Ex Parte Yang et al

Board of Patent Appeals and Interferences

Feb 15, 2012

11535450 (B.P.A.I. Feb. 15, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte KIM W. YANG, DENNIS LEE MURPHY,
CASEY SHANE WHITE, MARIA N. PARFENOVA,
JOE DOYLE McDANIEL, and JINREN KO
__________

Appeal 2012-002644
Application 11/535,450
Technology Center 1600
__________

Before TONI R. SCHEINER, DEMETRA J. MILLS, and
FRANCISCO C. PRATS, Administrative Patent Judges.

SCHEINER, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the final rejection of
claims 1, 4, 16, 17, 56-60, 62, and 63, directed to a lignin-pesticide complex
formulated as a feed-through product. The claims have been rejected as
obvious. We have jurisdiction under 35 U.S.C. § 6(b).
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STATEMENT OF THE CASE
The Specification discloses lignin-pesticide complexes “formulated as
feed-through products to control insect infestation on livestock and pets”
(Spec. ¶ 8). According to the Specification, “an intermolecular interaction
(e.g., hydrogen bond) between the lignin and the pesticide” (id. at ¶ 27)
“protect[s] pesticides such as methoprene against intestinal absorption and
enzyme and microbial digestion in an animal and allow[s] the pesticide to
pass through the animal into its manure, where it is released and bioavailable
for effective pest control” (id.). As a result:
(1) the side-effects (e.g., toxicity) associated with feed-through
products are prevented, reduced and/or eliminated because the
lignin-pesticide complexes are resistant to destruction in the
stomach and intestinal absorption; and (2) lower doses of
pesticide can be used in feed-through products because
substantially more pesticide is found in the manure, thereby
creating an economical means for using expensive pesticides.
(Id.)
Claims 1, 4, 16, 17, 56-60, 62, and 63 are pending and on appeal.
Claims 10-15, 18-26, and 30-55 are also pending, but have been withdrawn
from consideration; claims 2, 3, 5-9, 27-29, and 61 have been canceled.
Claims 1 and 57 are representative of the subject matter on appeal:
1. A lignin-pesticide complex free of non-hydrogen bonded
pesticide, said complex formulated as a feed-through product comprising:
a lignin, wherein said lignin is an alkali lignin;
a pesticide, wherein said pesticide is methoprene and wherein said
lignin and said pesticide are associated as a non-covalent bonded complex
through hydrogen bonding and the amount of pesticide in the complex is
about 0.01% w/w to about 2% w/w, wherein said lignin-pesticide complex is
substantially free of non-associated pesticide; and
wherein said lignin-pesticide complex is free of non-hydrogen bonded
pesticide and is formulated as a feed-through product.
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57. A feed-through formulation for controlling a manure breeding
insect on an animal, wherein the feed-through formulation is free of non-
hydrogen bonded pesticide, said formulation comprising:
an alkali lignin; and
an insect growth regulator (IGR) pesticide selected from the group
consisting of methoprene and diflubenzuron, wherein said alkali lignin and
IGR pesticide are associated as a non-covalent bonded complex through
hydrogen bonding and the amount of pesticide in the complex is about
0.01% w/w to about 2% w/w, wherein said feed-through formulation passes
through said animal into an excrement, wherein said lignin-pesticide
complex is free of non-hydrogen-bonded pesticide and is formulated as a
feed-through formulation.
The Examiner relies on the following evidence:
Dimitri et al. US 3,929,453 Dec. 30, 1975
Miller et al. US 4,166,107 Aug. 28, 1979
Methoprene Pesticide Fact Sheet, Environmental Protection Agency
pp. 1-9 (2001).
Claims 1, 4, 16, 17, 56-60, 62, and 63 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Dimitri and Miller, “as evidenced by the
Methoprene Pesticide Fact Sheet” (Ans. 5-11).
We reverse.
Issue
The Examiner finds that Dimitri discloses “lignin-pesticide complexes
comprising a biologically active agent dispersed throughout an alkali lignin
in a ratio of 0.1:1 to 10:1 (9.09-90.9% w/w active agent), wherein the
biologically active agent . . . is entrapped by the lignin macromolecular
matrix or held by physical-chemical forces of van der Waal’s, hydrogen
bonding or ion association” (Ans. 5). The Examiner notes that Dimitri
teaches that the lignin matrix protects the pesticide against degradation by
sunlight, rain, and microorganisms (id. at 7). The Examiner concedes that
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Dimitri “differ[s] from the instant claims in that the pesticides methoprene
and diflubenzuron are not exemplified . . . [and] the weight percent of
pesticide . . . [9.09 to 90.9%] is larger than the claimed weight percent from
about 0.01 to 2%” (id. at 6).
However, the Examiner finds that Miller discloses “a bolus for oral
administration (i.e. feed through composition)” containing an insect growth
regulator, e.g., methoprene or diflubenzuron, in “amounts as low as 1 part by
weight up to 15 parts by weight” (id. at 7). The Examiner notes that Miller
teaches that “pesticides often suffer from photodegradation, evaporation and
losses due to rubbing and grooming” (id.).
Based on these teachings, the Examiner concludes that it would have
been obvious for one of ordinary skill in the art “to include methoprene or
diflubenzuron in the alkali lignin composites as taught by Dimitri” (id.), “to
help prevent methoprene or diflubenzuron losses via photodegradation,
evaporation and losses due to rubbing and grooming” (id.). The Examiner
also concludes that it would have been obvious “to decrease the relative
amount of the pesticide in [Dimitri’s] lignin complex . . . because Miller
teaches that amounts from 1 to 15 parts by weight methoprene and
diflurobenzuron are effective at controlling dung breeding insects in
livestock in feed through compositions (id. at 8).
Appellants contend that Dimitri does not teach or suggest a feed-
through composition, much less one containing about 0.01% w/w to about
2% w/w methoprene or diflubenzuron (App. Br. 6). Appellants contend that
“a skilled artisan would have no motivation to decrease the amount of
pesticide [in the composition] as is currently claimed” (id. at 7-8), because
Dimitri teaches that “one of the key reasons the composites form a
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successful pesticide controlled release system is that the rate of release can
be controlled by the ratio of pesticide to lignin matrix” (id. at 7), and “the
claimed ratio is well outside the ratio disclosed by Dimitri” (id.).
Appellants further contend that Miller “provide[s] no motivation to
modify the pesticide content in the complexes of Dimitri . . . to arrive at the
presently claimed feed-through product” (id. at 9). Appellants contend that
Miller “do[es] not teach or even suggest the use of lignin” (id. at 8), and its
“blending of an insect growth regulator with . . . wax and fat . . . [and a]
high-density insoluble, non-toxic metallic compound” (id.) “represent[s] a
totally different technology and mechanism of feed-through administration”
(id.) compared to Dimitri and to the instant invention.
The issue raised by this appeal is whether the Examiner has
established that one of ordinary skill in the art would have had a reason to
formulate a methoprene or diflubenzuron-lignin composition wherein the
methoprene or diflubenzuron is present in an amount of about 0.01% w/w to
about 2% w/w, given the teachings of Dimitri and Miller.
Findings of Fact
1. Claim 1 is directed to a hydrogen-bonded lignin-methoprene
complex, free of non-hydrogen-bonded methoprene, wherein the amount of
methoprene in the complex is about 0.01% w/w to about 2% w/w.
2. Dimitri discloses a “controlled-release pesticidal system[ ]
which maintain[s] maximum and effective activity over prolonged periods of
time under normal plant environmental conditions” (Dimitri, col. 2, ll. 29-
31). The system comprises “a composite having a biologically active agent
[e.g., a pesticide] interspersed throughout an alkali lignin matrix” (id. at col.
2, ll.4-11), wherein the “[t]he biologically active agent is either entrapped by
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the lignin macromolecular matrix or held by physical-chemical forces of van
der Waal’s, hydrogen bonding or ion association” (id. at col. 3, ll. 19-22).
3. Dimitri teaches that “the active agent and the alkali lignin
matrix form[ ] a composite such that, upon diffusion or through degradation
or dissolution of the lignin, the active agent, i.e., pesticide, is released to the
soil, or to the plant or other system on which it is being placed” (Dimitri,
col. 3, l. 65 - col. 4, l. 2).
4. According to Dimitri, “[o]ne of the key reasons why the
composites form a successful pesticide controlled release system is that the
rate of release can be controlled by the ratio of pesticide to lignin matrix and
by the particular lignin matrix used” (Dimitri, col. 4, ll. 54-58). Specifically,
“[t]he weight ratio of pesticide to lignin may be from about 0.1:1 up to 10:1
[about 9.09% up to 90.9% pesticide] by weight, preferably 0.25:1 to 1:1
[20% to 50% pesticide]” (id. at col. 4, ll. 58-60).
5. Miller discloses orally administered “bolus formulations that
release insect growth regulators into the digestive tract of cattle in sufficient
quantities for control of flies over a 13-24-week period” (Miller, col. 3, ll. 4-
7).
6. Miller’s bolus formulation, in the form of “a large pill” (Miller,
col. 2, l. 66), is made by blending an insect growth regulator, e.g.,
methoprene or diflubenzuron, with a combination of wax, fat, and a high-
density, insoluble, non-toxic metallic compound which acts as an inert filler
and also increases the density of the formulation (id. at col. 2, ll. 63-67; col.
3, ll. 19-40).
7. Miller’s “bolus is formulated to have a specific gravity >1.5 in
order that it might be retained in the reticulum [the second compartment of
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the stomach] of the cattle. The digestive activities within the reticulum
erode the bolus causing release of the insect growth regulator” (Miller, col.
3, ll. 7-11).
8. Miller’s formulation comprises:
(a) about 4-17 parts by weight monostearin
(b) about 4-10 parts by weight carnuba wax
(c) about 70-75 parts by weight Barium Sulfate
(d) about 1-15 parts by weight insect growth regulator
(Miller, col. 3, ll. 24-27.)
Discussion
The Examiner has not established that the teachings of Dimitri and
Miller would have provided a reason for one of ordinary skill in the art to
formulate a methoprene or diflubenzuron-lignin composition wherein the
methoprene or diflubenzuron is present in an amount of about 0.01% w/w to
about 2% w/w.
First, Dimitri itself provides no reason to reduce the amount of
pesticide in its composite as the reference teaches that one of the key reasons
the composite successfully achieves controlled release “to the soil, or to the
plant or other system on which it is being placed” and remains effective
“over prolonged periods of time under normal plant environmental
conditions” is the disclosed ratio range (FFs 2-4).
Second, we don’t agree that one of ordinary skill in the art would have
found the weight percent of pesticide in Miller’s formulation to be relevant
to Dimitri’s lignin-pesticide composites. Miller’s high-density bolus
formulation, made up of wax, fat, and a metallic compound, is physically
very different from Dimitri’s lignin-pesticide composite. Additionally,
Miller’s bolus is ingested by cattle and remains in the reticulum due to the
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high density of the metallic compound, whereupon digestive action in the
reticulum gradually erodes the bolus and releases the pesticide to the
environment (FFs 6-8). One the other hand, the Examiner has not
established that Dimitri’s composite is fed to livestock at all, rather Dimitri
teaches that it is applied directly to the environment, where the pesticide is
released upon diffusion through or degradation or dissolution of the lignin
(FF3).
Therefore, we agree with Appellants that neither Dimitri nor Miller
would have provided a reason for one of ordinary skill in the art to
substantially reduce the relative amount of pesticide in Dimitri’s pesticide-
lignin composite.
The rejection of claims 1, 4, 16, 17, 56-60, 62, and 63 as unpatentable
over Dimitri and Miller is reversed.

REVERSED

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