Ex Parte Krall et al

Patent Trial and Appeal Board

Jan 27, 2014

12480613 (P.T.A.B. Jan. 27, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte MICHAEL L. KRALL and ANDREW B. ARATA
__________

Appeal 2012-009101
Application 12/480,613
Technology Center 1600
__________

Before DONALD E. ADAMS, ERICA A. FRANKLIN, and
ULRIKE W. JENKS, Administrative Patent Judges.

FRANKLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal1 under 35 U.S.C. § 134(a) involving claims to a
method for treating a plant. The Patent Examiner rejected the claims as
obvious. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
Claims 1-6 and 11-17 are on appeal. Independent claim 1 is
representative and is reproduced in the “Claims Appendix” of Appellants’
Brief (App. Br. 10).

1 Appellants identify the Real Party in Interest as Pure Bioscience. (See
App. Br. 2.)
Appeal 2012-009101
Application 12/480,613

2

The Examiner rejected claims 1-6 and 11-17 under 35 U.S.C. § 103(a)
as unpatentable over Van Der Krieken,2 Matsuo,3 Arata ’066,4 Arata ’605,5
and Arata ’374.6
Upon consideration of the evidence on this record and each of
Appellants’ contentions, we find that the preponderance of evidence on this
record supports the Examiner’s conclusion that the subject matter of
Appellants’ claims 1-6 and 11-17 is unpatentable over the combination of
Van Der Krieken, Matsuo, Arata ’066, Arata ’605, and Arata ’374.
Accordingly, we sustain the Examiner’s rejection of these claims for the
reasons set forth in the Answer, which we incorporate herein by reference.
For emphasis only, we provide the following: Van Der Krieken
disclosed a method for treating a plant while said plant is growing in soil and
which plant has or is susceptible to a plant disease. (See, e.g., Van Der
Krieken Abstract.) Van Der Krieken disclosed treating such plants by
contacting the plant with a composition comprising two active ingredients,
silver and lignosulfonate (LS). (Van Der Krieken [0026], [0034].)
Motivation to provide the silver as silver dihydrogen citrate (SDC), along
with citric acid, is suggested by at least Arata ’066, which discloses using

2 Patent Application Publication No. US 2006/0247130 A1 by Wilhelmus
Maria Van Der Krieken et al., published Nov. 2, 2006.
3 US Patent No. 4,755,268 issued to Yoshiaki Matsuo et al., Jul. 5, 1988.
4 Patent Application Publication No. US 2005/0202066 A1 by Andrew B.
Arata, published Sept. 15, 2005.
5 Patent Application Publication No. US 2005/0245605 A1 by Andrew B.
Arata, published Nov. 3, 2005.
6 Patent Application Publication No. US 2003/0178374 A1 by Andrew B.
Arata, published Sept. 25, 2003.
Appeal 2012-009101
Application 12/480,613

3
the antimicrobial composition comprising SDC and citric acid to safely and
effectively treat a number of food items, including vegetables and fruits.
(Arata ’066 [0018], [0022], [0048].) Further, Arata ’066 taught that SDC is
a salt, and thus “will exist in a dissociated state in solution” (id. at [0019]-
[0020]) thereby allowing some silver ions to associate with LS in a
combined composition solution sprayed upon a growing plant, as taught in
Van Der Krieken. None of the record evidence supports Appellants’
contention that a skilled artisan at the time of the invention would not have
been motivated to apply a composition comprising SDC and citric acid to a
plant growing in soil due to a concern that such application would have been
unsafe or ineffective.

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

cdc