Ex Parte Fougeroux

Patent Trial and Appeal BoardMay 30, 2018

13806201 (P.T.A.B. May. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/806,201 04/15/2013 Andre Fougeroux 26748 7590 06/01/2018 Syngenta Crop Protection LLC Patent Department PO Box 12257 9 Davis Drive Research Triangle Park, NC 27709-2257 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. 72663-US-REG 2062 EXAMINER KAROL, JODY LYNN ART UNIT PAPER NUMBER 1627 NOTIFICATION DATE DELIVERY MODE 06/01/2018 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): global.patents@syngenta.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ANDRE FOUGEROUX Appeal2017-006198 Application 13/806,201 1 Technology Center 1600 Before FRANCISCO C. PRATS, JOHN G. NEW, and JOHN E. SCHNEIDER, Administrative Patent Judges. PRATS, Administrative Patent Judge. DECISION ON APPEAL This appeal under 35 U.S.C. Â§ 134(a) involves claims to methods in which bees, such as honey bees, are protected from parasitic mites. The Examiner rejected the claims for obviousness. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We affirm. 1 Appellant states that the "real party in interest is Syngenta Crop Protection, LLC of Greensboro, North Carolina." Appeal Br. 3. Appeal2017-006198 Application 13/806,201 STATEMENT OF THE CASE The sole rejection before us for review is the Examiner's final rejection of claims 5-8 and 14--29, under 35 U.S.C. Â§ 103(a) as being obvious over Arther, 2 Ishaaya, 3 Anderson, 4 and Van Leeuwen 5 (Final Act. 4--9; Ans. 2---6). Claim 5 is representative and reads as follows: 5. A method of (i) controlling or protecting against bee mites, (ii) reducing infestations of bee mites on bees or in or around a bee hive, (iii) protecting bees from attack by mites, or (iv) treating varroatosis in a bee colony, said method compnsmg: bringing the mites in their various stages of development into contact with a composition comprising (a) pymetrozine or an agrochemically acceptable salt of pymetrozine, and (b) an agrochemically acceptable diluent or carrier. Appeal Br. 20. OBVIOUSNESS The Examiner's Prima Facie Case In rejecting claim 5, the Examiner found that Arther describes a process of reducing infestations of parasites in bee hives by applying 2 WO 02/23981 Al (published Mar. 28, 2002). 3 Isaac Ishaaya et al., Insecticides with novel modes of action: Mechanism, selectivity and cross-resistance, 37 ENTOMOLOGICAL RESEARCH 148-52 (2007). 4 D.L. Anderson & J.W.H. Trueman, Varroajacobsoni (Acari: Varroidae) is more than one species' 24 EXPERIMENT AL AND APPLIED ACAROLOGY 165-89 (2000). 5 Thomas Van Leeuwen et al., Acaricide resistance mechanisms in the two- spotted spider mite Tetranychus urticae and other important Acari: A review, 40 INSECT BIOCHEMISTRY AND MOLECULAR BIOLOGY 563-72 (2010). 2 Appeal2017-006198 Application 13/806,201 antiparasitic compounds to the entrances of the hives. Final Act. 5---6. The Examiner noted in particular Arther's disclosure that triazine derivatives such as cyromazine were useful in its methods. Id. at 6. The Examiner also noted Arther's disclosure that its methods were useful for controlling parasitic honeybee mites, such as Varroajacobsoni, Varroa underwoodi, and Varroa rinderreri. Id. The Examiner found that Arther differs from claim 5 in not describing the use of pymetrozine as the compound being applied to the hives. Id. As evidence that the process of claim 5 nonetheless would have been obvious, the Examiner cited Ishaaya as evidence that pymetrozine was known in the art to be a triazine insecticide that "affects the nerve that controls the salivary pump of some sucking pests causing irreversible cessation of feeding, followed by starvation and death." Id. at 7 (citing Ishaaya 150). The Examiner cited Van Leeuwen as evidence that the parasitic bee mite, Varroa destructor, was known to be a sucking pest. Id. The Examiner cited Anderson as evidence that V. destructor is a haplotype of V. jacobsoni, one of the parasitic mites targeted in Arther's methods. Id. Based on the references' combined teachings, the Examiner concluded that it would have been obvious "to use the pymetrozine taught [by] Ishaaya et al. as the antiparasitic compound in the method of controlling or protecting against bee mites or reducing infestations of bee mites on bees or in or around their hives taught by Arther et al." Id. The Examiner reasoned that an ordinary artisan would have had motivation and a reasonable expectation of success in using pymetrozine as the antiparasitic compound in Arther's methods "because Arther et al. teach suitable antiparasitic agents are triazine compounds and because Anderson 3 Appeal2017-006198 Application 13/806,201 [sic, Ishaaya] et al. teach pymetrozine is a triazine that affects suckling pests." Id. at 7-8. Further, the Examiner reasoned, "it is known from Van Leeuwen et al. that Varroa destructor is a suckling pest and from Anderson et al. that Varroa destructor is a haplotype of Varroajacobsoni, wherein past research on Varroajacobsoni is mostly applicable to Varroa destructor." Id. at 8. Analysis As stated inin re Oetiker, 977F.2d1443, 1445 (Fed. Cir. 1992): [T]he examiner bears the initial burden ... of presenting a prima facie case of unpatentability .... After evidence or argument is submitted by the applicant in response, patentability is determined on the totality of the record, by a preponderance of evidence with due consideration to persuasiveness of argument. In the present appeal, having carefully considered the arguments and evidence advanced by Appellant and the Examiner, Appellant does not persuade us that the preponderance of the evidence fails to support the Examiner's prima facie case of obviousness as to claim 5. As recited in claim 5, Arther describes a process in which a bee hive is treated with an antiparasitic compound to reduce the infestation of bee mites in the hive. See Arther 4 (describing a bee hive with "an anti-parasitic agent disposed at its entrance which can provide a passageway connecting the interior of the hive to its surroundings, which restricts the bees from flying and compelling them to effectively contact the anti-parasitic agent"); see also id. at 6 ("Parasites that can be controlled in accordance with this invention include parasitic honeybee mites and other hive parasites: e.g.[,] Tropilaelaps clareae, Tropilaelaps koenigerum, Euvarroa sinhai, Euvarroa 4 Appeal2017-006198 Application 13/806,201 wongsirii, Varma jacobsoni, Varma underwoodi, Vanna rinderreri, Aethina tmnida"). As the Examiner found, Arther discloses that its "anti-parasitic agent can be selected from the group consisting of ... triazine derivatives, e.g.[,] cyromazine .... " Id. at 4--5. Although Arther differs from claim 5 in not using pymetrozine as the triazine antiparasitic compound deployed in bee hives, Ishaaya, as the Examiner found, discloses: [P]ymetrozine[ is] a triazine derivative, which affects the nerve that controls the salivary pump of some sucking pests causing irreversible cessation of feeding, followed by starvation and death. It affects specifically sucking pests such as aphids, whiteflies and planthoppers .... Pymetrozine has no appreciable effect on natural enemies and the environment and as such is considered a potential component of IPM [(integrated pest management)] programs. Ishaaya 150 (internal citations omitted). As the Examiner found, moreover, Van Leeuwen discloses: The parasitic mite V. destructor is the most serious arthropod pest of the western honey bee, Apis mellifera. It attaches to the body of bee adults, pupae and larvae and weakens them by sucking hemolymph. In this process, it might vector viruses and other bee disease agents. Beekeepers have limited products to control Varroa. The commonly used varroacides belong to pyrethroids ( fluvalinate ... , flumethrine, acrinathrine ), formamidines ( amitraz ... ), and organophosphates (coumaphos .... ). Van Leeuwen 564. As the Examiner also found, Anderson discloses that the bee mite species V. jacobsoni targeted in Arther's methods (Arther 6) is actually "more than one species" (Anderson 165 (title) (emphasis omitted)), and that 5 Appeal2017-006198 Application 13/806,201 "the findings of past research on V. jacobsoni are applicable mostly to V. destructor. Our results will also influence quarantine protocols for bee mites, and may present new strategies for mite control" (id. (Abstract)). Given Arther's teaching that triazine derivatives were useful for treating bee hives to prevent parasite infestation, and given Van Leeuwen's teaching that the parasitic bee mite V. destructor was a known sucking pest that acted by sucking hemolymph from its bee hosts, and further given Ishaaya's teaching that pymetrozine was known to be a triazine derivative that was active against sucking pests, Appellant does not persuade us (see, e.g., Appeal Br. 11) that the Examiner erred in determining that an ordinary artisan would have had good reason for, and a reasonable expectation of success in, using pymetrozine as the antiparasitic compound in Arther's methods. As the Supreme Court has explained, "when a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result." KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). In the present case, Appellant identifies no specific evidence of unexpected results. We acknowledge, as Appellant contends (Appeal Br. 11-12), that both Arther and Van Leeuwen disclose a number of compounds other than pymetrozine for use against bee parasites, including V. destructor. Arther 4--5; Van Leeuwen 564. As the Supreme Court has pointed out, however, "the mere existence of differences between the prior art and an invention does not establish the invention's nonobviousness." Dann v. Johnston, 425 U.S. 219, 230 (1976). Thus, that Arther or Van Leeuwen might not use the claimed agent in 6 Appeal2017-006198 Application 13/806,201 methods of controlling bee mites, i.e., that Arther or Van Leeuwen might not anticipate the process of claim 5, does not demonstrate that the process of claim 5 would have been nonobvious underÂ§ 103(a). Moreover, nonobviousness in this instance is not demonstrated by the fact that Arther and/or Van Leeuwen, viewed in isolation, might not have suggested using pymetrozine in Arther's method, because, as seen above, the Examiner also relied on the teachings in Ishaaya and Anderson as evidence that claim 5's process would have been obvious. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) ("Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references .... [The reference] must be read, not in isolation, but for what it fairly teaches in combination with the prior art as a whole"). As discussed above, the Examiner's prima facie case is based not only on Arther's teaching that triazine derivatives were useful in methods of preventing parasitic infestation of bee hives, but also on Van Leeuwen's teaching that a known bee parasite, V. destructor, preyed upon bees by sucking their hemolymph, and further on Ishaaya's disclosure that pymetrozine was known as a triazine derivative, which acted upon sucking pests by inhibiting their sucking ability. Thus, although it might be true, as Appellant contends (Appeal Br. 12-13) that the term "triazine derivatives" in Arther (Arther 5) potentially encompasses thousands of compounds, the Examiner has identified a specific reason (inhibition of the sucking ability of a known bee parasite), based on the cited combination of references, why an ordinary artisan would have selected pymetrozine among other triazine derivatives as the particular compound for use in Arther's methods. 7 Appeal2017-006198 Application 13/806,201 It might be true, as Appellant contends, that Ishaaya "is not ... directed to protecting bees from mites." Appeal Br. 14. Appellant does not persuade us, however, that "none of the teachings relied upon in the February 24, 2016 final Office Action suggest the use of pymetrozine to combat mites associated with bees .... " Id. As discussed above, Ishaaya teaches that pymetrozine was a known triazine derivative which acted upon sucking pests by inhibiting their sucking behavior. Ishaaya 150. As also discussed above, Van Leeuwen teaches that a known bee parasite, V. destructor, preyed upon bees by sucking their hemolymph. Van Leeuwen 564. Thus, viewing the combination of references cited by the Examiner, an ordinary artisan was advised that, not only was pymetrozine within a category of compounds described by Arther as being useful in its methods, but also that pymetrozine acted upon sucking pests by inhibiting their sucking ability, the precise parasitizing technique used by a known bee pest, V. destructor. Appellant, in the Appeal Brief, identifies no persuasive evidence or sound scientific reasoning specifically suggesting that, despite the teachings identified by the Examiner, an ordinary artisan lacked a sufficient reason for, or a reasonable expectation of success in, using pymetrozine in Arther's process. Appellant, therefore, does not persuade us that the preponderance of the evidence fails to support the Examiner's prima facie case of obviousness as to claim 5. In the Reply Brief, Appellant newly cites a number of references purporting to contravene the findings the Examiner made in support of the prima facie case, and advances new argument, not presented in the Appeal Brief, alleging error in the Examiner's conclusion of obviousness. See 8 Appeal2017-006198 Application 13/806,201 Reply Br. 4---6. We will not consider Appellant's new arguments and evidence. As stated in 3 7 C.F .R. Â§ 41.41 (b )( 1 ), a "reply brief shall not include any ... new or non-admitted affidavit or other Evidence." In the present case, Appellant does not identify where or when the references submitted with the Reply Brief were previously presented as part of the record. Appellant's submission of these new documents, therefore, violates Â§ 41.41(b)(l). Moreover, Appellant's new arguments in the Reply Brief, which rely almost entirely on the improperly submitted new references, could have been presented in the Appeal Brief, but were not. As explained in 3 7 C.F .R. Â§ 41.37(c)(l)(iv), except in certain circumstances not applicable here, "any arguments or authorities not included in the appeal brief will be refused consideration by the Board for purposes of the present appeal." We are not persuaded, therefore, that Appellant's new arguments are properly presented for the first time in the Reply Brief, such that we should consider them. See also 37 C.F .R. Â§ 41.41 (b )(2) ("Any argument raised in the reply brief which was not raised in the appeal brief, or is not responsive to an argument raised in the examiner's answer, including any designated new ground of rejection, will not be considered by the Board for purposes of the present appeal, unless good cause is shown"); Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (The reply brief is not "an opportunity to make arguments that could have been made in the principal brief on appeal to rebut the Examiner's rejections, but were not") ("Informative"). In sum, for the reasons discussed, Appellant does not persuade us that the preponderance of the evidence properly of record fails to support the 9 Appeal2017-006198 Application 13/806,201 Examiner's obviousness rejection of claim 5 over Arther, Ishaaya, Anderson, and Van Leeuwen. We, therefore, affirm the Examiner's rejection of claim 5 over those references. Because they were argued in the same claim grouping as claim 5 (Appeal Br. 6), claims 6-8, 15, 16, 18, 20, 21, and 23-26 fall with claim 5. 37 C.F.R. Â§ 41.37(c)(l)(iv). Appellant's claim 14 recites "[a] method composition according to claim 5, wherein the composition further comprises fluvalinate, tau- fluvalinate, amitraz, formic acid, coumaphos, thymol, sucrose octanoate, or any combination thereof." Appeal Br. 20. The Examiner concluded that the process recited in claim 14 would have been obvious over the combination of Arther, Ishaaya, Anderson, and Van Leeuwen, given the references' combined suggestion, discussed above, to use pymetrozine in Arther's bee hive-treating methods, and further given Arther's express teaching (see Arther 4) of using coumaphos as its antiparasitic agent. Final Act. 8-9 (citing In re Kerkhoven, 626 F.2d 846 (CCPA 1980)). Similar to the arguments discussed above as to claim 5, Appellant contends that the cited combination of references would not have led an ordinary artisan away from the proven antiparasitic compounds described in Arther and Van Leeuwen, to instead choose pymetrozine for combination with Arther's coumaphos. Appeal Br. 16. For the reasons discussed above, however, we are not persuaded that an ordinary artisan lacked a sufficient reason for, or a reasonable expectation of success in, using pymetrozine in Arther's process. Moreover, we do not discern, nor does Appellant identify, error in the Examiner's conclusion that it would have obvious to combine Arther's coumaphos with other agents, such as pymetrozine, for use in 10 Appeal2017-006198 Application 13/806,201 treating bee hives for parasites. Accordingly, we affirm the Examiner's rejection of claim 14. Because they were argued in the same claim grouping as claim 14 (Appeal Br. 15), claims 19, 28, and 29 fall with claim 14. 37 C.F .R. Â§ 41.3 7 ( c )(1 )(iv). Claim 1 7 recites "[a] method composition according to claim 5, wherein the composition comprises from 1.1 to 4.4 grams of pymetrozine or an agrochemically acceptable salt of pymetrozine per bee hive." Appeal Br. 21. The Examiner concluded that, although none of the cited references expressly taught an amount of pymetrozine to be applied to bee hives, an ordinary artisan "would have been motivated to optimize the amount of pymetrozine in order to obtain the desired antiparasitic effect against bee mites." Final Act. 8. Similar to argument discussed above as to claim 5, Appellant contends that the cited combination of references would not have led an ordinary artisan away from the proven antiparasitic compounds described in Arther and Van Leeuwen, to instead choose pymetrozine as the bee hive- treating agent in Arther's methods, for application at the treatment rate recited in claim 17. Appeal Br. 17-18. For the reasons discussed above, however, we are not persuaded that an ordinary artisan lacked a sufficient reason for, or a reasonable expectation of success in, using pymetrozine in Arther's process. Moreover, we do not discern, nor does Appellant identify, error in the Examiner's conclusion that it would have obvious to determine the optimal amounts of pymetrozine for use in treating bee hives for parasites. Accordingly, we affirm the Examiner's rejection of claim 1 7. Because they were argued in the same 11 Appeal2017-006198 Application 13/806,201 claim grouping as claim 17 (Appeal Br. 17), claims 22 and 27 fall with claim 17. 37 C.F.R. Â§ 41.37(c)(l)(iv). SUMMARY For the reasons discussed, we affirm each of the Examiner's obviousness rejections. TIME PERIOD No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). AFFIRMED 12