Ex Parte Lloyd

Patent Trial and Appeal Board

Aug 17, 2017

13049020 (P.T.A.B. Aug. 17, 2017)

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.
13/049,020 03/16/2011 Jeffrey Douglas Lloyd 65195.US 9881
408 7590 08/21/2017
LUEDEKA NEELY GROUP, P.C.
POBOX 1871
KNOXVTT.T.E, TN 37901
EXAMINER
ARK, DARREN W
ART UNIT PAPER NUMBER
3643
NOTIFICATION DATE DELIVERY MODE
08/21/2017 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):
docketing @ luedeka.com
LNG.PATENT@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEFFREY DOUGLAS LLOYD
Appeal 2016-001710
Application 13/049,020
Technology Center 3600
Before KEN B. BARRETT, JAMES P. CALVE, and
FREDERICK C. LANEY, Administrative Patent Judges.
CALVE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Final Action
rejecting claims 1 and 3—12. Appeal Br. 4. Claim 2 and 13 are cancelled,
Id. at 15—16 (Claims Appendix). Claims 14—29 are withdrawn. Id. at 4.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2016-001710
Application 13/049,020
CLAIMED SUBJECT MATTER
Appellant discloses a rubberwood termite bait station injected with an
insecticide-fungicide mixture that diffuses along a concentration gradient.
Spec. 1 52. Claim 1, the sole independent claim, is reproduced below.
1. A termite bait station comprising:
a bait article comprising a cellulosic material, the bait
article having a first end surface and a second end surface, an
outer surface, and at least one insecticide reservoir disposed
within the cellulosic material of the bait article, and
an insecticide-fungicide mixture disposed within the
insecticide reservoir, wherein at least a portion of the insecticide-
fungicide mixture diffuses from the reservoir into the cellulosic
material of the bait article,
wherein the cellulosic material comprises rubber wood,
and
wherein the diffusion of the insecticide-fungicide mixture
provides a concentration in the wood at the outer surface of the
bait article which is substantially nonrepellant to termites and a
concentration in at least a portion of the interior wood of the bait
article which is substantially toxic to termites.
REJECTIONS
Claims 1,3,4, and 8—12 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Brody (US 6,286,247 Bl, iss. Sept. 11, 2001), Su (US
6,857,223 B2, iss. Feb. 22, 2005), and Edelmann (US 8,481,165 B2, iss. July
9, 2013).
Claims 5 and 6 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Brody, Su, Edelmann, and Edwards (US 6,202,342 Bl, iss. Mar. 20,
2001).
Claim 7 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Brody, Su, Edelmann, and Annan (US 2008/0027046 Al, pub. Jan. 31,
2008).
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Appeal 2016-001710
Application 13/049,020
ANALYSIS
Claims 1, 3, 4, and 8—12 as
unpatentable over Brody, Su, and Edelmann
Appellant argues claims 1,3,4, and 8—12 as a group. Appeal Br. 9—
12. We select claim 1 as representative, with claims 3, 4, and 8—12 standing
or falling with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
Regarding claim 1, the Examiner found that Brody discloses a termite
bait station, except for cellulose article 9 comprising a rubber wood. Final
Act. 4. The Examiner relied on Su’s teaching that termites attack rubber
trees to reason that it would have been obvious to use rubber wood in bait
traps to attract termites. Id. The Examiner found that Edelmann teaches the
suitability of rubber wood as a substrate for impregnation by insecticides and
determined it would have been obvious to use rubber wood in Brody’s bait
trap because it is easily-treatable, available, and inexpensive. Id. at 4—5.
Appellant raises two principal arguments. First, Appellant argues that
the references do not teach or suggest rubber wood as a suitable cellulose or
termite bait article. Appeal Br. 9—10. Second, Appellant argues that Brody
teaches a wooden stake that is impregnated with a borate salt, rather than
having a concentration of insecticide-fungicide mixture that is nonrepellant
at the outer surface and toxic at the interior, as claimed. Id. at 10-11.
As discussed below, we agree with the Examiner that Brody teaches a
termite bait article with a concentration that is nonrepellant at the outer
surface because Brody teaches that termites are attracted to bait trap 9 by the
cellulose. See Brody, 5:24—32. Brody also teaches that the interior wood is
toxic, because the termites consume the cellulose and return to their colonies
where they and other termites are poisoned. Id.; Ans. 6.
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Appeal 2016-001710
Application 13/049,020
The Examiner’s finding that Brody discloses a bait article having a
concentration of an insecticide-fungicide mixture in the outer surface that is
substantially nonrepellant to termites and a concentration in at least a portion
of the interior wood that is substantially toxic to termites is supported by a
preponderance of evidence. Like the claimed bait article, Brody discloses a
cellulose bait article (hollow article 9) with an insecticide reservoir (Figures
5(a)—5(c)) into which a borate salt in the form of tablet 10, powder 11, or
packet 12 is placed. Brody, 4:33—5:19. When water is added to article 9, the
borate tablet/capsule 10, powder 11, and/or packet 12 dissolves and forms a
solution that impregnates cellulose article 9 with borate salt. Id. at 4:48—65.
The Examiner reasonably found that this configuration of Brody’s bait
article would create the claimed concentrations by dissolving borate salt in
the reservoir with water so that the solution would diffuse outwardly toward
the outer surface of article 9 and impregnate the cellulose of article 9. Ans.
5—7. The Examiner reasoned, correctly, that this diffusion would result in a
higher concentration of borate salt in the interior reservoir of cellulose article
9 where all of the borate salt is placed. Id. at 6. The Examiner supported
this reasoning by finding that Brody teaches that article 9 may be saturated
repeatedly with water to dissolve the borate salt in the reservoir. Id. at 6—7;
see Brody, 5:16—19. We agree that this disclosure indicates that the
concentration of toxic borate salt is highest in the interior of article 9, at least
initially before it all dissolves, and the borate salt is toxic to termites that
consume the impregnated cellulose article. Id. at 4:33—5:7, 5:28—32. We
also agree that Brody teaches that the outer surface is less toxic because the
outer cellulose is the bait that attracts termites (not the borate salt), and
termites eat that less-impregnated cellulose. See id. at 5:24—23; Ans. 6.
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Appeal 2016-001710
Application 13/049,020
Appellant’s argument that Brody teaches a wooden stake impregnated
with borate salt, rather than a concentration gradient, is not persuasive. See
Appeal Br. 10—11. Appellant is correct that Brody discloses embodiments in
which a wooden stake or cellulose body is immersed in an aqueous solution
of borate, but this disclosure relates to the embodiments of Figures 1—3. See
Brody, 3:39-4:13. The Examiner relies on the configuration of the bait traps
in Figures 5(a)—5(c), which dissolve borate salt in a reservoir within a center
of article 9, to teach the claimed concentrations, as discussed above. Ans. 5.
Dissolving borate salt in an interior of hollow bait article 9 impregnates bait
article 9 with a borate salt solution that is toxic at the interior reservoir and
attractive to termites at the outer surface, as claimed.
The Examiner’s determination that it would have been obvious to
make Brody’s cellulose bait article of rubber wood is supported by a rational
underpinning. Brody teaches that termites seek cellulose as a food, and the
sources of cellulose include wood, paper fibers, and laminated paper such as
cardboard. Brody, 3:15—25, 3:63 4:24. The Examiner found that Su teaches
that termites like to eat rubber trees and reasoned that rubber wood would be
an attractive food source for Brody’s bait trap. Final Act. 4, 5; Ans. 9.
The Examiner found that Edelmann teaches that rubber wood has little
durability and is used as a cellulose substrate for impregnation by chemicals
due to its treatability, availability, price, and processability. Final Act. 4—5.
The Examiner reasoned that the reduced durability of rubber wood would
make it appealing to use in Brody’s bait trap because termites prefer to eat
wood that is easier to consume. Rubber wood’s suitability for modification
by chemicals also would make it attractive for use in Brody’s bait trap where
it would be impregnated with borate salt. Id. at 5; Ans. 8, 9.
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Appeal 2016-001710
Application 13/049,020
In view of these findings and record evidence, Appellant’s argument
that Su and Edelman do not suggest that rubber wood is suitable for use as a
termite bait article is not persuasive. See Appeal Br. 9—10; Reply Br. 2—3.
Brody teaches that termites like to eat cellulose as discussed above and that
many forms of cellulose — wood, paper, mulch, cardboard — are suitable for
use in termite bait traps, because termites like to eat these substances. See
Brody, 3:15—25, 3:63—4:32. Su teaches that termites like to eat rubber trees
and the Examiner reasoned, correctly, that rubber wood would be a suitable
source of cellulose for Brody’s bait trap. Final Act. 4—5. Edelmann teaches
that rubber wood is fast-growing, inexpensive, and easily impregnated with
chemicals such as antifimgals and insecticide agents so it is a good substrate.
Edelmann, 1:40-44, 7:54—8:16. This teaching provides further motivation to
make Brody’s bait trap of rubber wood, because it can be impregnated with
fungicides and insecticides, as claimed, by customary methods as Edelmann
teaches. Id. at 8:4—16. We also agree with the Examiner that skilled artisans
would use rubber wood in Brody’s bait trap due to its price, availability, and
suitability for chemical impregnation. The Examiner also reasoned that the
reduced durability of rubber wood would be understood by skilled artisans
as an attractive feature for bait traps because termites like to eat cellulose
that is easy to consume and digest. Final Act. 4—5; see Ans. 9. Edelmann’s
treatment of a pine sapwood with an insecticide that is resistant to termites in
Example 6 (Edelmann, 14:16—32; Appeal Br. 10—11) does not undermine the
Examiner’s obviousness determination, because Edelmann also teaches that
rubber wood is well-suited as a substrate for chemical modification with a
wide range of chemicals including fungicides and insecticides, as claimed.
Edelmann, 1:40-44, 7:54—59.
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Appeal 2016-001710
Application 13/049,020
Appellant has not provided any evidence that the claimed insecticide-
fungicide possesses physical or chemical properties that make it unsuited for
impregnation or diffusion in rubber wood as the Examiner determined to be
the case based on Edelmann’s teachings that rubber wood is well-suited as a
substrate for chemical modification. We are not persuaded that Edelmann’s
Example 6 “teaches away” from the combination as Appellant argues to be
the case. Appeal Br. 9—10. An example of a use of an insecticide designed
to repel insects such as termites does not disparage, discourage or otherwise
direct a skilled artisan away from using rubber wood as a substrate that can
be impregnated by fungicides and insecticides, as claimed, where Edelmann
provides express teachings to this effect, as discussed above. Brody teaches
that insecticides such as borate salt that are used in termite bait traps are not
attractive to termites; rather, cellulose attracts the termites. Brody, 5:30-32.
Thus, a skilled artisan would not be dissuaded from using rubber wood as a
substrate in Brody’s bait trap 9 in view of Su’s teaching that termites like to
eat rubber wood and Edelmann’s teaching that rubber wood is preferred as a
substrate for impregnation with insecticides and fungicides as claimed.
Evidence of Unexpected Results
Appellant also argues that the surprising and unexpected benefits of
using rubber wood in a termite bait trap establishes the nonobviousness of
the claims. Appeal Br. 12. In particular, Appellant argues that Examples 1
and 2 in their Specification demonstrate that termites consumed and attacked
rubber wood samples at a much higher rate than rainwood, mango, pine, and
aspen woods. Id. at 12—14. Appellant argues that this objective evidence
establishes the patentability of the claimed subject matter. Reply Br. 3.
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Appeal 2016-001710
Application 13/049,020
We are not persuaded by Appellant’s evidence in Examples 1 and 2
that the claimed bait article comprising rubber wood yields unexpected or
surprising results sufficient to establish the non-obviousness of the claims.
First, it is well-settled and axiomatic that a determination of whether any
superior property or advantage is unexpected requires evidence of what a
skilled artisan would have expected a property to be. Pfizer, Inc. v. Apotex,
Inc., 480 F.3d 1348, 1371 (Fed. Cir. 2007); In reMayne, 104 F.3d 1339,
1343 (Fed. Cir. 1997); In re De Blauwe, 736 F.2d 699, 705 (CCPA 1984).
The improved results must be shown to be unexpected when compared to
the closest prior art that was known. Kao Corp. v. Unilever U.S., Inc., 441
F.3d 963, 970 (Fed. Cir. 2006); In re Baxter Travenol Labs, 952 F.2d 388,
392 (Fed. Cir. 1991); In re Boesch, 617 F.2d 272, 276 (CCPA 1980).
As to the first point, we have no evidence of what a skilled artisan
would consider to be an unexpected result or significant enough advance in
the attractiveness of woods used for bait traps as compared to known woods
to qualify as an expected or surprising result. Appellant asserts that “termite
bait articles prepared from rubberwood are unexpectedly and exceptionally
attractive to termites — far more so than many other common wood species.”
Appeal Br. 12 (emphasis added). Appellant’s contention, therefore, does not
represent that rubberwood provided superior or unexpected results compared
to all other wood species, common or not.
Example 1 compared the attractiveness of rubber, raintree, and mango
tree woods to termites of the species coptotermes gestroi. Spec. 60. The
termites consumed nearly 28% by weight of five rubber wood samples in 25
days compared to about 4% of the raintree wood and about 2% of the mango
wood samples, all of which were untreated. Id. Tffl 63—67; Appeal Br. 12—13.
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Appeal 2016-001710
Application 13/049,020
Example 2 compared the attractiveness of rubber, pine, and aspen tree
woods to termites of the species reticulitermes. Spec. 1 69. Rubberwood
samples were compared to commercially available termite baits based on
pine and aspen (Dow SENTRICON and Whitmire ADVANCE). Id. 170.
In contrast to the results from Example 1, Appellant discloses that
each system was inspected weekly and “at alone week and two weeks, two
of the rubberwood baits already showed termite activity but none of the
commercial systems had [and] [t]his showed that termites preferentially
preferred rubberwood as a food material or that it was somehow easier to
find or more attractive.” Id. 71.
Even if we accepted that the results of Example 1 were “unexpected”
or surprising compared to what a skilled artisan would expect of bait traps,
we have no comparable results or evidence of rubberwood compared to pine
and aspen, which appear to be the closest prior art. We have no evidence of
raintree or mango tree woods being used in commercial bait traps or being
recognized for their attractiveness to termites for use in such traps. We have
some evidence that pine and aspen are recognized as attractive to termites
based on their use in commercial termite baits. See Appeal Br. 13. We are
not persuaded that a showing of unspecified “termite activity” at two weeks
in Example 2 evidences unexpected or surprising results, in the abstract or in
comparison to the results achieved in Example 1. We cannot ascertain from
the evidence provided in Example 2 whether rubberwood is more attractive
to termites of any particular species to an unexpected or surprising degree as
compared to prior art pine and aspen woods. Another point that is unclear
from the results provided is whether untreated rubberwood was compared to
pine and aspen that were treated with insecticides in the commercial models.
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Appeal 2016-001710
Application 13/049,020
Whereas Example 1 compared untreated samples of rabberwood,
mango, and raintree woods, Example 2 compared untreated samples of
rubberwood to pine and aspen termite baits manufactured by Dow and
Whitmire. Id. H 61, 70. It is unclear to what extent, if any, insecticides in
those commercial pine and aspen bait traps might have impacted on the
attractiveness of the woods in those bait traps to termites as compared to the
untreated samples of rubber wood. As discussed above, Brody teaches that
termites are attracted to the cellulose in wood, not to the insecticide.
In sum, Appellant has not provided sufficient persuasive evidence of
what would be considered a surprising or unexpected result for termite bait
traps or whether rubberwood provides such results compared to the closest
prior art, which we consider to be aspen or pine based on the current record.
On the totality of the evidence, and even assuming Appellant’s unexpected
result evidence is entitled to some weight, weighing all of the evidence of
obviousness against all of the evidence of non-obviousness, we agree with
and the Examiner’s conclusion that claim 1 would have been obvious.
Thus, we sustain the rejection of claims 1, 3, 4, and 8—12.
Claims 5—7 as unpatentable over
Brody, Su, Edelmann, and Edwards/Annan
Appellant argues that the Examiner’s rejections of dependent claims
5—7 are erroneous because the claims incorporate the limitations of claim 1.
Appeal Br. 14. Because we sustain the rejection of claim 1, this argument is
not persuasive, and we sustain the rejection of claims 5—7.
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Appeal 2016-001710
Application 13/049,020
DECISION
We affirm the rejections of claims 1 and 3—12.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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