Syngenta Limited

Patent Trials and Appeals Board

Jun 15, 2020

13265756 - (D) (P.T.A.B. Jun. 15, 2020)

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.
13/265,756 01/04/2012 Gordon Alastair Bell SYG-0106PA(115479.000007) 6545
153842 7590 06/15/2020
BakerHostetler
Washington Square, Suite 1100
Washington, DC 20036-5304
EXAMINER
KEYS, ROSALYND ANN
ART UNIT PAPER NUMBER
1699
NOTIFICATION DATE DELIVERY MODE
06/15/2020 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):
eofficemonitor@bakerlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte GORDON ALASTAIR BELL
__________

Appeal 2019-005798
Application 13/265,756
Technology Center 1600
__________

Before FRANCISCO C. PRATS, ULRIKE W. JENKS, and
RACHEL H. TOWNSEND, Administrative Patent Judges.

PRATS, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 30–38. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant states that the real party in interest is Syngenta
Limited, of Surrey, United Kingdom. Appeal Br. 3.
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STATEMENT OF THE CASE
The sole rejection before us for review is the Examiner’s rejection of
claims 30–38 under 35 U.S.C. § 103(a) as being unpatentable over
Vermeer,2 Weil,3 and Scherl4 (Ans. 3–7).
Appellant’s claim 30, the sole independent claim on appeal, is
representative and reads as follows:
30. A method of enhancing the biological performance of an
agrochemical, the method comprising:
combining an agrochemical with a compound of formula (I)
R1O[BO]nR2 (I)
where BO is CH(R4)CH(R5)O;
n is from 1 to 12;
R1 is C4-20 alkyl or C4-20 alkenyl;
R2 is hydrogen or C1-3 alkyl;
and a combination of R4 and R5 are selected independently from
the following:
R4 is methyl and R5 is methyl; R4 is ethyl and R5 is hydrogen;
or R4 is hydrogen and R5 is ethyl.
Appeal Br. 19 (some paragraphing added).
DISCUSSION
The Examiner’s Prima Facie Case
The Examiner found that Vermeer describes a process of combining
an agrochemical with an alkanol alkoxylate penetrant compound
encompassed by formula (I) of Appellant’s claim 30. Ans. 4 (citing

2 US 2008/0312290 A1 (published Dec.18, 2008).
3 J.K. Weil et al., Ether Alcohol Sulfates from Oleyl Alcohol, 44 J. AM. OIL
CHEM. SOC. 522–524 (1967).
4 US 2009/0286684 A1 (published Nov. 19, 2009).
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Vermeer ¶¶ 54–58). While the Examiner found that Vermeer’s penetrant
compounds include a butylene oxide moiety at the corresponding position
recited in formula (I) of claim 30, the Examiner conceded that Vermeer did
not specify that the butylene oxide moiety has the particular structure
required by claim 30:
Vermeer et al. differ from the instant invention in that
BO is not disclosed as being limited to CH(R4)CH(R5)O and a
combination of R4 and R5 being selected from R4 is methyl
and R5 is methyl; R4 is ethyl and R5 is hydrogen; or R4 is
hydrogen and R5 is ethyl.
Ans. 4.
The Examiner concluded that the claimed process would have been
obvious to a skilled artisan, despite Vermeer’s failure to disclose the specific
butylene oxide recited in the claims, because “compounds which are position
isomers (compounds having the same radicals in physically different
positions on the same nucleus) are generally of sufficiently close structural
similarity that there is a presumed expectation that such compounds possess
similar properties.” Ans. 5 (citing In re Wilder, 563 F.2d 457 (CCPA
1977)).
In addition, the Examiner cited Weil to show that the butylene oxide
moiety recited in Appellant’s claims was a butylene oxide isomer known to
be useful in the preparation of alkanol alkoxylates, and reasoned that a
skilled artisan would have reasonably expected success
in modifying the BO radical of Vermeer et al. with an
isomeric form, such as the one disclosed in Table I of Weil et
al., since Weil et al. has shown that one can successfully obtain
alkanol alkoxylates with a BO isomer having the claimed
formula CH(R4)CH(R5)O wherein R4 is hydrogen and R5 is
ethyl.
Ans. 5.
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The Examiner found that the rejected claims also differ from the prior
art in that, while Appellant’s claims recite that either a C4-20 alkyl or C4-20
alkenyl could be present at position R1 of formula, neither Vermeer nor Weil
“disclose alcohol alkoxylates wherein R1 is a C4-20 alkenyl, in particular
oleyl.” Ans. 5.
The Examiner cited Scherl as evidence that, when preparing alkanol
alkoxylates including butylene oxide groups, it was known in the art to use
alkenyl groups encompassed by Appellant’s claims at the position specified
by Appellant’s formula I. Ans. 5–6. The Examiner concluded that a skilled
artisan would have considered it obvious to substitute an alkenyl group for
the C4–20 alkyl group of Vermeer’s penetrants, “since Scherl et al. has shown
that a C6-30 saturated and C6-30 unsaturated alkyl group can be
interchanged at this position of an alcohol alkoxylate and still maintain its
usefulness as a surfactant which improves activity in an agrochemical
formulation.” Id. at 6.
Analysis
As stated in In re Oetiker, 977 F.2d 1443, 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.
Having carefully considered all of the arguments and evidence
advanced by Appellant and the Examiner, Appellant does not persuade us
that a preponderance of the evidence does not support the Examiner’s
conclusion that the process of Appellant’s claims would have been obvious.
To the contrary, we agree with the Examiner’s findings of fact regarding the
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cited references, as well as the Examiner’s ultimate conclusion of
obviousness based on the totality of the evidence, and adopt the Examiner’s
findings and conclusion of obviousness as our own.
Appellant’s claim 30 recites a process that has a single step,
“combining an agrochemical with a compound of formula (I).” Appeal Br.
19. As recited in claim 30, Vermeer describes a process in which an
agrochemical is combined with a number of other ingredients, including “at
least one penetrant.” Vermeer, abstract.
Vermeer discloses that “[p]referred penetrants are alkanol alkoxylates
of the formula R–O–[AO]mRˈ (I).” Vermeer ¶ 54.
Vermeer discloses that the substituent at position R of its formula I
may be “linear or branched alkyl having 4 to 20 carbon atoms” (Vermeer
¶ 55), which is substantially the same as one of the two alternative moieties
recited in Appellant’s claim 30 at the corresponding position. See Appeal
Br. 19 (reciting that “R1 is C4-20 alkyl”).
Vermeer discloses that the substituent at position Rˈ of its formula I
may be “H, methyl, ethyl, n-propyl, isopropyl, n-butyl, isobutyl, tert-butyl,
n-pentyl or n-hexyl” (Vermeer ¶ 56), several of which are among the
moieties recited in Appellant’s claim 30 at the corresponding position. See
Appeal Br. 19 (reciting that “R2 is hydrogen or C1-3 alkyl”).
Vermeer discloses that the function group AO of its formula I may be
“an ethylene oxide radical, a propylene oxide radical, a butylene oxide
radical or mixtures of ethylene oxide and propylene oxide radicals or
butylene oxide radicals” (Vermeer ¶ 57 (emphasis added)), which includes
the butylene oxide moiety recited in Appellant’s claim 30. See Spec. 1 (“BO
is butylene oxide” in Appellant’s formula I).
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And, Vermeer discloses that the number of alkoxide radicals in its
preferred penetrants (“m is a number from 2 to 30” (Vermeer ¶ 58)) overlaps
the number of butylene oxide groups in formula I of Appellant’s claim 30.
See Appeal Br. 19 (“n is from 1 to 12”).
Thus, Vermeer discloses its preferred penetrants as having a formula
that has the same or substantially the same substituents at the same positions
as formula I of Appellant’s claim 30, except for the particular butylene oxide
isomers recited in claim 30. Appellant does not persuade us, therefore, that
Vermeer would have failed to suggest using a compound of formula I of
Appellant’s claim 30 as the penetrant in Vermeer’s methods of making
agrochemical formulations. See Appeal Br. 6–8.
Indeed, as seen above, formula I of Appellant’s claim 30 encompasses
compounds having the same combination of substituents at the same
positions as the preferred penetrants described in formula I of Vermeer,
except for the particular butylene oxide isomers recited in claim 30.
Vermeer, therefore, differs from Appellant’s claim 30 only in that Vermeer
does not describe the particular butylene oxide isomers recited in the claim.
As the Examiner found, and Appellant does not dispute, the butylene
oxide moiety recited in formula I of Appellant’s claim 30 encompasses at
least one butylene oxide moiety that was known in the art to be used in the
preparation of alkanol alkoxylates, the same type of compound used as
Vermeer’s penetrants. See Weil 522 (Table 1). We acknowledge, as
Appellant contends (Appeal Br. 8), that Weil’s alkanol alkoxylates were
intermediate compounds that were ultimately sulfated to produce detergents.
See Weil 522. However, that acknowledgement does not take away from the
fact that Weil teaches the preparation of alkanol alkoxylates with a butylene
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oxide moiety within the scope of claim 30. And, intermediate compounds
can have uses beyond those disclosed in a reference.
As noted above, Vermeer discloses that butylene oxides, in general,
were useful as the alkylene oxide moiety in its preferred alkanol alkoxylate
penetrant compounds, and Weil discloses that its butylene oxide isomer
(undisputedly encompassed by Appellant’s claim 30) was used in preparing
alkanol alkoxylates. We therefore agree with the Examiner that a skilled
artisan had a good reason for, and a reasonable expectation of success in,
using Weil’s butylene oxide isomer as the butylene oxide moiety in
Vermeer’s preferred penetrants. See KSR Int’l v. Teleflex Inc., 550 U.S. 398,
421 (2007) (“When there is a design need or market pressure to solve a
problem and there are a finite number of identified, predictable solutions, a
person of ordinary skill has good reason to pursue the known options within
his or her technical grasp.”).
We therefore also agree with the Examiner that the process recited in
Appellant’s claim 30 would have been prima facie obvious to a skilled
artisan. See KSR, 550 U.S. at 417 (“[W]hen a patent ‘simply arranges old
elements with each performing the same function it had been known to
perform’ and yields no more than one would expect from such an
arrangement, the combination is obvious.”) (quoting Sakraida v. Ag Pro,
Inc., 425 U.S. 273, 282 (1976)).
To be complete, formula I of Appellant’s claim 30 recites that R1 also
may be “C4-20 alkenyl,” as an alternative to the C4-20 alkyl group disclosed in
Vermeer. Appeal Br. 19.
In that regard, Scherl discloses “fatty alcohol alkoxylates and
alkoxylates based on synthetic starter alcohols” in a number of applications
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including “widespread [use] as an activity improver in agrochemical
formulations.” Scherl ¶ 2.
As the Examiner found, Scherl discloses its alkoxylates as having a
formula I closely similar to the formula I of Vermeer (and Appellant’s
formula I), including alkyl groups and a butylene oxide moiety at the same
positions. See Scherl ¶¶ 6–11. And as the Examiner also found, Scherl
discloses that, in addition to an alkyl moiety at the position corresponding to
the R1 group of Appellant’s claim 30, Scherl’s functional group may be an
“unsaturated alkyl group having from 6 to 30 and preferably from 8 to 22
carbon atoms.” Id. ¶ 7; see also id. ¶ 16 (listing oleyl alcohol among
“preferred” moieties at the R1 position). Accordingly, we also agree with
the Examiner that the collective teachings of Vermeer, Weil, and Scherl
suggest combining a compound having the butylene oxide isomer recited in
claim 30, and the alternative C4-20 alkenyl moiety at the R1 position of
formula I of claim 30, with an agrochemical.
In sum, for the reasons discussed, we agree with the Examiner that a
process having each of the steps and features recited in Appellant’s claim 30
would have been prima facie obvious to a skilled artisan. Appellant’s
arguments do not persuade us to the contrary.
In particular, as seen above, Vermeer discloses that its preferred
penetrants have a formula I that has the same or substantially the same
substituents at the same positions as formula I of Appellant’s claim 30,
except for the particular butylene oxide isomers recited in claim 30.
Appellant does not persuade us, therefore, that the present situation is one in
which claim 30 recites a narrow species relative to a broad genus disclosed
in the prior art. See Appeal Br. 10–12; Reply Br 3–5. The fact that Vermeer
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might not exemplify the preferred penetrants of its formula I does not
demonstrate that it would have been unobvious to combine Vermeer’s
preferred penetrants with an agrochemical. See In re Mills, 470 F.2d 649,
651 (CCPA 1972) (“All the disclosures in a reference must be evaluated,
including nonpreferred embodiments, and a reference is not limited to the
disclosure of specific working examples.”) (citations omitted)).
Moreover, because the Examiner’s findings of reasonable expectation
of success and motivation are based on the express teachings in the cited
references, noted above, Appellant does not persuade us that the present
situation is similar to that in In re Stepan Co., 868 F.3d 1342 (Fed. Cir.
2017), or that the ultimate conclusion of obviousness is based on improper
hindsight, or that the Examiner applied an improper unguided obvious to try
rationale. See Appeal Br. 12–14, 16; Reply Br. 2–3, 8.
We also do not find Appellant’s arguments regarding In re Wilder
persuasive of nonobviousness. See Appeal Br. 14; Reply Br. 5. As noted
above, Vermeer discloses that butylene oxides, in general, were useful as the
alkylene oxide moiety in its preferred alkanol alkoxylate penetrant
compounds, and Weil discloses that its butylene oxide isomer (undisputedly
encompassed by Appellant’s claim 30) was useful for preparing alkanol
alkoxylates. Thus, even if Wilder does not support a per se rule of
obviousness as to isomers, the references cited by the Examiner provided a
skilled artisan with a good reason for using Weil’s butylene oxide isomer as
the butylene oxide moiety in Vermeer’s preferred penetrants. See KSR, 550
U.S. at 421 (“When there is a design need or market pressure to solve a
problem and there are a finite number of identified, predictable solutions, a
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person of ordinary skill has good reason to pursue the known options within
his or her technical grasp.”).
In sum, for the reasons discussed, Appellant does not persuade us that
the Examiner erred in determining that the process recited in Appellant’s
claim 30 would have been prima facie obvious in view of the combined
teachings Vermeer, Weil, and Scherl. Appellant also does not persuade us
that it has advanced evidence of unexpected results sufficient to outweigh
the prior art evidence of prima facie obviousness advanced by the Examiner.
See Appeal Br. 14–16 (citing Examples 26–29 and 32 from Appellant’s
Specification); Reply Br. 5–8.
We first note that, by themselves, assertions in briefing by counsel as
to the unexpectedness of experimental results are of little probative value
toward nonobviousness, absent some evidence, beyond the assertions in the
briefs, that a skilled artisan actually would have considered the results
unexpected. See In re Geisler, 116 F.3d 1465, 1470–71 (Fed. Cir. 1997)
(finding arguments of unexpected results unpersuasive “naked attorney
argument” because applicant “did not offer evidence of unexpected results in
the form of a statement to that effect from the inventors or any third party, or
any objective evidence from a respected source” nor did applicant make any
statements of unexpectedness in its specification or in an affidavit under 37
C.F.R. § 1.132).
In the present case, other than the assertions in briefs, Appellant does
not identify, nor do we discern, any statements in the Specification, or
elsewhere in the record, suggesting that the experimental results shown in
Examples 26–29 and 32 would have been unexpected by a skilled artisan.
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Appellant’s assertions of unexpectedness in its briefs are, therefore, of little
probative value.
It is also well settled that “[e]vidence of secondary considerations
must be reasonably commensurate with the scope of the claims.” In re Kao,
639 F.3d 1057, 1068 (Fed. Cir. 2011).
In the present case, the asserted unexpected results are based on a
single embodiment of Appellant’s invention, sample 28. See Appeal Br. 14–
15. As the Examiner points out (Ans. 20), the alcohol alkoxylate of sample
28 has a C12–15 alkyl chain at the R1 position of formula I, “n” (the number of
butylene oxide moieties) is 4, and R2 is hydrogen. See Spec. 3–4.
In contrast, formula I of Appellant’s claim 30 encompasses a C4-20
alkyl group as well as a C4-20 alkenyl group at the R1 position, as few as 1
and as many as 12 butylene oxide moieties, and includes a C1-3 alkyl group
at the R2 position in addition to the hydrogen at that position in sample 28.
See Appeal Br. 19. Given the significant differences between the scope of
claim 30 and the structure of the compounds used in sample 28, we are not
persuaded that the evidence of unexpected results advanced by Appellant is
sufficiently commensurate in scope with claim 30 to support a finding of
nonobviousness as to claim 30.
It is well settled that, “when unexpected results are used as evidence
of nonobviousness, the results must be shown to be unexpected compared
with the closest prior art.” In re Baxter-Travenol Labs., 952 F.2d 388, 392
(Fed. Cir. 1991).
In the present case, the Examiner found, and Appellant does not
dispute, that none of the compounds that were compared against Appellant’s
sample 28 in Appellant’s Examples 26–29 was an alkanol alkoxylate, the
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type of compound disclosed in both Vermeer and Scherl, and recited in
Appellant’s claim 30. Ans. 20. Accordingly, we agree with the Examiner
that Appellant’s Examples 26–29 did not compare a compound encompassed
by claim 30 to the closest prior art.
It might be true, as Appellant contends, that the compared compounds
in Examples 26–29 are commercially available. See Reply Br. 5–6. As
Appellant recognizes, however, Vermeer exemplifies compounds of the
same type as the compound of claim 30 (alkanol alkoxylate), having
butylene oxide moieties like the compounds recited in claim 30, used for the
same purpose as recited in claim 30. See Appeal Br. 7 (citing Tables 1 and 2
and Examples 18, 20, and 24 of Vermeer). Appellant identifies no
persuasive evidence suggesting that any of the commercially available
compounds in Examples 26–29 has a closer similarity to the compounds of
Appellant’ claim 30 than the compounds exemplified in Vermeer. Appellant
does not persuade us, therefore, that Examples 26–29 represent a
comparison to the closest prior art.
As to Example 32, we acknowledge that sample 28 has a lower
phytoxicity than Genapol O100, which is an oleyl ethoxylate with 10 moles
of ethylene oxide. See Appeal Br. 15; Spec. 29. Unlike the compounds of
Vermeer and Appellant’s claim 30, however, Genapol O100 does not have a
butylene oxide moiety. We are not persuaded, therefore, that Appellant has
explained sufficiently why Genapol O100 is the closest prior art. As
discussed above, moreover, we are not persuaded that sample 28 is
sufficiently commensurate in scope with claim 30 to establish the
nonobviousness of the full scope of the subject matter encompassed by the
claim. As also discussed above, we are not persuaded that sufficient
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objective evidence of true unexpectedness, as opposed to unsupported
attorney argument, has been advanced by Appellant. See In re Geisler, 116
F.3d at 1470–71.
In sum, for the reasons discussed, Appellant does not persuade us that
the Examiner erred in determining that the process recited in Appellant’s
claim 30 would have been prima facie obvious in view of the combined
teachings Vermeer, Weil, and Scherl. For the reasons discussed, Appellant
also does not persuade us that it has advanced evidence of unexpected
results sufficient to outweigh the prior art evidence of prima facie
obviousness advanced by the Examiner. We therefore affirm the Examiner’s
rejection of claim 30 over Vermeer, Weil, and Scherl. Because they were
not separately argued, claims 31 and 33–36 fall with claim 33.
Appellant’s claim 32 recites “[t]he method of claim 30, wherein R1 is
oleyl.” Appeal Br. 19.
As discussed above, Scherl discloses combining agrochemicals with
alkoxylates having a formula I closely similar to the formula I of Vermeer
(and Appellant’s formula I), including alkyl groups and a butylene oxide
moiety at the same positions. See Scherl ¶¶ 6–11. As also discussed above,
in addition to an alkyl moiety at the position corresponding to the R1 group
of Appellant’s claim 30, Scherl discloses that the functional group also may
be an “unsaturated alkyl group having from 6 to 30 and preferably from 8 to
22 carbon atoms.” Id. ¶ 7; see also id. ¶ 16 (listing oleyl alcohol among
“preferred” moieties at the R1 position).
Accordingly, given Scherl’s teaching that an oleyl group was useful at
the R position of Vermeer’s penetrant compounds (corresponding to the R1
group of Appellant’s claim 30), Appellant does not persuade us that a skilled
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artisan lacked motivation for placing an oleyl group at that location, or that
the Examiner’s reasoning for that modification was based on hindsight. See
Appeal Br. 17. Nor does Appellant persuade us that the Examiner erred in
concluding that the collective teachings of Vermeer, Weil, and Scherl would
have suggested combining a compound having the butylene oxide isomer
recited in claim 30, and an oleyl moiety at the R1 position of formula I as
recited in claim 32, with an agrochemical. We therefore affirm the
Examiner’s rejection of claim 32 over Vermeer, Weil, and Scherl.
Appellant’s claim 37 recites “[t]he method of claim 30, wherein R1 is
C12-15 alkyl; n is 4; and R2 is hydrogen.” Appeal Br. 19.
Appellant contends that Scherl teaches away from using uncapped
alkanol alkoxylates, that is, alkanol alkoxylates that have hydrogen at the R2
position as recited in claim 37, as opposed to capped versions having a
substituent such as an alkyl group at the R2 position. Appeal Br. 17–18
(citing Scherl ¶ 3).
We are not persuaded. We first note that the portion of Scherl quoted
by Appellant identifies disadvantages to end-capped alkanol alkoxylates.
See Scherl ¶ 3 (“A disadvantage of this property has been found to be that
the end group-capped fatty alcohol alkoxylates tend to pH decline in the
course of prolonged storage.”).
Moreover, even assuming that Scherl preferred capped alkanol
alkoxylates, both Scherl and Vermeer expressly taught that hydrogen was
useful at the position corresponding to R2 of Appellant’s claims. See Scherl
¶ 11 (listing hydrogen as first useful substituent); Vermeer ¶ 56 (same). We
are not persuaded, therefore, that Scherl teaches away from hydrogen at the
R2 position, as recited in Appellant’s claim 37. See In re Fulton, 391 F.3d
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1195, 1201 (Fed. Cir. 2004) (“The prior art’s mere disclosure of more than
one alternative does not constitute a teaching away from any of these
alternatives because such disclosure does not criticize, discredit, or
otherwise discourage the solution claimed. . . .”).
As seen above, moreover, each of the substituents recited in
Appellant’s claim 37 is described in Vermeer as being among those useful in
its preferred penetrant compounds. See Vermeer ¶ 55 (R of Vermeer’s
formula I may be “linear or branched alkyl having 4 to 20 carbon atoms”);
id. ¶ 58 (the number of alkoxide radicals in Vermeer’s preferred penetrants
“is a number from 2 to 30”); id. ¶ 56 (Rˈ of Vermeer’s formula I may be “H,
methyl, ethyl, n-propyl, isopropyl, n-butyl, isobutyl, tert-butyl, n-pentyl or n-
hexyl”). Because each of the substituents recited in Appellant’s claim 37 is
described in Vermeer as being among those useful in its preferred penetrant
compounds, Appellant does not persuade us that the cited references fail to
suggest the combination of substituents recited in claim 37, or that hindsight
would be required to arrive at claim 37’s combination of substituents.
Accordingly, because Appellant does not persuade us, for the reasons
discussed, that the Examiner erred in concluding that the process recited in
claim 37 would have been obvious over Vermeer, Weil, and Scherl, we
affirm the Examiner’s rejection of claim 37 over those references.
Appellant’s claim 38 recites “[t]he method of claim 30, wherein R1 is
oleyl; n is 4; and R2 is hydrogen.” Appeal Br. 19.
As discussed above, the collective teachings of Vermeer, Weil, and
Scherl demonstrate that alkanol alkoxylates having each of the substituents
recited in claim 38 would be useful as the penetrant compound in Vermeer’s
process. Appellant does not persuade us, therefore, that the collective
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teachings of the cited references would have failed to suggest using a
compound encompassed by Appellant’s claim 38 as the penetrant compound
in Vermeer’s process. Because Appellant does not persuade us that the
Examiner erred in concluding that the process recited in Appellant’s claim
38 would have been obvious over Vermeer, Weil, and Scherl, we affirm the
Examiner’s rejection of claim 38 over those references.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
30–38 103(a) Vermeer, Weil,
Scherl
30–38

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). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED