Ex Parte Krall et alDownload PDFPatent Trial and Appeal BoardJan 27, 201412480613 (P.T.A.B. Jan. 27, 2014) Copy Citation 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 Copy with citationCopy as parenthetical citation