claims to an agrochemical composition, which have been rejected as indefinite and obvious. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 Appellant identifies the real party in interest as Monsanto Technology LLC. Appeal Br. 2. “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appeal 2021-002569 Application 13/634,093 2 STATEMENT OF THE CASE The Specification describes “aqueous agrochemical gel compositions comprising at least one water-soluble agrochemical and at least one gel- forming agent for direct application to plant foliage.” Spec. ¶ 22. The compositions “are retained on plant foliage for significantly longer periods than is typically characteristic of compositions known in the art [and] minimize loss of the agrochemical to the environment.” Id. “The gel compositions of the present invention may be rheologically characterized by tan (delta), static or stationary viscosity, yield point and pseudoplasticity.” Id. ¶ 39. “A tan(delta) in the preferred range indicates that the elastic component of the gel predominates” over the viscous component. Id. ¶ 40. That is, the composition “will retain sufficient energy when a stress or strain is applied, for example by application methods such as rolling, brushing or passing the composition through a nozzle, to return to its previous condition and exhibit excellent stand-up when the stress or strain is removed.” Id. ¶ 39. “Yield point is typically defined as the threshold shear stress that must be applied to induce flow of a fluid.” Id. ¶ 44. The disclosed compositions “have a yield point that allows for application of a flowable composition by mechanical methods” such as brushing or rolling “but is yet high enough to ensure that the gel is retained on the foliar tissues once the external stress is removed.” Id. Claims 1, 2, 7-11, 13-15, 20, 22, 25, 26, and 89-102 are on appeal. Claim 1, reproduced below, is illustrative: 1. An aqueous agrochemical gel composition comprising: (1) from 0.1 to 5 percent by weight on an acid equivalent basis, relative to the total composition, of a Appeal 2021-002569 Application 13/634,093 3 water-soluble agrochemical component comprising glyphosate in the form of a salt thereof, (2) from 1 to 5 percent by weight, relative to the total composition, of a polymeric gel forming agent component comprising at least one polymeric gel forming agent selected from the group consisting of polyacrylic acids and salts, derivatives, and copolymers thereof, and (3) from 90 to 98 percent by weight, relative to the total composition, of water; wherein tan(delta) of the gel composition is less than 0.7 as measured by oscillation frequency sweep rheometric measurements between about 0.1 and about 600 rad/sec at 0.2 Pa and 1 Pa as measured using a cone and plate viscometer method with a 60 mm 2° acrylic cone and plate at 20°C, and wherein the yield point of the gel composition is at least about 50 dyne/cm2. Appeal Br. 24 (Claims App.). Claims 96 and 100, the other independent claims, are directed to agrochemical compositions comprising a glyphosate salt, a polyacrylic acid, and 90-98 percent by weight water, wherein the tan(delta) and yield point of the compositions fall within specified ranges. Appeal 2021-002569 Application 13/634,093 4 The claims stand rejected as follows: Claims 1, 2, 7-11, 13-15, 20, 25, 26, 91-100, and 102 under 35 U.S.C. § 112, second paragraph, as indefinite (Final Action2 2); Claims 1, 2, 7-11, 13-15, 20, 22, 25, 26, and 89-102 under 35 U.S.C. § 103(a) as obvious based on Tadros,3 Zhu,4 Winston,5 and Huchet6 (Final Action 4); Claims 22 and 89 under 35 U.S.C. § 103(a) as obvious based on Tadros, Zhu, Winston, Huchet, and Kuchikata7 (Final Action 10-11); and Claims 90 and 101 under 35 U.S.C. § 103(a) as obvious based on Tadros, Zhu, Winston, Huchet, and Caulder8 (Final Action 12). OPINION Indefiniteness Claims 1, 2, 7-11, 13-15, 20, 22, 25, 26, and 89-102 stand rejected on the basis that “[t]he phrase ‘at least about’ renders the claim[s] indefinite because the beginning of the range is not unambiguously defined.” Final Action 2-3. The Examiner noted that “[a]mending the claims in each instance to remove the word ‘about’ would obviate the rejection. Alternatively, Applicant could rephrase the claim[s] to delete the phrase ‘at least’.” Id. at 3. Appellant argues that “one skilled in the art would understand the phrase ‘yield point of the gel composition is at least about 50 dyne/cm2’ to 2 Office Action mailed October 24, 2019. 3 Tadros et al., US 6,649,190 B1, issued Nov. 18, 2003. 4 Zhu, US 2011/0210028 A1, Sept. 1, 2011. 5 Winston, US 5,443,835, issued Aug. 22, 1995. 6 Huchet et al., US 2008/0089857 A1, published Apr. 17, 2008. 7 Kuchikata et al., US 5,872,078, issued Feb. 16, 1999. 8 Caulder et al., US 5,196,044, issued Mar. 23, 1993. Appeal 2021-002569 Application 13/634,093 5 clearly sets forth a lower bound (i.e., a minimum - ‘at least’) of the range (‘at least about 50 dyne/cm2’).” Appeal Br. 6. We do not agree with the Examiner that the combination of “about” with “at least” renders the scope of the claims unclear. See Ex parte McAward, 2017 WL 3669566, at *2 (PTAB 2017) (precedential) (A claim is indefinite if, under the broadest reasonable interpretation, “the metes and bounds of a pending claim are not clear because the claim contains words or phrases whose meaning is unclear.”). The Examiner has indicated that deleting the phrase “at least” from claim 1 would overcome the rejection. Final Action 3. Thus, the Examiner has concluded that the scope of “about 50 dyne/cm2” is reasonably clear. See Modine Manufacturing Co. v. United States ITC, 75 F.3d 1545, 1554 (Fed. Cir. 1996) (“Although it is rarely feasible to attach a precise limit to ‘about,’ the usage can usually be understood in light of the technology embodied in the invention.”). And the plain meaning of “at least” is “as much as, or more than, a number or amount.”9 Thus, the plain meaning of “at least about 50 dyne/cm2” is an amount as much as the values encompassed by “about 50 dyne/cm2” or any amount more than those values. In other words, the lower limit of “at least about 50 dyne/cm2” is the same as the lower limit of “about 50 dyne/cm2.” The rejection under 35 U.S.C. § 112, second paragraph, is reversed. 9 See https://dictionary.cambridge.org/us/dictionary/english/at-least, last accessed Jan. 21, 2022. Appeal 2021-002569 Application 13/634,093 6 Obviousness All of the claims stand rejected as obvious based on Tadros, Zhu, Winston, and Huchet, by themselves or combined with either Kuchikata or Caulder. The same issue is dispositive for all of the rejections. The Examiner finds that “Tadros discloses a water-dispersible gel concentrate composition comprising between 1-60% by weight of an ionic water soluble agrochemical, 1-4% by weight of a crosslinked polyacrylic acid, and 30-80% water,” and “[i]n example compositions the agrochemical is sulfosate (i.e. glyphosate trimesium, which is a glyphosate salt . . . ).” Final Action 5. The Examiner notes that “the concentration of water disclosed by Tadros falls outside the ranges instantly claimed,” but finds that Zhu teaches that “farmers frequently use undiluted Round-Up (i.e. glyphosate) concentrate compositions” for wiping or wicking onto target plants because “the undiluted stock is more viscous,” which promotes adherence to the target and prevents dripping. Id. “Zhu notes that using undiluted glyphosate concentrate is undesirable because this is uneconomical and the glyphosate is too concentrated.” Id. The Examiner concludes that it would have been obvious “to use Tadros’s more viscous undiluted compositions . . . as a starting point to formulate a composition having both a desirable viscosity and a desirable glyphosate concentration for the wicking applications disclosed by Zhu.” Id. at 6. The Examiner reasons that a skilled artisan would have been motivated to formulate the composition to have a concentration of glyphosate suitable for direct application to plants by reducing the amount of glyphosate in Tadros’s concentrated example compositions to levels used in Appeal 2021-002569 Application 13/634,093 7 compositions for direct application, while maintaining the water and polyacrylic acid concentrations at amounts that retain the viscosity desirable for application to plants during wicking. Id. Appellant argues, among other things, that “Tadros describes highly concentrated, water-dispersible agrochemical gel compositions” that “were not designed for direct application to plants,” but instead “were designed to be diluted in water to form an application mixture that could be sprayed through a nozzle.” Appeal Br. 7. Thus, Appellant argues, “[w]hile Tadros may teach dilution of the concentrated gel to form a liquid application mixture . . . . , Tadros does not suggest to one skilled in the art to adjust the water content of the concentrated gel of Tadros for purposes of directly applying a gel to an unwanted plant.” Id. at 8. Appellant also argues that “[t]he practice mentioned in Zhu of farmers using undiluted Roundup® Original solution concentrate in wick applications to take advantage of higher viscosity and reduce dripping, but paying a price for wasted glyphosate, does not suggest the need or desirability of diluting the water-dispersible agrochemical gel compositions of Tadros for use in wick applications.” Id. at 9. Further, in view of the “more viscous” quality touted by the Office as the basis for envisioning the use of Tadros’ gel in wick applications, the person of ordinary skill would have no reason to seek to modify the composition of Tadros, and certainly no reason to increase the water content above the limits disclosed in the reference, thereby decreasing the viscosity. Id. Thus, Appellant argues, “given the Office’s finding that the ‘more viscous’ gels of Tadros would be suitable for wick application, the Office has failed to articulate any reasoning why the skilled person would consider Appeal 2021-002569 Application 13/634,093 8 increasing the water content of Tadros’ gel beyond the disclosed range of 30 to 80 wt.%.” Id. at 10. We agree with Appellant that the Examiner has not persuasively shown that the composition of claim 1 would have been obvious to a skilled artisan based on the cited references. Appellant’s claims recite gel compositions comprising, among other things, 90-98 percent by weight water. The Examiner concedes that Tadros’ composition comprises only 30- 80 wt% water. Final Action 5. The Examiner finds that, because Zhu teaches that viscous, undiluted RoundUp® compositions are frequently applied directly to plants, it would have been obvious “to use Tadros’s more viscous undiluted compositions (see, e.g. table 1, col 11) as a starting point to formulate a composition having both a desirable viscosity and a desirable glyphosate concentration” for Zhu’s wicking application. Final Action 6. The Examiner reasons that “one would recognize that Tadros’s undiluted concentrates would have viscosity that is suitable, although perhaps not fully optimized, for wicking onto plants.” Id. Thus, the Examiner finds that a skilled artisan would have modified Tadros’ concentrated composition “by reducing the amount of glyphosate . . . while maintaining the water and polyacrylic acid concentrations at amounts that retain the viscosity desirable for application to plants during wicking.” Id. This reasoning is not supported by the evidence of record, for several reasons. First, Tadros’ Table 1 does not show viscosity values (the units for which are cps or mPa.s) for its exemplified compositions, it shows values for the complex modulus G*, the storage modulus G', the loss modulus G", and tan δ (i.e., G"/G'). The Examiner has not provided evidence showing a Appeal 2021-002569 Application 13/634,093 9 correlation between any of these values and viscosity, nor has the Examiner provided evidence that the viscosity of any of Tadros’ compositions is similar to that of undiluted RoundUp®. Second, the Examiner finds that “one would recognize that Tadros’s undiluted concentrates would have viscosity that is suitable . . . for wicking onto plants,” and would be motivated to “reduc[e] the amount of glyphosate in Tadros’s concentrated example compositions . . . while maintaining the water and polyacrylic acid concentrations at amounts that retain the viscosity desirable for application to plants during wicking.” Final Action 6 (emphasis added). Tadros’ composition, however, has a lower concentration of water than is required by Appellant’s claims. Assuming that the viscosity of Tadros’ composition makes it suitable for wicking application, as the Examiner has found, the Examiner has not persuasively explained what would have led a skilled artisan to increase the water concentration of the composition-that is, to dilute it-in order to “maintain[] the water . . . concentration[] at amounts that retain the viscosity desirable” for wicking application to plants (Final Action 6). Finally, the Examiner has not pointed to evidence in the record showing that a person of ordinary skill in the art would have expected that modifying Tadros’ composition by increasing its water concentration to 90- 98 percent by weight would result in a composition with a viscosity that is comparable to that of undiluted RoundUp® or otherwise suitable for wicking application to plants. In short, the Examiner has not provided sufficient evidence to show that a skilled artisan would have had a reason to modify Tadros’ composition Appeal 2021-002569 Application 13/634,093 10 in a way that meets the limitations of Appellant’s claims. We therefore reverse the rejection of claims 1, 2, 7-11, 13-15, 20, 22, 25, 26, and 89-102 under 35 U.S.C. § 103(a) based on Tadros, Zhu, Winston, and Huchet. The rejections based on Tadros, Zhu, Winston, and Huchet, combined with either Kuchikata or Caulder rely on the same findings and reasoning (Final Action 10-12), and are also reversed for the reasons discussed above. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 7-11, 13-15, 20, 25, 26, 91- 100, 102 112 Indefiniteness 1, 2, 7-11, 13-15, 20, 25, 26, 91- 100, 102 1, 2, 7-11, 13-15, 20, 22, 25, 26, 89-102 103(a) Tadros, Zhu, Winston, Huchet 1, 2, 7-11, 13-15, 20, 22, 25, 26, 89-102 22, 89 103(a) Tadros, Zhu, Winston, Huchet, Kuchikata 22, 89 90, 101 103(a) Tadros, Zhu, Winston, Huchet, Caulder 90, 101 Overall Outcome 1, 2, 7-11, 13-15, 20, 22, 25, 26, 89-102 REVERSED