Ricardo Werlang

Patent Trials and Appeals BoardNov 18, 2021

2021001260 (P.T.A.B. Nov. 18, 2021)

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. 14/240,825 05/30/2014 Ricardo Camara Werlang 61010-US 9537 48219 7590 11/18/2021 PATENT DEPT. FMC CORPORATION 2929 WALNUT STREET PHILADELPHIA, PA 19104 EXAMINER CHUI, MEI PING ART UNIT PAPER NUMBER 1616 NOTIFICATION DATE DELIVERY MODE 11/18/2021 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): patents@fmc.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte RICARDO CAMARA WERLANG ____________ Appeal 2021-001260 Application 14/240,825 Technology Center 1600 ____________ Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and RACHEL H. TOWNSEND, Administrative Patent Judges. ADAMS, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from Examiner’s decision to reject claims 22 and 42–47 (Final Act.2 2).3 We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as “FMC Corporation” (Appellant’s August 5, 2020, Appeal Brief (Appeal Br.) 2). Appellant’s Brief is not paginated. Thus, we refer to page numbers as if Appellant’s Brief was numbered consecutively starting with the first page. 2 Examiner’s November 8, 2019 Final Office Action. 3 Claims 1–14 and 23–41 stand withdrawn from consideration (Final Act. 2). Appeal 2021-001260 Application 14/240,825 2 STATEMENT OF THE CASE Appellant’s disclosure “relates to a composition comprising a plant growth regulator and/or fungicide and/or insecticide and/or acaricide and its preparation process” (Spec.4 1). Appellant’s claims 22 and 44 are reproduced below: 22. A method for improving yield in corn crops planted in densities of greater than 100,000 plants per hectare by reducing excessive growth of corn plants, comprising the steps: (a) planting a corn crop at a seeding density higher than 100,000 corn plants per hectare; and during late vegetative stages from V6 to V9 of the corn crop, (b) applying to the corn and/or its progeny in said late vegetative stages an agronomically effective amount of a composition consisting essentially of: (i) a plant growth regulator and a fungicide; or (ii) a plant growth regulator and an insecticide; or (iii) a plant growth regulator and an acaricide; or (iv) a plant growth regulator and a fungicide and an insecticide; or (v) a plant growth regulator and an insecticide and an acaricide; or (vi) a plant growth regulator and a fungicide and an acaricide. (Claims App.5 § V (emphasis added).) 44. The method of claim 22 wherein the plant growth regulator is applied in an amount of from 1 to 1,000 grams of plant growth regulator per hectare. (Id.) 4 Appellant’s February 25, 2014 Specification. 5 Appellant’s Claims Appendix submitted with Appellant’s August 17, 2020 Response to Notice of Non-Compliant Appeal Brief. Appeal 2021-001260 Application 14/240,825 3 Grounds of rejection before this Panel for review: Claims 22, 42, and 43 stand rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Sampson6 and Dong.7 Claims 44–47 stand rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Sampson, Dong, and McCarthy.8 ISSUE Does the preponderance of evidence relied upon by Examiner support a conclusion of obviousness? ANALYSIS The rejection over the combination of Sampson and Dong: Examiner finds that Sampson discloses Appellant’s claimed invention, but for application of the composition “during the late vegetative stage from V6 to V9 of the crop plant (i.e.[,] corn) as recited in [Appellant’s] claim 22” and relies on Dong to make up for this deficiency in Sampson (see Final Act. 4–6). Recognizing that Sampson discloses a composition comprising a surfactant, in contrast to the consisting essentially of requirement of Appellant’s claim 22, Examiner finds “no evidence [on this record] that the inclusion of said surfactant in SAMPSON’s method would materially affect the basic and novel characteristic[s] of the claimed invention for improving yield in corn crops planted in densities of greater than 100,000 plants per hectare” (Ans.9 6). Thus, Examiner concludes that the combination of 6 Sampson, EP 0 022 666 A1, published Jan. 21, 1981. 7 Dong et al, CN101011063 A, published Aug. 8, 2007. 8 McCarthy et al., US 4,361,436, issued Nov. 30, 1982. 9 Examiner’s Sept. 30, 2020 Answer. Appeal 2021-001260 Application 14/240,825 4 Sampson and Dong, makes obvious Appellant’s claimed invention (see Final Act. 6–7). We are not persuaded. Sampson “relates to agricultural chemicals, which term is used [by Sampson] . . . to mean fungicides, herbicides, insecticides, nematicides and plant growth regulators, and to methods of using them and compositions containing them” (Sampson 1). Sampson’s disclosure “is concerned with altering the performance of such chemicals” (id. (emphasis added)). Specifically, Sampson discloses “that the efficiency of agricultural chemicals . . . can be markedly improved by the use of surfactants at levels far higher than are required to reduce surface tension . . . and/or by the use of a coating agent” (id. at 2 (emphasis added)). Sampson further discloses that “[a]t high levels surfactants may physically modify the structure of the outer walls of plant cells and leaf surfaces and hence physically modify the structure of a plant leaf such that an agricultural chemical may penetrate it better” (id. at 2–3). As Appellant explains, “[i]t is clear error that the [E]xaminer is contending that the addition of surfactants would not affect the novel and basic character of the invention in view of the fact that Sampson relies on such use to affect conventional use of known agricultural agents” (Appeal Br. 4; cf. Sampson 1–3). We agree. The rejection over the combination of Sampson, Dong, and McCarthy: Examiner relies on the combination of Sampson and Dong as discussed above (see Final Act. 8). Examiner finds that the combination of Sampson and Dong “does not disclose the applied amount of said plant growth regulators in the manner . . . recited in [Appellant’s] claims 44–47” Appeal 2021-001260 Application 14/240,825 5 and relies on McCarthy to make up for this deficiency (id. at 8–10 (emphasis omitted)). Thus, Examiner concludes that the combination of Sampson, Dong, and McCarthy makes obvious Appellant’s claimed invention (see id. at 10–12). We are not persuaded. As Appellant explains, “McCarthy does not cure the deficiencies of Sampson and Dong” (Appeal Br. 10). CONCLUSION The preponderance of evidence relied upon by Examiner fails to support a conclusion of obviousness. The rejection of claims 22, 42, and 43 under 35 U.S.C. § 103(a) as unpatentable over the combination of Sampson and Dong is reversed. The rejection of claims 44–47 under 35 U.S.C. § 103(a) as unpatentable over the combination of Sampson, Dong, and McCarthy is reversed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 22, 42, 43 103(a) Sampson, Dong 22, 42, 43 44–47 103(a) Sampson, Dong, McCarthy 44–47 Overall Outcome 22, 42–47 REVERSED